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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
Wireless One, Inc.
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(Name of issuer)
Common Stock, par value $.01 per share
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(Title of class of securities)
97652H109
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(CUSIP number)
Arnold L. Chavkin
Chase Capital Partners
380 Madison Avenue
New York, New York 10017
(212) 622-3100
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(Name, address and telephone number of person
authorized to receive notices and communications)
July 29, 1996
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [X]. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Page 1 of __ Pages)
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CUSIP No. 97652H109 13D Page 2 of __ Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Chase Manhattan Capital Corporation
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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*
WC
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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
Delaware
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7 SOLE VOTING POWER
NUMBER OF 0 (See Items 2, 5, and 6)
SHARES ------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,991,690 (See Items 2, 5 and 6)
REPORTING ------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0 (See Items 2, 5 and 6)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,991,690 (See Items 2, 5 and 6)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,991,690 (See Items 2, 5 and 6)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
(Page 2 of __ Pages)
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CUSIP No. 97652H109 13D Page 3 of __ Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Chase Venture Capital Associate, L.P.
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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*
WC
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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
California
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7 SOLE VOTING POWER
NUMBER OF 1,517,979 (See Items 2, 5 and 6)
SHARES ------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0 (See Items 2, 5 and 6)
REPORTING ------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
1,517,979 (See Items 2, 5 and 6)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 (See Items 2, 5 and 6)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,517,979 (See Items 2, 5 and 6)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.0%
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
(Page 3 of __ Pages)
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CUSIP No. 97652H109 13D Page 4 of __ Pages
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- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Baseball 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*
WC and AF
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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
New York
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7 SOLE VOTING POWER
NUMBER OF 0 (See Items 2, 5 and 6)
SHARES ------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 393,226 (See Items 2, 5 and 6)
REPORTING ------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0 (See Items 2, 5 and 6)
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
393,226 (See Items 2, 5 and 6)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
393,226
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.3%
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
(Page 4 of __ Pages)
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Item 1. Security and Issuer.
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The name of the issuer is Wireless One, Inc. (the "Company" or the
"Issuer"). The address of the Issuer's principal executive offices is 11301
Industriplex Boulevard, Suite 4, Baton Rouge, Louisiana 70809-4115. This
statement relates to the Issuer's Common Stock, $.01 par value (the "Common
Stock").
Item 2. Identity and Background.
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This statement is being filed by Chase Manhattan Capital Corporation,
a Delaware corporation ("CMCC"), Chase Venture Capital Associates, L.P., a
California limited partnership ("CVCA"), and Baseball Partners, a New York
general partnership ("Baseball"). The principal offices of CMCC, CVCA and
Baseball are located at c/o Chase Capital Partners, 380 Madison Avenue, 12th
Floor, New York, New York 10017.
CMCC and CVCA are engaged in the venture capital and leveraged buyout
business. The general partner of CVCA is Chase Capital Partners, a New York
general partnership ("CCP"), which is also engaged in the venture capital and
leveraged buyout business and whose principal office is located at the same
address as CVCA.
Mitchell J. Blutt, M.D., and Jeffrey C. Walker are the directors of
CMCC. The executive officers of CMCC are as follows:
Jeffrey C. Walker, Chairman and President
Donna L. Carter, Senior Vice President and Treasurer
Warren P. Leonard, Vice President
P. Jon Masur, Vice President and Controller
Robert C. Carroll, Secretary
Mitchell J. Blutt, M.D., Assistant Secretary.
The address for each of the directors and executive officers of CMCC, each of
whom is a U.S. citizen, is c/o Chase Capital Partners, 380 Madison Avenue, 12th
Floor, New York, New York 10017. CMCC is a wholly-owned subsidiary of The Chase
Manhattan Bank, N.A., a national banking corporation ("Chase Bank"), which in
turn is wholly-owned by Chase Manhattan Corporation, a Delaware corporation
("Chase").
Set forth below are the names of each general partner of CCP who is a
natural person. Each such general partner is a U.S. citizen whose principal
occupation is general partner of CCP and whose business address (except for
Messrs. Ferguson and Soghikian) is c/o Chase Capital Partners, 380 Madison
Avenue, 12th Floor, New York, New York 10017.
Mitchell J. Blutt, M.D.
Arnold L. Chavkin
David L. Ferguson
Donald J. Hofmann
Stephen P. Murray
Brian J. Richmand
Shahan D. Soghikian
Jeffrey C. Walker
(Page 5 of __ Pages)
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Mr. Ferguson's address is c/o Chase Capital Partners, 840 Apollo Street, Suite
223, El Segundo, California 90245. Mr. Soghikian's principal business office
address is c/o Chase Capital Partners, 125 London Wall, London EC2Y5AJ.
Jeffrey C. Walker is the managing general partner of CCP. The
remaining general partners of CCP are Chemical Capital Corporation, a New York
corporation ("Chemical Capital"), and CCP Principals, L.P., a Delaware limited
partnership ("Principals"), each of whose principal office is located at 380
Madison Avenue, 12th Floor, New York, New York 10017. Chemical Capital is a
wholly-owned subsidiary of Chase. The general partners of Principals are Jeffrey
C. Walker and Chemical Capital. Chemical Capital and Principals each are engaged
in the venture capital and leveraged buyout business. Set forth in Schedule A
hereto and incorporated herein by reference are the names, business addresses
and principal occupations or employments of each executive officer and director
of Chemical Capital, each of whom is a U.S. citizen.
Chase Bank is a national banking corporation engaged in the commercial
banking business with its principal office located at 270 Park Avenue, New York,
New York 10017. Set forth on Schedule B hereto and incorporated herein by
reference are the names, business addresses, principal occupations or
employments and citizenship of each executive officer and director of Chase
Bank.
Chase is a Delaware corporation engaged (primarily through
subsidiaries) in the commercial banking business with its principal office
located at 270 Park Avenue, New York, New York 10017. Set forth in Schedule C
hereto and incorporated herein by reference are the names, business addresses,
principal occupations or employments and citizenship of each executive officer
and director of Chase.
Set forth in Schedule D hereto and incorporated herein by reference
are the names, business addresses or residence addresses and principal
occupations or employments of each general partner of Baseball, each of whom is
a U.S. citizen. Baseball is a New York general partnership formed for the
purpose of permitting certain executive officers of CMCC at that time to co-
invest with CMCC in venture capital and leveraged buyout transactions.
To CMCC's, CVCA's and Baseball's knowledge, the responses to Items
2(d) and (e) of Schedule 13D are negative with respect to each such entity and
all persons regarding whom information is required hereunder by virtue of each
such entity's responses to Item 2.
Insofar as the requirements of Items 3-6 inclusive of this Schedule
13D Statement require that in addition to CVCA, CMCC and Baseball the
information called for therein should be given with respect to each of the
persons listed in this Item 2, including CCP, CCP's individual general partners,
Chemical Capital, Chemical Capital's executive officers and directors,
Principals, Principals' controlling partners, Chase, Chase's executive officers
and directors, Chase Bank, Chase Bank's executive officers and directors, and
Baseball's individual general partners, the information provided in Items 3-6
with respect to CVCA, CMCC and Baseball should also be considered fully
responsive with respect to the aforementioned persons who have no separate
interests in the Issuer's Common Stock which is required to be reported
thereunder. Although the definition of "beneficial ownership" in Rule 13d-3
under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
might also be deemed to constitute these persons beneficial owners of the
Issuer's Common Stock acquired by CVCA, CMCC or Baseball, neither
(Page 6 of __ Pages)
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the filing of this statement nor any of its contents shall be deemed an
admission that any of such persons is a beneficial owner of the Issuer's Common
Stock acquired by CVCA, CMCC or Baseball or a member of a group together with
CVCA, CMCC or Baseball either for the purpose of Schedule 13D of the Exchange
Act or for any other purpose with respect to the Issuer's Common Stock.
Item 3. Source and Amount of Funds or Other Consideration.
- ------- --------------------------------------------------
In April 1995, CMCC purchased 8,000 shares of redeemable convertible
preferred stock and warrants to acquire 320,000 shares of common stock of the
predecessor of the Issuer ("Old Wireless One") for aggregate consideration of $8
million paid in cash to Old Wireless One in a private placement of such
securities by Old Wireless One. The funds used by CMCC to acquire such
securities from the Issuer were from its own working capital. Subsequently, in
August 1995 CMCC sold to Baseball 1,319 shares of such preferred stock and
52,768 of such warrants for aggregate consideration of $1,319,000 paid in cash
by Baseball to CMCC in a private transaction. The funds used by Baseball to
acquire such securities from CMCC were from contributed capital (1%) and the
proceeds of a loan (99%) from CMRCC, Inc., a New York corporation ("CMRCC").
CMRCC is a wholly-owned subsidiary of Chase. The loans made by CMRCC are secured
by all of the assets of Baseball Partners, including the securities of the
Issuer held by Baseball. Pursuant to the loan documentation, CMRCC would have
certain rights to vote and/or sell such securities upon the occurrence of
certain loan defaults by Baseball Partners. All such preferred shares and
warrants to purchase shares of common stock held by CMCC and Baseball were then
converted in October 1995 into shares of Common Stock of the Issuer in the
Heartland Transaction (defined below). The Issuer was incorporated in June 1995
for the purpose of effecting the Heartland Transaction.
In October 1995, Heartland Wireless Communications, Inc.
("Heartland"), and all of the stockholders of Old Wireless One consummated the
Heartland Transaction, whereby the Issuer acquired (i) all of the outstanding
capital stock of Old Wireless One through the merger of a subsidiary of the
Issuer with Old Wireless One and (ii) certain assets and liabilities of certain
subsidiaries of Heartland. In connection with the Heartland transaction, all of
the securities of Old Wireless One held by CVCA and Baseball were converted into
1,991,690 shares and 393,226 shares, respectively, of the Issuer's Common Stock
(plus, in each case, certain additional shares of Common Stock of the Issuer
that were placed in escrow and eventually issued and delivered to the
subsidiaries of Heartland in accordance with the escrow terms).
On July 29, 1996, pursuant to the Agreement and Plan of Merger dated
April 25, 1996, among the Company, TruVision Wireless Inc. ("TWI"), and Wireless
One Mergersub, Inc., a Delaware corporation and a wholly owned subsidiary of the
Company ("Mergersub") (as amended by the First Amendment to Agreement and Plan
of Merger, by and among the same parties, dated as of July 29, 1996 (the "First
Amendment to Merger Agreement"), the "Merger Agreement"), Mergersub merged (the
"Merger") with and into TWI, with TWI surviving as a wholly owned subsidiary of
the Company. Attached hereto as Exhibit A is a copy of the Merger Agreement.
Attached hereto as Exhibit B is a copy of the First Amendment to Merger
Agreement.
Immediately prior to the Merger, Mississippi Wireless TV, L.P.
("MWTV"), CVCA and VanCom, Inc., a Mississippi corporation ("VanCom") (VanCom,
CVCA and MWTV, collectively, the "Former TWI Stockholders") owned all 4,600,000
issued and outstanding shares
(Page 7 of __ Pages)
<PAGE>
of common stock, $0.01 par value per share, of TWI (the "TWI Common Stock"). In
the Merger, MWTV, CVCA and VanCom exchanged 2,400,000, 2,140,000 and 60,000
shares of TWI Common Stock, respectively, for the right to receive up to
1,702,406, 1,517,979 and 42,560 shares, respectively (or an aggregate of
3,262,945 shares), of the Issuer's Common Stock (subject to the fulfillment of
certain conditions more fully described below and in the Merger Agreement, the
Non-Acquisition Escrow Agreement and the Acquisition and Market Escrow
Agreement, as defined below). Thus each share of TWI Common Stock was exchanged
in the Merger for the right to receive up to .709 shares of the Issuer's Common
Stock.
At the time of the Merger, MWTV, CVCA and VanCom received 1,490,342,
1,328,889 and 37,259 shares, respectively (or an aggregate of 2,856,490 shares),
of the Issuer's Common Stock, with the remaining 406,455 (aggregate) shares of
the Issuer's Common Stock potentially receivable by the Former TWI Stockholders
being placed in escrow, pursuant to the Merger Agreement.
The Escrow Agreement dated as of July 29, 1996 by and among the
Company, U.S. Trust Company of New York, as escrow agent, and the Former TWI
Stockholders (the "Non-Acquisition Escrow Agreement") (a copy of which is
attached as Exhibit C hereto) provides that (i) 168,667 shares of the Issuer's
Common Stock shall be placed in escrow, a portion or all of which shares shall
be released to the Company in the event that the Company is entitled to
indemnification under the Merger Agreement, and (ii) 34,988 shares of the
Issuer's Common Stock shall be placed into escrow to reimburse the Company to
the extent that the Prior Offering Expenses (as defined in the Merger Agreement)
exceed a certain cost, all as more fully described in the Non-Acquisition Escrow
Agreement. The Non-Acquisition Escrow Agreement further provides that the shares
of the Issuer's Common Stock held in escrow pursuant to the Non-Acquisition
Escrow Agreement shall be issued and held in the name of the escrow agent, and
that the escrow agent grants an irrevocable proxy, coupled with an interest, to
Henry M. Burkhalter, as the Stockholder Representative (as defined in the Non-
Acquisition Escrow Agreement), to vote such shares.
The Acquisition and Market Escrow Agreement made as of July 29, 1996
by and among the Company, U.S. Trust Company of New York, as escrow agent, and
the Former TWI Stockholders (the "Acquisition and Market Escrow Agreement") (a
copy of which is attached hereto as Exhibit D), and, together with the Non-
Acquisition Escrow Agreement, the "Escrow Agreements") provides that (i) 121,447
shares of the Issuer's Common Stock shall be placed in escrow pending the
closing of the acquisition of a certain wireless cable television system in
Huntsville, Alabama, (ii) 36,633 shares of the Issuer's Common Stock shall be
placed in escrow pending the closing of the acquisition of a certain wireless
cable television system in Jackson, Tennessee, and (iii) 44,720 shares of the
Issuer's Common Stock shall be placed in escrow pending TWI's meeting the
"Market Delivery Requirement" (as defined in the Merger Agreement) with respect
to the wireless cable system operated by BarTel, Inc., a wholly owned subsidiary
of TWI, in Demopolis, Alabama. The Acquisition and Market Escrow Agreement
further provides that unless and until they are delivered to the Stockholder
Representative (as defined in the Acquisition and Market Escrow Agreement)
pursuant to the Acquisition and Market Escrow Agreement, the shares of the
Issuer's Common Stock held in escrow pursuant to the Acquisition and Market
Escrow Agreement shall be considered to be treasury shares of the Issuer and
shall not be deemed to be held by the escrow agent, the Stockholder
Representative or any Former TWI Stockholder.
(Page 8 of __ Pages)
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Subsequent to the Merger, the acquisition of the wireless cable
television system in Huntsville, Alabama closed, resulting in the receipt by
MWTV, CVCA and VanCom of an additional 63,364, 56,499 and 1,584 shares,
respectively (or an aggregate of 121,447 shares), of the Issuer's Common Stock.
Thus, 285,008 shares of the Issuer's Common Stock potentially receivable by the
Former TWI Stockholders remain in escrow, and to date, MWTV, CVCA and VanCom
have received 1,553,706, 1,385,388 and 38,843 shares, respectively (or an
aggregate of 2,977,937 shares), of the Issuer's Common Stock.
CVCA, CMCC and Baseball disclaim that they are members of a group with
any other persons either for purposes of this Schedule 13D or for any other
purpose related to their respective beneficial ownership of the Issuer's
securities.
Item 4. Purpose of Transaction.
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The acquisitions of the Issuer's equity securities have been made by
CVCA, CMCC and Baseball for investment purposes. In addition, another purpose of
CVCA's acquisition of the Issuer's securities was to effect the Merger. Although
CVCA, CMCC and Baseball have no present intentions to do so, such entities may
make additional purchases of Common Stock either in the open market or in
privately negotiated transactions, including transactions with the Issuer,
depending on an evaluation of the Issuer's business prospects and financial
condition, the market for the Common Stock, other available investment
opportunities, money and stock market conditions and other future developments.
Depending on these factors, CVCA, CMCC and Baseball may decide to sell all or
part of their respective holdings of the Issuer's Common Stock in one or more
public or private transactions. Such purchases and sales may be subject to
certain restrictions set forth on the Stockholders Agreement described in Item 6
and attached hereto as Exhibit F.
In connection with the Merger, MWTV, CVCA, VanCom, Vision
Communications, Inc. ("VCI"), Henry M. Burkhalter, and certain other holders of
the Common Stock or options to purchase Common Stock of the Company, and the
Company, entered into a Registration Agreement, dated as of July 29, 1996 (the
"Registration Agreement"). The Registration Agreement provides, among other
things, that the holders of a majority of the Common Stock issued to CMCC,
Baseball and CVCA have the right, subject to certain conditions, to require the
Company to register any or all of such Common Stock under the Securities Act on
Form S-1 on three occasions at the Company's expense and on Form S-2 or S-3 on
an additional three occasions at the Company's expense. The holders or any such
shares of Common Stock are also entitled to request the inclusion of any Common
Stock subject to the Registration Agreement in any registration statement at the
Company's expense whenever the Company proposes to register any of its
securities under the Securities Act, subject to certain conditions, all as more
fully described in the Registration Agreement, a copy of which is attached
hereto as Exhibit E.]
Except as set forth in this Item 4, neither CVCA, CMCC nor Baseball
have present plans or proposals that relate to or would result in any of the
actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. However,
CVCA, CMCC and Baseball reserve the right to propose or participate in future
transactions which may result in one or more of such actions, including but not
limited to, an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, of a material amount of assets of the Issuer or
its subsidiaries, or other transactions which might have the effect of causing
the Issuer's Common Stock to cease to
(Page 9 of __ Pages)
<PAGE>
be listed on the NASDAQ National Market System or causing the Common Stock to
become eligible for termination of registration, under Section 12(g) of the
Exchange Act.
Item 5. Interest in Securities of the Issuer.
- ------- -------------------------------------
CMCC is deemed to be the beneficial owner of 1,991,690 shares of the
Issuer's Common Stock. CMCC's deemed beneficial ownership represents 11.8% of
the Common Stock outstanding at July 29, 1996. As disclosed in Items 2, 5 and 6,
CMCC has shared voting and dispositive power with respect to such shares of
Common Stock.
CVCA is deemed to be the beneficial owner of 1,517,979 shares of the
Issuer's Common Stock. CVCA's deemed beneficial ownership represents 9.0% of the
Common Stock outstanding at July 29, 1996. Except as may otherwise be disclosed
in Items 2, 5 and 6, CVCA has sole voting and dispositive powers with respect to
such shares of Common Stock.
Baseball is deemed to be the beneficial owner of 393,226 shares of the
Issuer's Common Stock. Baseball's deemed beneficial ownership represents 2.3% of
the Common Stock outstanding at July 29, 1996. As disclosed in Items 2, 5 and 6,
Baseball has shared voting or dispositive power with respect to such shares of
Common Stock.
All such ownership percentages of the Issuer's Common Stock reported
herein are based on information provided to the Former TWI Stockholders by the
Company in connection with the Merger that there were 13,498,752 issued and
outstanding shares of the Company immediately prior to the Merger and are
reported herein to the best knowledge and belief of the reporting persons.
Except as reported in Items 3-6 below and incorporated herein by
reference, there have been no transactions in the Common Stock during the past
sixty days which are required to be reported in this Statement. No person other
than CVCA, CMCC and Baseball has the right to receive or the power to direct the
receipt of dividends from or the proceeds from the sale of the Common Stock
owned beneficially by CVCA, CMCC or Baseball, respectively.
Item 6. Contracts, Arrangements, Understandings or
- ------- Relationships With Respect to Securities of the Issuer.
-------------------------------------------------------
Reference is made to the information disclosed under Items 2, 3 and 4
of this Statement which is incorporated by reference in response to this Item.
In addition to such information, the following contracts, arrangements,
understandings or relationships are reported hereunder.
CCP is the sole general partner of CVCA and acts as investment manager
for CMCC, and has a pecuniary interest in the securities of the Issuer held by
such persons, but the amount of such interest is not readily determinable
because it is contingent on numerous factors, including vesting and CVCA's and
CMCC's respective rates of return. Baseball has agreed to give CCP a proxy to
vote the securities of the Issuer held by Baseball. Baseball has also agreed to
enter into certain "co-sale" and "drag along" agreements with CMCC and CCP with
respect to the respective securities of the Issuer held by Baseball and CMCC. As
a result of these arrangements and relationships, (i) CCP and its controlling
persons may be deemed to have voting and dispositive power with respect to the
securities of the Issuer held by CVCA, CMCC and Baseball (constituting in the
aggregate 3,954,249 shares of Common Stock of the Issuer,
(Page 10 of __ Pages)
<PAGE>
representing an aggregate of approximately 23% of the Issuer's total outstanding
Common Stock), and (ii) CMCC may be deemed to have voting and dispositive power
with respect to the securities of the Issuer held by Baseball.
In connection with the consummation of the Merger, certain
stockholders of the Company, including CMCC, CVCA and Baseball (collectively,
the "Chase Entities"), Hans Sternberg, Sean Reilly, Premier Venture Capital
Corporation ("Premier"), Advantage Capital Partners, Limited Partnership
("Advantage I"), Advantage Capital Partners II, Limited Partnership ("Advantage
II", and, together with Hans Sternberg, Sean Reilly, Premier, and Advantage I,
the "Wireless One Holders"), Heartland and certain of its subsidiaries
(collectively "Heartland"), MWTV, VCI and VanCom (MWTV, VCI and VanCom,
collectively, the "Non-Chase Former TruVision Holders") and the Company, entered
into an Amended and Restated Stockholders Agreement, dated as of July 29, 1996
(the "Stockholders Agreement"). A copy of the Stockholders Agreement is attached
hereto as Exhibit F.
Pursuant to the Stockholders Agreement, the parties thereto agreed to
vote their Common Stock so that the Board of Directors of the Company (the
"Board") will have nine members, one of whom will be designated by a majority of
the shares of Common Stock held by the Non-Chase Former TruVision Holders (who
shall initially be Henry M.Burkhalter), three of whom will be designated by a
majority of the shares of Common Stock held by Heartland (at least one of whom
must be independent of Heartland, the Company and the Wireless One Holders) (the
independent director of which shall initially be Daniel L. Shimer and the two
other directors of which shall initially be David E. Webb and J.R. Holland,
Jr.), three of whom will be designated by a majority of the shares of Common
Stock held by the Wireless One Holders (at least one of whom must be independent
of Heartland, the Company and the Wireless One Holders) (the independent
director of which shall initially be William K. Luby, and the other directors of
which shall initially be Sean Reilly and Hans Sternberg), and two of whom will
be designated by the Chase Entities (who shall initially be Arnold Chavkin and
William Van Devender).
The Stockholders Agreement provides, among other things, that (i) no
party to the Stockholders Agreement shall transfer its shares of Common Stock
(other than in a public sale) unless the transferee becomes a party to the
Stockholders Agreement, and (ii) until October 24, 1998, the parties to the
Stockholders Agreement may not (without prior approval of the Board), (a)
acquire (subject to certain exceptions described in the Stockholders Agreement)
any additional equity securities of the Company, (b) solicit proxies or consents
in opposition to solicitations made by or on behalf of the Board or (c) other
than in connection with the Stockholders Agreement, act together with any other
person to acquire, hold, vote or dispose of securities of the Company.
The Reporting Persons believe, based upon the Schedule 14A filed by
the Company on May 24, 1996 in connection with the Merger, that the parties to
the Stockholders Agreement collectively beneficially own an aggregate of
approximately 10,634,802 shares of Common Stock, representing approximately
62.5% of the outstanding Common Stock, including 78,015 shares of Common Stock
which Henry Burkhalter has the power, under his options, to purchase within 60
days, and those shares of Common Stock presently held in escrow pursuant to the
Escrow Agreements.
Except as described in this statement and as provided in the Merger
Agreement and the Stockholders Agreement, none of the Reporting Persons
(directly or indirectly), has any
(Page 11 of __ Pages)
<PAGE>
contracts, arrangements, understandings or relationships (legal or otherwise)
with each other or with any person with respect to any securities of the
Company.
Copies of the Merger Agreement, the First Amendment to Merger
Agreement, the Non-Acquisition Escrow Agreement, the Acquisition and Market
Escrow Agreement, the Registration Agreement, and the Stockholders are attached
hereto as Exhibits A, B, C, D, E, and F, respectively, and are incorporated
herein by this reference. The descriptions of such documents set forth herein do
not purport to be complete and are qualified in their entirety by reference to
such documents.
Item 7. Material to be Filed as Exhibits.
- ------- ---------------------------------
Exhibit A - Merger Agreement
Exhibit B - First Amendment to Merger Agreement
Exhibit C - Non-Acquisition Escrow Agreement
Exhibit D - Acquisition and Market Escrow Agreement
Exhibit E - Registration Agreement
Exhibit F - Stockholders Agreement
SCHEDULE A
- ----------
Item 2 information for executive officers and directors of Chemical
Capital Corporation.
SCHEDULE B
- ----------
Item 2 information for executive officers and directors of The Chase
Manhattan Bank, N.A.
SCHEDULE C
- ----------
Item 2 information for executive officers and directors of Chase
Manhattan Corporation.
SCHEDULE D
- ----------
Item 2 information for general partners of Baseball Partners.
(Page 12 of __ Pages)
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ Jeffrey C. Walker
----------------------------------
Partner
Date: August 8, 1996
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
CHASE MANHATTAN CAPITAL CORPORATION
By: /s/ Jeffrey C. Walker
-------------------------------------
President
Date: August 8, 1996
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BASEBALL PARTNERS
By: /s/ Christopher C. Behrens
-----------------------------------
Partner
Date: August 8, 1996
<PAGE>
SCHEDULE A
----------
CHEMICAL CAPITAL CORPORATION
Executive Officers
------------------
President Jeffrey C. Walker/**/
Executive Vice President Mitchell J. Blutt, M.D./**/
Vice President & Secretary Gregory Meridith/*/
Vice President & Treasurer Donna L. Carter/**/
Assistant Secretary Robert C. Carroll/*/
Directors
---------
William B. Harrison, Jr./*/
Jeffrey C. Walker/**/
- ----------------------
/*/ Principal occupation is employee and/or officer of Chase. Business address
is c/o Chase Manhattan Corporation, 270 Park Avenue, New York, New York 10017.
/**/ Principal occupation is employee of Chase and/or general partner of Chase
Capital Partners. Business address is c/o Chase Capital Partners, 380 Madison
Avenue, 12th Floor, New York, NY 10017.
(Page 16 of __ Pages)
<PAGE>
SCHEDULE B
----------
THE CHASE MANHATTAN BANK, N.A.
Executive Officers/*/
------------------
Walter V. Shipley, Chairman and CEO
Edward D. Miller, Senior Vice Chairman
Thomas G. Labrecque, President and COO
William B. Harrison, Jr., Vice Chairman
- --------------------
/*/ Principal occupation is executive officer and/or employee of The Chase
Manhattan Bank, N.A. Business address is c/o The Chase Manhattan Bank, N.A.,
270 Park Avenue, New York, New York 10017.
(Page 17 of Pages)
<PAGE>
SCHEDULE B
----------
THE CHASE MANHATTAN BANK, N.A.
Directors
---------
Each of the persons named below is a citizen of the Unites States of
America, except for John H. McArthur who is a citizen of Canada.
================================================================================
Principal Occupation or Employment; Business or
Name Residence Address
- --------------------------------------------------------------------------------
Frank A. Bennack, Jr. President and Chief Executive Officer
The Hearst Corporation
959 Eighth Avenue
New York, New York 10019
- --------------------------------------------------------------------------------
Michael C. Bergerac Chairman of the Board and Chief
Executive Officer
Bergerac & Co., Inc.
110 East 59th Street, 20th Floor
New York, New York 10022
- --------------------------------------------------------------------------------
Susan V. Berresford President
The Ford Foundation
320 E. 43rd Street
New York, New York 10017
- --------------------------------------------------------------------------------
Randolph W. Broomery President
Springfield College
263 Alden Street
Springfield, Massachusetts 01109
- --------------------------------------------------------------------------------
M. Anthony Burns Chairman of the Board, President and
Chief Executive Officer
Ryder System, Inc.
2800 N.W. 82nd Avenue
Miami, Florida 33166
- --------------------------------------------------------------------------------
Charles W. Duncan, Jr. Private Investor
Duncan Interests
600 Travis, Suite 6100
Houston, Texas 77002
- --------------------------------------------------------------------------------
James L. Ferguson Retired Chairman and Chief Executive
Officer
General Foods Corporation
P.O. Box 1457
Charleston, South Carolina 29401
- --------------------------------------------------------------------------------
(Page 18 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
H. Laurence Fuller Chairman of the Board and Chief
Executive Officer
Amoco Corporation
200 East Randolph Drive
Chicago, Illinois 60601
- --------------------------------------------------------------------------------
Melvin R. Goodes Chairman of the Board and Chief
Executive Officer
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
- --------------------------------------------------------------------------------
William H. Gray, III President and Chief Executive Officer
United Negro College Fund, Inc.
9860 Willow Oaks Corporate Drive
P.O. Box 10444
Fairfax, Virginia 22031
- --------------------------------------------------------------------------------
George V. Grune Chairman of the Board
Dewitt Wallace Reader's Digest Fund
Lila Wallace-Reader's Digest Fund
Two Park Avenue
New York, New York 10016
- --------------------------------------------------------------------------------
William B. Harrison, Jr. Vice Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Harold S. Hook Chairman and Chief Executive Officer
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
- --------------------------------------------------------------------------------
Helene L. Kaplan Of Counsel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue - Room 39-72
New York, New York 10022
- --------------------------------------------------------------------------------
David T. Kearns Retired Chairman and Chief Executive
Officer
The Xerox Corporation
P.O. Box 10340
Stamford, Connecticut 06904-2240
- --------------------------------------------------------------------------------
Thomas G. Labrecque President and Chief Operating Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
(Page 19 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
Delano E. Lewis President and Chief Executive Officer
National Public Radio
635 Massachusetts Avenue, N.W. -
6th Floor
Washington, DC 90001
- --------------------------------------------------------------------------------
J. Bruce Llewellyn Chairman of the Boards of
The Philadelphia Coca-Cola Bottling Company
The Coca-Cola Bottling Company of
Wilmington, Inc.
Queen City Broadcasting, Inc.
30 Rockefeller Plaza, 29th Floor
New York, New York 10112
- --------------------------------------------------------------------------------
Paul W. MacAvoy William Brothers Professor of
Management Studies
Yale School of Management
P.O. Box 208200
New Haven, CT 06520-3200
- --------------------------------------------------------------------------------
John P. Mascotte Chairman
The Missouri Corporation of Johnson & Higgins
4530 Main Street, Suite 900
Kansas City, Missouri 64111
George Fisher Baker Professor,
Emeritus
Harvard Graduate School of Business
Administration
Fowler 32 - Soldiers Field Road
Boston, Massachusetts 02168
- --------------------------------------------------------------------------------
John F. McGillicuddy Retired Chairman of the Board and
Chief Executive Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Edward D. Miller Senior Vice Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Edmund T. Pratt, Jr. Chairman Emeritus
Pfizer Inc.
Astors Lane
Port Washington, New York 11050
- --------------------------------------------------------------------------------
Henry B. Schacht Chairman of the Board and Chief
Executive Officer
Lucent Technologies Inc.
600 Mountain Avenue, Rm. 6A611
Murray Hill, New Jersey 07974
- --------------------------------------------------------------------------------
(Page 20 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
Walter V. Shipley Chairman of the Board and Chief
Executive Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Andrew C. Sigler Chairman of the Board and Chief
Executive Officer
Champion International Corporation
One Champion Plaza
Stamford, Connecticut 06921
- --------------------------------------------------------------------------------
Michael I. Sovern President Emeritus and
Chancellor Kent
Professor of Law
Columbia University
435 West 116th Street and Amsterdam Avenue
New York, New York 10027
- --------------------------------------------------------------------------------
John E. Stafford Chairman, President and Chief
Executive Officer
American Home Products Corporation
5 Giralda Farms
Madison, New Jersey 07940
- --------------------------------------------------------------------------------
W. Bruce Thomas Private Investor
Blackburn Road, Route 64
Sewickley, Pennsylvania 15143
================================================================================
(Page 21 of __ Pages)
<PAGE>
SCHEDULE C
----------
CHASE MANHATTAN CORPORATION
Executive Officers/*/
------------------
Walter V. Shipley, Chairman and CEO
Edward D. Miller, Senior Vice Chairman
Thomas G. Labrecque, President and COO
William B. Harrison, Jr., Vice Chairman
/*/ Principal occupation is executive officer and/or employee of The Chase
Manhattan Bank. Business address is c/o The Chase Manhattan Bank, 270 Park
Avenue, New York, New York 10017.
(Page 22 of __ Pages)
<PAGE>
SCHEDULE C
----------
CHASE MANHATTAN CORPORATION
Directors
---------
Each of the persons named below is a citizen of the Unites States of
America, except for John H. McArthur who is a citizen of Canada.
================================================================================
Principal Occupation or Employment; Business or
Name Residence Address
- --------------------------------------------------------------------------------
Frank A. Bennack, Jr. President and Chief Executive Officer
The Hearst Corporation
959 Eighth Avenue
New York, New York 10019
- --------------------------------------------------------------------------------
Michael C. Bergerac Chairman of the Board and Chief
Executive Officer
Bergerac & Co., Inc.
110 East 59th Street, 20th Floor
New York, New York 10022
- --------------------------------------------------------------------------------
Susan V. Berresford President
The Ford Foundation
320 E. 43rd Street
New York, New York 10017
- --------------------------------------------------------------------------------
Randolph W. Broomery President
Springfield College
263 Alden Street
Springfield, Massachusetts 01109
- --------------------------------------------------------------------------------
M. Anthony Burns Chairman of the Board, President and
Chief Executive Officer
Ryder System, Inc.
2800 N.W. 82nd Avenue
Miami, Florida 33166
- --------------------------------------------------------------------------------
Charles W. Duncan, Jr. Private Investor
Duncan Interests
600 Travis, Suite 6100
Houston, Texas 77002
- --------------------------------------------------------------------------------
James L. Ferguson Retired Chairman and Chief Executive
Officer
General Foods Corporation
P.O. Box 1457
Charleston, South Carolina 29401
- --------------------------------------------------------------------------------
(Page 23 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
H. Laurence Fuller Chairman of the Board and Chief
Executive Officer
Amoco Corporation
200 East Randolph Drive
Chicago, Illinois 60601
- --------------------------------------------------------------------------------
Melvin R. Goodes Chairman of the Board and Chief
Executive Officer
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
- --------------------------------------------------------------------------------
William H. Gray, III President and Chief Executive Officer
United Negro College Fund, Inc.
9860 Willow Oaks Corporate Drive
P.O. Box 10444
Fairfax, Virginia 22031
- --------------------------------------------------------------------------------
George V. Grune Chairman of the Board
Dewitt Wallace Reader's Digest Fund
Lila Wallace-Reader's Digest Fund
Two Park Avenue
New York, New York 10016
- --------------------------------------------------------------------------------
William B. Harrison, Jr. Vice Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Harold S. Hook Chairman and Chief Executive Officer
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
- --------------------------------------------------------------------------------
Helene L. Kaplan Of Counsel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue - Room 39-72
New York, New York 10022
- --------------------------------------------------------------------------------
David T. Kearns Retired Chairman and Chief Executive
Officer
The Xerox Corporation
P.O. Box 10340
Stamford, Connecticut 06904-2240
- --------------------------------------------------------------------------------
Thomas G. Labrecque President and Chief Operating Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
(Page 24 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
Delano E. Lewis President and Chief Executive Officer
National Public Radio
635 Massachusetts Avenue, N.W. -
6th Floor
Washington, DC 90001
- --------------------------------------------------------------------------------
J. Bruce Llewellyn Chairman of the Boards of
The Philadelphia Coca-Cola Bottling Company
The Coca-Cola Bottling Company of
Wilmington, Inc.
Queen City Broadcasting, Inc.
30 Rockefeller Plaza, 29th Floor
New York, New York 10112
- --------------------------------------------------------------------------------
Paul W. MacAvoy William Brothers Professor of
Management Studies
Yale School of Management
P.O. Box 208200
New Haven, CT 06520-3200
- --------------------------------------------------------------------------------
John P. Mascotte Chairman
The Missouri Corporation of Johnson & Higgins
4530 Main Street, Suite 900
Kansas City, Missouri 64111
George Fisher Baker Professor,
Emeritus
Harvard Graduate School of Business
Administration
Fowler 32 - Soldiers Field Road
Boston, Massachusetts 02168
- --------------------------------------------------------------------------------
John F. McGillicuddy Retired Chairman of the Board and
Chief Executive Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Edward D. Miller Senior Vice Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Edmund T. Pratt, Jr. Chairman Emeritus
Pfizer Inc.
Astors Lane
Port Washington, New York 11050
- --------------------------------------------------------------------------------
Henry B. Schacht Chairman of the Board and Chief
Executive Officer
Lucent Technologies Inc.
600 Mountain Avenue, Rm. 6A611
Murray Hill, New Jersey 07974
- --------------------------------------------------------------------------------
(Page 25 of __ Pages)
<PAGE>
- --------------------------------------------------------------------------------
Walter V. Shipley Chairman of the Board and Chief
Executive Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
- --------------------------------------------------------------------------------
Andrew C. Sigler Chairman of the Board and Chief
Executive Officer
Champion International Corporation
One Champion Plaza
Stamford, Connecticut 06921
- --------------------------------------------------------------------------------
Michael I. Sovern President Emeritus and
Chancellor Kent
Professor of Law
Columbia University
435 West 116th Street and Amsterdam Avenue
New York, New York 10027
- --------------------------------------------------------------------------------
John E. Stafford Chairman, President and Chief
Executive Officer
American Home Products Corporation
5 Giralda Farms
Madison, New Jersey 07940
- --------------------------------------------------------------------------------
W. Bruce Thomas Private Investor
Blackburn Road, Route 64
Sewickley, Pennsylvania 15143
================================================================================
(Page 26 of __ Pages)
<PAGE>
SCHEDULE D
----------
BASEBALL PARTNERS
General Partners
----------------
Each of the persons named below is a general partner of Baseball
Partners and is a citizen of the United States of America:
================================================================================
Name Principal Business
Occupation or Residence Address
or Employment
- --------------------------------------------------------------------------------
Christopher C. Behrens Principal, Chase Chase Capital Partners
Capital 380 Madison Avenue
Partners 12th Floor
New York, New York 10017
- --------------------------------------------------------------------------------
Robert L. Egan President, Victory Capital
Victory Capital 667 Madison Avenue
25th Floor
New York, New York 10017
- --------------------------------------------------------------------------------
Edward T. Irwin Vice President, Banque Paribas
Banque Paribas 787 Seventh Avenue
New York, New York 10019
- --------------------------------------------------------------------------------
William K. Luby Consultant 179 Bingham Avenue
Rumson, New Jersey 07760
- --------------------------------------------------------------------------------
Howard D. Unger Consultant Ten Randon Farms Circle
Chappaqua, New York
10514
- --------------------------------------------------------------------------------
Maria Willets Consultant 2 West 67th Street
Apt. 8B
New York, New York 10023
=============================================================================
(Page 27 of __ Pages)
<PAGE>
EXHIBIT A
MERGER.FIN
AGREEMENT AND PLAN OF MERGER
DATED AS OF APRIL 25, 1996
AMONG
TRUVISION WIRELESS, INC.
(A DELAWARE CORPORATION)
AND
WIRELESS ONE MERGERSUB, INC.
(A DELAWARE CORPORATION)
AND
WIRELESS ONE, INC.
(A DELAWARE CORPORATION)
<PAGE>
MERGER.FIN
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made and entered
into as of the 25th day of April, 1996, by and among TRUVISION WIRELESS, INC., a
Delaware corporation ("TWI"), WIRELESS ONE MERGERSUB, INC., a Delaware
corporation ("MergerSub") and WIRELESS ONE, INC., a Delaware corporation
("WOI").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of TWI, MergerSub and WOI have
approved the merger of MergerSub with and into TWI pursuant and subject to the
terms and conditions of this Agreement (the "Merger"), whereby each issued and
outstanding share of common stock, par value $0.01 per share, of TWI at the
Effective Time ("TWI Common Share") will be converted into the right to receive
the Per-Share Portion of the Conversion Amount for such TWI Common Share; and
WHEREAS, TWI, MergerSub and WOI contemplate that the Merger will be
classified as a tax-free reorganization pursuant to Section 368(a)(i)(B) of the
Code; and
WHEREAS, TWI, MergerSub and WOI desire to make certain representations,
warranties and agreements in connection with the Merger and also to set forth
the various conditions to the Merger; and
WHEREAS, the respective Boards of Directors of TWI, MergerSub and WOI have
adopted resolutions approving this Agreement; and
WHEREAS, the terms used in this Agreement shall have the meanings
respectively ascribed to them in Article 11.1 hereof.
NOW, THEREFORE, the parties hereto hereby adopt the above recitals and
agree as follows:
ARTICLE 1. THE MERGER
1 THE MERGER. At the Effective Time, MergerSub will merge with and
into TWI in accordance with the terms and conditions of this Agreement. TWI
shall be the corporation surviving the Merger (the "Surviving Corporation") and
shall continue to be governed by the laws of the State of Delaware. The Merger
shall have the effects specified under the Delaware General Corporation Law
("DGCL").
AGREEMENT AND PLAN OF MERGER - PAGE 1
<PAGE>
MERGER.FIN
2 EFFECT OF THE MERGER
(A) EFFECTIVE TIME. At the Effective Time, subject in all
instances to each of the terms, conditions, provisions and limitations contained
in this Agreement, (i) MergerSub will merge with and into TWI by the filing with
the Secretary of the State of Delaware of a Certificate of Merger; (ii) each TWI
Common Share outstanding at the Effective Time, by said occurrence and with no
further action on the part of the holder thereof, shall be transformed and
converted into the right to receive, upon surrender of the certificate for such
TWI Common Share, the Per-Share Portion of the Merger Shares for such TWI Common
Share without interest or any similar payment thereon or with respect thereto;
(iii) each share of common stock of MergerSub outstanding prior to the Merger
will, by said occurrence and with no further action on the part of the holder
thereof, be transformed and converted into one share of common stock of the
Surviving Corporation, so that thereafter WOI will be the sole and exclusive
owner of all equity securities of the Surviving Corporation; and (iv) the
Surviving Corporation shall be the owner of all of the business, assets, rights
and other attributes thereto of, or held by, either TWI or MergerSub.
(B) MERGER SHARES. On the Closing Date, the Outstanding TWI
Shares, in the aggregate, shall be converted into the right to receive the
number of WOI Common Shares equal to the "Merger Shares," which shall consist of
the aggregate of (i) the Non-Contingent Amount, (ii) upon the expiration of the
General Escrow Period, the General Contingent Amount, (iii) if the Gadsden
Acquisition has not been consummated prior to the Effective Time, then the
Gadsden Contingent Amount, if and when the Gadsden Acquisition is consummated
and the Market Delivery Requirement is satisfied with respect to the Gadsden,
Alabama market, (iv) if the Huntsville Acquisition has not been consummated
prior to the Effective Time, the Huntsville Contingent Amount, if and when the
Huntsville Acquisition is consummated and the Market Delivery Requirement is
satisfied with respect to the Huntsville, Alabama market, (v) if the Jackson
Acquisition has not been consummated prior to the Effective Time, then the
Jackson Contingent Amount, if and when the Jackson Acquisition is consummated
and the Market Delivery Requirement is satisfied with respect to the Jackson,
Tennessee market, (vi) if the Memphis Acquisition has not been consummated prior
to the Effective Time, then the Memphis Contingent Amount, if and when the
Memphis Acquisition is consummated and the Market Delivery Requirement is
satisfied with respect to the Memphis, Tennessee Market, and (vii) as and when
additional WOI Common Shares become issuable pursuant to Section 10.3, the WOI
Contingent Amount. As used herein:
(A) the "General Contingent Amount" shall mean 168,667 WOI
Common Shares, subject to reduction as provided herein and in accordance
with the terms of the General Escrow Agreement;
(B) if the Gadsden Acquisition is consummated prior to the
Effective Time, then the "Gadsden Contingent Amount" shall mean zero (0)
WOI Common Shares,
AGREEMENT AND PLAN OF MERGER - PAGE 2
<PAGE>
MERGER.FIN
and if the Gadsden Acquisition is not consummated prior to the Effective
Time, then the "Gadsden Contingent Amount" shall mean 258,793 WOI Common
Shares;
(C) if the Huntsville Acquisition is consummated prior to the
Effective Time, then the "Huntsville Contingent Amount" shall mean zero (0)
WOI Common Shares, and if the Huntsville Acquisition is not consummated
prior to the Effective Time, then the "Huntsville Contingent Amount" shall
mean 121,447 WOI Common Shares;
(D) if the Jackson Acquisition is consummated prior to the
Effective Time, then the "Jackson Contingent Amount" shall mean zero (0)
WOI Common Shares, and if the Jackson Acquisition is not consummated prior
to the Effective Time, then the "Jackson Contingent Amount" shall mean
36,633 WOI Common Shares;
(E) if the Memphis Acquisition is consummated prior to the
Effective Time, then the "Memphis Contingent Amount" shall mean zero (0)
WOI Common Shares, and if the Memphis Acquisition is not consummated prior
to the Effective Time, then the "Memphis Contingent Amount" shall mean
731,167 WOI Common Shares;
(F) the "Non-Contingent Amount" shall mean (1) the number of
Base Shares, reduced by (2) 168,667, and further reduced by (3) the
aggregate of the Acquisition Contingent Amounts;
(G) the "Acquisition Contingent Amounts" means the Gadsden
Contingent Amount, the Huntsville Contingent Amount, the Jackson Contingent
Amount and the Memphis Contingent Amount;
(H) the "Market Delivery Requirement" shall be deemed to have
been satisfied with respect to any Market at the time in question if, at
such time, at least 12 Channels licensed by the FCC to, or leased to, TWI
or any of its Subsidiaries in such Market are both Granted Channels and
Good Channels;
(I) A "Granted Channel" means a Channel authorized by
conditional license, license or construction authorization (in each case,
other than a STA, experimental or developmental authorization) which is in
full force and effect, validly issued, not subject to a pending revocation
proceeding, not in jeopardy of cancellation under FCC Rule 21.303 for
removal of equipment, and not subject to forfeiture for any failure to meet
a condition of the instrument; and
(J) A "Good Channel" means a Channel as to which at the time in
question (1) if such Channel has been authorized pursuant to a construction
authorization, either the last date for construction printed on such
construction authorization has not occurred or such Channel is the subject
of a pending application for the extension of such last date which was
filed prior to such last date, (2) each Consent, if any, which is
AGREEMENT AND PLAN OF MERGER - PAGE 3
<PAGE>
MERGER.FIN
required with respect to such Channel (including under the related TWI
Channel Lease, if any) has been obtained and is in effect, (3) if such
Channel is the subject of a TWI Channel Lease, then such Channel Lease is
in full force and effect, such TWI Channel Lease is not subject to
termination at the option of the TWI Lessor, and no party to such TWI
Channel Lease is in default or breach in any material respect under such
Channel Lease, (4) if such Channel is an MDS Channel, then TWI or a
Subsidiary of TWI has full-time use of the capacity of such Channel, and
(5) in the case of a Channel which is the subject of a Specified
Acquisition, such Specified Acquisition has been consummated and there have
been obtained all consents, approvals, authorizations and waivers of any
public, government or regulatory body, authority, agency or unit and any
and all consents, approvals, authorizations and waivers from parties to any
contract or agreement related thereto or any other person that are required
for the lawful consummation of such Specified Acquisition or are necessary
for TWI and its Subsidiaries to conduct their operations with respect to
such Channel after the consummation of such Specified Acquisition.
Notwithstanding the foregoing, if at the Effective Time the Market Delivery
Requirement has not been satisfied with respect to any Owned Market (a "Non-
Delivery Market"), then there shall be withheld from the Non-Contingent Amount a
number of WOI Common Shares which is equal to the number of shares specified on
the attached Exhibit 1.2(b) for such Owned Market (the "Market Delivery
Contingent Shares" for such Owned Market). The Market Delivery Contingent
Shares for any Non-Delivery Market shall be restored to the Non-Contingent
Amount if and when, after the Effective Time, the Market Delivery Requirement is
satisfied with respect to such Non-Delivery Market.
Except as set forth in Section 7.3(d), the fact that any Channel or Channels are
not Granted Channels or Good Channels shall not (i) constitute a breach of any
representation, warranty, covenant or agreement set forth herein or failure of
any condition set forth herein to be satisfied, (ii) be considered in
determining whether or not there has been a Material Adverse Effect with respect
to TWI or (iii) constitute the basis or part of the basis for any right of WOI
not to proceed with the Closing.
The respective quantities of WOI Common Shares which constitute the General
Contingent Amount, the Gadsden Contingent Amount, the Huntsville Contingent
Amount, the Jackson Contingent Amount, the Memphis Contingent Amount and any
Market Delivery Contingent Amount will be (x) proportionately increased to
reflect any stock dividend, stock split or other subdivision of the WOI Common
Shares effected after the date of this Agreement and prior to the Effective
Time, and (y) proportionately decreased to reflect any reverse stock split or
other combination of the WOI Common Shares which is effected after the date of
this Agreement and prior to the Effective Time.
(C) BASE SHARES; ADJUSTMENTS. As used herein, the "Base Shares"
means the number of WOI Common Shares equal to the Aggregate Initial Share
Amount minus
AGREEMENT AND PLAN OF MERGER - PAGE 4
<PAGE>
MERGER.FIN
the Adjustment Shares, and the "Adjustment Shares" means the number of WOI
Common Shares equal to the Adjustment Amount divided by the Exchange Price. As
used herein, the term "Adjustment Amount" means
(i) the product of (A) 14,200 minus the number of Bona Fide
Subscribers in the Existing Markets on March 31, 1996 multiplied by (B)
$1,275; plus
----
(ii) the amount of the Net GAAP Debt as of March 31, 1996 in
excess of the amount of the Permitted Net GAAP Debt; plus
----
(iii) the excess of the
aggregate amount of all Prior Offering Expenses over $1,000,000; plus
----
(iv) the aggregate amount of any payments to TWI's officers,
directors, employees or any of TWI's or their Affiliates in violation of
the terms of this Agreement; and
(v) the aggregate amount of any payments made or required to
be made pursuant to the terms of all TWI Channel Leases by reason of the
Merger (other than the acceleration of any scheduled amount which would
otherwise be payable pursuant to any TWI Channel Lease) in excess of
$60,000.
(D) OUTSTANDING TWI SHARES. As used herein, the "Outstanding TWI
Shares" means the TWI Common Shares which are outstanding immediately prior to
the Effective Time.
(E) CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION.
The certificate of incorporation of the Surviving Corporation shall be the
certificate of incorporation of MergerSub immediately prior to the Effective
Time.
(F) BYLAWS OF THE SURVIVING CORPORATION. The bylaws of the
Surviving Corporation shall be the bylaws of MergerSub immediately prior to the
Effective Time.
(G) BOARD OF DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. The board of directors and officers of MergerSub immediately prior
to the Effective Time shall be the board of directors and the officers of the
Surviving Corporation, respectively, immediately upon the Effective Time, and
such persons shall serve in such positions for the respective terms provided by
applicable Legal Requirements or in the bylaws of the Surviving Corporation and
until their respective successor s are elected and qualified.
(H) WOI TO ESTABLISH ESCROWS.
AGREEMENT AND PLAN OF MERGER - PAGE 5
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MERGER.FIN
(i) United States Trust Company of New York, or another person
who is selected prior to the Effective Time by TWI and WOI, shall act as
the General Escrow Agent, the Acquisition Escrow Agent and the Market
Delivery Escrow Agent for purposes of administering the distribution of the
General Contingent Amount, the Acquisition Contingent Amounts, if any, and
the Market Delivery Contingent Shares, if any, respectively. In the event
United States Trust Company of New York or any other person so selected is
unable or unwilling to act as the General Escrow Agent, the Acquisition
Escrow Agent or the Market Delivery Escrow Agent, then TWI and WOI shall,
upon mutual agreement, seek to select a comparable party to act as such.
Neither WOI nor TWI will unreasonably withhold its approval of any
financial institution proposed by the other of them to act as the General
Escrow Agent, the Acquisition Escrow Agent or the Market Delivery Escrow
Agent.
(ii) WOI Common Shares representing the General Contingent
Amount shall be held by the General Escrow Agent pursuant to the terms of
an Escrow Agreement (the "General Escrow Agreement") in the form attached
hereto as Exhibit 1.2(h).
--------------
(iii) WOI Common Shares representing the Acquisition Contingent
Amounts, if any, shall be held by the Acquisition Escrow Agent pursuant to
the terms of an escrow agreement (the "Acquisition Escrow Agreement") which
will provide for the release of the WOI Common Shares constituting the
Acquisition Contingent Amount for any Specified Acquisition upon the later
of the consummation after the Effective Time of such Specified Acquisition
and the satisfaction of the Market Delivery Requirement with respect to the
related Market, in accordance with procedural, dispute and resolution
mechanism and other provisions comparable to those set forth in the General
Escrow Agreement.
(iv) WOI Common Shares representing the Market Delivery
Contingent Share for the Non-Delivery Market(s), if any, shall be held by
the Market Delivery Escrow Agent pursuant to the terms of an escrow
agreement (the "Market Delivery Escrow Agreement") which will provide for
the release of the WOI Common Shares constituting the Market Delivery
Contingent Shares for each Non-Delivery Market upon the satisfaction of the
Market Delivery Requirement with respect to such Non-Delivery Market, in
accordance with procedural, dispute and resolution mechanism and other
provisions comparable to those set forth in the General Escrow Agreement.
(I) EXCHANGE PROCEDURES. At or prior to the Effective Time, each
holder of record of Outstanding TWI Shares shall deliver to WOI for cancellation
the certificates representing such Outstanding TWI Shares (the "Certificates").
Upon surrender of a Certificate for cancellation, together with an investment
letter in the form attached hereto as Exhibit 1.2(i) ("Stockholder Letter"),
--------------
duly executed as of such time, (i) the holder of such Certificate shall receive
in exchange therefor the Per-Share Portion of the Non-Contingent Amount, and
shall be
AGREEMENT AND PLAN OF MERGER - PAGE 6
<PAGE>
MERGER.FIN
entitled to receive (A) upon the expiration of the General Escrow Period, the
Per-Share Portion of the General Contingent Amount (to the extent not released
to WOI pursuant to the General Escrow Agreement), (B) the Per-Share Portion of
the Acquisition Contingent Amount(s), if any, pursuant to the Acquisition Escrow
Agreement, (C) the Per-Share Portion of the Market Delivery Contingent Shares,
if any, pursuant to the Market Delivery Escrow Agreement, and (D) to the extent
issued or issuable pursuant to Section 10.3, the Per-Share Portion of the WOI
Contingent Amount, in each case for the Outstanding TWI Shares represented by
such Certificate, and (ii) the Certificate so surrendered shall forthwith be
canceled. Until surrendered as contemplated by this Section 1.2(i), each
Certificate shall, at and after the Effective Time, be deemed to represent only
the right to receive, upon surrender of such Certificate, the Per-Share Portion
of the Merger Shares with respect to each Outstanding TWI Share represented
thereby in accordance with the terms of this Agreement, as follows:
(I) Upon the Closing Date (or, if later, on the date of the
surrender of such Certificate), the holder of the Outstanding TWI Shares
represented by such Certificate shall receive the Per-Share Portion of the
Non-Contingent Amount for the Outstanding TWI Shares represented by such
Certificate;
(II) Subject to the terms of the General Escrow Agreement, the
holder of the Outstanding TWI Shares represented by such Certificate shall
be entitled to receive the Per-Share Portion of the General Contingent
Amount for the Outstanding TWI Shares represented by such Certificate;
(III) Subject to the terms of the Acquisition Escrow Agreement,
the holder of the Outstanding TWI Shares represented by such Certificate
shall be entitled to receive the Per-Share Portion of the Acquisition
Contingent Amount(s), if any, for the Outstanding TWI Shares represented by
such Certificate;
(IV) Subject to the terms of the Market Delivery Escrow
Agreement, the holder of the Outstanding TWI Shares represented by such
Certificate shall be entitled to receive the Market Delivery Contingent
Shares, if any, for the Outstanding TWI Shares represented by such
Certificate; and
(V) As and when issued pursuant to Section 10.3 (or, if later,
on the date of the surrender of such Certificate), the holder of the
Outstanding TWI Shares represented by such Certificate shall be entitled to
receive the Per-Share Portion of the WOI Contingent Amount for the
Outstanding TWI Shares represented by such Certificate.
(J) REGISTRATION RIGHTS AND STOCKHOLDERS AGREEMENT. The WOI
shares to be received by the TWI Stockholders will be offered and sold in
reliance upon an exemption from the Securities Act of 1933, as amended, and will
bear the restrictive legend set forth in Exhibit 1.2(j)-1 hereto. On the Closing
----------------
Date, (i) WOI shall amend and restate that
AGREEMENT AND PLAN OF MERGER - PAGE 7
<PAGE>
MERGER.FIN
certain Registration Agreement dated October 24, 1995 among WOI and the WOI
stockholders who are parties thereto (collectively, the "WOI Initial
Stockholders"), as provided in the Amended and Restated Registration Agreement
attached in the form of Exhibit 1.2(j)-2 hereto, and each TWI Stockholder upon
----------------
his or its counter signature thereto shall be bound by and entitled to the
benefits of such agreement; and (ii) WOI shall amend and restate that certain
Stockholders Agreement dated October 24, 1995 among WOI and certain of the WOI
Initial Stockholders, as provided in the Amended and Restated Stockholders
Agreement attached in the form of Exhibit 1.2(j)-3 hereto, and each TWI
----------------
Stockholder upon his or its counter signature thereto shall be bound by and
entitled to the benefits of such agreement (such Amended and Restated
Registration Agreement and such Amended and Restated Stockholders Agreement
being collectively referred to as the "Amended Agreements").
(K) DIVIDENDS; TRANSFER TAXES. No dividends or other
distributions that are declared on or after the Effective Time on WOI Common
Shares or are payable to the holders of record of WOI Common Shares on or after
the Effective Time will be paid to persons entitled by reason of the Merger to
receive WOI Common Shares until such persons surrender their Certificates, as
provided in this Article 1. Subject to the effect of applicable Legal
Requirements, there shall be paid to the record holder of such WOI Common Shares
(i) at the time of such surrender or as promptly as practicable thereafter, the
amount of any dividends or other distributions theretofore paid with respect to
whole WOI Common Shares and having a record date on or after the Effective Time
and a payment date prior to such surrender and (ii) at the appropriate payment
date or as promptly as practicable thereafter, the amount of dividends or other
distributions payable with respect to whole WOI Common Shares and having a
record date on or after the Effective Time but prior to surrender and a payment
date subsequent to surrender. In no event shall the person entitled to receive
such dividends or other distributions be entitled to receive interest on such
dividends or other distributions. If any dividends, cash in lieu of fractional
shares or WOI Common Shares are to be paid to or issued in a name other than
that in which the Certificate surrendered in exchange therefor is registered, it
shall be a condition of such exchange that the Certificate so surrendered shall
be properly endorsed and otherwise in proper form for transfer and that the
person requesting such exchange shall pay to Wireless One any transfer or other
taxes required by reason of the issuance of WOI Common Shares in a name other
than that of the registered holder of the Certificate surrendered or shall
establish to the satisfaction of Wireless One that such tax has been paid or is
not applicable.
(L) NO FRACTIONAL SHARES. No certificates or scrip representing
fractional WOI Common Shares shall be issued upon the surrender for exchange of
Certificates pursuant to this Article 1, and, except as provided in this Section
1.2(l), no dividend or other distribution, stock split or interest shall relate
to any such fractional security, and such fractional interests shall not entitle
the owner thereof to vote or to any rights of a security holder of WOI. In lieu
of any fractional security, each holder of Outstanding TWI Shares who would
otherwise have been entitled to a fraction of a WOI Common Share upon surrender
of Certificates for exchange pursuant to this Article 1 will be paid an amount
in cash (without interest) equal to the value of the fractional share based upon
the Exchange Price. WOI shall repurchase any
AGREEMENT AND PLAN OF MERGER - PAGE 8
<PAGE>
MARGER.FIN
fractional shares at the Exchange Price, and the proceeds thereof shall be
disbursed to the former holders of Outstanding TWI Shares at the time of the
distribution of the Non-Contingent Amount, the General Contingent Amount, the
Acquisition Contingent Amount(s), if any, the Market Delivery Contingent Shares,
if any, and/or the WOI Contingent Amount, as the case may be.
(M) RETURN OF SHARES. Any portion of the Merger Shares and any
dividends or distributions with respect to WOI Common Shares which remain
undistributed to the former holders of Outstanding TWI Shares for three (3)
months after the expiration of the General Escrow Period (as it may be extended
pursuant to the General Escrow Agreement) shall be delivered to WOI, upon demand
of WOI, and any former holders of Outstanding TWI Shares who have not
theretofore complied with this Article 1 shall thereafter look only to the
Surviving Corporation and WOI for payment of their claim for the Merger Shares
into which such Outstanding TWI Shares are convertible, any cash in lieu of
fractional WOI Common Shares, and any dividends or distributions with respect to
WOI Common Shares.
(N) NO FURTHER OWNERSHIP RIGHTS IN COMMON STOCK. All WOI Common
Shares issued, and any cash paid pursuant to this Section 1.2, upon the
surrender for exchange of Certificates in accordance with the terms hereof,
shall be deemed to have been issued or paid, as the case may be, in full
satisfaction of all rights pertaining to the Outstanding TWI Shares.
(O) CLOSING OF TWI TRANSFER BOOKS. At the Effective Time, the
stock transfer books of TWI shall be closed and no transfer of TWI Common Shares
shall thereafter be made. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, they shall be cancelled and exchanged as
provided in this Article 1.
(P) FURTHER ASSURANCES. If at any time after the Effective Time
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (i) to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation, its right, title or interest in, to or under any of
the rights, privileges, powers, franchises, properties or assets of TWI, or (ii)
otherwise to carry out the purposes of this Agreement, the Surviving Corporation
and its proper officers and directors or their designees shall be authorized to
execute and deliver, in the name and on behalf of each such corporation, all
such deeds, bills of sale, assignments and assurances and do, in the name and on
behalf of each of such corporations, all such other acts and things necessary,
desirable or proper to vest, perfect or confirm its right, title or interest in,
to or under any of the rights, privileges, powers, franchises, properties or
assets of such corporations and otherwise to carry out the purposes of this
Agreement.
3 CLOSING. The Closing of the Merger (the "Closing") shall take place
at 10:00 a.m. on a date (the "Closing Date") to be specified by the parties,
which shall be no later than the fifth
(5th) business day after the satisfaction or waiver of the conditions set forth
in Articles
AGREEMENT AND PLAN OF MERGER - PAGE 9
<PAGE>
MERGER.FIN
6, 7 and 8 hereof, unless another date or place is agreed to in writing by the
parties hereto, at the offices of Kirkland & Ellis, 153 East 53rd Street, New
York, New York, or some other mutually agreeable location in New York, New York.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF TWI.
TWI hereby represents and warrants to WOI and MergerSub, that as of the
date hereof:
1 ORGANIZATION; GOOD STANDING. TWI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
TWI and each of its Subsidiaries is qualified as a foreign corporation in all
jurisdictions in which it is required to qualify as a result of the conduct of
its business or ownership of its properties, other than any jurisdiction in
which the failure of any such person(s) to be so qualified would not have a
Material Adverse Effect on TWI.
2 SUBSIDIARIES. [LIST SUBSIDIARIES] are the only Subsidiaries of TWI.
Except as set forth on Schedule 2.2 or as disclosed in the TWI SEC Filings, TWI
------------
owns directly, free and clear of Liens, all outstanding shares or equity
interests of each Subsidiary of TWI, and all such shares are validly issued,
fully paid, non-assessable and not subject to preemptive rights. Except as set
forth on Schedule 2.2 or as disclosed in the TWI SEC Filings, there are no
------------
outstanding subscriptions, options, warrants, calls, conversion or exchange
rights, commitments or agreements of any character obligating any Subsidiary of
TWI to issue, deliver or sell additional shares of its capital stock or equity
interests of any class or any securities convertible into or exchangeable for
any such capital stock or equity interests, and there are no rights of first
refusal, transfer restrictions or similar rights or obligations with respect to
the ownership interests of TWI in any Subsidiary of TWI. Except as set forth on
Schedule 2.2 or as disclosed in the TWI SEC Filings, TWI does not own, directly
- ------------
or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, Joint Venture, association or other Person.
3 CAPITALIZATION. The authorized capital stock of TWI as of the date
of this Agreement consists of (i) 8,077,778 shares of common stock, $0.01 par
value per share, of which 2,400,000 are issued and outstanding, and (ii)
2,077,778 shares of preferred stock, $0.01 per share, consisting of 800,000
shares of Series A Preferred Stock and 300,000 shares of Series B Preferred
Stock, (collectively, "TWI Preferred Stock"), of which 1,100,000 shares ("TWI
Preferred Shares") have been issued and are convertible into 2,200,000 TWI
Common Shares. There are no outstanding options, warrants, calls, puts,
commitments or other rights to purchase, or securities or other rights
convertible into or exercisable or exchangeable for, capital stock of TWI other
than as set forth on Schedule 2.3 or as disclosed in the TWI SEC Filings, which
------------
in each case indicates the record and the beneficial owner thereof, the
exercise, conversion or exchange price and period thereof, the term and any
vesting or other conditions thereof. Except as set forth on Schedule 2.3 or as
------------
disclosed in the TWI SEC Filings, no Person has rights to the registration of
any securities of TWI or any Subsidiary of TWI. All securities issued by TWI
AGREEMENT AND PLAN OF MERGER - PAGE 10
<PAGE>
MERGER.FIN
have been paid for and delivered in accordance with the terms of applicable
agreements or instruments, duly authorized and validly issued and are fully paid
and non-assessable; the holders thereof have no rights of rescission with
respect thereto and are not subject to personal liability by reason of being
such holders; none of such securities were issued in violation of the preemptive
rights of any holder of any security of TWI or any similar rights granted by TWI
or applicable Legal Requirements.
4 AUTHORITY; ENFORCEABILITY; NON-CONTRAVENTION. TWI has the corporate
power and authority to conduct the business and activities conducted by it and
to own or lease the assets owned or leased by it. TWI has the corporate power
and authority (subject to stockholder approval as set forth in Section 8.1 and
obtaining all required Consents as set forth in Section 4.2) to execute and
deliver this Agreement and all other documents required to be executed and
delivered by TWI hereunder, to consummate the transactions hereby contemplated,
and to take all other actions required to be taken by TWI pursuant to the
provisions hereof. This Agreement and all other documents required to be
executed and delivered by TWI hereunder have been duly authorized by all
corporate action necessary on the part of TWI (subject to stockholder approval
as set forth in Section 8.1 and obtaining all required Consents as set forth in
Section 4.2) and have been duly or will when executed and delivered be duly
executed and delivered by TWI and constitute the legal, valid and binding
obligations of TWI, enforceable against TWI in accordance with their terms.
Except as disclosed in Schedule 2.4, neither the execution nor the delivery of
------------
this Agreement and all other documents required to be executed and delivered by
TWI hereunder or the consummation of the transactions hereby contemplated by TWI
(i) conflicts with or constitutes any violation or breach of the Certificate of
Incorporation or the Bylaws of TWI; (ii) constitutes any violation or breach of,
or gives any other Person any rights (including any right of acceleration,
termination or cancellation) under, any Material Contract; (iii) constitutes a
violation of any Order or Legal Requirement; or (iv) may result in the creation
of any Lien on any of the assets or properties of TWI or any of its
Subsidiaries.
5 CERTAIN ACTIVITIES AND SERVICES. Except with respect to the
Huntsville Wired System (as that term is defined in the TWI SEC Filings),
neither TWI nor any Subsidiary of TWI engages in any business other than the
Wireless Cable Business.
6 EMPLOYEE PLANS.
(A) Schedule 2.6 sets forth a true and complete list of each
------------
"employee benefit plan," as such term is defined in section 3(3) of the ERISA,
whether or not subject to ERISA, and each bonus, incentive or deferred
compensation, severance, termination, retention, change of control, stock
option, stock appreciation, stock purchase, phantom stock or other equity-based,
performance or other employee or retiree benefit or compensation plan, program,
arrangement, agreement, policy or understanding, whether written or unwritten,
that provides benefits or compensation in respect of any employee or former
employee of TWI or any Subsidiary of TWI or the beneficiaries or dependents of
any such employee or former employee (such employees, former employees,
beneficiaries and dependents collectively, the "TWI
AGREEMENT AND PLAN OF MERGER - PAGE 11
<PAGE>
MERGER.FIN
Employees") or under which any TWI Employee is or may become eligible to
participate or derive a benefit and that is or has been maintained or
established by TWI or to which TWI or any Subsidiary of TWI contributes or is or
has been obligated or required to contribute or with respect to which TWI or any
Subsidiary of TWI may have any liability or obligation (collectively, the "TWI
Plans"). TWI has not communicated to any TWI Employee any intention or
commitment to modify any TWI Plan or to establish or implement any other
employee or retiree benefit or compensation arrangement other than in a manner
which would conform the terms of such TWI Plan or arrangement with any
description set forth in the TWI SEC Filings.
(B) All TWI Plans conform (and at all times within the five years
preceding the date hereof have conformed) in all material respects to, and are
being administered and operated (and have at all times within the five years
preceding the date hereof been administered and operated) in material compliance
with, the requirements of ERISA, the Code and all other applicable Legal
Requirements. All returns, reports and disclosure statements required to be
made under ERISA and the Code with respect to all TWI Plans have been timely
filed or delivered. There have not been any "prohibited transactions," as such
term is defined in Section 4975 of the Code or Section 406 of ERISA, involving
any of the TWI Plans that could subject TWI or any Subsidiary of TWI to any
material penalty or tax imposed under the Code or ERISA. Neither TWI nor any
Subsidiary of TWI maintains or has maintained any TWI Plan qualified under
Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code.
Neither TWI nor any Subsidiary of TWI has any announced plan or legally binding
commitment to create any TWI Plans or to materially amend or modify any existing
TWI Plan.
(C) There are no pending or threatened claims asserted or
instituted against
(i) any TWI Plan or its assets,
(ii) any fiduciary with respect to any such TWI Plan, or
(iii) TWI or any Subsidiary of TWI or any of its officers, directors
or employees,
under ERISA or any other applicable Legal Requirements and rules and regulations
promulgated thereunder, or claiming benefit payments other than those made in
the ordinary operation of such plans, nor is there any basis for such claim. To
the knowledge of TWI, the TWI Plans are not the subject of any investigation,
audit or action by any governmental agency, including, but not limited to, the
IRS, the Department of Labor, the Equal Employment Opportunity Commission or the
Pension Benefit Guaranty Corporation ("PBGC").
7 FINDER'S FEES. Except as set forth on Schedule 2.7, neither TWI nor
------------
any Subsidiary of TWI has taken any action which would impose upon TWI, any
Subsidiary of TWI, MergerSub or WOI any obligation or liability to any person
for finder's fees, agent's
AGREEMENT AND PLAN OF MERGER - PAGE 12
<PAGE>
MERGER.FIN
commissions or like payments in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
8 SEC FILINGS. TWI has previously delivered to WOI the TWI SEC
Filings. No TWI SEC Filing contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (i) as of
the time such document was filed and (ii) as of the date of this Agreement, in
each case except as set forth on Schedule 2.8 or in a TWI SEC Filing of a
------------
subsequent date.
9 DIRECTORS, OFFICERS AND EMPLOYEES. Other than as set forth on
Schedule 2.9 or as described in any TWI SEC Filing, neither TWI nor any
- ------------
Subsidiary of TWI has any outstanding loans or extension of credit to, or any
contracts, agreements or understandings with, any executive officer or director
or member of their immediate family or any person with which any such person has
a material relationship. Schedule 2.9 sets forth a list of (a) the names and
------------
positions of each employee of TWI and each Subsidiary of TWI who was paid an
aggregate compensation for the fiscal year ended December 31, 1995 in excess of
$50,000, together with the amount thereof; and (b) any agreement or arrangement
with any current or former employees, officers or directors of such parties that
would entitle such person to receive any compensation or other payment upon or
arising from (i) the termination of such person's services as an employee,
officer or director, or (ii) the consummation of the Merger, together with the
amount thereof (such aggregate amount is referred to herein as "Severance
Obligations"). TWI has made available to WOI a true and correct copy of the
current payroll which lists all employees of TWI and each Subsidiary of TWI by
category of employment and salary.
10 TWI FCC REPRESENTATIONS.
(A) Except for agreements executed after the date of this
Agreement, Schedule 2.10(a) hereto sets forth a true and correct list of the TWI
----------------
Channel Leases. Except as stated on Schedule 2.10(a), no TWI Channel Lease (i)
----------------
requires the consent of the lessor thereunder (a "TWI Lessor") to the Merger,
(ii) will terminate or allow the lessor thereunder to terminate it as a result
of the Merger, or (iii) will require a change in the compensation payable to the
lessor thereunder, or the formula for determining that compensation as a result
of the Merger. Except as stated on Schedule 2.10(a), each such TWI Channel Lease
----------------
which is not pending acquisition by TWI or a Subsidiary of TWI is in full force
and effect and, to the knowledge of TWI, each other TWI Channel Lease is in full
force and effect. Except as set forth on Schedule 2.10(a), neither TWI nor any
----------------
Subsidiary of TWI has received, or has knowledge that any other party has
received, any notice from a TWI Lessor that a TWI Channel Lease is in default or
is terminated, except for such notices of default which have been cured prior to
termination and for such notices of termination which have been withdrawn.
(B) Schedule 2.10(b) lists (i) each application to the FCC for
----------------
commercial ITFS, MDS, MMDS, cable antenna relay service or low power commercial
television FCC
AGREEMENT AND PLAN OF MERGER - PAGE 13
<PAGE>
MERGER.FIN
Licenses pending before the FCC in the name of TWI or any of its Subsidiaries or
Affiliates and proposing facilities which are within the State of Mississippi or
any of the Target Markets, (ii) each FCC License held by TWI or any of its
Subsidiaries or Affiliates (or pending acquisition by TWI or any of its
Subsidiaries or Affiliates) and authorizing facilities which are within the
State of Mississippi or any of the Target Markets, and (iii) each cable
television franchise which is held by TWI or any of its Subsidiaries or
Affiliates (or pending acquisition by TWI or any of its Subsidiaries or
Affiliates) and authorizing facilities which are within the State of Mississippi
or any of the Target Markets.
(C) Schedule 2.10(c)-1 hereto lists each Rand McNally Basic Trading
------------------
Area ("BTA") for which TWI or a Subsidiary of TWI is the highest bidder in the
FCC's MDS auction. Neither TWI nor any Subsidiary of TWI is in default of its
payment obligations to the U.S. Treasury for any such BTA, as such obligations
are imposed under the FCC's small business payment regulations. Except as set
forth on Schedule 2.10(c)-2 or as described in any TWI SEC Filing, neither TWI
------------------
nor any Subsidiary of TWI has agreed to sell or otherwise transfer the whole or
any part of the MDS channel rights accorded to the MDS BTA authorization holder
for any of those BTAs.
11 ACCREDITED INVESTORS. Each TWI Stockholder is, and VCI is, an
"accredited inves tor," as such term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act of 1933, as amended.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF MERGERSUB AND WOI.
WOI and MergerSub each hereby represent and warrant to TWI and to the
stockholders of TWI, the following:
1 ORGANIZATION AND GOOD STANDING. WOI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
MergerSub is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. WOI and each of its Subsidiaries is
qualified as a foreign corporation in all jurisdictions in which it is required
to qualify as a result of the conduct of its business or ownership of its
properties, other than any jurisdiction in which the failure of any such
person(s) to be so qualified would not have a Material Adverse Effect on WOI.
2 AUTHORITY; ENFORCEABILITY; NON-CONTRAVENTION. WOI has the corporate
power and authority to conduct the business and activities conducted by it and
to own or lease the assets owned or leased by it. WOI has corporate power and
authority (subject to stockholder approvaland obtaining lenders' Consents as set
forth in Sections 7.1 and 7.6) to execute and deliver this Agreement and all
other documents required to be executed by WOI hereunder, to consummate the
transactions hereby contemplated, and to take all other actions required to be
taken by WOI pursuant to the provisions hereof. This Agreement and all other
documents required to be
AGREEMENT AND PLAN OF MERGER - PAGE 14
<PAGE>
MERGER.FIN
executed and delivered by WOI hereunder have been duly authorized by all
corporate action necessary on the part of WOI (subject to stockholder approval
and obtaining lenders' Consents as set forth in Sections 7.1 and 7.6) and have
been duly or will when executed and delivered be duly executed and delivered by
WOI, and constitute the legal, valid and binding obligations of WOI enforceable
against WOI in accordance with their terms. Neither the execution nor the
delivery of this Agreement and all the documents required to be executed and
delivered by WOI hereunder or the consummation of the transactions hereby
contemplated by WOI (i) conflicts with or constitutes any violation or breach of
the Certificate of Incorporation or the Bylaws of WOI; (ii) constitutes any
violation or breach of, or gives any other Person any rights (including any
right of acceleration, termination or cancellation) under, any Material Contract
to which WOI is a party; (iii) constitutes a violation of any Order or Legal
Requirement; or (iv) may result in the creation of any Lien on any of the assets
or properties of WOI or any of its Subsidiaries. MergerSub has the corporate
power and authority to conduct the business and activities conducted by it and
to own or lease the assets owned or leased by it. MergerSub has corporate power
and authority (subject to stockholder approval and obtaining lenders' Consents
as set forth in Sections 7.1 and 7.6) to execute and deliver this Agreement and
all other documents required to be executed by MergerSub, to consummate the
transactions hereby contemplated, and to take all other actions required to be
taken by MergerSub pursuant to the provisions hereof. This Agreement and all
other documents required to be executed and delivered by MergerSub hereunder
have been duly authorized by all corporate action necessary on the part of
MergerSub (subject to stockholder approval and obtaining lenders' Consents as
set forth in Sections 7.1 and 7.6) and have been duly or will when executed and
delivered be duly executed and delivered by MergerSub, and constitute the legal,
valid and binding obligations of MergerSub enforceable against MergerSub in
accordance with their terms. Neither the execution nor delivery of this
Agreement and all other documents required to be executed and delivered by
MergerSub hereunder or the consummation of the transactions hereby contemplated
by MergerSub conflict with or constitute a violation or breach of the
Certificate of Incorporation or the Bylaws of MergerSub.
3 CAPITALIZATION. The authorized capital stock of WOI as of the date
hereof consists of 50,000,000 shares of common stock, par value $.01 per share,
of which 13,498,752 shares are issued and outstanding, and 10,000,000 of
preferred stock, par value $.01 per share, of which no shares have been issued.
WOI Common Shares to be issued pursuant to this Agreement will be, upon
issuance, validly issued, fully paid and non-assessable. There are no
outstanding options, warrants, calls, puts, commitments or other rights to
purchase, or securities or other rights convertible into or exercisable or
exchangeable for, capital stock of WOI other than as described in the WOI SEC
Filings. Except as disclosed in the WOI SEC Filings, no Person has rights to the
registration of any securities of WOI or any Subsidiary or WOI. All securities
issued by WOI have been paid for and delivered in accordance with the terms of
applicable agreements or instruments, duly authorized and validly issued and are
fully paid and non-assessable; the holders thereof have no rights of rescission
with respect thereto and are not subject to personal liability by reason of
being such holders; none of such securities were issued
AGREEMENT AND PLAN OF MERGER - PAGE 15
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MERGER.FIN
in violation of the preemptive rights of any holder of any security of WOI or
any similar rights granted by WOI or applicable Legal Requirements.
4 SEC FILINGS. WOI has previously delivered to TWI copies of (i) its
Form 10-K for the period ended December 31, 1995, (ii) its Registration
Statement on Form S-1 (File No. 33-94942) declared effective by the SEC on
October 18, 1995, and (iii) its Registration Statement on Form S-1 (File No. 33-
95106) declared effective by the SEC on October 18, 1995 ("WOI SEC Filings").
Each such filing was timely filed with the SEC, and did not contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (i) as of the time such document was filed and (ii) except
as does not reflect a Material Adverse Effect on WOI, as of the date of this
Agreement, in each case except as set forth in a WOI SEC Filing of a subsequent
date or as set forth on Schedule 3.4.
5 WOI FCC REPRESENTATIONS.
(A) Except for agreements executed after the date of this
Agreement, Schedule 3.5(a) hereto sets forth a true and correct list of the WOI
---------------
Channel Leases. Except as stated on Schedule 3.5(a), no WOI Channel Lease (i)
---------------
requires the consent of the lessor thereunder (a "WOI Lessor") to the Merger,
(ii) will terminate or allow the lessor thereunder to terminate it as a result
of the Merger, or (iii) will require a change in the compensation payable to the
lessor thereunder, or the formula for determining that compensation as a result
of the Merger. Except as stated on Schedule 3.5(a), each such WOI Channel Lease
---------------
which is not pending acquisition by WOI or a Subsidiary of WOI is in full force
and effect and, to the knowledge of WOI, each other WOI Channel Lease is in full
force and effect. Except as set forth on Schedule 3.5(a), neither WOI nor any of
---------------
its Subsidiaries has received, or has knowledge that any other party has
received, any notice from a WOI Lessor that a WOI Channel Lease is in default or
is terminated, except for such notices of default which have been cured prior to
termination and for such notices of termination which have been withdrawn.
(B) [Reserved.]
(C) Schedule 3.5(c)-1 hereto lists each BTA for which WOI or any of
-----------------
its Subsidiaries is the highest bidder in the FCC's MDS auction. WOI is not in
default of its payment obligations to the U.S. Treasury for any such BTA, as
such obligations are imposed under the FCC's small business payment regulations.
Except as set forth on Schedule 3.5(c)-2 or as described in any WOI SEC Filing,
-----------------
neither WOI nor any of its Subsidiaries has agreed to sell or otherwise transfer
the whole or any part of the MDS channel rights accorded to the MDS BTA
authorization holder for any of those BTAs.
6 FINDER'S FEES. Neither MergerSub nor WOI has taken any action which
would impose upon TWI, MergerSub, WOI or any Subsidiary of WOI any obligation or
liability to any
AGREEMENT AND PLAN OF MERGER - PAGE 16
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MERGER.FIN
person for finder's fees, agent's commissions or like payments in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
7 EMPLOYEE PLANS.
(A) For purposes of this Agreement, "WOI Plan" shall mean each
"employee benefit plan" as such term is defined in section 3(3) of the ERISA,
whether or not subject to ERISA, and each bonus, incentive or deferred
compensation, severance, termination, retention, change of control, stock
option, stock appreciation, stock purchase, phantom stock or other equity-based,
performance or other employee or retiree benefit or compensation plan, program,
arrangement, agreement, policy or understanding, whether written or unwritten,
that provides benefits or compensation in respect of any employee or former
employee of WOI or any Subsidiary of WOI or the beneficiaries or dependents of
any such employee or former employee (such employees, former employees,
beneficiaries and dependents collectively, the "WOI Employees") or under which
any WOI Employee is or may become eligible to participate or derive a benefit
and that is or has been maintained or established by WOI or to which WOI or any
Subsidiary of WOI contributes or is or has been obligated or required to
contribute or with respect to which WOI or any Subsidiary of WOI may have any
liability or obligation.
(B) All WOI Plans conform (and at all times within the five years
preceding the date hereof have conformed) in all material respects to, and are
being administered and operated (and have at all times within the five years
preceding the date hereof been administered and operated) in material compliance
with, the requirements of ERISA, the Code and all other applicable Legal
Requirements. All returns, reports and disclosure statements required to be
made under ERISA and the Code with respect to all WOI Plans have been timely
filed or delivered. There have not been any "prohibited transactions," as such
term is defined in Section 4975 of the Code or Section 406 of ERISA, involving
any of the WOI Plans that could subject WOI or any Subsidiary of WOI to any
material penalty or tax imposed under the Code or ERISA. Neither WOI nor any
Subsidiary of WOI maintains or has maintained any WOI Plan qualified under
Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code.
Neither WOI nor any Subsidiary of WOI has any announced plan or legally binding
commitment to create any WOI Plans or to materially amend or modify any existing
WOI Plan.
(C) There are no pending or threatened claims asserted or instituted
against
(i) any WOI Plan or its assets,
(ii) any fiduciary with respect to any such WOI Plan, or
(iii) WOI or any Subsidiary of WOI or any of its officers, directors
or employees,
under ERISA or any other applicable Legal Requirements and rules and regulations
promulgated thereunder, or claiming benefit payments other than those made in
the ordinary operation of such
AGREEMENT AND PLAN OF MERGER - PAGE 17
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MERGER.FIN
plans, nor is there any basis for such claim. To the knowledge of WOI, the WOI
Plans are not the subject of any investigation, audit or action by any
governmental agency, including, but not limited to, the IRS, the Department of
Labor, the Equal Employment Opportunity Commission or the PBGC.
ARTICLE 4. COVENANTS OF TWI.
TWI hereby agrees to perform as follows:
1 OPERATION PRIOR TO THE CLOSING DATE. From the date hereof through
the Closing Date:
(A) Other than consummating the acquisitions of the Target Markets
pursuant to the Target Market Existing Agreements, neither TWI nor any
Subsidiary of TWI shall engage in any practice, take any action or enter into
any transaction other than in the customary and ordinary course of business.
(B) TWI will, and will cause each Subsidiary of TWI to, use
reasonable efforts to keep its business, properties and business relationships
substantially intact.
(C) TWI will, and will cause each Subsidiary of TWI to, (i) pay and
perform all of its debts, liabilities and obligations as and when due, except to
the extent either (A) being contested in good faith or (B) as to which adequate
liabilities have been accrued and recorded (determined in accordance with GAAP),
(ii) perform its material obligations under all Authorizations and Material
Contracts, and (iii) comply in all material respects with all Governmental
Rules.
(D) TWI agrees that (i) TWI will not take any action or cause or
permit any of its Subsidiaries to take any action, and will endeavor in good
faith not to permit any event to occur, which would cause or constitute one or
more breaches of the representations or warranties of TWI set forth in Article
2, if such representations and warranties were made at the time of the taking of
such action or the occurrence of such event, which breaches individually or in
the aggregate would reflect a Material Adverse Effect on TWI as compared with
the state of affairs which would exist if all such representations and
warranties were true and correct in all respects at such time; (ii) TWI will,
and will cause its Subsidiaries to, in the event of, and promptly after the
occurrence of, or promptly after becoming aware of the occurrence of or the
impending or threatened occurrence of, any event which would cause or constitute
such a breach or would, if it had occurred immediately prior to the date hereof,
have caused or constituted such a breach of any of the representations and
warranties set forth in said Article 2, give notice thereof to WOI; and (iii)
TWI shall and shall cause its Subsidiaries to use reasonable efforts to prevent
or promptly to remedy any such breach.
AGREEMENT OF PLAN OF MERGER - PAGE 18
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MERGER.FIN
(E) TWI will, and will cause each of its Subsidiaries to, use
reasonable efforts to preserve, protect and maintain its and their rights and
interests in the TWI Channel Leases, FCC Licenses, and Material Contracts,
including, but not limited to, filing or having licensees or permittees file
with the FCC any and all reports, applications or other documents necessary to
preserve the FCC Licenses in full force and effect.
(F) Other than in the ordinary course of business, without WOI's
consent (which consent will not be unreasonably withheld or delayed, with such
reasonableness to be adjudged with respect to the maintenance and development of
TWI's business), TWI will not, and will not cause or permit any of its
Subsidiaries to, enter into, amend in any material respect or terminate, or
agree to enter into, amend in any material respect or terminate, except to
comply with this Agreement, any TWI Channel Lease, FCC License, Application or
Material Contract; provided that TWI or any of its Subsidiaries may enter into
--------
any TWI Channel Lease or make any Application as may be required by the terms
and conditions of any Target Market Existing Agreement.
(G) TWI shall not repurchase, declare or pay any dividends (other
than the amount payable with respect to accrued and unpaid dividends on the TWI
Preferred Shares upon the conversion thereof into TWI Common Shares in
accordance with the terms of the TWI Preferred Stock), or make any other
distributions with respect to its shares of capital stock (including, without
limitation, the TWI Preferred Shares) consisting of cash or marketable
securities or any contribution thereof, nor shall TWI or any of its Subsidiaries
issue, sell or agree to sell any shares of its capital stock, or any securities
convertible into, or options with respect to, or warrants to purchase or rights
to subscribe for, any shares of its capital stock (other than upon conversion of
the TWI Preferred Stock into TWI Common Shares in accordance with the terms of
the TWI Preferred Stock).
(H) TWI will not, and will not cause or permit any of its
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
assets, except as provided for by, or contemplated in, this Agreement, or in the
ordinary course of business, or as it may be required to do so as described in
any TWI SEC Filing.
(I) TWI will not, and will not cause any of its Subsidiaries to,
increase in any manner the base compensation of, or enter into any new bonus or
incentive agreement or arrangement with, any of its directors, officers or
employees, pay bonuses to any such director, officer of employee, to the extent
the aggregate of the foregoing for all such persons exceeds $50,000, or pay any
salaries except in the ordinary course of business, except as required under any
existing written employment agreement with any officer, director or employee of
TWI or any Subsidiary of TWI, except with respect to new employees who are
compensated at a rate of less than $50,000 per annum.
(J) TWI shall not transfer, or cause or permit any Subsidiary of
TWI to transfer, any interest in any Subsidiary.
AGREEMENT AND PLAN OF MERGER - PAGE 19
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MERGER.FIN
2 ESTOPPEL CERTIFICATES AND CONSENTS. Except as otherwise provided
herein, TWI shall use reasonable efforts to obtain or cause to be made, all
consents, governmental authorizations, approvals and filings necessary by virtue
of the Merger contemplated by this Agreement on or before the Closing Date, so
as to endeavor to ensure (a) that the Surviving Corporation will as of the
Effective Time enjoy all of the rights and privileges currently enjoyed by TWI
and each Subsidiary of TWI under each of the TWI Channel Leases (including,
without limitation, those listed on Schedule 2.10(a)), Licenses and Material
----------------
Contracts, (b) that the FCC has consented to the transfer of control to WOI with
respect to each cable antenna relay service license held by TWI or any of its
Subsidiaries or listed on Schedule 2.10(b), (c) that the FCC has consented to
----------------
the transfer of control to WOI of each other FCC License held by TWI or any of
its Subsidiaries or listed on Schedule 2.10(b), (d) that the franchising
----------------
authorities with jurisdiction over the matters have consented to the transfer of
control to WOI of all cable television franchises of TWI or any of its
Subsidiaries or listed on Schedule 2.10(b), and (e) that the FCC has waived FCC
----------------
Rule 21.952(c)(3) so that the consummation of the transactions contemplated by
this Agreement will not cause TWI's or any its Subsidiaries' BTA applications to
be dismissed. WOI will use reasonable efforts to join in and cooperate with the
filing and prosecution of applications for the consents and waivers described in
clauses (b) through (e) above. Upon request of WOI, TWI shall use reasonable
efforts to assist WOI to obtain from each of the other respective parties to
each of such Channel Leases and Material Contracts estoppel certificates in the
form of Exhibit 4.2 ("Estoppel Certificates"), certifying that TWI or a
-----------
Subsidiary of TWI, as applicable, is not in breach or violation of or in default
under any of such Channel Leases or Material Contracts and that it will not be
by virtue of the transaction contemplated hereby, and other matters specified
therein.
3 RENEWAL OR EXTENSION OF FCC AUTHORIZATIONS. TWI shall, and shall
cause each Subsidiary of TWI to:
(A) timely file, or cause to be filed, all applications, reports
and other submissions in such form and with such information as may be required
by the FCC, including but not limited to renewal applications, applications for
extensions of time to complete construction and Annual FCC Reports, to assure
that all Channels licensed or authorized to either TWI or any Subsidiary of TWI
remain in full force and effect without material adverse alteration or
modification, except to the extent that such alteration or modification results
from changes in the FCC's rules or policies of general applicability. TWI shall
utilize reasonable efforts to prosecute in good faith all applications, reports
and submissions submitted in accordance with this Section 4.3. TWI shall
promptly disclose to WOI any information TWI or any of its Subsidiaries receives
regarding any conditions or circumstances that would cause the FCC to decline to
accept such applications, reports and submissions as may be necessary or
desirable to keep the Licenses in full force and effect.
(B) use reasonable efforts to assure that the licensees or
permittees under the TWI Channel Leases timely file all applications, reports,
and other submissions in such form and with such information as may be required
by the FCC, including, but not limited to, renewal
AGREEMENT AND PLAN OF MERGER - PAGE 20
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MERGER.FIN
applications, applications for extensions of time to complete construction and
Annual FCC Reports, to assure that the FCC Licenses subject to such TWI Channel
Leases remain in full force and effect without material adverse alteration or
modification, except to the extent that such alteration or modification results
from changes in the FCC's rules or policies of general applicability. TWI shall
use its reasonable efforts to assure that the licensees or permittees under the
TWI Channel Leases diligently prosecute in good faith all such applications,
reports and submissions. TWI shall promptly disclose to WOI any information TWI
or any of its Subsidiaries receives regarding any conditions or circumstances
that would cause, or could reasonably be expected cause, the FCC to decline to
issue such authorizations as may be necessary or desirable to keep the Licenses
in full force and effect.
(C) use reasonable efforts to prosecute its FCC Form 175-M
application for MDS Licenses to the extent that it was the high bidder in the
MDS BTA auction, including, without limitation, making all payments with respect
thereto to the United States Treasury, when and as required by applicable Legal
Requirements, and in filing applications for initial BTA authorizations or
statements of intention when and as required by applicable Legal Requirements to
preserve its rights as the high bidder in such BTAs.
4 NO SOLICITATION. From and after the date hereof, TWI will not, and
will not authorize any of its Subsidiaries or officers, directors, employees,
agents and other representatives or those of any Subsidiary of TWI
(collectively, "TWI Representatives") to, solicit, initiate or encourage
(including by way of furnishing information) any inquiries or the making of any
proposal which constitutes, or may reasonably be expected to lead to, an
Acquisition Proposal (as defined herein) from any Person or engage in any
discussion or negotiations relating thereto, or accept any Acquisition Proposal.
TWI shall immediately cease and cause to be terminated any existing
solicitation, discussion or negotiation with any parties conducted heretofore by
TWI or any TWI Representatives with respect to any of the foregoing. To the
extent permitted by applicable Legal Requirements, TWI will promptly notify WOI
of any such discussion or negotiations, requests for such information or the
receipt of any Acquisition Proposal, including the identity of the person or
group engaging in such discussions or negotiations requesting such information
or making such Acquisition Proposal, and the material terms and conditions of
any Acquisition Proposal. As used in this Agreement, "Acquisition Proposal"
shall mean any proposal or offer considered by the Board of Directors of TWI to
be bona fide, other than a proposal or offer by WOI or any of its affiliates,
for a tender or exchange offer, a merger, consolidation or other business
combination involving TWI or any Subsidiary of TWI or any proposal to acquire in
any manner (a) a substantial equity interest in TWI or any Subsidiary of TWI,
(b) any rights of TWI or any Subsidiary of TWI to any Channels or (c) any
Wireless Cable Television System.
AGREEMENT OF PLAN OF MERGER - PAGE 21
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5 RESIGNATION OF DIRECTORS OF TWI. TWI shall deliver to WOI on the
Closing Date, except as otherwise requested by WOI, the written resignation of
all directors of TWI and each Subsidiary of TWI.
ARTICLE 5. ADDITIONAL AGREEMENTS.
1 SHAREHOLDERS MEETING. TWI and WOI shall each take all action
necessary in accordance with applicable Legal Requirements and in accordance
with their respective certificates of incorporation and bylaws to convene a
meeting of their respective stockholders (in the case of WOI, the "WOI
Stockholders Meeting") as promptly as practicable to consider and vote upon the
approval of this Agreement. TWI and WOI each, through its board of directors,
shall recommend to its stockholders (and, if applicable, its lenders) approval
of this Agreement and shall use best efforts to obtain approval and adoption of
this Agreement by such stockholders. Without limiting the foregoing, promptly
following the date of this Agreement, WOI shall prepare and file with the
Securities Exchange Commission (i) a proxy statement relating to the WOI
Stockholders Meeting (as amended from time to time, the "Proxy Statement"). The
Proxy Statement shall include the recommendation of WOI's board of directors
that this Agreement be approved and shall comply with all applicable laws and
regulations. WOI shall use its best efforts to cause the Proxy Statement to be
mailed to the Company's stockholders as promptly as practicable after the date
of this Agreement. WOI and TWI each shall also use its reasonable efforts to
take any action required to be taken under any applicable state securities laws
in connection with the issuance of WOI Common Shares in the Merger. WOI shall
cause all information included in the Proxy Statement to be true and correct in
all material respects and not omit to state any material fact required to be
stated therein or necessary in order to make such information not misleading in
light of the circumstances in which they are made, and WOI agrees to correct any
information in the Proxy Statement as may be required by applicable laws and
regulations. All costs of preparing, distributing and filing the Proxy
Statement and all other incremental costs incurred in obtaining the consent of
WOI's stockholders to the Merger shall be borne in full by WOI. All incremental
costs incurred in obtaining the consent of TWI's stockholders to the Merger
shall be borne in full by TWI. In addition, WOI shall use its best efforts to
obtain the WOI Bondholder Consent (as defined in Section 7.6) as promptly as
practicable, including, without limitation, preparing, obtaining and filing all
necessary documentation, complying with all applicable Legal Requirements and
requirements under the applicable indenture, and paying any consent fees or
other fees or premiums reasonably required by the holders of WOI's 13% Senior
Notes due 2003.
2 ACCESS.
(A) WOI and its officers, employees and representatives (including
independent public accountants, investment bankers, environmental consultants
and counsel), as applicable, will at all reasonable times during regular
business hours be permitted reasonable access to the Facilities and TWI's
corporate offices; will be permitted to make copies of or abstracts from all of
the books and records, financial and operating data and other information
AGREEMENT AND PLAN OF MERGER - PAGE 22
<PAGE>
MERGER.FIN
of TWI and each Subsidiary of TWI; and will be permitted to discuss the affairs
and accounts of TWI and each Subsidiary of TWI with the directors, officers,
employees, counsel, and accountants of TWI and each Subsidiary of TWI. Such
investigation shall not, however, affect the representations and warranties of
TWI set forth in Article 2 hereof.
(B) TWI and its officers, employees and representatives (including
independent public accountants, investment bankers, environmental consultants
and counsel), as applicable, will at all reasonable times during regular
business hours be permitted reasonable access to the facilities of WOI and its
Subsidiaries and WOI's corporate offices; will be permitted to make copies of or
abstracts from all of the books and records, financial and operating data and
other information of WOI and each Subsidiary of WOI; and will be permitted to
discuss the affairs and accounts of WOI and each Subsidiary of WOI with the
directors, officers, employees, counsel, and accountants of WOI and each
Subsidiary of WOI. Such investigation shall not, however, affect the
representations and warranties of WOI set forth in Article 3 hereof.
3 STOCK OPTIONS.
(A) All TWI Stock Option Plans shall terminate as of the Effective
Time and the provisions in any other plan, program or arrangement providing for
the issuance or grant of any other interest in respect of the capital stock of
TWI or any Subsidiary shall be deleted as of the Effective Time, and TWI shall
take all action necessary to ensure that following the Effective Time no
participant in any TWI Stock Option Plan or other plans, programs or
arrangements shall have any right thereunder to acquire equity securities of
TWI, the Surviving Corporation or any subsidiary thereof, and to terminate all
such rights. A "TWI Stock Option Plan" means any TWI stock option plan for its
directors or employees or the directors or employees of any Subsidiary or any
other person.
(B) At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the Existing Burkhalter Options, WOI will issue to
Henry M. Burkhalter fully-vested options which will entitle him to acquire an
aggregate of 78,015 WOI Common Shares for an exercise price of $6.82 per WOI
Common Share and which will have substantially the same other terms and
conditions as are described in the TWI SEC Filings for the options to acquire
TWI Common Shares which are presently held by Burkhalter (the "Existing
Burkhalter Options").
(C) At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the Existing Byer Options, WOI will issue to Bill
R. Byer, Jr. fully-vested options which will entitle him to acquire an aggregate
of 62,411 WOI Common Shares for an exercise price of $6.82 per WOI Common Share
and which will have substantially the same other terms and conditions as are
described in the TWI SEC Filings for the options to acquire TWI Common Shares
which are presently held by Byer (the "Existing Byer Options").
AGREEMENT AND PLAN OF MERGER - PAGE 23
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MERGER.FIN
(D) At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the Existing Woolhiser Options, WOI will issue to
Laurence O. Woolhiser, Jr. fully-vested options which will entitle him to
acquire an aggregate of 22,000 WOI Common Shares for an exercise price of $6.82
per WOI Common Share and which will have substantially the same other terms and
conditions as are described in the TWI SEC Filings for the options to acquire
TWI Common Shares which are presently held by Woolhiser (the "Existing Woolhiser
Options").
(E) At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the Existing Eilers Options, WOI will issue to
Walter Eilers fully-vested options which will entitle him to acquire an
aggregate of 14,467 WOI Common Shares for an exercise price of $6.82 per WOI
Common Share and which will have substantially the same other terms and
conditions as are described in the TWI SEC Filings for the options to acquire
TWI Common Shares which are presently held by Eilers (the "Existing Eilers
Options").
(F) At the Effective Time, the Existing Burkhalter Options, the
Existing Byer Options, the Existing Woolhiser Options and the Existing Eilers
Options will be canceled. The number of WOI Common Shares covered by the options
described in clauses (b), (c), (d) and (e) above will be proportionately
increased, and the exercise price per share thereunder will be proportionately
reduced, to reflect any stock dividend, stock split or other subdivision of the
WOI Common Shares effected after the date of this Agreement and prior to the
Effective Time. The number of WOI Common Shares covered by the options described
in clauses (b), (c), (d) and (e) above will be proportionately reduced, and the
exercise price per share thereunder will be proportionately increased, to
reflect any reverse stock split or other combination of the WOI Common Shares
effected after the date of this Agreement and prior to the Effective Time.
4 EFFORTS TO CONSUMMATE SPECIFIED ACQUISITIONS. If at the Effective
Time any of the Specified Acquisition has not been consummated and the related
Target Market Existing Agreement has not been terminated, then after the
Effective Time WOI will use, and will cause the Surviving Corporation to use,
reasonable efforts to consummate such Specified Acquisition and to cause the
Market Delivery Requirement to be satisfied with respect to such specified
Acquisition.
5 REASONABLE EFFORTS. Upon the terms and subject to the conditions
set forth in this Agreement, each of the parties agrees to use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement, including (a) the obtaining of all necessary
actions or non-actions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings (including
filings with Governmental Entities) and the taking of all reasonable steps as
may be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by any Governmental Entity (including, without limitation, the TWI
BTA
AGREEMENT AND PLAN OF MERGER - PAGE 24
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MERGER.FIN
Waiver); (b) the obtaining of all necessary consents, approvals or waivers from
third parties (including, without limitation, the WOI Bondholder Consent); (c)
the defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby including seeking to have any stay or temporary
restraining order entered by any court or other Governmental Entity vacated or
reversed; and (d) the execution and delivery of any additional instruments
necessary to consummate the transactions contemplated by this Agreement.
6 PUBLIC ANNOUNCEMENTS. WOI and MergerSub, on the one hand, and TWI,
on the other hand, will consult with each other before issuing any press release
with respect to the transactions contemplated by this Agreement, and shall not
issue any such press release prior to such consultation, unless otherwise
required under applicable Legal Requirements.
7 NOTIFICATION OF CERTAIN MATTERS. TWI shall give to WOI prompt
notice of: (i) any notice of, or other communication relating to, a default or
event that, with notice or lapse of time or both, would become a default,
received subsequent to the date of this Agreement and prior to the Effective
Time under any note, license, agreement or other instrument or obligation other
than in respect of defaults which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect on TWI; and (ii)
any Material Adverse Effect on TWI or the occurrence of any event which, so far
as reasonably can be foreseen at the time of its occurrence, is reasonably
likely to result in a Material Adverse Effect on TWI. WOI shall give to TWI
prompt notice of: (i) any notice of, or other communication relating to, a
default or event that, with notice or lapse of time or both, would become a
default, received subsequent to the date of this Agreement and prior to the
Effective Time under any note, license, agreement or other instrument or
obligation other than in respect of defaults which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
on WOI; and (ii) any Material Adverse Effect on WOI or the occurrence of any
event which, so far as reasonably can be foreseen at the time of its occurrence,
is reasonably likely to result in a Material Adverse Effect on WOI. Each party
shall give the other prompt notice of any written notice or other written
communication from any third party alleging that the consent of such third party
is or may be required in connection with the transactions contemplated by this
Agreement.
8 HART-SCOTT-RODINO ACT FILING. The parties will cooperate in
preparing and filing any Notification and Report Forms and related material that
it may be required to file with the Federal Trade Commission and the Antitrust
Division of the United States Department of Justice under the HSR Act, and will
use their respective best efforts to obtain an early termination of the
applicable waiting period, and will make any further filings pursuant thereto
that may be necessary, proper, or advisable with respect to the transactions
contemplated hereby.
9 ACQUISITION OF TARGET MARKETS. Notwithstanding any provisions
contained herein to the contrary, TWI shall have the right to acquire the
Wireless Cable Television System and related assets servicing the Target Markets
pursuant to the terms of the Target Markets' Existing Agreements, as the same
may be amended; provided that (i) TWI shall keep WOI fully informed regarding
the status of any negotiations regarding the acquisition of the Target Markets,
and (ii) WOI shall have the right to approve any material amendment or waiver of
any matter regarding or material condition of any Target Market Existing
Agreement.
AGREEMENT AND PLAN OF MERGER - PAGE 25
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MERGER.FIN
regarding the status of any negotiations regarding the acquisition of the Target
Markets, and (ii) WOI shall have the right to approve any material amendment or
waiver of any matter regarding or material condition of any Target Market
Existing Agreement.
10 TERMINATION OF CERTAIN AGREEMENTS. On the Closing Date and at the
request of WOI, TWI shall terminate any items described on Schedule 2.9
------------
Affiliate Agreements and employment or other management agreements designated by
WOI.
11 EXCESS CONSENTS. If on the date which is six months after the
Closing Date any Channel described in the TWI SEC Filings for any Owned Market
is not a Good Channel (any such Channel being an "Adjustment Channel"), then WOI
shall have recourse to the WOI Common Shares held pursuant to the General Escrow
Agreement (the "General Escrow Shares") in accordance with the terms of the
General Escrow Agreement. In such event, General Escrow Shares having an
aggregate Exchange Price equal to the Stipulated Consent Amount for such
Adjustment Channel shall be delivered to WOI, as further provided in the General
Escrow Agreement.
12 WOI LOAN. Promptly after the date of this Agreement, TWI and WOI
will enter into a loan agreement having terms and conditions, and in a form,
reasonably acceptable to TWI and WOI providing for loans (collectively, the
"Bridge Loan") to TWI and its Subsidiaries and having material terms which
include those set forth on the attached Exhibit 5.11.
------------
13 PAYMENT OF CERTAIN AMOUNTS. Immediately following the Effective
Time, WOI or the Surviving Corporation shall satisfy TWI's present obligation to
pay $4.5 million to Vision Communications, Inc. ("VCI") by delivery of (i)
$1,800,000 in cash and (ii) 180,000 WOI Common Shares (the "VCI WOI Shares").
WOI's obligations set forth in this Section 5.13 shall be subject to VCI
executing on the Closing Date (i) a Stockholder Letter, and (ii) the Amended
Agreements, with respect to the VCI WOI Shares so issued.
14 CAPITAL STRUCTURE. Prior to the Effective Time, TWI shall not alter
its capital structure by stock split, stock dividend, recapitalization or other
event. This Section 5.14 shall not be deemed to prohibit the conversion of the
TWI Preferred Shares into TWI Common Shares in accordance with the terms of the
TWI Preferred Stock.
15 GUARANTY OF INTERIM FACILITY. From and after the Effective Time,
WOI hereby guarantees the payment in full by the Surviving Corporation of the
principal amount of, and interest in respect of, the "Interim Facility," as that
term is defined in the TWI SEC Filings. Chase Venture Capital Associates is an
express, third-party beneficiary of the agreement of WOI set forth in this
Section 5.15.
AGREEMENT AND PLAN OF MERGER - PAGE 26
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MERGER.FIN
ARTICLE 6. CONDITIONS PRECEDENT TO MERGER.
The obligation of the parties hereto to consummate the Merger is subject to
fulfillment, or written waiver signed by all parties hereto, of each of the
following conditions precedent on or prior to the Closing Date or the date
specified therein.
1 SECURITIES MATTERS. All necessary state securities or blue sky
authorizations shall have been received.
2 NO ORDER. No Governmental Authority or court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
law, rule, regulation, executive order, decree, injunction or other order or
Legal Requirement (whether temporary, preliminary or permanent) which is then in
effect and has the effect of prohibiting the Merger or any of the transactions
contemplated hereby or otherwise making the consummation of the Merger or any of
the transactions contemplated hereby illegal.
3 OTHER APPROVALS. The waiting period applicable to the consummation
of the Merger under the HSR Act shall have expired or been terminated and all
filings required to be made prior to the Effective Time with, and all consents,
approvals, permits and authorizations required to be obtained prior to the
Effective Time from, any Governmental Authority in connection with the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by TWI, WOI and MergerSub, shall have been made or obtained
(as the case may be) without restrictions.
ARTICLE 7. CONDITIONS PRECEDENT TO CLOSING BY WOI AND MERGERSUB.
The obligations of WOI and MergerSub to consummate the Merger are subject
to fulfillment, or written waiver signed by WOI and MergerSub, of each of the
following conditions precedent on or prior to the Closing Date.
1 STOCKHOLDER APPROVAL. The Merger shall have been approved by the
requisite vote of the holders of WOI Common Shares in accordance with applicable
Legal Requirements, its Certificate of Incorporation and Bylaws or any rule or
regulation of any securities exchange or market upon which WOI's securities are
traded or quoted.
2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by TWI shall be true and correct in all material respects when made and
shall be true and correct in all respects as if originally made on and as of the
Closing Date (except as to such matters which have arisen or occurred, or any
actions taken, since the date of this Agreement and which, in the aggregate, do
not reflect a Material Adverse Effect on TWI as compared with the state of
affairs which would exist if all such representations and warranties were true
and correct in all respects as if originally made on and as of the Closing
Date).
AGREEMENT AND PLAN OF MERGER - PAGE 27
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MERGER.FIN
3 TWI DOCUMENTS. TWI shall have delivered the following to WOI in
form and substance satisfactory to WOI and its counsel:
(A) A certificate signed by the chief executive officer of TWI,
on behalf of and in his capacity as an officer of TWI, confirming, on and as of
the Closing Date, that each representation and warranty set forth in Article 2
hereof was true and correct on the date made and is true and correct on and as
of the Closing Date (in each case, other than as set forth in such certificate)
and that TWI is in compliance with the applicable covenants set forth in
Articles 4 and 5 (other than as set forth in such certificate).
(B) An opinion of corporate and FCC counsel to TWI and each
Subsidiary of TWI in form reasonably acceptable to WOI.
(C) The minute books, bylaws, certificate of incorporation and
other organizational documents of TWI and each Subsidiary of TWI.
(D) An Estoppel Certificate from Mississippi EdNet Institute, Inc.
with respect to the "EdNet Agreement" referred to in the TWI SEC Filings.
(E) (i) Waiver of Rule 21.952(c)(3) of the FCC with respect to
TWI's BTA Applications (the "TWI BTA Waiver"); and
(ii) A "final" order by the FCC consenting, without any
materially adverse or onerous condition, to the transfers of control of FCC
Licenses described in Section 4.2. For purposes of this Section, the term
"final" shall mean an order of the FCC which has not been stayed and, by lapse
of time or otherwise, is no longer subject to administrative or judicial
reconsideration, review, appeal or stay.
(F) The resignations described in Section 4.5.
4 NO MATERIAL ADVERSE CHANGE. No change shall have occurred with
respect to TWI or any Subsidiary of TWI, or their respective assets, from the
date hereof through the Closing Date which would have a Material Adverse Effect
on TWI.
5 ABSENCE OF DISSENTERS' RIGHTS. The Merger shall be approved by all
of the holders of TWI Common Shares issued and outstanding at the Effective
Time.
6 BONDHOLDERS' CONSENTS. WOI shall have obtained on or before the
Effective Time written consent and/or approval of the Merger, and the related
transactions contemplated by this Agreement, by the holders of the $150,000,000
of 13% Senior Notes due 2003 of WOI (the "WOI Bondholder Consent").
AGREEMENT AND PLAN OF MERGER - PAGE 28
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MERGER.FIN
7 TWI OBLIGATIONS PERFORMED. All obligations of TWI to be performed
hereunder through and including the Closing Date shall have been performed in
all material respects.
8 STOCK OPTIONS. Each of the Existing Burkhalter Options, the
Existing Byer Options, the Existing Eilers Options and the Existing Woolhiser
Options shall have been surrendered as provided in Section 5.3, and each other
stock option and warrant to purchase TWI Common Shares that has not been
exercised prior to the Effective Time shall have been exercised, canceled or
otherwise terminated.
9 TWI PREFERRED STOCK. Each TWI Preferred Share shall have been
converted into TWI Common Shares prior to the Effective Time.
10 [RESERVED.]
11 STOCKHOLDER DOCUMENTS. Each holder of TWI Common Shares at the
Effective Time (the "TWI Stockholders") shall have executed and delivered to WOI
(a) the General Escrow Agreement, (b) a Stockholder Letter, (c) the Amended
Agreements, (d) the Acquisition Escrow Agreement, if there is any Acquisition
Contingent Amount, and (e) the Market Delivery Escrow Agreement, if the Market
Delivery Requirement is not satisfied with respect to any Owed Market as of the
Effective Time. VCI shall have executed and delivered to WOI the Amended
Agreements and a Stockholder Letter.
12 [RESERVED.]
13 [RESERVED.]
14 [RESERVED.]
15 EMPLOYMENT AGREEMENTS. Henry Burkhalter and Bill R. Byer, Jr. shall
have executed employment agreements in the form attached hereto as Exhibit
-------
7.15(a) and 7.15(b), respectively, which agreements shall supersede (and
- -------------------
terminate) any prior employment agreements between such parties and TWI and its
Subsidiaries (collectively, the "Amended Employment Agreements").
ARTICLE 8. CONDITIONS PRECEDENT TO CLOSING BY TWI.
The obligation of TWI to consummate the Merger is subject to fulfillment,
or written waiver signed by TWI, of each of the following conditions precedent
on or prior to the Closing Date.
1 STOCKHOLDER APPROVAL. The Merger shall have been approved by the
requisite vote of the holders of the TWI Common Shares in accordance with
applicable Legal Requirements and its Certificate of Incorporation and Bylaws.
AGREEMENT AND PLAN OF MERGER - PAGE 29
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MERGER.FIN
2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by WOI and/or MergerSub shall be true and correct in all material respects
when made and shall be true and correct in all respects as if originally made on
and as of the Closing Date (except as to such matters which have arisen or
occurred, or any actions taken, since the date of this Agreement and which, in
the aggregate, do not reflect a Material Adverse Effect on WOI as compared with
the state of affairs which would exist if all such representations and
warranties were true and correct in all respects as if originally made on and as
of the Closing Date).
3 WOI AND/OR MERGERSUB DOCUMENTS. WOI and/or MergerSub, as the
applicable case may be, shall have executed and delivered to TWI in form and
substance satisfactory to TWI and to counsel:
(A) A certificate signed by the chief executive officer of WOI and
MergerSub, on behalf of and in his respective capacity as an officer of WOI or
MergerSub, confirming, on and as of the Closing Date, that each of the
representations and warranties set forth in Article 3 hereof was true and
correct on the date made and is true and correct on and as of the Closing Date
(in each case, other than as set forth in such certificate), and that WOI and
MergerSub are in compliance with their respective covenants set forth in
Articles 4 and 5 (other than as set forth in such certificate).
(B) An opinion of corporate counsel to WOI and/or MergerSub in
forms reasonably acceptable to TWI.
(C) The General Escrow Agreement (and the Acquisition Escrow
Agreement, if there is any Acquisition Contingent Amount, and the Market
Delivery Escrow Agreement, if the Market Delivery Requirement is not satisfied
with respect to any Owned Market as of the Effective Time), executed by WOI or
the Acquisition Escrow Agent, as the case may be.
(D) The Amended Agreements, executed by WOI and each WOI Initial
Stockholder.
(E) The Amended Employment Agreements, executed by WOI.
(F) A certificate substantially in the form of the attached Exhibit
-------
8.3, executed by WOI.
- ---
4 WOI AND MERGERSUB OBLIGATIONS PERFORMED. All obligations of WOI and
MergerSub to be performed hereunder through and including the Closing Date shall
have been performed in all material respects.
5 NO MATERIAL ADVERSE CHANGE. No change shall have occurred with
respect to WOI or any Subsidiaries of WOI, or their respective assets, from the
date hereof through the
AGREEMENT AND PLAN OF MERGER - PAGE 30
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MERGER.FIN
Closing Date which could reasonably be expected to have a Material Adverse
Effect on WOI or any Subsidiaries of WOI.
ARTICLE 9. TERMINATION.
1 TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated and
may be abandoned at any time prior to the Effective Time, before or after the
approval of this Agreement by the stockholders of TWI and WOI, by the mutual
consent of WOI, MergerSub and TWI.
2 TERMINATION BY TWI. This Agreement may be terminated and the Merger
may be abandoned by TWI if the Closing conditions set forth in Articles 6 and 8
shall not have been satisfied in full or waived on or before December 31, 1996.
3 TERMINATION BY WOI OR MERGERSUB. This Agreement may be terminated
and the Merger may be abandoned by WOI or MergerSub if the Closing conditions
set forth in Articles 6 and 7 shall not have been satisfied in full or waived on
or before December 31, 1996.
4 EFFECT OF TERMINATION AND ABANDONMENT.
(A) In the event of the termination of this Agreement and the
abandonment of the Merger pursuant to this Article 9, the remedies set forth
below shall constitute the minimum Damages payable by a party hereunder with
regard to the circumstances set forth therein. The amounts set forth below are
minimum amounts payable hereunder, and nothing contained herein shall preclude
any party from pursuing Damages in excess of the amounts set forth below or
pursuing any equitable remedies.
(B) In the event that this Agreement is terminated solely as a
result of the failure of one or more of the conditions set forth in Sections
7.2, 7.3, 7.5, 7.7, 7.8, 7.9, 7.11, 7.15 or 8.1, or if TWI is obligated to, but
does not, consummate the Merger, then TWI shall deliver to WOI the TWI Default
Shares. The TWI Default Shares shall mean 204,545 TWI Common Shares (subject to
adjustment for any stock split, recapitalization, or related event) plus an
additional number of TWI Common Shares equal to the TWI IPO Adjustment Shares.
The "TWI IPO Adjustment Shares" shall mean additional TWI Common Shares to be
issued upon consummation of any initial public offering of TWI Common Shares
effected following the termination of this Agreement or such failure to
consummate the Merger and prior to the third anniversary of the date of this
Agreement at a price ("IPO Price") less than $11.00 per share (adjusted for
stock splits, recapitalizations and other events) determined as follows: the
product of (a)(i) $11.00 divided by the IPO Price, minus (ii) $1.00, multiplied
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by (b) 204,545. The TWI Default Shares shall be issued in a private placement,
with one long-form, and (when, as and if available under applicable Legal
Requirements) one short-form, demand registration right similar to those set
forth in the Stockholders Agreement described in the TWI SEC Filings.
AGREEMENT AND PLAN OF MERGER - PAGE 31
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MERGER.FIN
(C) In the event that this Agreement is terminated solely as a
result of the failure of one or more of the conditions set forth in Sections
7.1, 7.6, 8.2, 8.3 or 8.4, or if WOI is obligated to, but does not, cause
MergerSub to consummate the Merger, then WOI shall deliver to TWI a number of
WOI Common Shares which is equal to $2,250,000 divided by the lesser of (i) the
Exchange Price and (ii) the WOI Market Price determined as of the last day prior
to such delivery. Such shares shall be issued in a private placement, with
demand registration rights similar to those set forth in the Amended Agreements
for the "TruVision Registrable Securities" described therein.
ARTICLE 10. CONDITIONS FOR RELEASE OR ISSUANCE OF GENERAL CONTINGENT AMOUNT
AND WOI CONTINGENT AMOUNT.
1 PROVISIONS REGARDING REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATIONS.
The statements, certifications, representations and warranties made
by TWI in this Agreement, and any schedule or in any exhibit, certificate, or
other instrument delivered by or on behalf of TWI or any Subsidiary of TWI
pursuant to this Agreement shall survive the Merger for a period of six (6)
months from the Closing Date. TWI shall indemnify and hold WOI and Merger Sub
and their respective officers and directors ("WOI Indemnitees") harmless from
any and all Damages relating to or arising from any material breach or material
non-performance of any representation or warranty or covenant of TWI contained
in this Agreement. The statements, certifications, representations and
warranties made by WOI and MergerSub in this Agreement, and any schedule or in
any exhibit, certificate, or other instrument delivered by or on behalf of WOI
or any Subsidiary of WOI pursuant to this Agreement shall survive the Merger for
a period of six (6) months from the Closing Date. WOI shall indemnify and hold
the TWI Stockholders and their respective officers, partners and directors ("TWI
Indemnitees") harmless from any and all Damages relating to or arising from any
material breach or material non-performance of any representation or warranty or
covenant of WOI or MergerSub contained in this Agreement.
2 GENERAL CONTINGENT AMOUNT; CONSENTS. The General Contingent Amount
shall be held by the General Escrow Agent pursuant to the terms of the General
Escrow Agreement, which shall remain in effect until the expiration of the
General Escrow Period. The indemnification obligations of TWI shall be limited
to and satisfied solely from the General Contingent Amount in accordance with
the terms of the General Escrow Agreement. Upon the expiration of the General
Escrow Period, the General Contingent Amount to be received by each former
holder of TWI Common Shares shall be proportionately reduced by the amount of
the Claims properly charged against the General Contingent Amount in accordance
with the terms of the General Escrow Agreement and by the Stipulated Consent
Amount for all Adjustment Channels. WOI acknowledges and agrees that there shall
be no remedy or other recourse by WOI or MergerSub, or its successors or
assigns, against TWI or its shareholders, or their successors and assigns of any
nature whatsoever, including, but not limited to breaches of
AGREEMENT AND PLAN OF MERGER - PAGE 32
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MERGER.FIN
representations, warranties or covenants of this Agreement, other than the
General Contingent Amount and other than for fraud, and that the General
Contingent Amount shall be the sole remedy and recourse by WOI or MergerSub
against TWI or its shareholders.
3 WOI CONTINGENT AMOUNT. The indemnification obligations of WOI shall
be limited to and satisfied solely by the issuance by WOI of WOI Common Shares
in quantities such that the aggregate Exchange Price of the shares so issued is
equal to the aggregate amount of the Damages deemed paid or satisfied thereby;
provided that in no event will WOI be required to issue pursuant to this Section
10.3 WOI Common Shares having an aggregate Exchange Price in excess of
$2,530,000. Any dispute as to the indemnity obligations of WOI pursuant to this
Section 10.3 which cannot be resolved by WOI and the "Stockholder
Representative" referred to in General Escrow Agreement (any which resolution
will be binding upon WOI and the TWI Stockholders) will be resolved in the
manner provided in Section 3.3(c) of the General Escrow Agreement. There shall
be no remedy or other recourse by any TWI Stockholder, or of its successors or
assigns, against WOI or its shareholders, or their successors and assigns of any
nature whatsoever, including, but not limited to breaches of representations,
warranties or covenants of this Agreement to be performed by WOI prior to the
Effective Time, other than the WOI Contingent Amount and other than for fraud,
and the WOI Contingent Amount shall be the sole remedy and recourse by the TWI
Stockholders against WOI, MergerSub or their respective shareholders.
ARTICLE 11. DEFINITIONS.
1 The terms used in this Agreement have the respective meanings
specified or referred to in this Article 12:
"ACQUISITION CONTINGENT AMOUNTS" shall have the meaning set forth in
Section 1.2(b).
"ACQUISITION ESCROW AGENT" means the "Escrow Agent" referred to in
the Acquisition Escrow Agreement.
"ACQUISITION ESCROW AGREEMENT" shall have the meaning set forth in
Section 1.2(h).
"ACQUISITION PROPOSAL" shall have the meaning set forth in Section
4.4.
"ACT" means The Communications Act of 1934, as amended.
"ADJUSTMENT AMOUNT" shall have the meaning set forth in Section
1.2(c).
"ADJUSTMENT SHARES" shall have the meaning set forth in Section
1.2(c).
AGREEMENT AND PLAN OF MERGER - PAGE 33
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"AFFILIATE" means with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person, and any other Person who or which, directly or
indirectly, has any equity interest in such Person, is a director, officer
or employee of such Person, or a member of the immediate family of any of
the foregoing Persons, whether or not living under the same roof with such
Person.
"AGGREGATE INITIAL SHARE AMOUNT" means 3,373,333, as such amount may
be proportionately increased to reflect any stock dividend, stock split or
other subdivision of the WOI Common Shares which may be effected after the
date of this Agreement and prior to the Effective Time, and as such amount
may be proportionately decreased to reflect any reverse stock split or
other combination of the WOI Common Shares which may be effected after the
date of this Agreement and prior to the Effective Time.
"AMENDED AGREEMENTS" shall have the meaning set forth in Section
1.2(j).
"AMENDED EMPLOYMENT AGREEMENTS" shall have the meaning set forth in
Section 7.15.
"ANNUAL FCC REPORT" means the reports which a licensee in the MDS
service is required to file annually with the FCC pursuant to Section
21.911 of the FCC Rules.
"APPLICATION" means a pending application by TWI or any Subsidiary
of TWI or Institution or other Person to the FCC for a License in any
Market.
"AUTHORIZATION" means any license, permit, authorization, franchise,
grant, registration, certificate, consent and waiver awarded to a Person
(or which a Person has the right to acquire in any market) by a
Governmental Authority which is used, useable or held for use in or in
conjunction with or otherwise associated with the provision of wireless
cable services.
"BASE SHARES" shall have the meaning set forth in Section 1.2(c).
"BONA FIDE SUBSCRIBER" means a customer or subscriber receiving and
paying for (either as an individual subscriber or as an "equivalent
subscriber") regular monthly basic wireless cable television services of
TWI or a Subsidiary of TWI in an Existing Market, who has paid for at least
one month of basic service at the normal rate applicable to such customer
or subscriber, and whose account receivable for such service does not
include any amount overdue (and for which a bill has been or should have
been received by such subscriber) for more than a total of 75 days'
subscription service, except for (i) customers or subscribers repaying such
balances in accordance with a reasonable repayment arrangement with the
Company or (ii) institutional customers or subscribers that the Company has
reasonably determined are not credit risks. Any
AGREEMENT AND PLAN OF MERGER - PAGE 34
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inactive subscriber or active subscriber whose accounts receivable balance
included any amount overdue in excess of 75 days as of March 31, 1996 who
becomes current and (if disconnected) whose service is reconnected prior to
Closing will also be considered a Bona Fide Subscriber. For purposes of
this definition, the number of "equivalent subscribers" in a given multiple
dwelling unit means (i) the number of subscribers in such multiple dwelling
unit, times (ii) the basic bulk rate for such subscribers, divided by (iii)
the basic service rate for individual subscribers in the applicable market.
"BRIDGE LOAN" shall have the meaning set forth in Section 5.12.
"BTA" shall have the meaning set forth in Section 2.10(c).
"CERTIFICATES" shall have the meaning set forth in Section 1.2(i).
"CHANNEL" means a frequency band which may be licensed by the FCC to
an eligible Person for the provision of ITFS, MDS or MMDS service in any
Market.
"CHANNEL LEASE" means an agreement pursuant to which the channel
capacity licensed or to be licensed under an Authorization has been leased
to TWI, WOI or a Subsidiary of TWI or WOI or which TWI or a Subsidiary of
TWI otherwise has rights to acquire in any Market.
"CLOSE" OR "CLOSING" means the consummation of the transactions
contemplated in Article 1 hereof as provided for in Section 1.3.
"CLOSING DATE" means the date on which the Closing shall occur as
provided for in Section 1.3.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSENTS" means the consents (including, without limitation, FCC
Consents), approvals, authorizations, and waivers of any public,
government, or regulatory body, authority, agency, or unit and any and all
consents, approvals, authorizations and waivers from parties to any of the
Material Contracts or any other Person that are (i) required for the lawful
consummation of this Agreement and/or any other transaction contemplated by
this Agreement, or (ii) necessary for WOI and its Subsidiaries to conduct
the operations currently conducted by TWI and its Subsidiaries or to
consummate the acquisition of the Target Markets and fulfill their other
obligations after the Closing.
AGREEMENT AND PLAN OF MERGER - PAGE 35
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"COPYRIGHT ACT" means the Copyright Act of 1976, as amended.
"COPYRIGHT OFFICE" means the United States Copyright Office of the
Library of Congress.
"COPYRIGHT RULES" means the rules and regulations promulgated by the
Copyright Office under authority of the Copyright Act, as set forth in Part
201, Volume 37 of the Code of Federal Regulations.
"DAMAGES" means all losses, obligations, liabilities, settlement
payments, awards, judgments, fines, penalties, damages, deficiencies, court
costs, costs of arbitration or administrative proceedings, attorneys' fees
and other reasonable expenses and costs.
"DGCL" means the Delaware General Corporation Law.
"EFFECTIVE TIME" shall mean the date and time of the filing of the
applicable certificate of merger in the State of Delaware.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ESTOPPEL CERTIFICATE" shall have the meaning set forth in Section
4.2.
"EXCHANGE PRICE" means $15.00, as such amount may be proportionately
decreased to reflect any stock dividend, stock split or other subdivision
of the WOI Common Shares which may be effected after the date of this
Agreement and prior to the Effective Time, and as such amount may be
proportionately increased to reflect any reverse stock split or other
combination of the WOI Common Shares which may be effected after the date
of this Agreement and prior to the Effective Time.
"EXISTING MARKETS" shall mean Jackson, Delta, Gulf Coast, Tupelo,
Hattiesburg, Natchez, Meridian, Starkville and Oxford, Mississippi and
Demopolis and Tuscaloosa, Alabama.
"FAA" means the Federal Aviation Administration or any successor
agency(ies) with jurisdiction over towers and other antenna structures.
"FAA RULES" means the rules promulgated by the FAA and applicable to
antenna towers and other structures.
"FCC" means the Federal Communications Commission.
AGREEMENT AND PLAN OF MERGER - PAGE 36
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MERGER.FIN
"FCC CONSENT" shall mean the consent of the FCC to the transfer of
control or assignment of any MDS and MMDS License.
"FCC LICENSE" shall mean an FCC-issued Authorization to construct
and/or operate a MDS, MMDS, low power television or ITFS facility,
including any special temporary authority.
"FCC PROCEEDING" means a Proceeding relating to Applications or
Licenses.
"FCC RULES" means the rules and regulations promulgated by the FCC
under authority of the Act, as set forth in Volume 47 of the Code of
Federal Regulations.
"FLIPPIN ACQUISITION" means the purchase and sale of assets relating
to the Flippin, Tennessee market pursuant to the Flippin Purchase
Agreement.
"FLIPPIN PURCHASE AGREEMENT" means the Purchase and Sale Agreement
dated as of November 7, 1995 between TWI and Heartland Wireless
Communications, Inc., as such Agreement may be amended or otherwise
modified after the date of this Agreement as permitted by this Agreement
and prior to the Effective Time or after the Effective Time.
"GAAP" means generally accepted accounting principles in effect as
of the applicable time or the date of any financial statements in the
United States of America. The term "generally accepted accounting
principles" shall mean accounting principles which are (a) consistent with
the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors as generally accepted accounting principles, and
(b) such that a certified public accountant would, insofar as the use of
accounting principles is pertinent, be in a position to deliver an
unqualified opinion as to financial statements in which such principles
have been properly applied.
"GAAP DEBT" means indebtedness for borrowed money (other than
indebtedness to the United States government incurred in connection with
the "BTA Auction" referred to in the TWI SEC Filings) on March 31, 1996
which would be properly reportable as such on a consolidated balance sheet
for TWI and its Subsidiaries prepared in accordance with GAAP.
"GADSDEN ACQUISITION" means the purchase and sale of assets relating
to the Gadsden, Alabama market pursuant to the Flippin Purchase Agreement.
"GADSDEN CONTINGENT AMOUNT" shall have the meaning set forth in
Section 1.2(b).
AGREEMENT AND PLAN OF MERGER - PAGE 37
<PAGE>
MERGER.FIN
"GADSDEN PURCHASE AGREEMENT" means the Purchase and Sale Agreement
dated as of February 15, 1996 between TWI and Gadsden Wireless Cable
Corporation, Inc., as such Agreement may be amended or otherwise modified
after the date of this Agreement as permitted by this Agreement and prior
to the Effective Time or after the Effective Time.
"GENERAL CONTINGENT AMOUNT" shall have the meaning set forth in
Section 1.2(b).
"GENERAL ESCROW AGENT" means the "Escrow Agent" referred to in the
General Escrow Agreement.
"GENERAL ESCROW AGREEMENT" shall have the meaning set forth in
Section 1.2(h).
"GENERAL ESCROW PERIOD" means the "Escrow Period," as that term is
defined in the General Escrow Agreement.
"GENERAL ESCROW SHARES" has the meaning set forth in Section 5.11.
"GOOD CHANNEL" has the meaning set forth in Section 1.2(b).
"GOVERNMENTAL AUTHORITY" means any federal, state, local, municipal,
foreign or other government or any federal, state or local regulatory
authority.
"GRANTED LICENSE" has the meaning set forth in Section 1.2(b).
"HSR ACT" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976.
"HUNTSVILLE ACQUISITION" means the purchase and sale of assets
relating to the Huntsville, Alabama market pursuant to the Huntsville
Purchase Agreement.
"HUNTSVILLE CONTINGENT AMOUNT" shall have the meaning set forth in
Section 1.2(b).
"HUNTSVILLE PURCHASE AGREEMENT" means the Purchase and Sale
Agreement dated as of February 6, 1996 among TWI, Madison Communications,
Inc. and Beasley Communications, Inc., as such Agreement may be amended or
otherwise modified after the date of this Agreement and prior to the
Effective Time as permitted by this Agreement or after the Effective Time.
"INSTITUTION" shall mean an accredited institution or a governmental
organization engaged in the formal education of enrolled students, or a
non-profit organization whose
AGREEMENT AND PLAN OF MERGER - PAGE 38
<PAGE>
MERGER.FIN
purposes are educational, which is a qualified applicant for any Channel
and has entered into a Channel Lease.
"IRS" means the Internal Revenue Service.
"ITFS" means Instructional Television Fixed Service.
"JACKSON ACQUISITION" means the purchase and sale of assets relating
to the Jackson, Tennessee market pursuant to the Jackson Purchase
Agreement.
"JACKSON CONTINGENT AMOUNT" shall have the meaning set forth in
Section 1.2(b).
"JACKSON PURCHASE AGREEMENT" means the Purchase and Sale Agreement
dated February 7, 1996 between TWI and SkyView Wireless Cable, Inc., as
such Agreement may be amended or otherwise modified after the date of this
Agreement as permitted by this Agreement and prior to the Effective Time or
after the Effective Time.
"JOINT VENTURE" means a joint venture, partnership, limited
liability company or other similar arrangement, whether in corporate,
partnership or other legal form; provided that in no event shall any
--------
corporate Subsidiary of any Person be considered a Joint Venture to which
such Person is a party.
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign or other law, statute, legislation, act, constitution, ordinance,
code, treaty, rule, regulation or FCC guideline applicable to or against
TWI or any Subsidiary of TWI, or to which TWI will become subject upon the
acquisition of any Target Market or Other Market.
"LIABILITIES" means damages, obligations, claims, demands, judgments
or settlements of any nature or kind, known or unknown, fixed, accrued,
absolute or contingent, liquidated or unliquidated, including all costs and
expenses (legal, accounting or otherwise).
"LICENSES" means all FCC licenses, conditional licenses,
construction permits, authorizations and approvals which are required to
transmit commercial programming, educational programming or any other use
currently authorized by any legal requirement.
"LIENS" means any lien, pledge, hypothecation, charge, mortgage,
deed of trust, security interest or encumbrance against any assets or
properties of any Person or any of its Subsidiaries (or assets or
properties that any Person or any of its Subsidiaries has rights to
acquire).
"MARKETS" means the Existing Markets and Target Markets, or any of
them.
AGREEMENT AND PLAN OF MERGER - PAGE 39
<PAGE>
MERGER.FIN
"MARKET DELIVERY CONTINGENT SHARES" shall have the meaning set forth
in Section 1.2(b).
"MARKET DELIVERY ESCROW AGENT" shall have the meaning set forth in
Section 1.2(h).
"MARKET DELIVERY ESCROW AGREEMENT" shall have the meaning set forth
in Section 1.2(h).
"MARKET DELIVERY REQUIREMENT" shall have the meaning set forth in
Section 1.2(b).
"MATERIAL ADVERSE EFFECT" with respect to any Person means any event
or circumstance which results in or is reasonably likely to result in a
material adverse change in (i) the financial condition, business,
operations or properties of such person and its Subsidiaries, taken as a
whole, other than general economic change over which neither such person
nor any Subsidiary of such person has control; (ii) the ability of such
person or any Subsidiary of such person prior to the Effective Time to
perform its obligations under this Agreement, or (iii) the validity or
enforceability of this Agreement.
"MATERIAL CONTRACTS" shall mean the Target Market Existing
Agreements, the "EdNet Agreement" referred to in the TWI SEC Filings, and
any agreement the termination of which prior to the end of its stated term,
or the breach or default under which by any person, could reasonably be
expected to have a Material Adverse Effect on TWI.
"MDS" shall mean a Multipoint Distribution Service, including
(unless otherwise specified) the former Operational Fixed Service ("OFS")
H-channels.
"MEMPHIS ACQUISITION" means the purchase and sale of assets relating
to the Memphis, Tennessee market pursuant to the Memphis Purchase
Agreement.
"MEMPHIS CONTINGENT AMOUNT" shall have the meaning set forth in
Section 1.2(b).
"MEMPHIS PURCHASE AGREEMENT" means the Purchase and Sale Agreement
dated as of November 7, 1995 between TWI and American Wireless Systems,
Inc., as such Agreement may be amended or otherwise modified after the date
of this Agreement as permitted by this Agreement and prior to the Effective
Time or after the Effective Time.
"MERGER" means the merger described in the recitals.
"MERGER SHARES" shall have the meaning set forth in Section 1.2(c).
AGREEMENT AND PLAN OF MERGER - PAGE 40
<PAGE>
MERGER.FIN
"MMDS" means the Multichannel Multipoint Distribution Service.
"NET GAAP DEBT" means (i) GAAP Debt minus (ii) cash of TWI and its
Subsidiaries as of March 31, 1996 on a consolidated basis in accordance
with GAAP.
"NON-CONTINGENT AMOUNT" shall have the meaning set forth in Section
1.2(b).
"ORDER" means any order, judgment, injunction, or FCC ruling issued,
made, entered or rendered by any court, administrative agency or other
Governmental Authority or by any arbitrator as to which a person or any
Subsidiary of such person is a party or will become a party upon this
consummation of any acquisition in a Target Market or Other Market.
"OTHER MARKETS" shall mean Chattanooga, Tennessee; Hot Springs,
Arkansas; Lawrenceburg, Tennessee; and Jacksonville, North Carolina.
"OUTSTANDING TWI SHARES" shall have the meaning set forth in Section
1.2(d).
"OWNED MARKET" means each Existing Market (other than Tuscaloosa,
Alabama) and (a) Flippin, Tennessee, if the Flippin Acquisition is
consummated prior to the Effective Time, (b) Gadsden, Alabama, if the
Gadsden Acquisition is consummated prior to the Effective Time, (c)
Huntsville, Alabama, if the Huntsville Acquisition is consummated prior to
the Effective Time, (d) Jackson, Tennessee, if the Jackson Acquisition is
consummated prior to the Effective Time, and (e) Memphis, Tennessee, if the
Memphis Acquisition is consummated prior to the Effective Time.
"PBGC" shall have the meaning set forth in Section 2.6.
"PERMITTED NET GAAP DEBT" means $10,050,000.
"PERSON" OR "PERSON" means any individual, corporation, partnership,
joint venture, estate, trust, cooperative, foundation, union, syndicate,
league, consortium, coalition, committee, society, firm, company or other
enterprise, association, organization or other entity or Governmental
Authority.
"PER-SHARE PORTION" for any Outstanding TWI Share means 1.0 divided
by the number of Outstanding TWI Shares.
"PRIOR OFFERING EXPENSES" means all costs and expenses of TWI paid
or accrued through the date hereof associated with the preparation of the
TWI SEC Filings and the proposed sale of securities of TWI to be registered
thereunder, other than accounting and engineering costs.
AGREEMENT AND PLAN OF MERGER - PAGE 41
<PAGE>
MERGER.FIN
"PROCEEDING" means any suit, litigation, arbitration, proceeding
(including any civil, criminal, administrative, investigative or appellate
proceeding or FCC Proceeding).
"PROXY STATEMENT" shall have the meaning set forth in Section 5.1.
"REQUIRED CONSENTS" means, with respect to each Wireless Cable
Television System, Consents with respect to twelve (12) authorized Channels
in the applicable Market.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SEVERANCE OBLIGATIONS" shall have the meaning set forth in Section
2.9.
"SITE" means a wireless cable television site with respect to which
TWI is operating or has rights to acquire a Wireless Cable Business and
transmitting programming to subscribers in connection therewith.
"SPECIFIED ACQUISITIONS" means the Flippin Acquisition, the Gadsden
Acquisition, the Huntsville Acquisition, the Jackson Acquisition and the
Memphis Acquisition.
"SITE LEASE" shall mean an agreement for the lease of real estate or
tower space permitting the construction of a transmitter on a Site.
"SITE OPTION" shall mean an option or right to obtain a Site Lease.
"SPECIFIED MARKETS" shall mean Flippin, Tennessee, Memphis,
Tennessee, Huntsville, Alabama, Jackson, Tennessee and Gadsden, Alabama.
"STIPULATED CONSENT AMOUNT" for any Adjustment Channel means the
product of (a) a fraction, the numerator of which is one and the
denominator of which is the number of "Channels" set forth for the Market
to which such Adjustment Channel relates on the attached Schedule A,
----------
multiplied by (b) $43.00, and further multiplied by (c) the number of "LOS
Households" set forth for such Market on the attached Schedule A.
----------
"STOCKHOLDER LETTER" shall have the meaning set forth in Section
-------
1.2(i).
------
"SUBSIDIARY" of any person means any other person, of which a
majority of the capital stock or other equity interests is owned directly
or indirectly by such first person.
"SURVIVING CORPORATION" shall have the meaning set forth in Section
1.1.
AGREEMENT AND PLAN OF MERGER - PAGE 42
<PAGE>
MERGER.FIN
"TARGET MARKETS" means the Specified Markets and the Other Markets.
"TARGET MARKET EXISTING AGREEMENTS" shall mean the agreements
between TWI, as purchaser, and the owners of the Wireless Cable Television
Systems (or of the capital stock of such owners) in the Target Markets, as
described in the TWI SEC Filings, copies of which agreements are appended
hereto, as the same may be amended or otherwise modified in accordance with
this Agreement.
"TWI BTA WAIVER" shall have the meaning set forth in Section 7.3.
"TWI CHANNEL LEASE" means any Channel Lease under which TWI or any
of its Subsidiaries is the lessee or which TWI or any of its Subsidiaries
has the right to acquire.
"TWI COMMON SHARES" shall mean all of the issued and outstanding
capital stock of TWI immediately before the Merger.
"TWI EMPLOYEES" shall have the meaning set forth in Section 2.6(a).
"TWI LESSOR" shall have the meaning set forth in Section 2.10(a).
"TWI PLAN" shall have the meaning set forth in Section 2.6(a).
"TWI LESSOR APPLICATION" shall have the meaning set forth in Section
2.10(b).
"TWI PREFERRED SHARES" shall have the meaning set forth in Section
2.3.
"TWI PREFERRED STOCK" shall have the meaning set forth in Section
2.3.
"TWI REPRESENTATIVES" shall have the meaning set forth in Section
4.4.
"TWI SEC FILINGS" means Form S-1 Registration Statements (File Nos.
333-1282 and 333-01284) filed with the SEC on April 11, 1996.
"TWI STOCK OPTION PLANS" shall have the meaning set forth in Section
5.3.
"TWI STOCKHOLDERS" shall have the meaning set forth in Section 7.11.
"VCI" shall have the meaning set forth in Section 5.13.
"VCI WOI SHARES" shall have the meaning set forth in Section 5.13.
AGREEMENT AND PLAN OF MERGER - PAGE 43
<PAGE>
MERGER.FIN
"WIRELESS CABLE BUSINESS" means the business of transmitting
programming to subscribers through the use of MMDS, MDS or ITFS channels.
"WIRELESS CABLE TELEVISION SYSTEMS" means all wireless cable
television systems or prospective wireless cable television systems,
whether or not operational or constructed, and all assets relating thereto
relative to the Markets.
"WOI" shall have the meaning set forth in the Recitals.
"WOI BONDHOLDER CONSENT" shall have the meaning set forth in Section
7.6.
"WOI CHANNEL LEASE" means any Channel Lease under which WOI or any
of its Subsidiaries is the lessee or which WOI or any of its Subsidiaries
has the right to acquire.
"WOI COMMON SHARES" means shares of common stock, $.01 par value per
share, WOI.
"WOI CONTINGENT AMOUNT" shall have the meaning set forth in Section
1.2(b).
"WOI EMPLOYEE" shall have the meaning set forth in Section 3.7(a).
"WOI LESSOR" shall have the meaning set forth in Section 3.5(a).
"WOI LESSOR APPLICATION" shall have the meaning set forth in Section
3.5(b).
"WOI MARKET PRICE" for any day means the average of the closing
prices for WOI shares as reported on the NASDAQ NMS on the 20 trading days
prior to such day. If WOI Common Shares do not trade on any trading day
during such 20-trading-day-period, the closing price for such day will be
deemed to be the closing price on the trading day preceding such trading
day.
"WOI PLAN" shall have the meaning set forth in Section 3.7(a).
"WOI SEC FILINGS" shall have the meaning set forth in Section 4.7.
"WOI STOCKHOLDERS MEETING" shall have the meaning set forth in
Section 5.1.
2 DEFINED TERMS. In this Agreement, all definitions shall be equally
applicable to both the singular and the plural forms.
AGREEMENT AND PLAN OF MERGER - PAGE 44
<PAGE>
MERGER.FIN
ARTICLE 12. MISCELLANEOUS.
1 EXPENSES OF THE TRANSACTION. Each of TWI, WOI and MergerSub agrees
to pay its own fees and expenses in connection with this Agreement and the
transactions hereby contemplated.
2 FURTHER ASSURANCES. Each of TWI, WOI and MergerSub agrees that it
will, at any time and from time to time after the Closing Date, upon the request
of the other party, do, execute, acknowledge and deliver, or will cause to be
done, executed, acknowledged and delivered, all such further acts, assignments,
transfers, conveyances, powers of attorney and assurances as may be reasonably
required from time to time in order to effectuate the provisions and purposes of
this Agreement.
3 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (a) when
delivered personally or by private courier, (b) when actually delivered by
registered United States mail, return receipt requested, or (c) when sent by
telecopy (provided, however, that, it is telephonically or electronically
-------- -------
confirmed), addressed as follows:
If to WOI, to:
11301 Industriplex Boulevard
Suite 4
Baton Rouge, LA 70809-5400
Attention: Hans J. Sternberg
Sean Reilly
Telecopy: (504) 293-5400
With copy (which copy will not constitute notice to WOI) to:
John Kuehn, Esq.
Kirkland & Ellis
153 E. 53rd Street
New York, New York 10022
Telecopy: (212) 446-4900
If to TWI, to:
181 Kroger Drive
Suite H
Jackson, MS 39218
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
AGREEMENT AND PLAN OF MERGER - PAGE 45
<PAGE>
MERGER.FIN
With copy (which copy will not constitute notice to TWI) to:
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 1000
New York, New York 10022
Telecopy: (212) 751-4864
or such other address as such party may indicate by a notice delivered to the
other parties hereto in the manner herein provided.
4 NO MODIFICATION EXCEPT IN WRITING. This Agreement shall not be
changed, modified, or amended except by a writing signed by the party to be
charged and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to which
performance is to be rendered.
5 ENTIRE AGREEMENT. This Agreement, together with the Schedules and
Exhibits hereto, sets forth the entire agreement and understanding among the
parties as to the subject matter hereof. The execution and delivery of this
Agreement shall have no effect on the confidentiality agreements executed as of
April 19, 1996, among WOI, TWI and Heartland Wireless Communications, Inc.
6 SEVERABILITY. If any provision of this Agreement or the application
of any provision hereof to any person or in any circumstances is held invalid,
the remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Agreement.
7 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by any party hereto except with the
prior written consent of the other parties. Any purported assignment contrary
to the terms of this Agreement shall be void.
8 CHOICE OF LAW. This Agreement shall be deemed to have been made in,
and shall be construed in accordance with the laws of the State of Delaware, and
its validity, construction, interpretation and legal effect shall be governed by
the laws of the State of Delaware applicable to contracts entered into and
performed entirely therein.
9 CAPTIONS; CONSTRUCTION. The captions appearing in this Agreement
are inserted only as a matter of convenience and for reference and in no way
define, limit or describe the scope and intent of this Agreement or any of the
provisions hereof. All uses of the term
AGREEMENT AND PLAN OF MERGER - PAGE 46
<PAGE>
MERGER.FIN
"including" shall be construed as descriptive and not a limitation of the item
described. All words used herein shall be construed to be of such gender as the
circumstances require.
10 SPECIFIC PERFORMANCE. In the event of a breach of any obligations
under this Agreement, each party hereto, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The parties hereto agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach of any of the
provisions of this Agreement.
11 SCHEDULES AND EXHIBITS. The Schedules and Exhibits referred to
herein attached hereto are hereby made a part of this Agreement.
12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. This Agreement may
also be executed by facsimile signature.
[SIGNATURE PAGE(S) FOLLOWS]
AGREEMENT AND PLAN OF MERGER - PAGE 47
<PAGE>
MERGER.FIN
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the day and year first above written.
TWI:
TRUVISION WIRELESS, INC.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
WOI:
WIRELESS ONE, INC.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
MERGERSUB:
WIRELESS ONE MERGERSUB, INC.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
AGREEMENT AND PLAN OF MERGER - PAGE 48
<PAGE>
MERGER.FIN
SCHEDULE A
----------
<TABLE>
<CAPTION>
Market Channels LOS Households
- ------ -------- --------------
<S> <C> <C>
Jackson, MS 32 179,000
Delta, MS 32 92,800
Gulf Coast, MS 32 121,700
Tupelo, MS 32 90,600
Hattiesburg, MS 32 88,800
Natchez, MS 32 60,000
Meridian, MS 32 44,800
Starkville, MS 32 65,200
Oxford, MS 32 53,600
Memphis, TN 33 381,200
Huntsville, AL 32 181,900
Jackson, TN 32 96,500
Flippin, TN 32 41,300
Demopolis, AL 32 15,600
Gadsden, AL 32 133,300
</TABLE>
AGREEMENT AND PLAN OF MERGER - PAGE 49
<PAGE>
MERGER.FIN EXHIBIT 5.11
------------
TWI BRIDGE LOAN FACILITY
- ------------------------
Borrower TWI
Use of Proceeds Payment in full (followed by termination) of the
"Revolving Credit Facility" described in the TWI SEC
Filings; up to $1.0MM in additional borrowings for
working capital and other corporate purposes
Security Same collateral as under the Revolving Credit
Facility except the Target Market Acquisition
Agreements and assets which would require third-party
consent or in which a security interest cannot be
granted by law.
Principal Amount Up to $6.0MM
Maturity Earlier of establishment of Replacement Facility
described below, 10th business day (or 6 months, in
certain instances) after termination of Merger
Agreement, and Merger
SUBSIDIARY BRIDGE LOAN FACILITY
- -------------------------------
Borrower One or more Wholly-owned subsidiaries of TWI
Use of Proceeds Payment of amounts in respect of dividends on TWI
Preferred Shares upon conversion immediately prior to
Merger; payment of cash purchase price and related
expenses (in stated maximum amounts) associated with
Specified Acquisitions and Chattanooga, TN and
Lawrenceburg, TN
Security Substantially all assets and capital stock of
borrowing Subsidiaries (which will not hold assets
which are security for the TWI Bridge Loans or the
Replacement Facility); except where third-party
consent required first-priority (other than for pre-
existing Liens); guaranteed by TWI (guarantee secured
solely Borrower by stock pledge(s))
AGREEMENT AND PLAN OF MERGER - PAGE 50
<PAGE>
MERGER.FIN
Principal Amount Together with TWI Bridge Loans, not more than (a)
$9.0 MM, before Replacement Facility established and
(b) $15.0MM thereafter. In either case must maintain
unused availability in amount which would be required
to pay tion in respect of dividends upon conversion
of TWI Preferred ely prior to Closing if such
conversion occurred on 12/31/96. "Replacement
Facility" is minimum $6.0MM revolving bridge loan
facility which may be secured only by assets which
secure TWI Bridge Loan Facility and otherwise
reasonably acceptable to TWI and WOI.
Maturity Earlier of 10th business day (or 6 months) after
Merger Agreement termination and Merger
TERMS COMMON TO BOTH FACILITIES
- -------------------------------
Interest Rate 13%/annum
Offset Unless otherwise agreed, will be offset by non-
issuance of WOI common shares pursuant to Section
9.4(c) of Merger Agreement, if otherwise required
Other Representations, warranties, covenants, conditions
and defaults substantially as previously agreed
AGREEMENT AND PLAN OF MERGER - PAGE 51
<PAGE>
MERGER.FIN
Schedule 3.4
------------
The indebtedness to the United States Government incurred in connection with the
BTA Auction (as that term is defined in the TWI SEC Filings) assumes that WOI
and its Subsidiaries qualify for the "small business bidding credit" available
to certain designated entities. No representation is made hereby as to the
correctness of such assumption.
AGREEMENT AND PLAN OF MERGER - PAGE 52
<PAGE>
EXHIBIT B
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
-----------------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT") is made as of July 29, 1996 among Truvision Wireless, Inc., a
Delaware corporation ("TWI"), Wireless One Mergersub, Inc., a Delaware
corporation ("WOI MERGERSUB") and Wireless One, Inc., a Delaware corporation
("WOI").
RECITALS
--------
A. The parties hereto entered into an Agreement and Plan of Merger
dated as of April 25, 1996 (the "AGREEMENT").
B. The parties to the Agreement desire to amend the Agreement as
provided herein, among other things, in light of TWI's having granted certain
stock options to certain of its key employees and to correct certain
typographical errors.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Except as otherwise specifically provided herein, all
capitalized terms used herein shall have the respective meanings given to them
in the Agreement.
2. Section 5.3 of the Agreement is amended as follows:
a. Section 5.3(b) shall be replaced by the following:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which are presently held by Henry M. Burkhalter (the "Existing
Burkhalter Options"), WOI will issue to Burkhalter, pursuant to WOI's
1995 Long-Term Performance Incentive Plan, a copy of which is attached
hereto as Exhibit 9, fully-vested options which will entitle him to
---------
acquire an aggregate of 78,015 WOI Common Shares for an exercise price
of $6.82 per WOI Common Share and which will be governed by the terms
and conditions of an Agreement Evidencing a Grant of a Non-Qualified
Stock Option, substantially in the form attached as Exhibit 10.
----------
b. Section 5.3(c) shall be replaced by the following:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which are presently held by Bill R. Byer, Jr. (the "Existing Byer
Options"), WOI will issue to Byer, pursuant to WOI's 1995 Long-Term
Performance Incentive Plan, a copy of which is attached hereto as
Exhibit 9, fully-vested options which will entitle him to acquire an
---------
aggregate of 62,411 WOI Common Shares for an exercise price of $6.82
per WOI Common Share and which will be governed by the terms and
conditions of an Agreement Evidencing a Grant of a Non-Qualified Stock
Option, substantially in the form attached as Exhibit 10.
----------
1
<PAGE>
c. Section 5.3(d) shall be replaced by the following:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which are presently held by Laurence O. Woolhiser, Jr. (the "Existing
Woolhiser Options"), WOI will issue to Woolhiser, pursuant to WOI's
1995 Long-Term Performance Incentive Plan, a copy of which is attached
hereto as Exhibit 9, fully-vested options which will entitle him to
---------
acquire an aggregate of 22,000 WOI Common Shares for an exercise price
of $6.82 per WOI Common Share and which will be governed by the terms
and conditions of an Agreement Evidencing a Grant of a Non-Qualified
Stock Option, substantially in the form attached as Exhibit 10.
----------
d. Section 5.3(e) shall be replaced by the following:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which are presently held by Walter Eilers (the "Existing Eilers
Options"), WOI will issue to Eilers, pursuant to WOI's 1995 Long-Term
Performance Incentive Plan, a copy of which is attached hereto as
Exhibit 9, fully-vested options which will entitle him to acquire an
---------
aggregate of 14,467 WOI Common Shares for an exercise price of $6.82
per WOI Common Share and which will be governed by the terms and
conditions of an Agreement Evidencing a Grant of a Non-Qualified Stock
Option, substantially in the form attached as Exhibit 10.
----------
e. Section 5.3(f) shall be redesignated as 5.3(j) and such
Section 5.3(j) shall read as follows:
At the Effective Time, the Existing Burkhalter Options, the
Existing Byer Options, the Existing Woolhiser Options, the Existing
Eilers Options, the Existing Balius Options, the Existing Goodwin
Options, the Existing Robertson Options, and the Existing Pitts
Options will be cancelled. The number of WOI Common Shares covered by
the options described in clauses (b), (c), (d), (e), (f), (g), (h) and
(i) above will be proportionately increased, and the exercise price
per share thereunder will be proportionately reduced, to reflect any
stock dividend, stock split or other subdivision of the WOI Common
Shares effected after the date of this Agreement and prior to the
Effective Time. The number of WOI Common Shares covered by the
options described in clauses (b), (c), (d), (e), (f), (g), (h) and (i)
above will be proportionately reduced, and the exercise price per
share thereunder will be proportionately increased, to reflect any
reverse stock split or other combination of the WOI Common Shares
effected after the date of this Agreement and prior to the Effective
Time.
f. A new Section 5.3(f) shall be added as follows:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which at the time of the Closing are held by Kelly Balius (the
"Existing Balius Options"), WOI will issue to Balius, pursuant to
WOI's 1995 Long-Term Performance Incentive Plan, a copy of which is
attached hereto as Exhibit 9, fully-vested options which will entitle
---------
him to acquire an aggregate of 11,000 WOI Common Shares for an
exercise price of $6.82
2
<PAGE>
per WOI Common Share and which will be governed by the terms and
conditions of an Agreement Evidencing a Grant of a Non-Qualified Stock
Option, substantially in the form attached as Exhibit 10.
----------
g. A new Section 5.3(g) shall be added as follows:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which at the time of the Closing are held by Douglas Goodwin (the
"Existing Goodwin Options"), WOI will issue to Goodwin, pursuant to
WOI's 1995 Long-Term Performance Incentive Plan, a copy of which is
attached hereto as Exhibit 9, fully-vested options which will entitle
---------
him to acquire an aggregate of 1,833 WOI Common Shares for an exercise
price of $6.82 per WOI Common Share and which will be governed by the
terms and conditions of an Agreement Evidencing a Grant of a Non-
Qualified Stock Option, substantially in the form attached as Exhibit
-------
10.
--
h. A new Section 5.3(h) shall be added as follows:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which at the time of the Closing are held by Sam Robertson (the
"Existing Robertson Options"), WOI will issue to Robertson, pursuant
to WOI's 1995 Long-Term Performance Incentive Plan, a copy of which is
attached hereto as Exhibit 9, fully-vested options which will entitle
---------
him to acquire an aggregate of 1,833 WOI Common Shares for an exercise
price of $6.82 per WOI Common Share and which will be governed by the
terms and conditions of an Agreement Evidencing a Grant of a Non-
Qualified Stock Option, substantially in the form attached as Exhibit
-------
10.
--
i. A new Section 5.3(i) shall be added as follows:
At the Closing, upon and in consideration for the surrender,
cancellation and exchange of the options to acquire TWI Common Shares
which at the time of the Closing are held by Jerrod Pitts (the
"Existing Pitts Options"), WOI will issue to Pitts, pursuant to WOI's
1995 Long-Term Performance Incentive Plan, a copy of which is attached
hereto as Exhibit 9, fully-vested options which will entitle him to
---------
acquire an aggregate of 3,667 WOI Common Shares for an exercise price
of $6.82 per WOI Common Share and which will be governed by the terms
and conditions of an Agreement Evidencing a Grant of a Non-Qualified
Stock Option, substantially in the form attached as Exhibit 10.
----------
3. Section 7.8 of the Agreement is amended to read as follows:
STOCK OPTIONS. Each of the Existing Burkhalter Options, the
Existing Byer Options, the Existing Woolhiser Options, the Existing
Eilers Options, the Existing Balius Options, the Existing Goodwin
Options, the Existing Robertson Options and the Existing Pitts Options
shall have been surrendered as provided in Section 5.3, and each other
stock option and warrant to purchase TWI Common Shares that has not
been exercised prior to the Effective Time shall have been exercised,
canceled or otherwise terminated.
3
<PAGE>
4. In Article 11 of the Agreement, in the definition of
"Aggregate Initial Share Amount", the number 3,373,333 is replaced with the
number 3,363,333.
5. The definition of the term "Damages" set forth in Section
11.1 shall be replaced by the following:
"DAMAGES" means all losses, obligations, liabilities, settlement payments,
Prior Offering Expenses to the extent they exceed $2,924,820, awards,
judgments, fines, penalties, damages, deficiencies, court costs, costs of
arbitration or administrative proceedings, attorney's fees and other
reasonable expenses and costs.
6. In order to correct certain typographical errors, certain
Sections of the Agreement are hereby amended as follows:
a. The first recital to the Agreement shall be replaced by
the following:
WHEREAS, the respective Boards of Directors of TWI,
MergerSub and WOI have approved the merger of MergerSub with and
into TWI pursuant and subject to the terms and conditions of this
Agreement (the "Merger"), whereby each issued and outstanding
share of common stock, par value $0.01 per share, of TWI at the
Effective Time (a "TWI Common Share") will be converted into the
right to receive the Per-Share Portion of the WOI Common Shares
which are issuable in connection with the Merger as provided in
this Agreement (as such shares may be adjusted in accordance with
the terms and conditions of this Agreement); and
b. The final paragraph of Section 1.2(b) shall be replaced
by the following:
The respective quantities of WOI Common Shares which constitute
the General Contingent Amount, the Gadsden Contingent Amount, the
Huntsville Contingent Amount, the Jackson Contingent Amount, the
Memphis Contingent Amount and any Market Delivery Contingent
Shares will be (x) proportionately increased to reflect any stock
dividend, stock split or other subdivision of the WOI Common
Shares effected after the date of this Agreement and prior to the
Effective Time, and (y) proportionately decreased to reflect any
reverse stock split or other combination of the WOI Common Shares
which is effected after the date of this Agreement and prior to
the Effective Time.
c. Section 1.2(c)(i) shall be replaced by the following:
the product of (A) 14,000 minus the number of Bona Fide
Subscribers in the Existing Markets on March 31, 1996 multiplied
by (B) $1,275; plus
----
d. Section 1.2(h)(iv) shall be replaced by the following:
4
<PAGE>
(iv) WOI Common Shares representing the Market Delivery
Contingent Shares for the Non-Delivery Market(s), if any, shall
be held by the Market Delivery Escrow Agent pursuant to the terms
of an escrow agreement (the "Market Delivery Escrow Agreement")
which will provide for the release of the WOI Common Shares
constituting the Market Delivery Contingent Shares for each Non-
Delivery Market upon the satisfaction of the Market Delivery
Requirement with respect to such Non-Delivery Market, in
accordance with procedural, dispute and resolution mechanisms and
other provisions comparable to those set forth in the General
Escrow Agreement.
e. The initial sentence of Section 2.2 shall be replaced
by the following:
BarTel, Inc. is the only Subsidiary of TWI.
f. The initial sentence of Section 2.3 shall be replaced
by the following:
The authorized capital stock of TWI as of the date of this
Agreement consists of 8,077,778 shares, comprised of (i)
6,000,000 shares of common stock, $0.01 par value per share, of
which 2,400,000 are issued and outstanding, and (ii) 2,077,778
shares of preferred stock, $0.01 per share, of which 1,100,000
shares ("TWI Preferred Shares"), consisting of 800,000 shares of
Series A Preferred Stock and 300,000 shares of Series B Preferred
Stock, (collectively, "TWI Preferred Stock"), have been issued
and are convertible into 2,200,000 TWI Common Shares.
g. The final sentence of Section 2.8 shall be replaced by
the following:
No TWI SEC Filing contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading (i) as of the time such document
was filed and (ii) as of the date of this Agreement, in each case
except as set forth on Schedule 2.8 or in the amendments to the
------------
TWI SEC Filings filed with the SEC on April 23, 1996.
h. The fourth sentence of Section 3.3 shall be replaced by
the following:
Except as disclosed in the WOI SEC Filings, no Person has rights
to the registration of any securities of WOI or any Subsidiary of
WOI.
i. Section 4.1(i) shall be replaced by the following:
(i) TWI will not, and will not cause any of its
Subsidiaries to, increase in any manner the base compensation of,
or enter into any new bonus or incentive agreement or arrangement
with, any of its directors, officers or employees, or pay bonuses
to any such director, officer
5
<PAGE>
or employee, to the extent the aggregate of the foregoing for all
such persons exceeds $50,000, or pay any salaries except in the
ordinary course of business, except as required under any
existing written employment agreement with any officer, director
or employee of TWI or any Subsidiary of TWI, except with respect
to new employees who are compensated at a rate of less than
$50,000 per annum.
j. Section 5.4 shall be replaced by the following:
5.4 EFFORTS TO CONSUMMATE SPECIFIED ACQUISITIONS. If
at the Effective Time any of the Specified Acquisitions has not
been consummated and the related Target Market Existing Agreement
has not been terminated, then after the Effective Time WOI will
use, and will cause the Surviving Corporation to use, reasonable
efforts to consummate such Specified Acquisition and to cause the
Market Delivery Requirement to be satisfied with respect to such
Specified Acquisition.
k. The first sentence of Section 10.3 shall be replaced by
the following:
The indemnification obligations of WOI shall be limited to and
satisfied solely by the issuance by WOI of WOI Common Shares
(collectively the "WOI Contingent Amount") in quantities such
that the aggregate Exchange Price of the shares so issued is
equal to the aggregate amount of the Damages deemed paid or
satisfied thereby; provided that in no event will WOI be required
to issue pursuant to this Section 10.3 WOI Common Shares having
an aggregate Exchange Price in excess of $2,530,000.
l. The definition of the term "Merger Shares" set forth in
Section 11.1 shall be replaced by the following:
"MERGER SHARES" shall have the meaning set forth in Section
1.2(b).
m. The definition of the term "WOI Contingent Amount" set
forth in Section 11.1 shall be replaced by the following:
"WOI CONTINGENT AMOUNT" shall have the meaning set forth in
Section 10.3.
n. The definition of the term "WOI SEC Filings" set forth
in Section 11.1 shall be replaced by the following:
"WOI SEC FILINGS" shall have the meaning set forth in Section
3.4.
o. The address for notices to TWI set forth in Section 12.3
shall be replaced by the following:
1080 River Oaks Drive
Suite A150
Jackson, MS 39208
6
<PAGE>
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
7. Except as specifically provided herein, the Agreement shall
remain unchanged and in full force and effect.
[SIGNATURE PAGE FOLLOWS]
7
<PAGE>
IN WITNESS WHEREOF, TWI, WOI Mergersub and WOI have duly executed and
delivered this Amendment to the Agreement or have caused this Amendment to the
Agreement to be duly executed on their respective behalf by their respective
officers or representatives thereunto duly authorized, as of the day and year
first above written.
TRUVISION WIRELESS, INC.
a Delaware corporation
By:_______________________________________________
Name:
Title:
WIRELESS ONE MERGERSUB, INC.
a Delaware corporation
By:_______________________________________________
Name:
Title:
WIRELESS ONE, INC.
a Delaware corporation
By:_______________________________________________
Name:
Title:
<PAGE>
EXHIBIT C
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made as of July 29, 1996 by and
---------
among the persons executing this Agreement on the signature page hereto as "TWI
---
Stockholders," WIRELESS ONE, INC., a Delaware corporation ("WOI"), U.S. TRUST
- ------------ ---
COMPANY OF NEW YORK (the "Escrow Agent") and Henry M. Burkhalter (the
------------
"Stockholder Representative"). Capitalized terms used but not defined herein
- ---------------------------
shall have the meanings given to them in that certain Agreement and Plan of
Merger (as in effect from time to time, the "Merger Agreement"), dated as of
----------------
April 25, 1996, among WOI, TruVision Wireless, Inc., a Delaware corporation
("TWI") and Wireless One Merger Sub, Inc. ("Merger Sub"). Capitalized terms
- ----- ----------
used herein and are not otherwise defined shall have the meaning ascribed
thereto in the Merger Agreement. This Agreement is the "General Escrow
Agreement" referred to in the Merger Agreement.
R E C I T A L S:
WHEREAS, TWI, WOI and Merger Sub have entered into the Merger Agreement to
provide for the merger of Merger Sub with and into TWI (the "Merger"); and
------
WHEREAS, the TWI Stockholders were, prior to the Effective Time,
collectively the owners of all of the outstanding TWI Common Shares;
WHEREAS, the Closing of the transactions contemplated by the Merger
Agreement is taking place as of the date hereof;
WHEREAS, WOI has relied upon the representations, warranties and covenants
of TWI provided in the Merger Agreement and in Schedules, Certificates and other
documents delivered to WOI pursuant to the Merger Agreement;
WHEREAS, pursuant to Article 10 of the Merger Agreement, TWI has agreed to
indemnify and hold WOI and Merger Sub harmless from and against certain losses,
obligations, liabilities and damages, as further provided therein, and in
connection therewith, the parties to the Merger Agreement have agreed pursuant
to Section 1.2(h) thereof to establish an escrow for the purpose of satisfying
such indemnification obligations;
WHEREAS, pursuant to Section 1.2(c)(iii) of the Merger Agreement, the WOI
Common Shares to be issued in connection with the Merger are to be adjusted
based upon the amount by which the aggregate amount of the Prior Offering
Expenses exceeds $1,000,000;
ESCROW.010
<PAGE>
WHEREAS, the parties have been unable to determine finally the aggregate
amount of the Prior Offering Expenses, but have agreed that the amount of the
Prior Offering Expenses is not less than $2,400,000, and therefore the parties
have agreed to place in escrow pursuant to this Agreement a number of WOI Common
Shares representing the maximum quantity of WOI Common Shares by which the
Merger Shares will be reduced if the aggregate amount of the Prior Offering
Expenses exceeds $2,400,000 (except to the extent that the aggregate amount of
the Prior Offering Expenses exceeds $2,924,820, to which extent such Expenses
shall constitute Damages and shall be compensable pursuant to Article 10 of the
Merger Agreement);
NOW, THEREFORE, to induce WOI and Merger Sub to proceed with the Closing
and the Merger, and in consideration of such Closing and Merger, and in further
consideration of the mutual covenants and agreements contained herein and in the
Merger Agreement, and intending to be legally bound, the parties hereto do
hereby agree as follows:
ARTICLE 1: APPOINTMENT OF STOCKHOLDER REPRESENTATIVE
The TWI Stockholders hereby appoint the Stockholder Representative, and the
Stockholder Representative agrees to act, as the representative of the TWI
Stockholders (subject to the terms hereof and the Merger Agreement) with respect
to the Escrow Shares (as that term is defined below), in accordance with this
Escrow Agreement. No bond shall be required of the Stockholder Representative,
and the Stockholder Representative shall not receive any compensation for
services hereunder. The Escrow Agent, WOI, TWI and the TWI Stockholders are
hereby relieved from any liability for any acts done by them, or any of them, in
accordance with any resolution, action, decision, consent or instruction of the
Stockholder Representative. The Stockholder Representative in his capacity as
Stockholder Representative is hereby relieved from any liability for any acts
done by him without gross negligence or willful misconduct.
ARTICLE 2: APPOINTMENT OF ESCROW AGENT; ESCROW FUNDS
2.1 APPOINTMENT OF ESCROW AGENT. WOI, the TWI Stockholders and the
Stockholder Representative hereby appoint the Escrow Agent, and the Escrow Agent
hereby agrees to act, as the agent of such parties in performing the duties of
the Escrow Agent provided herein. As compensation for Escrow Agent's services
hereunder, Escrow Agent shall receive compensation of $5,000 per annum, which
shall be payable annually in advance, and the reimbursement of all other
Administrative Costs (as such term is defined in Section 5.2).
2.2 ESTABLISHMENT OF INDEMNITY ESCROW FUND. WOI shall cause to be
deposited with the Escrow Agent 168,667 WOI Common Shares (the "Indemnity Escrow
----------------
Shares"), representing the General Contingent Amount to be received, subject to
- ------
the terms hereof and the Merger Agreement, by the TWI Stockholders pursuant to
the Merger Agreement, such deposit, together with any dividends or other
distributions paid thereon, to constitute an escrow fund (the "Indemnity Escrow
----------------
Fund") to be governed by the terms set forth herein.
- ----
ESCROW.010 2
<PAGE>
2.3 ESTABLISHMENT OF OFFERING EXPENSE ESCROW FUND. WOI shall cause to
be deposited with the Escrow Agent 34,988 WOI Common Shares (the "Offering
--------
Expense Escrow Shares"), representing the maximum quantity of WOI Common Shares
- ---------------------
by which the Merger Shares will be reduced if the aggregate amount of the Prior
Offering Expenses exceeds $2,400,000, such deposit, together with any dividends
or other distributions paid thereon, to constitute an escrow fund (the "Offering
--------
ExpenseEscrow Fund") to be governed by the terms set forth herein.
- ------------------
2.4 EXCHANGE VALUE. For purposes of this Agreement, each of the
Indemnity Escrow Shares and the Offering Expense Escrow Shares (collectively,
the "Escrow Shares") shall be deemed to have a value equal to $15, adjusted
-------------
proportionately to reflect any stock dividend, stock split, reverse stock split
or other combination or subdivision of Common Stock of WOI which may occur or
may have occurred after the date hereof (the "Exchange Value"), and such
--------------
valuation shall apply throughout the duration of the Escrow Period.
2.5 ESCROW. The escrow created hereby shall remain in existence until
the date all of the Escrow Shares and other assets in the Indemnity Escrow Fund
and the Offering Expense Escrow Fund (each an "Escrow Fund") have been
-----------
distributed in accordance herewith (such period being referred to herein as the
"Escrow Period").
-------------
ARTICLE 3: INDEMNIFICATION MATTERS
3.1 INDEMNITY CLAIM SUBMISSION PERIOD. In order to assert a claim (an
"Indemnity Claim") against the Indemnity Escrow Fund, WOI shall deliver (in
---------------
accordance with Section 6.1 hereof) to the Stockholder Representative and the
Escrow Agent during the period beginning on the date hereof and ending on
January 29, 1997 (as such period may be extended for certain Third Party Claims
pursuant to Section 3.2(b) below, the "Indemnity Claim Submission Period"), a
---------------------------------
certificate signed by an executive officer of WOI (an "Indemnity Claim
---------------
Certificate"):
- -----------
(I) stating that WOI or the Surviving Corporation has paid,
suffered or properly accrued, or WOI or the Surviving Corporation in
good faith reasonably anticipates that WOI or the Surviving
Corporation will be required to pay, suffer or accrue, Damages in an
aggregate stated amount (including, without limitation, any
anticipated professional and other fees and costs associated
therewith); and further stating that WOI or the Surviving
Corporation is entitled to indemnification out of the Indemnity
Escrow Fund pursuant to this Agreement and the Merger Agreement in
respect of the same; and
(II) specifying in reasonable detail (A) the individual items
of Damages included in the amount so stated, (B) the date each such
item was paid or properly accrued or the basis for such anticipated
liability, and (C) the nature of the liability, misrepresentation,
breach of warranty or covenant or other matter to which such items
is related.
ESCROW.010 3
<PAGE>
Upon the Escrow Agent's and the Stockholder Representative's receipt of an
Indemnity Claim Certificate, the related Indemnity Claim shall be administered
by the Escrow Agent pursuant to Section 3.3 below.
3.2 THIRD PARTY INDEMNITY CLAIMS.
(A) THIRD PARTY CLAIM NOTICE. Within 15 days after receipt by WOI
of notice ("Third Party Claim Notice") of any Indemnity Claim by a third
------------------------
party ("Third Party Claim"), WOI shall deliver to the Stockholder
-----------------
Representative written notice thereof; provided that the omission to so
notify the Stockholder Representative will not affect WOI's right of
recourse to the Indemnity Escrow Fund hereunder or under the Merger
Agreement with respect to any Indemnity Claim so long as notice of such
Indemnity Claim is given in a timely manner in accordance with Section 3.1.
The Stockholder Representative shall have the right to participate in the
defense of any Third Party Claim and WOI shall have the right (but not the
duty) to control the defense thereof whether or not the Stockholder
Representative chooses to participate in the defense of any proceeding
involving a Third Party Claim. Each party hereto agrees to cooperate in
such defense and take all actions reasonably requested in connection
therewith.
(B) EXTENSION OF CLAIM SUBMISSION PERIOD. If WOI has delivered to
the Stockholder Representative and Escrow Agent a Third Party Claim Notice
within six (6) months from the date of this Agreement and the Indemnity
Claim that is the subject of such notice has not been resolved within such
six-month period, then the Indemnity Claim Submission Period with respect
to such Third Party Claim shall be extended until the final resolution of
such Indemnity Claim.
3.3 ADMINISTRATION OF INDEMNITY CLAIMS.
(A) ACCEPTED AND REJECTED INDEMNITY CLAIMS. The Stockholder
Representative shall have a period of ten (10) business days from its
receipt of an Indemnity Claim Certificate (the "Indemnity Claim Rejection
-------------------------
Period") to review the Indemnity Claim Certificate and deliver to WOI and
------
the Escrow Agent written notice of its rejection of all or a portion of the
claim referenced therein (an "Indemnity Claim Rejection Notice"). During
--------------------------------
the Indemnity Claim Rejection Period and until the related Indemnity Claim
becomes an Accepted Indemnity Claim, WOI shall, upon written request from
the Stockholder Representative, make available or provide any records or
other information reasonably requested by the Stockholder Representative
relevant to such Indemnity Claim. If no Indemnity Claim Rejection Notice is
received by WOI and the Escrow Agent within the Indemnity Claim Rejection
Period, then such Indemnity Claim shall become an "Accepted Indemnity
------------------
Claim."
-----
(B) ADMINISTRATION OF REJECTED INDEMNITY CLAIMS. For any
Indemnity Claim which is the subject of an Indemnity Claim Rejection Notice
(a "Rejected Indemnity Claim"), the Stockholder Representative and WOI
------------------------
shall attempt in good faith
ESCROW.010 4
<PAGE>
to agree upon the rights of the respective parties with respect to such
Rejected Indemnity Claim. If the Stockholder Representative and WOI so
agree, a memorandum setting forth such agreement shall be prepared and
signed by WOI and the Stockholder Representative and shall be furnished to
the Escrow Agent and such Rejected Indemnity Claim (as modified, if at all,
by such agreement) shall become an "Accepted Indemnity Claim."
------------------------
(C) RESOLUTION OF DISPUTES AS TO INDEMNITY CLAIMS. If no such
agreement between the Stockholder Representative and WOI can be reached
with respect to a Rejected Indemnity Claim after good faith negotiation
within thirty (30) days of WOI's receipt of an Indemnity Claim Rejection
Notice, then WOI and the Stockholder Representative shall mutually select
an independent third party (an "Indemnity Claim Arbiter"), whose
-----------------------
determination of the Rejected Indemnity Claim and the amount of Damage (if
any) associated therewith shall be final, nonappealable and binding. Each
Indemnity Claim Arbiter shall be a person knowledgeable regarding the
wireless cable television business and the value of related assets, and
shall be generally knowledgeable with regard to business and financial
matters. In the event WOI and the Stockholder Representative fail to agree
upon an Indemnity Claim Arbiter within forty-five (45) days after WOI's
receipt of the Indemnity Claim Rejection Notice in question, the Indemnity
Claim Arbiter for the related Indemnity Claim shall be the managing partner
of the New York office of an independent "Big Six" accounting firm other
than KPMG Peat Marwick LLP or Arthur Andersen, L.L.P., as selected jointly
by the Stockholder Representative and WOI, and in the absence of said joint
election, as selected by the managing partner of the New York office of the
accounting firm of Price Waterhouse LLP or his designee. Upon the
determination of an Indemnity Claim Arbiter in accordance herewith of the
value, if any, of such Rejected Indemnity Claim, such Rejected Indemnity
Claim (as modified, if at all, by such determination) shall become an
"Accepted Indemnity Claim," and notice thereof will be furnished to the
------------------------
Escrow Agent by the Stockholder Representative or WOI. All determinations
by an Indemnity Claim Arbiter hereunder shall be made in accordance with
the expedited commercial rules of the American Arbitration Association.
(D) PAYMENT OF ACCEPTED INDEMNITY CLAIMS. Once an Indemnity Claim
has become an Accepted Indemnity Claim in accordance with the terms of this
Agreement, the Escrow Agent shall, within five business days of written
request of WOI, deliver to WOI from the Indemnity Escrow Fund a quantity of
Indemnity Escrow Shares having an aggregate Exchange Value equal to the
amount of the Indemnity Claim for which WOI is entitled to indemnification,
rounded to the nearest whole share.
ARTICLE 4: PRIOR OFFERING EXPENSE MATTERS
4.1 OFFERING EXPENSE CLAIM SUBMISSION. In order to assert a claim (the
"Offering Expense Claim") against the Offering Expense Escrow Fund, the
- -----------------------
Stockholder Representative shall deliver (in accordance with Section 6.1 hereof)
to WOI and the Escrow Agent on or prior
ESCROW.010 5
<PAGE>
to January 29, 1997, a certificate signed by the Stockholder Representative (the
"Offering Expense Claim Certificate"):
----------------------------------
(I) stating the aggregate amount of the Prior Offering
Expenses, as determined by the Stockholder Representative and
specifying in reasonable detail the individual items and amounts
which comprise the Prior Offering Expenses; and
(II) specifying the quantity of the Offering Expense Escrow
Shares (if any) which would be delivered to the Stockholder
Representative (for delivery by the Stockholder Representative to
the TWI Stockholders), and the quantity of the Offering Expense
Escrow Shares (if any) which would be delivered to WOI, in
accordance with Section 4.2 based on the Stockholder
Representative's determination of the aggregate amount of the Prior
Offering Expenses set forth in the Offering Expense Claim
Certificate.
Upon the Escrow Agent's and WOI's receipt of the Offering Expense Claim
Certificate, the Offering Expense Claim shall be administered by the Escrow
Agent pursuant to Section 4.3 below.
4.2 DISPOSITION OF OFFERING EXPENSE ESCROW SHARES BASED ON PRIOR
OFFERING EXPENSE AMOUNT. If the aggregate amount of the Prior Offering Expenses
is not greater than $2,400,000, then the TWI Stockholders shall be entitled to
receive all of the Offering Expense Escrow Shares (pro rata based on their
respective common ownership interests in TWI immediately prior to the Merger).
If the aggregate amount of the Prior Offering Expenses is not less than
$2,924,820, then WOI shall be entitled to receive all of the Offering Expense
Escrow Shares and, in addition, shall be entitled to seek reimbursement from the
Indemnity Escrow Fund as provided in the Merger Agreement and this Agreement. If
the aggregate amount of the Prior Offering Expenses is greater than $2,400,000
and less than $2,924,820, then:
(a) WOI shall be entitled to receive Offering Expense Escrow
Shares having an aggregate Exchange Value which is equal to the excess of
the aggregate amount of the Prior Offering Expenses over $2,400,000
(rounded to the nearest whole share), and
(b) the TWI Stockholders shall be entitled to receive the
remainder of the Offering Expense Escrow Shares (pro rata based on their
respective common ownership interests in TWI immediately prior to the
Merger).
4.3 ADMINISTRATION OF OFFERING EXPENSE CLAIM.
(A) ACCEPTED AND REJECTED OFFERING EXPENSE CLAIMS. WOI shall have
a period of ten (10) business days from its receipt of the Offering Expense
Claim Certificate (the "Offering Expense Claim Rejection Period" ) to
---------------------------------------
review the Offering Expense Claim Certificate and deliver to the
Stockholder Representative and the Escrow
ESCROW.010 6
<PAGE>
Agent written notice of its rejection of all or a portion of the claim
referenced therein (the "Offering Expense Claim Rejection Notice"). During
---------------------------------------
the Offering Expense Claim Rejection Period and until the Offering Expense
Claim becomes the Accepted Offering Expense Claim, the Stockholder
Representative and the TWI Stockholders shall, upon written request from
WOI, make available or provide any records or other information reasonably
requested by WOI relevant to the Offering Expense Claim. If no Offering
Expense Claim Rejection Notice is received by the Stockholder
Representative and the Escrow Agent within the Offering Expense Claim
Rejection Period, then the Offering Expense Claim shall become the
"Accepted Offering Expense Claim."
-------------------------------
(B) ADMINISTRATION OF REJECTED OFFERING EXPENSE CLAIMS. If the
Offering Expense Claim is the subject of an Offering Expense Claim
Rejection Notice (and, therefore, is a "Rejected Offering Expense Claim"),
-------------------------------
then the Stockholder Representative and WOI shall attempt in good faith to
agree upon the rights of the respective parties with respect to the
Rejected Offering Expense Claim. If the Stockholder Representative and WOI
so agree, a memorandum setting forth such agreement shall be prepared and
signed by WOI and the Stockholder Representative and shall be furnished to
the Escrow Agent and the Rejected Offering Expense Claim (as modified, if
at all, by such agreement) shall become an "Accepted Offering Expense
-------------------------
Claim."
-----
(C) RESOLUTION OF DISPUTES AS TO THE OFFERING EXPENSE CLAIM. If
no such agreement between the Stockholder Representative and WOI can be
reached with respect to the Rejected Offering Expense Claim after good
faith negotiation within thirty (30) days of the Stockholder
Representative's receipt of the Offering Expense Claim Rejection Notice,
then WOI and the Stockholder Representative shall mutually select an
independent third party (the "Offering Expense Claim Arbiter"), whose
------------------------------
determination of the amount of the Prior Offering Expenses and the
respective quantities (if any) of the Offering Expense Escrow Shares to be
delivered to the Stockholder Representative (for further delivery to the
TWI Stockholders) and WOI in accordance with Section 4.2, shall be final,
nonappealable and binding. The Offering Expense Claim Arbiter shall be a
person knowledgeable regarding the wireless cable television business and
the value of related assets, and shall be generally knowledgeable with
regard to business and financial matters. In the event WOI and the
Stockholder Representative fail to agree upon the Offering Expense Claim
Arbiter within forty-five (45) days after the Stockholder Representative's
receipt of the Offering Expense Claim Rejection Notice in question, the
Offering Expense Claim Arbiter shall be the managing partner of the New
York office of an independent "Big Six" accounting firm other than KPMG
Peat Marwick LLP or Arthur Andersen, L.L.P., as selected jointly by the
Stockholder Representative and WOI, and in the absence of said joint
election, as selected by the managing partner of the New York office of the
accounting firm of Price Waterhouse LLP or his designee. Upon the
determination of the Offering Expense Claim Arbiter in accordance herewith
with respect to the amount of the Prior Offering Expenses and the
respective quantities (if any) of the Offering Expense Escrow Shares to be
delivered to the Stockholder Representative (for further delivery to the
TWI Stockholders) and WOI in accordance with Section 4.2, the Rejected
Offering Expense Claim (as modified, if at all, by such determination)
shall
ESCROW.010 7
<PAGE>
become an "Accepted Offering Expense Claim," and notice thereof will
-------------------------------
be furnished to the Escrow Agent by the Stockholder Representative or WOI.
All determinations by the Offering Expense Claim Arbiter hereunder shall be
made in accordance with the expedited commercial rules of the American
Arbitration Association.
(D) PAYMENT OF ACCEPTED OFFERING EXPENSE CLAIM. Once the Offering
Expense Claim has become an Accepted Offering Expense Claim in accordance
with the terms of this Agreement, the Escrow Agent shall, within five
business days of written request of WOI, deliver to the Stockholder
Representative (for further delivery by the Stockholder Representative to
the TWI Stockholders pro rata according to their respective common
ownership interests in TWI immediately prior to the Merger) and WOI from
the Offering Expense Escrow Fund the respective quantities (if any) of WOI
Common Shares deliverable to them in accordance with Section 4.2.
ARTICLE 5: EXPIRATION OF ESCROWS;
COSTS; CERTAIN RESPONSIBILITIES
5.1 EXPIRATION OF ESCROW PERIOD.
(A) DELIVERY OF INDEMNITY ESCROW SHARES UPON EXPIRATION. If either
(i) the Escrow Agent does not receive an Indemnity Claim
Certificate pursuant to Section 3.1 on or prior to January 29, 1997,
or
(ii) the Escrow Agent receives one or more Indemnity Claim
Certificate(s) pursuant to Section 3.1 on or prior to January 29,
1997 and with respect to each such Indemnity Claim Certificate (and
any other Indemnity Claim Certificate delivered after January 29,
1997 as permitted by Section 3.1) the underlying Indemnity Claim has
become an Accepted Indemnity Claim and the related delivery of
Indemnity Escrow Shares to WOI (if any) has been made,
then on February 13, 1997 the Escrow Agent will deliver to the Stockholder
Representative all Indemnity Escrow Shares not theretofore delivered to
WOI, for further delivery by the Stockholder Representative to the TWI
Stockholders (pro rata based on their respective common ownership interests
in TWI immediately prior to the Merger). If on February 13, 1997 one or
more Indemnity Claim Certificate(s) have been delivered pursuant to Section
3.1 on or prior to January 29, 1997 and the Indemnity Claim underlying any
such Indemnity Claim Certificate (or any other Indemnity Claim Certificate
delivered pursuant to Section 3.1 after January 29, 1997 as permitted by
Section 3.1) has not become an Accepted Indemnity Claim, then the Escrow
Agent will continue to hold the Indemnity Escrow Shares until each such
Indemnity Claim (and each other Indemnity Claim underlying any Indemnity
Claim Certificate thereafter delivered as permitted by Section 3.1) has
become an Accepted Indemnity Claim and the related delivery of Indemnity
Escrow Shares to WOI (if any) has been made, at which time the
ESCROW.010 8
<PAGE>
Escrow Agent will deliver to the Stockholder Representative all Indemnity
Escrow Shares not theretofore delivered to WOI, for further delivery by the
Stockholder Representative to the TWI Stockholders (pro rata based on their
respective common ownership interests in TWI immediately prior to the
Merger).
(B) DELIVERY OF OFFERING EXPENSE ESCROW SHARES UPON EXPIRATION. If
the Escrow Agent does not receive the Offering Expense Claim Certificate
pursuant to Section 4.1 on or prior to January 29, 1997, then on February
13, 1997 the Escrow A gent will deliver to WOI all Offering Expense Escrow
Shares.
(C) APPLICATION OF PROVISIONS FOLLOWING EXPIRATION. Following the
expiration of the Escrow Period and distribution in accordance herewith of
the Escrow Funds, the escrow created hereby and this Agreement, other than
the provisions of Sections 5.2(b), 5.2(c) and 5.4 shall terminate.
5.2 ADMINISTRATIVE COSTS AND INDEMNIFICATION.
(A) ADMINISTRATIVE COSTS. All costs and expenses of administering
this Agreement (including, without limitation, fees and expenses of the
Escrow Agent and any Indemnity Claim Arbiter or Offering Expense Claim
Arbiter) (collectively, "Administrative Costs") shall be paid as provided
--------------------
in Section 5.2(b). The Escrow Agent shall from time to time invoice such
costs and expenses in accordance with its standard practice and provide
copies thereof to the Stockholder Representative and WOI. Within fifteen
(15) business days after WOI's receipt of an invoice from the Escrow Agent,
WOI shall pay to the Escrow Agent the amount of such invoice for use by the
Escrow Agent in paying or reimbursing such costs and expenses. WOI shall be
under no obligation to bear any expenses pursuant to this Section 5.2(a) at
any time that the Indemnity Escrow Fund shall be exhausted or all Indemnity
Escrow Shares have been distributed or following the termination of the
Escrow Period.
(B) INDEMNIFICATION OF ESCROW AGENT. The Escrow Agent shall be
indemnified and saved harmless by WOI from and against any and all
liability, including all expenses reasonably incurred in its defense, to
which the Escrow Agent shall be subjected by reason of any action taken or
omitted or any investment or disbursement of any part of the Escrow Fund
made by the Escrow Agent pursuant to this Agreement, unless caused by the
negligence or willful misconduct of the Escrow Agent. The costs and
expenses of enforcing this right of indemnification (the "Indemnification
---------------
Costs") shall also be paid by WOI, and this right of indemnification shall
-----
survive the termination of this Agreement and/or the resignation or removal
of the Escrow Agent. The Indemnification Costs and Administrative Costs of
WOI to the Escrow Agent set forth in Subsections 5.2(a) and (b) shall be
paid in cash by WOI, and the TWI Stockholders shall be obligated to pay in
cash to WOI one-half of such Indemnification Costs and Administrative Costs
within a reasonable time after notice thereof from WOI.
ESCROW.010 9
<PAGE>
5.3 INVESTMENT OF ESCROW FUNDS; VOTING.
(A) INVESTMENT. The Escrow Agent shall invest any cash held in
either Escrow Fund in an interest-bearing account or money market
instruments in accordance with written instructions from the WOI. Any
interest payable on the funds shall be added to the Escrow Fund in question
and become a part thereof. The parties acknowledge that the Escrow Agent
shall not be liable for any diminution in either Escrow Fund due to losses
resulting from investments made pursuant to this Escrow Agreement.
(B) VOTING. The Escrow Shares shall be issued and held in the name
of the Escrow Agent, and the Escrow Agent hereby grants to the Stockholder
Representative an irrevocable proxy, coupled with an interest, to vote the
Escrow Shares. The Stockholder Representative shall have voting rights with
respect to the Escrow Shares (and on any voting securities added to either
Escrow Fund) held by the Escrow Agent so long as such Escrow Shares or
other voting securities are held in either Escrow Fund. The Escrow Agent
shall execute and deliver to the Stockholder Representative upon request
all such proxies, forms for election or other instruments which it receives
as may be required with respect to the Escrow Shares or any such other
voting securities in order to give effect to the foregoing.
5.4 ESCROW AGENT'S RIGHTS AND RESPONSIBILITIES. To induce the Escrow
Agent to act hereunder, it is further agreed that:
(A) DEGREE OF CARE. The Escrow Agent shall not be under any duty to
give the property held hereunder any greater degree of care than it gives
its own similar property. The Escrow Agent undertakes to perform such
duties as are specifically set forth in this Escrow Agreement, and the
Escrow Agent shall not be liable except for the performance of such duties
as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Escrow Agent.
(B) ADVICE OF COUNSEL. The Escrow Agent may act upon advice of
counsel in reference to any matter connected herewith and shall not be
liable for any acts or omissions while acting in good faith and exercising
reasonable judgment.
(C) LIABILITY AS TO PARTIES. The Escrow Agent shall not be liable
in any respect on account of the identity, authority or rights of the
parties executing or delivering or purporting to execute or deliver this
Agreement or any documents or papers deposited or called for hereunder.
(D) LIABILITY AS TO VALIDITY. The Escrow Agent shall not be liable
for the outlawing of any rights under any statute of limitations with
respect to this Agreement or any documents deposited with the Escrow Agent.
ESCROW.010 10
<PAGE>
(E) COMPLIANCE WITH COURTS OF LAW. The Escrow Agent is hereby
expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person, excepting only orders or process of
courts of law, and is hereby expressly authorized to comply with and obey
orders, judgments or decrees of any court. In case the Escrow Agent obeys
or complies with any such order, judgment or decree of any court, the
Escrow Agent shall not be liable to any of the parties hereto or to any
other person by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
(F) INSTRUCTIONS OF STOCKHOLDER REPRESENTATIVE. The Escrow Agent is
authorized to rely on the written instructions of the Stockholder
Representative as being the act of all of TWI Stockholders and the written
instructions of the President or any executive officer of WOI as being the
act of WOI.
(G) NO IMPLIED DUTIES. This Agreement sets forth the exclusive
duties of the Escrow Agent with respect to any and all matters pertinent
hereto and no implied duties or obligations of the Escrow Agent shall be
read into this Agreement.
(H) NO ADVICE. The Escrow Agent shall not be called upon to advise
any party as to its rights and obligations hereunder.
(I) COMPLIANCE WITH OBLIGATIONS. The Escrow Agent shall be deemed
to have fully complied with its obligations hereunder to transfer Escrow
Shares by delivery to the transfer agent of WOI (the "Transfer Agent") of
-------------
WOI Common Shares, all in fo rm satisfactory to such Transfer Agent, of
certificates properly endorsed for transfer with instructions to the
Transfer Agent to issue in the name of and deliver to the person to whom
such transfer is to be made a certificate or certificates for the required
number of shares. Transfer taxes, if any, applicable to such transfer shall
be payable by the person to whom the Escrow Shares are being transferred.
(J) PROTECTION OF ACTS. The Escrow Agent shall be fully protected
in acting in accordance with any instructions given to it hereunder and
believed by it to have been executed by the proper parties. The Escrow
Agent's duties shall be determined only with reference to this Agreement
and applicable laws and is not charged with any duties or responsibilities
in connection with any other document or agreement.
5.5 RECORDS; FINAL ACCOUNTING. The Escrow Agent shall maintain a record
of each Indemnity Claim or Offering Expense Claim (collectively, "Claims")
------
against the Escrow Funds filed with it pursuant to this Agreement, a record of
all such Claims which shall become payable claimed as provided herein, a record
of all requests and notices filed with it pursuant to the term hereof, and
payments or distributions from the Escrow Funds. Upon the termination or
resignation of the Escrow Agent or termination or expiration of this Agreement,
the Escrow Agent shall within ten (10) business days deliver to WOI and the
Stockholder Representative a full and final accounting with regard to the Escrow
Funds.
ESCROW.010 11
<PAGE>
5.6 RESIGNATION OF ESCROW AGENT. The Escrow Agent, or any successor, may
resign as Escrow Agent hereunder by giving written notice thereof to WOI and the
Stockholder Representative. Such resignation shall become effective following
such written notice upon the earlier of the appointment by WOI and the
Stockholder Representative of a successor Escrow Agent that accepts the
appointment and agrees to be bound by the provisions of this Agreement or the
expiration of sixty (60) days thereafter. Upon the effectiveness of such
resignation, all duties of the Escrow Agent so resigning shall cease, other than
the duty to account in accordance with Section 5.5. WOI and the Stockholder
Representative shall have the right to terminate the appointment of the Escrow
Agent hereunder by giving written notice thereof to the Escrow Agent, specifying
the date upon which such termination shall take effect. A condition precedent to
such termination shall be the designation of a successor Escrow Agent that has
accepted the appointment and agreed to be bound by the provisions of this
Agreement, or an agreement executed by WOI and the Stockholder Representative
directing the release or payment of the remaining Escrow Shares and other items
and amounts in the Escrow Funds. In event of such termination, the Escrow Agent
shall turn over and deliver to such successor Escrow Agent the Escrow Funds, and
any other sums and the records and instruments held by it under this Agreement
and render the accounting required by Section 5.5.
ARTICLE 6: MISCELLANEOUS
6.1 NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
sent by nationally recognized, overnight courier, or mailed by registered or
certified mail (return receipt requested), postage prepaid, or sent by facsimile
(followed by a copy sent by courier or registered or certified mail) to the
parties at the following addresses (or at such other address for a party as
shall be specified by notice hereunder):
If to WOI, to:
11301 Industriplex Boulevard
Suite 4
Baton Rouge, LA 70809-5400
Attention: Sean Reilly
Telecopy: (504) 293-5400
With copy (which copy will not constitute notice to WOI) to:
John Kuehn, Esq.
Kirkland & Ellis
153 E. 53rd Street
New York, New York 10022
Telecopy: (212) 446-4900
ESCROW.010 12
<PAGE>
If to TWI or the Stockholder Representative, to:
1080 River Oaks Drive
Suite A150
Jackson, MS 39208
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
With copy (which copy will not constitute notice to TWI or the Stockholder
Representative) to:
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 1000
New York, New York 10022
Telecopy: (212) 751-4864
If to the Escrow Agent:
114 W. 47th Street
New York, NY 10036
Attention: Peggy Ciesmelewski
Telecopy: (212) 852-1626
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery or by a nationally recognized
overnight courier, on the date of such delivery, (b) in the case of mailing, on
the date received, and (c) in the case of a facsimile, when the party receiving
such facsimile shall have confirmed receipt of the communication.
6.2 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties hereto.
6.3 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware as such laws are applied to
agreements between Delaware residents entered into and to be performed entirely
in Delaware.
6.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original
hereof, but all of which together shall constitute one agreement.
* * * * * * * *
ESCROW.010 13
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement as
of the day and year first above written.
WIRELESS ONE, INC.
By:______________________________________
Title:___________________________________
_________________________________________
Henry M. Burkhalter, in his capacity as
the Stockholder Representative
U.S. TRUST COMPANY OF NEW YORK
By:______________________________________
Title:___________________________________
TWI STOCKHOLDERS:
----------------
MISSISSIPPI WIRELESS TV, L.P.
By: Wireless TV, Inc.
Its: General Partner
By:______________________________________
Title:___________________________________
CHASE VENTURE CAPITAL ASSOCIATES L.P.
By: Chase Capital Partners
Its: General Partner
By:______________________________________
Title:___________________________________
ESCROW.010 14
<PAGE>
VANCOM, INC.
By:______________________________________
Title:___________________________________
ESCROW.010 15
<PAGE>
EXHIBIT D
ACQUISITION AND MARKET ESCROW AGREEMENT
THIS ACQUISITION AND MARKET ESCROW AGREEMENT (the "Agreement") is made as
---------
of July 29, 1996 by and among the persons executing this Agreement on the
signature page hereto as "TWI Stockholders," WIRELESS ONE, INC., a Delaware
----------------
corporation ("WOI"), U.S. TRUST COMPANY OF NEW YORK (the "Escrow Agent") and
--- ------------
Henry M. Burkhalter (the "Stockholder Representative"). Capitalized terms used
--------------------------
but not defined herein shall have the meanings given to them in that certain
Agreement and Plan of Merger (as in effect from time to time, the "Merger
------
Agreement"), dated as of April 25, 1996, among WOI, TruVision Wireless, Inc., a
- ---------
Delaware corporation ("TWI") and Wireless One Merger Sub, Inc. ("Merger Sub").
--- ----------
Capitalized terms used herein and are not otherwise defined shall have the
meaning ascribed thereto in the Merger Agreement. This Agreement is both the
"Acquisition Escrow Agreement" and the "Market Delivery Escrow Agreement"
referred to in the Merger Agreement.
R E C I T A L S:
WHEREAS, TWI, WOI and Merger Sub have entered into the Merger Agreement to
provide for the merger of Merger Sub with and into TWI (the "Merger"); and
------
WHEREAS, the TWI Stockholders were, prior to the Effective Time,
collectively the owners of all of the outstanding TWI Common Shares;
WHEREAS, the Closing of the transactions contemplated by the Merger
Agreement is taking place as of the date hereof;
WHEREAS, WOI has relied upon the representations, warranties and covenants
of TWI provided in the Merger Agreement and in Schedules, Certificates and other
documents delivered to WOI pursuant to the Merger Agreement;
WHEREAS, pursuant to Section 1.2 of the Merger Agreement, the parties are
establishing escrows hereunder because (a) the Jackson Acquisition will not be
consummated at or prior to the Effective Time, (b) the Huntsville Acquisition
will not be consummated at or prior to the Effective Time, and (c) the Market
Delivery Requirement will not be satisfied at or prior to the Effective Time
with respect to the Demopolis, Alabama, market;
NOW, THEREFORE, to induce WOI and Merger Sub to proceed with the Closing
and the Merger, and in consideration of such Closing and Merger, and in further
consideration of the mutual covenants and agreements contained herein and in the
Merger Agreement, and intending to be legally bound, the parties hereto do
hereby agree as follows:
ESCROW.004- PAGE 1
<PAGE>
ARTICLE 1: APPOINTMENT OF STOCKHOLDER REPRESENTATIVE
The TWI Stockholders hereby appoint the Stockholder Representative, and the
Stockholder Representative agrees to act, as the representative of the TWI
Stockholders (subject to the terms hereof and the Merger Agreement) with respect
to the Escrow Shares (as that term is defined below), in accordance with this
Escrow Agreement. No bond shall be required of the Stockholder Representative,
and the Stockholder Representative shall not receive any compensation for
services hereunder. The Escrow Agent, WOI, TWI and the TWI Stockholders are
hereby relieved from any liability for any acts done by them, or any of them, in
accordance with any resolution, action, decision, consent or instruction of the
Stockholder Representative. The Stockholder Representative in his capacity as
Stockholder Representative is hereby relieved from any liability for any acts
done by him without gross negligence or willful misconduct.
ARTICLE 2: APPOINTMENT OF ESCROW AGENT; ESCROW FUNDS
2.1 APPOINTMENT OF ESCROW AGENT. WOI, the TWI Stockholders and the
Stockholder Representative hereby appoint the Escrow Agent, and the Escrow Agent
hereby agrees to act, as the agent of such parties in performing the duties of
the Escrow Agent provided herein. As compensation for Escrow Agent's services
hereunder, Escrow Agent shall receive compensation of $5,000 per annum, which
shall be payable annually in advance, and the reimbursement of all other
Administrative Costs (as such term is defined in Section 5.2).
2.2 ESTABLISHMENT OF JACKSON ESCROW FUND. WOI shall cause to be
deposited with the Escrow Agent 36,633 WOI Common Shares (the "Jackson Escrow
--------------
Shares"), representing the Jackson Contingent Amount to be received, subject to
- ------
the terms hereof and the Merger Agreement, by the TWI Stockholders pursuant to
the Merger Agreement, such deposit, together with any dividends or other
distributions paid thereon, to constitute an escrow fund (the "Jackson Escrow
--------------
Fund") to be governed by the terms set forth herein.
- ----
2.3 ESTABLISHMENT OF HUNTSVILLE ESCROW FUND. WOI shall cause to be
deposited with the Escrow Agent 121,447 WOI Common Shares (the "Huntsville
----------
Escrow Shares"), representing the Huntsville Contingent Amount to be received,
- -------------
subject to the terms hereof and the Merger Agreement, by the TWI Stockholders
pursuant to the Merger Agreement, such deposit, together with any dividends or
other distributions paid thereon, to constitute an escrow fund (the "Huntsville
----------
Escrow Fund") to be governed by the terms set forth herein.
- -----------
2.4 ESTABLISHMENT OF DEMOPOLIS ESCROW FUND. WOI shall cause to be
deposited with the Escrow Agent 44,720 WOI Common Shares (the "Demopolis Escrow
Shares"), representing the Market Delivery Contingent Shares for the Demopolis,
- ------
Alabama, market to be received, subject to the terms hereof and the Merger
Agreement, by the TWI Stockholders pursuant to the Merger Agreement, such
deposit, together with any dividends or other distributions paid thereon, to
constitute an escrow fund (the "Demopolis Escrow Fund") to be governed by the
---------------------
terms set forth herein.
ESCROW.004- PAGE 2 2
<PAGE>
2.5 ESCROW SHARES. Each of the Jackson Escrow Fund, the Huntsville
Escrow Fund and the Demopolis Escrow Fund is referred to as an "Escrow Fund,"
-----------
and the Jackson Escrow Shares, the Huntsville Escrow Shares and the Demopolis
Escrow Shares are collectively referred to as the "Escrow Shares."
-------------
2.6 ESCROW. The escrow created hereby shall remain in existence until
the date all of the Escrow Shares and other assets in the Escrow Funds have been
distributed in accordance herewith (such period being referred to herein as the
"Escrow Period").
-------------
ARTICLE 3: ACQUISITION-RELATED MATTERS
3.1 JACKSON CLAIM SUBMISSION. In order to assert a claim (a "Jackson
-------
Claim") against the Jackson Escrow Fund, the Stockholder Representative shall
- -----
deliver (in accordance with Section 6.1 hereof) to WOI and the Escrow Agent, a
certificate signed by the Stockholder Representative (a "Jackson Claim
-------------
Certificate") stating that the Jackson Acquisition has been consummated. Upon
- -----------
the Escrow Agent's and WOI's receipt of a Jackson Claim Certificate, the related
Jackson Claim shall be administered by the Escrow Agent pursuant to Section 3.2
below.
3.2 ADMINISTRATION OF JACKSON CLAIM.
(A) ACCEPTED AND REJECTED JACKSON CLAIMS. WOI shall have a period
of ten (10) business days from its receipt of a Jackson Claim Certificate
(the "Jackson Claim Rejection Period") to review the Jackson Claim
------------------------------
Certificate and deliver to the Stockholder Representative and the Escrow
Agent written notice to the effect that WOI disputes the assertion that the
Jackson Acquisition has been consummated (a "Jackson Claim Rejection
-----------------------
Notice"). During any Jackson Claim Rejection Period and until the related
------
Jackson Claim becomes the Accepted Jackson Claim, the Stockholder
Representative and the TWI Stockholders shall, upon written request from
WOI, make available or provide any records or other information reasonably
requested by WOI relevant to such Jackson Claim. If no Jackson Claim
Rejection Notice is received by the Stockholder Representative and the
Escrow Agent within the relevant Jackson Claim Rejection Period, then such
Jackson Claim shall become the "Accepted Jackson Claim."
----------------------
(B) ADMINISTRATION OF REJECTED JACKSON CLAIMS. If a Jackson Claim
is the subject of a Jackson Claim Rejection Notice (and, therefore, is a
"Rejected Jackson Claim"), then the Stockholder Representative and WOI
----------------------
shall attempt in good faith to agree upon the rights of the respective
parties with respect to such Jackson Claim. If the Stockholder
Representative and WOI so agree, a memorandum setting forth such agreement
shall be prepared and signed by WOI and the Stockholder Representative and
shall be furnished to the Escrow Agent and, if the Stockholder
Representative and WOI so agree that the Jackson Acquisition has been
consummated, then the Rejected Jackson Claim shall become the "Accepted
--------
Jackson Claim."
-------------
ESCROW.004- PAGE 3 3
<PAGE>
(C) RESOLUTION OF DISPUTES AS TO A JACKSON CLAIM. If no such
agreement between the Stockholder Representative and WOI can be reached
with respect to a Rejected Jackson Claim after good faith negotiation
within thirty (30) days of the Stockholder Representative's receipt of the
related Jackson Claim Rejection Notice, then WOI and the Stockholder
Representative shall mutually select an independent third party (a "Jackson
-------
Claim Arbiter"), whose determination as to whether the Jackson Acquisition
-------------
has been consummated shall be final, nonappealable and binding. Each
Jackson Claim Arbiter shall be a person knowledgeable regarding the
wireless cable television business and the value of related assets, and
shall be generally knowledgeable with regard to business and financial
matters. In the event WOI and the Stockholder Representative fail to agree
upon a Jackson Claim Arbiter for any Rejected Jackson Claim within forty-
five (45) days after the Stockholder Representative's receipt of the
related Jackson Claim Rejection Notice in question, the Jackson Claim
Arbiter shall be the managing partner of the New York office of an
independent "Big Six" accounting firm other than KPMG Peat Marwick LLP or
Arthur Andersen, L.L.P., as selected jointly by the Stockholder
Representative and WOI, and in the absence of said joint election, as
selected by the managing partner of the New York office of the accounting
firm of Price Waterhouse LLP or his designee. Upon a determination of a
Jackson Claim Arbiter in accordance herewith to the effect that the Jackson
Acquisition has been consummated, the Rejected Jackson Claim in question
shall become the "Accepted Jackson Claim," and notice thereof will be
----------------------
furnished to the Escrow Agent by the Stockholder Representative or WOI. All
determinations by any Jackson Claim Arbiter hereunder shall be made in
accordance with the expedited commercial rules of the American Arbitration
Association.
(D) PAYMENT OF ACCEPTED JACKSON CLAIM. Once a Jackson Claim has
become the Accepted Jackson Claim in accordance with the terms of this
Agreement, the Escrow Agent shall, within five business days of written
request of the Stockholder Representative, deliver to the Stockholder
Representative (for further delivery by the Stockholder Representative to
the TWI Stockholders pro rata according to their respective common
ownership interests in TWI immediately prior to the Merger), all of the
Jackson Escrow Shares.
3.3 HUNTSVILLE CLAIM SUBMISSION. In order to assert a claim (a
"Huntsville Claim") against the Huntsville Escrow Fund, the Stockholder
----------------
Representative shall deliver (in accordance with Section 6.1 hereof) to WOI and
the Escrow Agent, a certificate signed by the Stockholder Representative (a
"Huntsville Claim Certificate") stating that the Huntsville Acquisition has been
----------------------------
consummated. Upon the Escrow Agent's and WOI's receipt of a Huntsville Claim
Certificate, the related Huntsville Claim shall be administered by the Escrow
Agent pursuant to Section 3.4 below.
ESCROW.004- PAGE 4 4
<PAGE>
3.4 ADMINISTRATION OF HUNTSVILLE CLAIM.
(A) ACCEPTED AND REJECTED HUNTSVILLE CLAIMS. WOI shall have a
period of ten (10) business days from its receipt of a Huntsville Claim
Certificate (the "Huntsville Claim Rejection Period") to review the
---------------------------------
Huntsville Claim Certificate and deliver to the Stockholder Representative
and the Escrow Agent written notice to the effect that WOI disputes the
assertion that the Huntsville Acquisition has been consummated (a
"Huntsville Claim Rejection Notice"). During any Huntsville Claim Rejection
---------------------------------
Period and until the related Huntsville Claim becomes the Accepted
Huntsville Claim, the Stockholder Representative and the TWI Stockholders
shall, upon written request from WOI, make available or provide any records
or other information reasonably requested by WOI relevant to such
Huntsville Claim. If no Huntsville Claim Rejection Notice is received by
the Stockholder Representative and the Escrow Agent within the relevant
Huntsville Claim Rejection Period, then such Huntsville Claim shall become
the "Accepted Huntsville Claim."
-------------------------
(B) ADMINISTRATION OF REJECTED HUNTSVILLE CLAIMS. If a Huntsville
Claim is the subject of a Huntsville Claim Rejection Notice (and,
therefore, is a "Rejected Huntsville Claim"), then the Stockholder
-------------------------
Representative and WOI shall attempt in good faith to agree upon the rights
of the respective parties with respect to such Huntsville Claim. If the
Stockholder Representative and WOI so agree, a memorandum setting forth
such agreement shall be prepared and signed by WOI and the Stockholder
Representative and shall be furnished to the Escrow Agent and, if the
Stockholder Representative and WOI so agree that the Huntsville Acquisition
has been consummated, then the Rejected Huntsville Claim shall become the
"Accepted Huntsville Claim."
-------------------------
(C) RESOLUTION OF DISPUTES AS TO A HUNTSVILLE CLAIM. If no such
agreement between the Stockholder Representative and WOI can be reached
with respect to a Rejected Huntsville Claim after good faith negotiation
within thirty (30) days of the Stockholder Representative's receipt of the
related Huntsville Claim Rejection Notice, then WOI and the Stockholder
Representative shall mutually select an independent third party (a
"Huntsville Claim Arbiter"), whose determination as to whether the
------------------------
Huntsville Acquisition has been consummated shall be final, nonappealable
and binding. Each Huntsville Claim Arbiter shall be a person knowledgeable
regarding the wireless cable television business and the value of related
assets, and shall be generally knowledgeable with regard to business and
financial matters. In the event WOI and the Stockholder Representative fail
to agree upon a Huntsville Claim Arbiter for any Rejected Huntsville Claim
within forty-five (45) days after the Stockholder Representative's receipt
of the related Huntsville Claim Rejection Notice in question, the
Huntsville Claim Arbiter shall be the managing partner of the New York
office of an independent "Big Six" accounting firm other than KPMG Peat
Marwick LLP or Arthur Andersen, L.L.P., as selected jointly by the
Stockholder Representative and WOI, and in the absence of said joint
election, as selected by the managing partner of the New York office of the
accounting firm of Price Waterhouse LLP or his designee. Upon a
determination of a Huntsville Claim Arbiter in accordance herewith to the
effect that the Huntsville Acquisition has
ESCROW.004- PAGE 5 5
<PAGE>
been consummated, the Rejected Huntsville Claim in question shall become
the "Accepted Huntsville Claim," and notice thereof will be furnished to
-------------------------
the Escrow Agent by the Stockholder Representative or WOI. All
determinations by any Huntsville Claim Arbiter hereunder shall be made in
accordance with the expedited commercial rules of the American Arbitration
Association.
(D) PAYMENT OF ACCEPTED HUNTSVILLE CLAIM. Once a Huntsville Claim
has become the Accepted Huntsville Claim in accordance with the terms of
this Agreement, the Escrow Agent shall, within five business days of
written request of the Stockholder Representative, deliver to the
Stockholder Representative (for further delivery by the Stockholder
Representative to the TWI Stockholders pro rata according to their
respective common ownership interests in TWI immediately prior to the
Merger), all of the Huntsville Escrow Shares.
ARTICLE 4: MARKET-DELIVERY-RELATED MATTERS
4.1 DEMOPOLIS CLAIM SUBMISSION. In order to assert a claim (a
"Demopolis Claim") against the Demopolis Escrow Fund, the Stockholder
---------------
Representative shall deliver (in accordance with Section 6.1 hereof) to WOI and
the Escrow Agent, a certificate signed by the Stockholder Representative (a
"Demopolis Claim Certificate") stating that the Market Delivery Requirement has
---------------------------
been satisfied with respect to the Demopolis, Alabama, market. Upon the Escrow
Agent's and WOI's receipt of a Demopolis Claim Certificate, the related
Demopolis Claim shall be administered by the Escrow Agent pursuant to Section
4.2 below.
4.2 ADMINISTRATION OF DEMOPOLIS CLAIM.
(A) ACCEPTED AND REJECTED DEMOPOLIS CLAIMS. WOI shall have a
period of ten (10) business days from its receipt of a Demopolis Claim
Certificate (the "Demopolis Claim Rejection Period") to review the
--------------------------------
Demopolis Claim Certificate and deliver to the Stockholder Representative
and the Escrow Agent written notice to the effect that WOI disputes the
assertion that the Market Delivery Requirement has been satisfied with
respect to the Demopolis, Alabama, market (a "Demopolis Claim Rejection
-------------------------
Notice"). During any Demopolis Claim Rejection Period and until the related
------
Demopolis Claim becomes the Accepted Demopolis Claim, the Stockholder
Representative and the TWI Stockholders shall, upon written request from
WOI, make available or provide any records or other information reasonably
requested by WOI relevant to such Demopolis Claim. If no Demopolis Claim
Rejection Notice is received by the Stockholder Representative and the
Escrow Agent within the relevant Demopolis Claim Rejection Period, then
such Demopolis Claim shall become the "Accepted Demopolis Claim."
------------------------
(B) ADMINISTRATION OF REJECTED DEMOPOLIS CLAIMS. If a Demopolis
Claim is the subject of a Demopolis Claim Rejection Notice (and, therefore,
is a "Rejected Demopolis Claim"), then the Stockholder Representative and
------------------------
WOI shall attempt in good faith to agree upon the rights of the respective
parties with respect to such Demopolis
ESCROW.004 - PAGE 6 6
<PAGE>
Claim. If the Stockholder Representative and WOI so agree, a memorandum
setting forth such agreement shall be prepared and signed by WOI and the
Stockholder Representative and shall be furnished to the Escrow Agent and,
if the Stockholder Representative and WOI so agree that the Market Delivery
Requirement has been satisfied with respect to the Demopolis, Alabama,
market, then the Rejected Demopolis Claim shall become the "Accepted
--------
Demopolis Claim."
---------------
(C) RESOLUTION OF DISPUTES AS TO A DEMOPOLIS CLAIM. If no such
agreement between the Stockholder Representative and WOI can be reached
with respect to a Rejected Demopolis Claim after good faith negotiation
within thirty (30) days of the Stockholder Representative's receipt of the
related Demopolis Claim Rejection Notice, then WOI and the Stockholder
Representative shall mutually select an independent third party (a
"Demopolis Claim Arbiter"), whose determination as to whether the Market
-----------------------
Delivery Requirement has been satisfied with respect to the Demopolis,
Alabama, market shall be final, nonappealable and binding. Each Demopolis
Claim Arbiter shall be a person knowledgeable regarding the wireless cable
television business and the value of related assets, and shall be generally
knowledgeable with regard to business and financial matters. In the event
WOI and the Stockholder Representative fail to agree upon a Demopolis Claim
Arbiter for any Rejected Demopolis Claim within forty-five (45) days after
the Stockholder Representative's receipt of the related Demopolis Claim
Rejection Notice in question, the Demopolis Claim Arbiter shall be the
managing partner of the New York office of an independent "Big Six"
accounting firm other than KPMG Peat Marwick LLP or Arthur Andersen,
L.L.P., as selected jointly by the Stockholder Representative and WOI, and
in the absence of said joint election, as selected by the managing partner
of the New York office of the accounting firm of Price Waterhouse LLP or
his designee. Upon a determination of a Demopolis Claim Arbiter in
accordance herewith to the effect that the Market Delivery Requirement has
been satisfied with respect to the Demopolis, Alabama, market, the Rejected
Demopolis Claim in question shall become the "Accepted Demopolis Claim,"
------------------------
and notice thereof will be furnished to the Escrow Agent by the Stockholder
Representative or WOI. All determinations by any Demopolis Claim Arbiter
hereunder shall be made in accordance with the expedited commercial rules
of the American Arbitration Association.
(D) PAYMENT OF ACCEPTED DEMOPOLIS CLAIM. Once a Demopolis Claim
has become the Accepted Demopolis Claim in accordance with the terms of
this Agreement, the Escrow Agent shall, within five business days of
written request of the Stockholder Representative, deliver to the
Stockholder Representative (for further delivery by the Stockholder
Representative to the TWI Stockholders pro rata according to their
respective common ownership interests in TWI immediately prior to the
Merger), all of the Demopolis Escrow Shares.
ARTICLE 5: EXPIRATION OF ESCROWS;
COSTS; CERTAIN RESPONSIBILITIES
ESCROW.004 - PAGE 7 7
<PAGE>
5.1 APPLICATION OF PROVISIONS FOLLOWING EXPIRATION. Following the
expiration of the Escrow Period and distribution in accordance herewith of the
Escrow Funds, the escrow created hereby and this Agreement, other than the
provisions of Sections 5.2(b), 5.2(c) and 5.4 shall terminate.
5.2 ADMINISTRATIVE COSTS AND INDEMNIFICATION.
(A) ADMINISTRATIVE COSTS. All costs and expenses of administering
this Agreement (including, without limitation, fees and expenses of the
Escrow Agent and any Jackson Claim Arbiter, Huntsville Claim Arbiter or
Demopolis Claim Arbiter) (collectively, "Administrative Costs") shall be
--------------------
paid as provided in Section 5.2(b). The Escrow Agent shall from time to
time invoice such costs and expenses in accordance with its standard
practice and provide copies thereof to the Stockholder Representative and
WOI. Within fifteen (15) business days after WOI's receipt of an invoice
from the Escrow Agent, WOI shall pay to the Escrow Agent the amount of such
invoice for use by the Escrow Agent in paying or reimbursing such costs and
expenses.
(B) INDEMNIFICATION OF ESCROW AGENT. The Escrow Agent shall be
indemnified and saved harmless by WOI from and against any and all
liability, including all expenses reasonably incurred in its defense, to
which the Escrow Agent shall be subjected by reason of any action taken or
omitted or any investment or disbursement of any part of the Escrow Fund
made by the Escrow Agent pursuant to this Agreement, unless caused by the
negligence or willful misconduct of the Escrow Agent. The costs and
expenses of enforcing this right of indemnification (the "Indemnification
---------------
Costs") shall also be paid by WOI, and this right of indemnification shall
-----
survive the termination of this Agreement and/or the resignation or removal
of the Escrow Agent. The Indemnification Costs and Administrative Costs of
WOI to the Escrow Agent set forth in Subsections 5.2(a) and (b) shall be
paid in cash by WOI, and the TWI Stockholders shall be obligated to pay in
cash to WOI one-half of such Indemnification Costs and Administrative Costs
within a reasonable time after notice thereof from WOI.
5.3 INVESTMENT OF ESCROW FUNDS; STATUS OF ESCROW SHARES.
(A) INVESTMENT. The Escrow Agent shall invest any cash held in
either Escrow Fund in an interest-bearing account or money market
instruments in accordance with written instructions from the WOI. Any
interest payable on the funds shall be added to the Escrow Fund in question
and become a part thereof. The parties acknowledge that the Escrow Agent
shall not be liable for any diminution in either Escrow Fund due to losses
resulting from investments made pursuant to this Escrow Agreement.
(B) STATUS OF SHARES. Unless and until they are delivered to the
Stockholder Representative hereunder, all Escrow Shares and any other
voting securities which may from time to time be part of any Escrow Fund
shall be considered to be treasury shares of WOI and shall not be deemed to
be held by the Escrow Agent, the Stockholder
ESCROW.004- PAGE 8 8
<PAGE>
Representative or any TWI Stockholder. The Escrow Agent shall execute and
deliver to the WOI all such proxies, forms for election or other
instruments which it receives as may be required with respect to the Escrow
Shares or any such other voting securities in order to give effect to the
foregoing.
5.4 ESCROW AGENT'S RIGHTS AND RESPONSIBILITIES. To induce the Escrow
Agent to act hereunder, it is further agreed that:
(A) DEGREE OF CARE. The Escrow Agent shall not be under any duty
to give the property held hereunder any greater degree of care than it
gives its own similar property. The Escrow Agent undertakes to perform such
duties as are specifically set forth in this Escrow Agreement, and the
Escrow Agent shall not be liable except for the performance of such duties
as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Escrow Agent.
(B) ADVICE OF COUNSEL. The Escrow Agent may act upon advice of
counsel in reference to any matter connected herewith and shall not be
liable for any acts or omissions while acting in good faith and exercising
reasonable judgment.
(C) LIABILITY AS TO PARTIES. The Escrow Agent shall not be liable
in any respect on account of the identity, authority or rights of the
parties executing or delivering or purporting to execute or deliver this
Agreement or any documents or papers deposited or called for hereunder.
(D) LIABILITY AS TO VALIDITY. The Escrow Agent shall not be
liable for the outlawing of any rights under any statute of limitations
with respect to this Agreement or any documents deposited with the Escrow
Agent.
(E) COMPLIANCE WITH COURTS OF LAW. The Escrow Agent is hereby
expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person, excepting only orders or process of
courts of law, and is hereby expressly authorized to comply with and obey
orders, judgments or decrees of any court. In case the Escrow Agent obeys
or complies with any such order, judgment or decree of any court, the
Escrow Agent shall not be liable to any of the parties hereto or to any
other person by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
(F) INSTRUCTIONS OF STOCKHOLDER REPRESENTATIVE. The Escrow Agent
is authorized to rely on the written instructions of the Stockholder
Representative as being the act of all of TWI Stockholders and the written
instructions of the President or any executive officer of WOI as being the
act of WOI.
ESCROW.004- PAGE 9 9
<PAGE>
(G) NO IMPLIED DUTIES. This Agreement sets forth the exclusive
duties of the Escrow Agent with respect to any and all matters pertinent
hereto and no implied duties or obligations of the Escrow Agent shall be
read into this Agreement.
(H) NO ADVICE. The Escrow Agent shall not be called upon to
advise any party as to its rights and obligations hereunder.
(I) COMPLIANCE WITH OBLIGATIONS. The Escrow Agent shall be deemed
to have fully complied with its obligations hereunder to transfer Escrow
Shares by delivery to the transfer agent of WOI (the "Transfer Agent") of
--------------
WOI Common Shares, all in form satisfactory to such Transfer Agent, of
certificates properly endorsed for transfer with instructions to the
Transfer Agent to issue in the name of and deliver to the person to whom
such transfer is to be made a certificate or certificates for the required
number of shares. Transfer taxes, if any, applicable to such transfer shall
be payable by the person to whom the Escrow Shares are being transferred.
(J) PROTECTION OF ACTS. The Escrow Agent shall be fully protected
in acting in accordance with any instructions given to it hereunder and
believed by it to have been executed by the proper parties. The Escrow
Agent's duties shall be determined only with reference to this Agreement
and applicable laws and is not charged with any duties or responsibilities
in connection with any other document or agreement.
5.5 RECORDS; FINAL ACCOUNTING. The Escrow Agent shall maintain a record
of each Indemnity Claim or Offering Expense Claim (collectively, "Claims") and
------
the against the Escrow Funds filed with it pursuant to this Agreement, a record
of all such Claims which shall become payable claimed as provided herein, a
record of all requests and notices filed with it pursuant to the term hereof,
and payments or distributions from the Escrow Funds. Upon the termination or
resignation of the Escrow Agent or termination or expiration of this Agreement,
the Escrow Agent shall within ten (10) business days deliver to WOI and the
Stockholder Representative a full and final accounting with regard to the Escrow
Funds.
5.6 RESIGNATION OF ESCROW AGENT. The Escrow Agent, or any successor,
may resign as Escrow Agent hereunder by giving written notice thereof to WOI and
the Stockholder Representative. Such resignation shall become effective
following such written notice upon the earlier of the appointment by WOI and the
Stockholder Representative of a successor Escrow Agent that accepts the
appointment and agrees to be bound by the provisions of this Agreement or the
expiration of sixty (60) days thereafter. Upon the effectiveness of such
resignation, all duties of the Escrow Agent so resigning shall cease, other than
the duty to account in accordance with Section 5.5. WOI and the Stockholder
Representative shall have the right to terminate the appointment of the Escrow
Agent hereunder by giving written notice thereof to the Escrow Agent, specifying
the date upon which such termination shall take effect. A condition precedent to
such termination shall be the designation of a successor Escrow Agent that has
accepted the appointment and agreed to be bound by the provisions of this
Agreement, or an agreement executed by WOI and the Stockholder Representative
directing the release or payment of the remaining Escrow Shares and other items
and amounts in the Escrow Funds. In event of such
ESCROW.004- PAGE 10 10
<PAGE>
termination, the Escrow Agent shall turn over and deliver to such successor
Escrow Agent the Escrow Funds, and any other sums and the records and
instruments held by it under this Agreement and render the accounting required
by Section 5.5.
ARTICLE 6: MISCELLANEOUS
6.1 NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
sent by nationally recognized, overnight courier, or mailed by registered or
certified mail (return receipt requested), postage prepaid, or sent by facsimile
(followed by a copy sent by courier or registered or certified mail) to the
parties at the following addresses (or at such other address for a party as
shall be specified by notice hereunder):
If to WOI, to:
11301 Industriplex Boulevard
Suite 4
Baton Rouge, LA 70809-5400
Attention: Sean Reilly
Telecopy: (504) 293-5400
With copy (which copy will not constitute notice to WOI) to:
John Kuehn, Esq.
Kirkland & Ellis
153 E. 53rd Street
New York, New York 10022
Telecopy: (212) 446-4900
If to TWI or the Stockholder Representative, to:
1080 River Oaks Drive
Suite A150
Jackson, MS 39208
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
With copy (which copy will not constitute notice to TWI or the Stockholder
Representative) to:
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 1000
ESCROW.004- PAGE 11 11
<PAGE>
New York, New York 10022
Telecopy: (212) 751-4864
If to the Escrow Agent:
114 W. 47th Street
New York, NY 10036
Attention: Peggy Ciesmelewski
Telecopy: (212) 852-1626
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery or by a nationally recognized
overnight courier, on the date of such delivery, (b) in the case of mailing, on
the date received, and (c) in the case of a facsimile, when the party receiving
such facsimile shall have confirmed receipt of the communication.
6.2 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of the parties hereto.
6.3 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware as such laws are applied to
agreements between Delaware residents entered into and to be performed entirely
in Delaware.
6.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original
hereof, but all of which together shall constitute one agreement.
* * * * * * * *
ESCROW.004- PAGE 12 12
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement as
of the day and year first above written.
WIRELESS ONE, INC.
By:__________________________________________
Title:_______________________________________
_____________________________________________
Henry M. Burkhalter, in his capacity as
the Stockholder Representative
U.S. TRUST COMPANY OF NEW YORK
By:__________________________________________
Title:_______________________________________
TWI STOCKHOLDERS:
----------------
MISSISSIPPI WIRELESS TV, L.P.
By: Wireless TV, Inc.
Its: General Partner
By:__________________________________________
Title:_______________________________________
CHASE VENTURE CAPITAL ASSOCIATES L.P.
By: Chase Capital Partners
Its: General Partner
By:__________________________________________
Title:_______________________________________
ESCROW.004- PAGE 13 13
<PAGE>
VANCOM, INC.
By:__________________________________________
Title:_______________________________________
ESCROW.004- PAGE 14 14
<PAGE>
EXHIBIT E
AMENDED AND RESTATED REGISTRATION AGREEMENT
-------------------------------------------
THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this "Agreement")
---------
is made as of July 29, 1996, by and among Chase Venture Capital Associates, L.P.
("CVCA"), Chase Manhattan Capital Corporation ("CMCC"), Baseball Partners
---- ----
("Baseball"), those Persons named on Schedule I hereto (the "TruVision
- ---------- ---------- ---------
Stockholders"), Heartland Wireless Communications, Inc., a Delaware corporation
- ------------
("Heartland"), on behalf of itself and each of its subsidiaries which holds
---------
Common Stock (the "Heartland Subsidiaries"), Premier Venture Capital
----------------------
Corporation, as the representative of the holders of Wireless One Registrable
Securities (as that term is defined below), and Wireless One, Inc., a Delaware
corporation (the "Company"). Unless otherwise indicated herein, capitalized
-------
terms used herein are defined in Section 8 hereof.
WHEREAS, the Company, the former stockholders of Wireless One,
Heartland and certain subsidiaries of Heartland are parties to a certain
Registration Agreement dated October 24, 1995 (the "Old Registration
----------------
Agreement");
- ---------
WHEREAS, the Company, the former stockholders of Wireless One, certain
subsidiaries of Heartland, Wireless One Operating Company, a Delaware
corporation ("Old Wireless One"), Wireless One Merger Company, a Delaware
----------------
corporation and a direct wholly-owned Subsidiary of the Company ("Heartland
---------
MergerSub"), and the other stockholders of Old Wireless One are parties to a
- ---------
Contribution Agreement and Agreement and Plan of Merger, dated as of October 18,
1995 (the "Heartland Merger Agreement"), pursuant to which Heartland Entities
--------------------------
contributed certain of their assets and pursuant to which Old Wireless One
merged with and into Heartland MergerSub with Old Wireless One surviving. In
addition, pursuant to Article IX of the Heartland Merger Agreement, the Company
has the right under certain circumstances to acquire certain assets of Heartland
and/or its Subsidiaries (the "Call Market Assets") in exchange for either cash
------------------
or shares of the Company's Common Stock. The execution, delivery and continued
effectiveness of the Old Registration Agreement were conditions precedent to Old
Wireless One's obligation under the Heartland Merger Agreement to consummate the
Heartland Merger and the obligation of the Company under the Heartland Merger
Agreement to cause Heartland MergerSub to consummate the Heartland Merger. The
Old Registration Agreement was executed and delivered contemporaneously with the
First Closing (as that term is defined in the Heartland Merger Agreement);
WHEREAS, the Company, Wireless One MergerSub, Inc. ("TruVision
---------
MergerSub") and TruVision Wireless, Inc. ("TruVision") are parties to an
- --------- ---------
Agreement and Plan of Merger, dated April 25, 1996 (as in effect from time to
the "TruVision time, Merger
--------- ------
<PAGE>
Agreement"), pursuant to which TruVision MergerSub will merge with and into
- ---------
TruVision with TruVision surviving. The execution and delivery of this Agreement
are conditions precedent to the Company's obligation under the TruVision Merger
Agreement to cause TruVision Merger Sub to consummate the TruVision Merger and
to TruVision's obligation to consummate the TruVision Merger. This Agreement is
being executed and delivered contemporaneously with the TruVision Closing.
WHEREAS, the parties hereto desire to amend and restate the Old
Registration Agreement in order to provide for the registration of the
Registrable Securities;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
--------------------
(a) Requests for Registration. At any time after October 24, 1997,
-------------------------
subject to paragraphs 1(b) and 1(c), the Majority Chase Holders, the Majority
TruVision Holders, the Majority Wireless One Holders or the Majority Heartland
Holders may request registration under the Securities Act of all or any portion
of their Registrable Securities on Form S-1 or any similar long-form
registration ("Long-Form Registrations"), and the Majority Chase Holders, the
-----------------------
Majority TruVision Holders, the Majority Wireless One Holders or the Majority
Heartland Holders may request registration under the Securities Act of all or
any portion of their Registrable Securities on Form S-2 or S-3 (including under
Rule 415 promulgated under the Securities Act or any similar provision then in
force) or any similar short-form registration ("Short-Form Registrations"), if
------------------------
available (with the Majority Chase Holders, the Majority Chase Holders, the
Majority TruVision Holders, the Majority Wireless One Holders or the Majority
Heartland Holders, as the case may be, constituting, with respect to such
registration, the "Requesting Holders"). All registrations requested pursuant
------------------
to this paragraph 1(a) are referred to herein as "Demand Registrations"; all
--------------------
Demand Registrations initially so requested by the Majority Chase Holders are
referred to herein as "Chase Demand Registrations;" all Demand Registrations
--------------------------
initially so requested by the Majority TruVision Holders are referred to herein
as "TruVision Demand Registrations;" all Demand Registrations initially so
------------------------------
requested by the Majority Wireless One Holders are referred to herein as
"Wireless One Demand Registrations;" and all Demand Registrations initially so
---------------------------------
requested by the Majority Heartland Holders are referred to herein as "Heartland
---------
Demand Registrations." Within 10 days after receipt of any such request (any
- --------------------
such request a "Demand Notice"), the Company shall give written notice of such
-------------
requested registration to all other holders of Registrable Securities and,
subject to the other terms hereof, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice.
2
<PAGE>
(b) Long-Form Registrations. The Majority Chase Holders shall be
-----------------------
entitled to request three Long-Form Registrations in which the Company shall
pay all Registration Expenses ("Company-paid Long-Form Chase Registrations");
------------------------------------------
the pay all Majority TruVision Holders shall be entitled to request three
Long-Form Registrations in which the Company shall pay all Registration Expenses
("Company-paid Long-Form TruVision Registrations"); the Majority Wireless One
- ------------------------------------------------
Holders shall be entitled to request three Long-Form Registrations in which the
Company shall pay all Registration Expenses ("Company-paid Long-Form Wireless
-------------------------------
One Registrations"); and the Majority Heartland Holders shall be entitled to
- -----------------
request three Long-Form Registration in which the Company shall pay all
Registration Expenses ("Company-paid Long-Form Heartland Registration"). All
---------------------------------------------
Long-Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
------------------------
Registrations provided pursuant to Section 1(b), the Majority Chase Holders
shall be entitled to request three Short-Form Registrations in which the
Company shall pay all Registration Expenses ("Company-paid Short-Form Chase
-----------------------------
Registrations"); the Majority TruVision Holders shall be entitled to request
- -------------
three Short-Form Registrations in which the Company shall pay all Registration
Expenses "Company-paid Short-Form TruVision Registrations"); the Majority
-----------------------------------------------
Wireless One Holders shall be entitled to request three Short-Form Registrations
in which the Company shall pay all Registration Expenses ("Company-paid Short-
-------------------
Form Wireless One Registrations") and the Majority Heartland Holders shall be
- -------------------------------
entitled to request three Short-Form Registration in which the Company shall pay
all Registration Expenses ("Company-paid Short-Form Heartland Registration").
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. Each request for a Short-Form
Registration shall state the intended method of distribution of Registrable
Securities requested to be registered. After the Company has become subject to
the reporting requirements of the Securities Exchange Act, the Company shall use
its best efforts to make Short-Form Registrations on Form S-3 available for the
sale of Registrable Securities.
(d) Withdrawal of Demand Registration. The Majority Chase Holders,
---------------------------------
the Majority TruVision Holders, the Majority Wireless One Holders or the
Majority Heartland Holders, whichever are the Requesting Holders, may withdraw
any request for a Demand Registration at any time prior to the effectiveness of
the related registration statement and any such withdrawn request shall not
count as one of such Requesting Holders' permitted Demand Registrations;
provided that any Registration Expenses in connection with any such withdrawn
- --------
Demand Registration shall be borne by the withdrawing Requesting Holders pro
rata based on number of Registrable Securities requested to be included in such
registration by each such holder.
3
<PAGE>
(e) Company Right to Preempt Demand Registration. The Company shall
--------------------------------------------
have the right to preempt any request for a Demand Registration by providing
written notice (pursuant to Section 2(a)) to all holders of Registrable
Securities (within twenty (20) business days of receipt of the Demand Notice in
connection with such Demand Registration) of the Company's intention to effect a
registration under the Securities Act within 180 days of the receipt of such
Demand Notice. Upon delivery of such notice, the registration initially
requested by the Requesting Holders shall no longer be deemed to be a Demand
Registration and shall not count as one of such Requesting Holders' permitted
Demand Registrations.
(f) Priority on Demand Registrations. If a Demand Registration is an
--------------------------------
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such offering exceeds the number of securities (the "Offering Quantity")
-----------------
which can be sold in an orderly manner in such offering within a price range
acceptable to the Requesting Holders, then the Company shall include in the
registration securities in the following priority:
(i) first, before including any securities which are not
Registrable Securities, the Company shall include all of the Registrable
Securities requested to be included by holders thereof, and if the number
of Registrable Securities requested to be included exceeds the Offering
Quantity, then the Company shall include the pro rata share of the Offering
Quantity of each holder of Registrable Securities which requests inclusion
therein, based on the amount of Registrable Securities held by each such
holder; and
(ii) to the extent (and only to the extent) that the Offering
Quantity exceeds the aggregate amount of Registrable Securities which are
requested to be included in such registration, the Company may include in
such registration any other securities requested to be included in the
offering.
(g) Restrictions on Long-Form Registrations. The Company shall not
---------------------------------------
be obligated to effect any Long-Form Registration within 180 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to Section 2. The Company may postpone for up to 180 days the filing
or the effectiveness of a registration statement for a Demand Registration if
the Board determines in its reasonable good faith judgment that such Demand
Registration would reasonably be expected to have a material adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, offering of securities, reorganization or
similar transaction; provided that in such event, the Requesting Holders shall
--------
be entitled to withdraw such request
4
<PAGE>
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company shall pay
all Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in an twelve-month period.
(h) Selection of Underwriters. The Requesting Holders shall have
-------------------------
the right to select the investment banker(s) and manager(s) to administer the
offering in connection with each Demand Registration, subject to the Company's
approval, which approval shall not be unreasonably withheld.
(i) Other Registration Rights. Except as provided in this Agreement,
-------------------------
the Company shall not grant to any Persons the right to request that the Company
initiate a registration under the Securities Act of any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, without the prior written consent of each of the Majority Chase
Holders, the Majority TruVision Holders, the Majority Wireless One Holders and
the Majority Heartland Holders unless the holders of Registrable Securities are
permitted to participate therein, pro rata based upon the number of Registrable
Securities and other shares of Common Stock held and such rights are otherwise
not inconsistent with the rights of the holders of Chase Registrable Securities,
holders of TruVision Registrable Securities, holders of Wireless One Registrable
Securities or the holders of Heartland Registrable Securities.
(j) Termination. The rights of the parties hereto to Demand
-----------
Registrations (whether Long-Form Registrations or Short-Form Registrations) and
to Piggyback Registrations (collectively, the "Rights") shall terminate on the
------
date all Rights have been fully exercised and satisfied in accordance with this
Agreement.
(k) VCI Registration Right. At any time after October 24, 1996, the
----------------------
Majority VCI Holders shall be entitled to request one registration under the
Securities Act of all or any portion of the VCI Registrable Securities on
Form S-3 (including under Rule 415 promulgated under the Securities Act or any
similar provision then in force) or any similar short-form registration
("Company paid Short-Form VCI Registration") and the Majority VCI Holders shall
be the Requesting Holders with respect to such registration. The Company shall
pay all Registration Expenses of the Company paid Short-Form VCI Registration.
Within 10 days after receipt of any such request, the Company shall give written
notice of such requested registration to all other holders of VCI Registrable
Securities and, subject to the other terms hereof, shall include in such
registration all VCI Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after the
receipt of the Company's notice.
2. Piggyback Registrations.
-----------------------
5
<PAGE>
(a) Right to Piggyback. Whenever the Company proposes to register
------------------
any of its securities under the Securities Act (other than pursuant to a Demand
Registration or a Company paid Short-Form VCI Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company shall give prompt written
----------------------
notice (in any event within 10 business days after its receipt of notice of any
exercise of demand registration rights other than under this Agreement) to all
holders of Registrable Securities of its intention to effect such a registration
and, subject to the provisions hereof, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
------------------
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
---------------------------------
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number (the "Maximum Company Number") which can be sold in an orderly manner in
----------------------
such offering within a price range acceptable to the Company, the Company shall
include in such registration (but only to the extent the aggregate amount of
securities so included does not exceed such Maximum Company Number) (i) first,
-----
the securities the Company proposes to sell and (ii) second, the other
------
securities requested to be included in such registration (including Registrable
Securities), pro rata among the holders of such securities on the basis of the
number of securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration
-----------------------------------
is an underwritten secondary registration on behalf of holders of the Company's
equity securities other than the holders of Registrable Securities which are
entitled to request registrations of the Company's securities, and the managing
underwriters advise the Company in writing that in their opinion the number of
such securities requested to be included in such registration exceeds the number
(the "Maximum Secondary Number") which can be sold in an orderly manner in such
------------------------
offering within a price range acceptable to the holders initially requesting
such registration, the Company shall include in such registration all securities
requested to be included therein pro rata among the holders of such securities
on the basis of the number of such securities owned by each such holder.
(e) Selection of Underwriters. If any Piggyback Registration is an
-------------------------
underwritten offering and the number of Registrable Securities included therein
exceeds 30% of the total
6
<PAGE>
number of shares being offered, the selection of investment banker(s) and
manager(s) for the offering must be approved by the holders of a majority of the
Registrable Securities requested to be included in such Piggyback Registration,
which approval shall not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
-------------------
registration statement with respect to the Chase Registrable Securities, the
TruVision Registrable Securities, the Wireless One Registrable Securities or the
Heartland Registrable Securities either pursuant to Section 1 or pursuant to
this Section 2, and if such previous registration has not been withdrawn or
abandoned, then the Company shall not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least six months has elapsed from the effective date of such previous
registration (except (i) in the case of such a filing pursuant Section 1, with
the prior written consent of the Requesting Holders, or (ii) in the case of such
a filing pursuant to this Section 2, with the prior written consent of the
holders of a majority of the Registrable Securities included in such Piggyback
Registration).
3. Holdback Agreements.
-------------------
(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any registered underwritten offering
of the Company's equity securities or securities convertible or exchangeable
into or exercisable for its equity securities under the Securities Act (except
as part of such underwritten offering), unless the underwriters managing the
underwritten offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing such underwritten offering
otherwise agree, and (ii) shall cause each holder of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock,
purchased from the Company at any time after the date of this
7
<PAGE>
Agreement and representing 5% or more of the Common Stock on a fully-diluted
basis (other than in a registered public offering) to agree not to effect any
public sale or distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten offering, if
otherwise permitted), unless the underwriters managing such underwritten
offering otherwise agree.
4. Registration Procedures. Whenever holders of Registrable
-----------------------
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
Requesting Holders and any other counsel, if any, designated by the holders of
not less than 25% of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or
8
<PAGE>
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided that
the Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Requesting
Holders or holders of not less than 25% of the Registrable Securities being sold
or the underwriters (if any) reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including effecting a
stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate
9
<PAGE>
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the Requesting Holders or holders
of a majority of the Registrable Securities being sold reasonably request
(provided that such Registrable Securities constitute at least 10% of the
securities covered by such registration statement);
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(m) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities.
If any such registration or comparable statement refers to any holder
by name or otherwise as the holder of any securities of the Company and if in
its sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
shall assist in meeting any future financial requirements of the Company, or
(ii) in the event that such reference to such holder by name or otherwise is not
required by the Securities Act
10
<PAGE>
or any similar Federal statute then in force, the deletion of the reference to
such holder; provided that with respect to this clause (ii) such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
5. Registration Expenses.
---------------------
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
---------------------
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASD automated quotation system. Underwriting discounts and
commissions shall be borne by the Person or Persons selling securities, in
proportion to the value of securities sold.
(b) In connection with each Demand Registration, the Company shall
reimburse the holders of Registrable Securities included in such registration
for the reasonable fees and disbursements of one counsel chosen by the
Requesting Holders. In connection with each Piggyback Registration, the Company
shall reimburse the holders of Registrable Securities included in such
registration for the reasonable fees and disbursements of one counsel chosen by
the holders of a majority of the Registrable Securities included in such
registration. In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of each
additional counsel retained by any holder of Registrable Securities for the
purpose of rendering any legal opinion required by the Company or the managing
underwriter(s) to be rendered on behalf of such holder in connection with any
underwritten Demand Registration or Piggyback Registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be
11
<PAGE>
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. Indemnification.
---------------
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with the preparation of any registration statement
with respect to any registration in which a holder of Registrable Securities is
participating, each such holder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, shall indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided that the obligation to indemnify shall be individual, not joint
and several, for each holder and shall be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of
12
<PAGE>
any claim with respect to which it seeks indemnification (provided that the
failure to give prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has not prejudiced the
indemnifying party) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may
-------------------------------------------
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
--------
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in Section 6 hereof.
8. Definitions. Unless otherwise defined herein or below,
-----------
capitalized terms used herein shall have the meanings given such terms in the
TruVision Merger Agreement.
"Board" means the Company's board of directors.
-----
13
<PAGE>
"Chase Registrable Securities" means (i) all Common Stock which is
----------------------------
(a) part of the portion of Wireless One Share Consideration issued to CMCC or
Baseball as a part of the Wireless One Share Consideration pursuant to the
Heartland Merger Agreement (as adjusted pursuant to the Heartland Merger
Agreement and the Heartland Escrow Agreement) and (b) issued to CVCA pursuant to
the TruVision Merger Agreement (as adjusted pursuant to the TruVision Merger
Agreement and the TruVision Escrow Agreement) and (ii) any Common Stock issued
or issuable with respect to the Common Stock referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Chase Registrable Securities, such securities shall cease to be Chase
Registrable Securities when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act (or any similar
provision then in force).
"Common Stock" means the Company's common stock, par value $.01 per
------------
share.
"Designated Wireless One Shares" means (i) all Common Stock which is
------------------------------
part of the portion of the Wireless One Share Consideration issued to the
Designated Wireless One Stockholders pursuant to the Heartland Merger Agreement
(as adjusted pursuant to the Heartland Merger Agreement and the Heartland Escrow
Agreement) and (ii) any equity securities issued or issuable directly or
indirectly with respect to the Common Stock referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting Designated Wireless One Shares, such shares shall
cease to be Designated Wireless One Shares when they have been (a) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them or (b) distributed to the public through a
broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or
any similar provision then in force).
"Designated Wireless One Stockholders" means the Persons named on
------------------------------------
Schedule II hereto.
- ------------------
"Heartland Escrow Agreement" means the "Escrow Agreement," as that
--------------------------
term is defined in the Heartland Merger Agreement.
"Heartland Registrable Securities" means (i) all Common Stock which is
--------------------------------
part of the Heartland Share Consideration issued to Heartland and certain
subsidiaries of Heartland pursuant to the Heartland Merger Agreement (as
adjusted pursuant to the Heartland
14
<PAGE>
Merger Agreement and the Heartland Escrow Agreement) or which is or was issued
to Heartland or a Subsidiary of Heartland in consideration of any Call Market
Assets (as that term is defined in the Heartland Merger Agreement) acquired by
the Company or any of its Affiliates pursuant to the Heartland Merger Agreement
and (ii) any Common Stock issued or issuable with respect to the Common Stock
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Heartland Registrable Securities,
such securities shall cease to be Heartland Registrable Securities when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (b) distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Securities Act (or any similar provision then in force).
"Heartland Share Consideration" has the meaning given such term in the
-----------------------------
Heartland Merger Agreement.
"Majority Chase Holders" at any time means holders of a majority of
----------------------
the Chase Registrable Securities.
"Majority Heartland Holders" at any time means holders of a majority
--------------------------
of the Heartland Registrable Securities.
"Majority TruVision Holders" at any time means holders of a majority
--------------------------
of the TruVision Registrable Securities.
"Majority Wireless One Holders" at any time means holders of a
-----------------------------
majority of the Designated Wireless One Shares.
"Majority VCI Holders" at any time means holders of a majority of the
--------------------
VCI Registrable Shares.
"Person" means an individual, a partnership, a limited liability
------
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means VCI Registrable Securities Chase
----------------------
Registrable Securities, TruVision Registrable Securities, Wireless One
Registrable Securities and Heartland Registrable Securities.
"Securities Act" means the Securities Act of 1933.
--------------
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (irrespective
of whether, at the time,
15
<PAGE>
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
association or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
partnership, association or other business entity gains or losses or shall be or
control the managing director or general partner of such partnership,
association or other business entity.
"TruVision Closing" means the "Closing," as that term is defined in
-----------------
the TruVision Merger Agreement.
"TruVision Escrow Agreement" means, collectively, the escrow
--------------------------
agreements dated as of the date of this Agreement and executed and delivered in
connection with the consummation of the TruVision Merger.
"TruVision Merger" means the "Merger," as that term is defined in the
----------------
TruVision Merger Agreement.
"TruVision Registrable Securities" means (i) all Common Stock which is
--------------------------------
issued to TruVision Stockholders pursuant to the TruVision Merger Agreement,
including the VCI Registrable Securities and Common Stock of the Company
issuable pursuant to Article I of the TruVision Merger Agreement or upon
exercise of the options provided for in Section 5.3 of the TruVision Merger
Agreement (as adjusted pursuant to the TruVision Merger Agreement and the
TruVision Escrow Agreement) (ii) any Common Stock issued or issuable with
respect to the Common Stock referred to in clause (i) by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular TruVision
Registrable Securities, such securities shall cease to be TruVision Registrable
Securities when they have been (a) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them
or (b) distributed to the public through a broker, dealer or market maker
pursuant to Rule 144 under the Securities Act (or any similar provision then in
force).
"VCI" means Vision Communications, Inc.
---
"VCI Registrable Securities" means (i) all Common Stock which is
--------------------------
issued to VCI pursuant to Section 5.13 of the TruVision Merger Agreement (as
adjusted pursuant to the TruVision Merger
16
<PAGE>
Agreement and the TruVision Escrow Agreement) and (ii) any Common Stock issued
or issuable with respect to the Common Stock referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular VCI Registrable Securities, such securities shall cease to be VCI
Registrable Securities when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act (or any similar
provision then in force).
"Wireless One Registrable Securities" means (i) all Common Stock which
-----------------------------------
is part of the portion of the Wireless One Share Consideration issued other than
to CMCC and Baseball pursuant to the Heartland Merger Agreement (as adjusted
pursuant to the Heartland Merger Agreement and the Heartland Escrow Agreement)
and (ii) any Common Stock issued or issuable with respect to the Common Stock
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Wireless One Registrable
Securities, such securities shall cease to be Wireless One Registrable
Securities when they have been (a) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them
or (b) distributed to the public through a broker, dealer or market maker
pursuant to Rule 144 under the Securities Act (or any similar provision then in
force).
"Wireless One Share Consideration" has the meaning given such term
--------------------------------
in the Heartland Merger Agreement.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted in this Agreement to the holders of
Registrable Securities.
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
17
<PAGE>
(c) Amendments and Waivers. No amendment or waiver to the provisions
----------------------
of this Agreement shall be effective against the Company without the prior
written consent of the Company. No amendment or waiver to the provisions of this
Agreement shall be effective against the holders of Chase Registrable Securities
without the prior written consent of the Majority Chase Holders. No amendment or
waiver to the provisions of this Agreement shall be effective against the
holders of TruVision Registrable Securities without the prior written consent of
the Majority TruVision Holders. No amendment or waiver to the provisions of this
Agreement shall be effective against the holders of Heartland Registrable
Securities without the prior written consent of the Majority Heartland Holders.
No amendment or waiver to the provisions of this Agreement shall be effective
against the holders of Wireless One Registrable Securities without the prior
written consent of the Majority Wireless One Holders.
(d) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. This Agreement shall be construed in accordance
-------------
with the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
18
<PAGE>
(i) Notices. All notices, demands and other communications to be
-------
given and delivered under or by reason of provisions under this Agreement shall
be in writing and shall be deemed to have been given when personally delivered,
sent by telecopy (with a hard copy to follow) or express overnight courier
service, or mailed by first class mail, return receipt requested, (i) with
respect to each of the TruVision Stockholders, to the addresses or telecopy
numbers set forth on Schedule IV hereto, (ii) with respect to each of the
-----------
Designated Wireless One Stockholders, to the addresses or telecopy numbers set
forth on Schedule II hereto, (iii) with respect to each of CMCC, CVCA and
-----------
Baseball, to the addresses or telecopy numbers set forth on Schedule III hereto,
------------
and (iv) with respect to all other parties, to the addresses or telecopy numbers
set forth on Exhibit 11.2 to the Heartland Merger Agreement.
(j) No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
(k) Effect of Amendment and Restatement. This Agreement amends and
-----------------------------------
restates the terms of the Old Registration Agreement with respect to the
obligations of the parties thereto. The obligations under the Old Registration
Agreement, as restated hereunder, remain in full force and effect under this
Agreement. Each party hereto by their execution of a counterpart hereof
consents to the amendment of the Old Registration Agreement, which shall be
effective as against each party to the Old Registration Agreement and each
holder of Registrable Securities, whether or not such party or holder is a
signatory hereto.
(l) Execution by Heartland. Heartland is executing this Agreement on
----------------------
behalf of both itself and each of the Heartland Subsidiaries, each of whom shall
be bound by this Agreement by virtue of such execution by Heartland, and
Heartland agrees to cause each Heartland Subsidiary to perform and honor each of
its obligations hereunder.
* * * * *
19
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CHASE MANHATTAN CAPITAL CORPORATION
By: __________________________________
Name:
Title:
BASEBALL PARTNERS
By: __________________________________
Name:
Title:
PREMIER VENTURE CAPITAL CORPORATION
By: __________________________________
Name:
Title:
HEARTLAND WIRELESS COMMUNICATIONS, INC.
By: __________________________________
Name:
Title:
WIRELESS ONE, INC.
By: __________________________________
Name:
Title:
20
<PAGE>
WIRELESS ONE STOCKHOLDERS
By: PREMIER VENTURE CAPITAL
CORPORATION, attorney-in-fact
By: __________________________________
Name:
Title:
MISSISSIPPI WIRELESS TV, L.P.
By: WIRELESS TV, INC.
Its: General Partner
By: __________________________________
Name:
Title:
VISION COMMUNICATIONS, INC.
By: __________________________________
Name: Henry M. Burkhalter
Title: President
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners
Its: General Partner
By: __________________________________
Name:
Title:
VANCOM, INC.
By: _______________________________
Name:
Title:
21
<PAGE>
_______________________________________
Laurence O. Woolhiser, Jr.
_______________________________________
Walter Eilers
_______________________________________
Henry M. Burkhalter
_______________________________________
Bill R. Byer, Jr.
_______________________________________
Kelly Balius
_______________________________________
Douglas Goodwin
_______________________________________
Sam Robertson
_______________________________________
Jerrod Pitts
22
<PAGE>
SCHEDULE I
----------
TRUVISION STOCKHOLDERS
Mississippi Wireless TV, L.P.
VanCom, Inc.
Vision Communications, Inc.
Henry M. Burkhalter
Bill R. Byer, Jr.
Laurence O. Woolhiser, Jr.
Walter Eilers
Kelly Balius
Douglas Goodwin
Sam Robertson
Jerrod Pitts
23
<PAGE>
SCHEDULE II
-----------
NAME ADDRESS
Premier Venture Capital 451 Florida Street
Corporation P.O. Box 1511
Baton Rouge, LA 70821-1511
Attention: Thomas J. Adamek
Advantage Capital Partners, LL&E Tower
Limited Partnership 909 Poydras Street, Suite 2230
New Orleans, LA 70112
Attention: Steven Stull
Advantage Capital Partners II, LL&E Tower
Limited Partnership 909 Poydras Street, Suite 2230
New Orleans, LA 70112
Attention: Steven Stull
First Commerce Capital, Inc. 821 Gravier Street, #1027
New Orleans, LA 70112
Attention: Michael P. Kirby
24
<PAGE>
SCHEDULE III
------------
NAME ADDRESS
Chase Manhattan Capital 380 Madison Avenue, 12th Fl.
Corporation New York, NY 10017
Attention: Arnold Chavkin
Baseball Partners c/o Chase Capital
380 Madison Avenue, 12th Fl.
New York, NY 10017
Attention: Arnold Chavkin
Chase Venture Capital 380 Madison Avenue, 12th Floor
Associates L.P. New York, New York 10017
Attention: Arnold Chavkin
in each case with a copy (which copy will not
---------------------------------------------
constitute notice to such stockholder) to:
-----------------------------------------
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 100
New York, New York 10022
Telecopy: (212) 751-4864
25
<PAGE>
SCHEDULE IV
-----------
For Mississippi Wireless TV, L.P., or Vision Communications, Inc.
- -----------------------------------------------------------------
c/o TruVision Wireless, Inc. 1080 River Oaks Drive
Suite A150
Jackson, Mississippi 39208
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
with a copy (which copy will not constitute
-------------------------------------------
notice to such stockholder) to:
- -------------------------------
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 100
New York, New York 10022
Telecopy: (212) 751-4864
For VanCom, Inc.:
- ----------------
P.O. Box 5327
Jackson, Mississippi 39296
Attention: William Van Devender
Telecopy: (601) 354-0904
with a copy (which copy will not constitute notice
--------------------------------------------------
to such Stockholder) to:
-----------------------
Brunini Grantham Grower & Hewes
1400 Trustmark Building
248 E. Capitol Street
Jackson, Mississippi 39201
Telecopy: (601) 960-6902
26
<PAGE>
EXHIBIT F
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
-------------------------------------------
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is
---------
made as of July 29, 1996, by and among Chase Venture Capital Associates, L.P.
("CVCA"), the Persons named on Schedule I hereto (the "TruVision Stockholders"),
---- ---------- ----------------------
Hans Sternberg ("Sternberg"), Sean Reilly ("Reilly") and those persons named on
--------- ------
Schedule II hereto (together with Sternberg and Reilly, the "Wireless One
- ----------- ------------
Stockholders"), Chase Manhattan Capital Corporation ("CMCC"), Baseball Partners
- ------------ ----
("Baseball"), Heartland Wireless Communications, Inc., a Delaware corporation
--------
("Heartland"), on behalf of itself and each of its subsidiaries which holds
---------
Common Stock (the "Heartland Subsidiaries"), and Wireless One, Inc., a Delaware
----------------------
corporation (the "Company"). Unless otherwise indicated herein, capitalized
-------
terms used herein are defined in Section 6 hereof.
WHEREAS, the Wireless One Stockholders, CMCC, certain subsidiaries of
Heartland and Heartland are parties to a certain Stockholders Agreement dated
October 24, 1995 (the "Old Stockholders Agreement") as amended by the Amendment
--------------------------
to the Stockholders Agreement dated April 25, 1996;
WHEREAS, the Company, the Wireless One Stockholders, Heartland and the
Heartland Subsidiaries (collectively with Heartland, the "Heartland Entities"),
------------------
Wireless One Operating Company, a Delaware corporation ("Old Wireless One"),
----------------
Wireless One Merger Company, a Delaware corporation and a direct wholly-owned
Subsidiary of the Company ("Heartland MergerSub"), and the other stockholders of
-------------------
Old Wireless One are parties to a Contribution Agreement and Agreement and Plan
of Merger, dated as of October 18, 1995 (the "Heartland Merger Agreement"),
--------------------------
pursuant to which certain subsidiaries of Heartland contributed certain of their
assets to the Company and pursuant to which Old Wireless One merged with and
into Heartland MergerSub with Old Wireless One surviving. In addition, pursuant
to Article IX of the Heartland Merger Agreement, after the Second Closing (as
that term is defined in the Heartland Merger Agreement) the Company has had the
right under certain circumstances to acquire certain assets of Heartland and/or
its Subsidiaries (the "Call Market Assets") in exchange for either cash or
------------------
shares of the Company's Common Stock;
WHEREAS, the execution, delivery and continued effectiveness of the
Old Stockholders Agreement were conditions precedent to Old Wireless One's
obligation under the Heartland Merger Agreement to consummate the Heartland
Merger and the obligation of the Company under the Heartland Merger Agreement to
cause Heartland MergerSub to consummate the Heartland Merger. The Old
Stockholders Agreement was executed and delivered contemporaneously with the
First Closing (as that term is defined in the Heartland Merger Agreement).
SHAREHOD.004 (7/25/96)
<PAGE>
WHEREAS, the Company, Wireless One MergerSub, Inc. ("TruVision
---------
MergerSub") and TruVision Wireless, Inc. ("TruVision") are parties to an
- --------- ---------
Agreement and Plan of Merger, dated April 25, 1996 (the "TruVision Merger
----------------
Agreement"), pursuant to which TruVision MergerSub will merge with and into
- ---------
TruVision with TruVision surviving. The execution and delivery this Agreement
are conditions precedent to the Company's obligation under the TruVision Merger
Agreement to cause TruVision MergerSub to consummate the TruVision Merger and to
TruVision's obligation to consummate the TruVision Merger. This Agreement is
being executed and delivered contemporaneously with the TruVision Closing.
WHEREAS, the Company and the Stockholders desire to amend and restate
the Old Stockholders Agreement, as amended, for the purposes, among others, of
(i) establishing the composition of the Company's Board of Directors (the
"Board") and (ii) establishing limitations on the rights of certain Stockholders
-----
to make future acquisitions of the Company's Common Stock.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. Voting Agreement Related to Board Composition.
---------------------------------------------
(a) From and after the date of this Agreement and until the provisions of this
Section 1 cease to be effective, each Stockholder shall vote all of his
Stockholder Shares and shall take all other necessary or desirable actions
within his control (whether in his capacity as a stockholder, director, member
of a board committee or officer of the Company or otherwise, and including,
without limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be established at nine
(9);
(ii) the Majority TruVision Holders shall have the right in any election of
directors to the Board to designate one (1) director so long as the number of
TruVision Shares is greater than one-half ( 1/2) of the Initial TruVision Share
Quantity (any such director so selected being referred to herein as a "TruVision
---------
Director") (the initial TruVision Director shall be Henry M. Burkhalter);
- --------
(iii) the Majority Wireless One Holders shall have the right in any election of
directors to the Board to designate two (2) directors so long as the number of
Wireless One Shares is greater than one-half ( 1/2) of the Initial Wireless One
Share Quantity (any such director so selected being referred to herein as a
"Wireless One Director") (the initial Wireless One Directors shall be Sternberg
---------------------
and Reilly);
SHAREHOD.004 (7/25/96)
-2-
<PAGE>
(iv) the Majority Heartland Holders shall have the right in any election of
directors to the Board to designate two (2) directors so long as the number of
Heartland Shares is greater than one-half (1/2) of the Initial Heartland Share
Quantity (any such director so selected being referred to herein as a "Heartland
---------
Director") (the initial Heartland Directors shall be David E. Webb and J.R.
- --------
Holland, Jr.);
(v) the Majority Chase Holders shall have the right in any election of directors
to the Board to designate two (2) directors so long as the number of Chase
Shares is greater than one-half (1/2) of the Initial Chase Share Quantity (any
such director so selected being referred to herein as a "Chase Director") (the
--------------
initial Chase Directors shall be Arnold Chavkin and William J. Van Devender);
(vi) the Majority Wireless One Holders shall have the right in any election of
directors to the Board to designate one (1) Independent Director so long as the
number of Wireless One Shares is greater than one-half (1/2) of the Initial
Wireless One Share Quantity (any such director so selected being referred to
herein as a "Wireless One Independent Director") (the initial Wireless On e
---------------------------------
Independent Director shall be William K. Luby);
(vii) the Majority Heartland Holders shall have the right in any election of
directors to the Board to designate one (1) Independent Director so long as the
number of Heartland Shares is greater than one-half (1/2) of the Initial
Heartland Share Quantity (any such director so selected being referred to herein
as a "Heartland Independent Director") (the initial Heartland Independent
------------------------------
Director shall be Daniel L. Shimer);
(viii) the board of directors of each of the Company's Subsidiaries (each a
"Sub Board") shall be comprised of the President of the Company, the Chief
---------
Executive Officer of the Company, and one director from among the TruVision
Director, the Heartland Directors and the Chase Directors, which latter director
(the "Non-Management Sub Director") will be chosen by the holders of a majority
---------------------------
of the Stockholder Shares and shall initially be Arnold Chavkin;
(ix) the removal from the Board (with or without cause) of any TruVision
Director shall be at the written request of the Majority TruVision Holders, but
only upon such written request and under no other circumstances, so long as the
number of TruVision Shares is greater than one-half (1/2) of the Initial
TruVision Share Quantity;
(x) the removal from the Board (with or without cause) of any Wireless One
Director or Wireless One Independent Director shall be at the written request of
the Majority Wireless One Holders, but only upon such written request and under
no other circumstances so long as the number of Wireless One Shares is greater
than one-half (1/2) of the Initial Wireless One Share Quantity;
(xi) the removal from the Board (with or without cause) of any Heartland
Director or Heartland Independent Director shall be at the written request of
the Majority Heartland Holders, but only
SHAREHOD.004 (7/25/96)
-3-
<PAGE>
upon such written request and under no other circumstances, so long as the
number of Heartland Shares is greater than one-half (1/2) of the Initial
Heartland Share Quantity;
(xii) the removal from the Board (with or without cause) of any Chase Director
shall be at the written request of the Majority Chase Holders, but only upon
such written request and under no other circumstances, so long as the number of
Chase Shares is greater than one-half (1/2) of the Initial Chase Share
Quantity;
(xiii) in the event that any TruVision Director ceases to serve as a member of
the Board during such member's term of office, the resulting vacancy on the
Board shall be filled by the Majority TruVision Holders, so long as the number
of TruVision Shares is greater than one-half (1/2) of the Initial TruVision
Share Quantity;
(xiv) in the event that any Wireless One Director or Wireless One Independent
Director ceases to serve as a member of the Board during such member's term of
office, the resulting vacancy on the Board shall be filled by the Majority
Wireless One Holders, so long as the number of Wireless One Shares is greater
than one-half (1/2) of the Initial Wireless One Share Quantity;
(xv) in the event that any Heartland Director or Heartland Independent Director
ceases to serve as a member of the Board during the member's term of office, the
resulting vacancy on the Board shall be filled by the Majority Heartland
Holders, so long as the number of Heartland Shares is greater than one-half
(1/2) of the Initial Heartland Share Quantity;
(xvi) in the event that any Chase Director ceases to serve as a member of the
Board during such member's term of office, the resulting vacancy on the Board
shall be filled by the Majority Chase Holders, so long as the number of Chase
Shares is greater than one-half (1/2) of the Initial Chase Share Quantity;
(xvii) the removal from any Sub Board (with or without cause) of any Non-
Management Sub Director shall be at the written request of the holders of a
majority of the Stockholder Shares, but only upon such written request (provided
that any Non-Management Sub Director shall be removed as such if he or she
ceases to be either a Chase Director, a Heartland Director or a TruVision
Director, as the case may be), and in the event that any Non-Management Sub
Director ceases to serve as a member of any Sub Board during such Director's
term of office, the resulting vacancy on such Sub Board shall be filled by the
holders of a majority of the Stockholder Shares; and
(xviii) Henry M. Burkhalter shall be the Vice-Chairman of the Board for so long
as he is President of the Company.
(b) The Company shall pay the reasonable out-of-pocket expenses incurred by each
director in connection with attending the meetings of the Board, any Sub Board
and any committee thereof.
SHAREHOD.004 (7/25/96)
-4-
<PAGE>
2. Legend. Each certificate evidencing Stockholder Shares and each certificate
------
issued in exchange for or upon the transfer of any Stockholder Shares (if such
shares remain Stockholder Shares as defined herein after such transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"The securities represented by this certificate are
subject to an Amended and Restated Stockholders Agreement
dated as of July 29, 1996, among the issuer of such
securities (the "Company") and certain of the Company's
stockholders. A copy of such Stockholdes Agreement will be
furnished without charge by the Company to the holder
hereof upon written request.
The legend set forth above shall be removed from the certificates evidencing any
shares which cease to be Stockholder Shares.
3. Additional Stockholders. Prior to Transferring any Stockholder Shares
-----------------------
(other than in a Public Sale) to any Person, the transferring Stockholder shall
cause the prospective Transferee (other than Transferees which are already
parties to this Agreement) to execute and deliver to the Company and the other
Stockholders a counterpart of this Agreement and thereby agree to be bound by
this Agreement as an additional "Stockholder". Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported Transferee of such Stockholder Shares as the owner
of such shares for any purpose. In addition, contemporaneously with any issuance
of Common Stock pursuant to Article IX of the Heartland Merger Agreement to any
Subsidiary of Heartland which is not already a party to this Agreement,
Heartland will cause such Subsidiary to execute and deliver to the Company and
the other Stockholders a counterpart of this Agreement and thereby agree to be
bound by this Agreement as an additional "Stockholder".
4. Acquire Shares; Solicit Proxies; Form Group. Until October 24, 1998, each
-------------------------------------------
Stockholder shall not (and shall cause any Person controlled by it or him not
to), directly or indirectly, without the prior approval of the Board:
(a) acquire, or offer to acquire, directly or indirectly, by purchase or
otherwise, any equity securities of the Company (or direct or indirect rights or
options to acquire any equity securities of the Company), except for (i) Common
Stock acquired by such Person pursuant to the Heartland Merger Agreement (as
adjusted pursuant to the Heartland Merger Agreement and the Heartland Escrow
Agreement), or TruVision Merger Agreement (as adjusted pursuant to the TruVision
Merger Agreement and the TruVision Escrow Agreement) and any equity securities
issued or issuable directly or indirectly with respect to such Common Stock by
way of stock dividend or stock split or in connection with a combination of
shares,
SHAREHOD.004 (7/25/96)
-5-
<PAGE>
recapitalization, merger, consolidation or other reorganization, (ii) any
securities issued (or issuable) by the Company to such Stockholder pursuant to
any option plan of the Company approved by the Board, (iii) in the case of
Advantage Capital Partners, Limited Partnership and Advantage Capital Partners
II, Limited Partnership, the acquisition (in the aggregate among them) of not
more than 250,000 shares of Common Stock (as such number may be proportionately
adjusted to reflect stock dividends, splits or combinations of the Common Stock
after the date hereof) on or after the date of the Old Stockholders Agreement in
addition to the Wireless One Shares received or to be received by them, and (iv)
in the case of the Heartland Entities, the acquisition (in the aggregate among
them) of not more than 250,000 shares of Common Stock (as such number may be
proportionately adjusted to reflect stock dividends, splits or combinations of
the Common Stock after the date hereof) on or after the date of the Old
Stockholders Agreement in addition to the Heartland Shares received or to be
received by them;
(b) solicit proxies or consents or become a "participant" in a "solicitation"
(as such terms are defined in Regulation 14A under the Securities Exchange Act
of 1934, as amended) of proxies or consents with respect to securities of the
Company in opposition to solicitations made by or on behalf of the Board with
regard to any matter; or
(c) except for this Agreement, join a partnership, limited
partnership, syndicate or other group (as that term is used in Rule 13d-5 under
the Securities Exchange Act of 1934, as amended) or otherwise act in concert
with any other person for the purpose of acquiring, holding, voting or disposing
of securities of the Company.
No director shall be deemed to be disqualified from voting with respect to any
matter subject to Board approval in this Section 4 on the basis that such
director has an interest in such matter.
5. Definitions.
-----------
"Affiliate" means a Person that directly, or indirectly through one
---------
or intermediaries, controls or is controlled by or is under common control with
the Person in question and in the case of a partnership or limited liability
company, any partner or member of such partnership or limited liability company.
For purposes of this Agreement, Baseball will be deemed to be an "Affiliate" of
CMCC and CVCA and CMCC's and CVCA's "Affiliates", and CMCC, CVCA, CMCC's
Affiliates and CVCA's Affiliates will be deemed to be "Affiliates" of Baseball.
"Baseball" means Baseball Partners, a New York general partnership.
--------
"Chase Shares" means (i) all Common Stock which is part of the
------------
portion of the Wireless One Share Consideration issued to CMCC or Baseball
pursuant to the Heartland Merger Agreement (as
SHAREHOD.004 (7/25/96)
-6-
<PAGE>
adjusted pursuant to the Heartland Merger Agreement and the Heartland Escrow
Agreement) and all Common Stock which is part of the portion of Consideration
issued to CVCA pursuant to the TruVision Merger Agreement (as (as adjusted
pursuant to the TruVision Merger Agreement and the TruVision Escrow Agreement)
and (ii) any equity securities issued or issuable directly or indirectly with
respect to the Common Stock referred to in clause (i) by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular shares
constituting Chase Shares, such shares shall cease to be Chase Shares when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (b) distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Securities Act (or any similar provision then in force).
"Common Stock" means the Company's common stock, par value $.01 per
------------
share.
"Entity" means any general partnership, limited partnership,
------
corporation, association, cooperative, joint stock company, trust, limited
liability company, business trust, joint venture, unincorporated organization
and governmental entity (or any department, agency or political subdivision
thereof).
"Heartland Escrow Agreement" means the "Escrow Agreement," as that
--------------------------
term is defined in the Heartland Merger Agreement.
"Heartland Merger" means the "Merger," as that term is defined in
----------------
the Heartland Merger Agreement.
"Heartland Share Consideration" has the meaning given such term in
-----------------------------
the Heartland Merger Agreement.
"Heartland Shares" means (i) all Common Stock which is part of the
----------------
Heartland Share Consideration issued to the Heartland Entities pursuant to the
Heartland Merger Agreement (as adjusted pursuant to the Heartland Merger
Agreement and the Heartland Escrow Agreement) or which is issued to Heartland or
any Subsidiary of Heartland in consideration of any Call Market Assets acquired
by the Company or any of its Affiliates pursuant to the Heartland Merger
Agreement and (ii) any equity securities issued or issuable directly or
indirectly with respect to the Common Stock referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting Heartland Shares, such shares shall cease to be
Heartland Shares when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act.
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-7-
<PAGE>
"Independent Director" means a natural person who is not an
--------------------
employee, officer, director (other than of the Company), Affiliate, or
stockholder holding more than 5% of the outstanding common stock (on a fully
diluted basis), of the Company, Heartland or any of the Wireless One
Stockholders, or a member of the Family Group, as applicable, of any such
Person.
"Initial Chase Share Quantity" means the aggregate number of shares
----------------------------
of Common Stock issued to CMCC and Baseball pursuant to the Heartland Merger
Agreement (as adjusted pursuant to the Heartland Merger Agreement and the
Heartland Escrow Agreement, and as adjusted for any subsequent stock splits,
stock dividends, combinations of shares and similar recapitalizations) and to
CVCA pursuant to the TruVision Merger Agreement (as adjusted pursuant to the
TruVision Merger Agreement and the TruVision Escrow Agreement, and as adjusted
for any subsequent stock splits, stock dividends, combinations of shares and
similar recapitalizations) .
"Initial Heartland Share Quantity" means the aggregate number of
--------------------------------
shares of Common Stock issued to Heartland and certain subsidiaries of Heartland
pursuant to the Heartland Merger Agreement (as adjusted pursuant to the
Heartland Merger Agreement and the Heartland Escrow Agreement, and as adjusted
for any subsequent stock splits, stock dividends, combinations of shares and
similar recapitalizations).
"Initial TruVision Share Quantity" means the aggregate number of
--------------------------------
shares of Common Stock issued to the TruVision Stockholders pursuant to the
TruVision Merger Agreement, including Common Stock issuable pursuant to Article
I and Section 5.13 of the TruVision Merger Agreement(as adjusted pursuant to the
TruVision Merger Agreement and the TruVision Escrow Agreement, and as adjusted
for any subsequent stock splits, stock dividends, combinations of shares and
similar recapitalizations).
"Initial Wireless One Share Quantity" means the aggregate number of
-----------------------------------
shares of Common Stock issued to the Wireless One Stockholders pursuant to the
Heartland Merger Agreement (as adjusted pursuant to the Heartland Merger
Agreement and the Heartland Escrow Agreement, and as adjusted for any subsequent
stock splits, stock dividends, combinations of shares and similar
recapitalizations).
"Majority Chase Holders" at any time means holders of a majority of
----------------------
the Chase Shares.
"Majority Heartland Holders" at any time means holders of a majority
--------------------------
of the Heartland Shares.
"Majority TruVision Holders" at any time means holders of a majority
--------------------------
of the TruVision Shares.
"Majority Wireless One Holders" at any time means holders of a
-----------------------------
majority of the Wireless One Shares.
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<PAGE>
"Person" means any individual or any Entity.
------
"Public Sale" means any sale of Stockholder Shares to the public
-----------
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act (or any similar provision then in force).
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"Stockholder" means any holder of Stockholder Shares.
-----------
"Stockholder Shares" means the TruVision Shares, the Chase Shares,
------------------
the Wireless One Shares and the Heartland Shares. As to any particular shares
constituting Stockholder Shares, such shares will cease to be Stockholder Shares
when they have been (A) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them or (B)
sold to the public through a broker, dealer or market maker pursuant to Rule 144
(or any similar provision then in force) under the Securities Act.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (irrespective
of whether, at the time, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a partnership, association or other business entity, a majority of
the partnership or other similar ownership interest thereof is at the time owned
or controlled, directly or indirectly, by any Person or one or more Subsidiaries
of that Person or a combination thereof. For purposes hereof, a Person or
Persons shall be deemed to have a majority ownership interest in a partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of partnership, association or other business entity gains
or losses or shall be or control the managing director or general partner of
such partnership, association or other business entity.
"Transfer" means any sale, transfer, assignment, pledge,
--------
hypothecation or other direct or indirect disposition of an interest in a
security. The terms "Transferee," "Transferred," and other forms of the word
"Transfer" shall have correlative meanings.
"TruVision Closing" means the "Closing," as that term is defined in
-----------------
the TruVision Merger Agreement.
"TruVision Escrow Agreement" means, collectively, the escrow
--------------------------
agreements dated as of the date of this Agreement and
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-9-
<PAGE>
executed and delivered in connection with the consummation of the TruVision
Merger.
"TruVision Shares" means (i) all Common Stock issued to the
----------------
TruVision Stockholders pursuant to the TruVision Merger Agreement, including
Common Stock issuable pursuant to Article I and Section 5.13 of the TruVision
Merger Agreement(as adjusted pursuant to the TruVision Merger Agreement and the
TruVision Escrow Agreement), and (ii) any equity securities issued or issuable
directly or indirectly with respect to the Common Stock referred to in clause
(i) by way of stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization. As
to any particular shares constituting TruVision Shares, such shares shall cease
to be TruVision Shares when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act (or any similar
provision then in force).
"Wireless One Share Consideration" has the meaning given such term
--------------------------------
in the Heartland Merger Agreement.
"Wireless One Shares" means (i) all Common Stock which is part of
-------------------
the portion of the Wireless One Share Consideration issued to the Wireless One
Stockholders pursuant to the Heartland Merger Agreement (as adjusted pursuant to
the Heartland Merger Agreement and the Heartland Escrow Agreement) and (ii) any
equity securities issued or issuable directly or indirectly with respect to the
Common Stock referred to in clause (i) by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular shares constituting
Wireless One Shares, such shares shall cease to be Wireless One Shares when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (b) distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Securities Act (or any similar provision then in force).
6. Amendment and Waiver. Except as otherwise provided herein, the provisions
--------------------
of this Agreement may be amended or waived only upon the prior written consent
of the Company, the Majority TruVision Holders, the Majority Wireless One
Holders, the Majority Heartland Holders and the Majority Chase Holders. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
7. Governing Law. The corporate law of the State of Delaware shall govern all
-------------
issues and questions concerning the relative rights of the Company and its
stockholders. This Agreement shall be construed in accordance with the laws of
the State of New York,
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<PAGE>
without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of New York.
8. Notices. All notices, demands and other communications to be given and
-------
delivered under or by reason of provisions under this Agreement shall be in
writing and shall be deemed to have been given to any party when personally
delivered, sent by telecopy (with a hard copy to follow) or express overnight
courier service, or mailed by first class mail, return receipt requested, to the
applicable addresses or telecopy numbers set forth for such party on Exhibit
11.2 to the Heartland Merger Agreement or Section 12.3 of the TruVision Merger
Agreement or Schedule III hereto or to such other addresses or telecopy numbers
as such party shall have designated by notice to the other party.
9. Severability. Whenever possible, each provision of this Agreement shall be
------------
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
10. Entire Agreement. Except as otherwise expressly set forth herein and in the
----------------
Heartland Merger Agreement and the TruVision Merger Agreement, this document
embodies the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
11. Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
12. Remedies. The Company and the holders of Stockholder Shares shall be
--------
entitled to enforce their rights under this Agreement specifically to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that the Company and the holders of
Stockholder Shares may in their sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief (without posting a bond or other security) in order to enforce or prevent
any violation of the provisions of this Agreement.
SHAREHOD.004 (7/25/96)
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<PAGE>
13. No Strict Construction. The parties hereto have participated jointly in the
----------------------
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
14. Descriptive Headings; Interpretation. The descriptive headings of
------------------------------------
this Agreement are inserted for convenience only and do not constitute a Section
of this Agreement. The use of the word "including" in this Agreement shall be
---------
by way of example rather than by limitation. The use of the words "he", "his",
-- ---
"it", or "its" shall be deemed to include any Person, regardless of gender or
-- ---
status as an Entity.
15. Counterparts. This Agreement may be executed in multiple counterparts, each
------------
of which shall be an original and all of which taken together shall constitute
one and the same agreement.
16. Effect of Amendment and Restatement. This Agreement amends and restates the
-----------------------------------
terms of the Old Stockholders Agreement (as amended) with respect to the
obligations of the parties thereto. The obligations under the Old Stockholders
Agreement (as amended), as amended and restated hereunder, remain in full force
and effect under this Agreement. Each party hereto by their execution of a
counterpart hereof consents to this amendment and restatement of the Old
Stockholders Agreement (as amended).
17. Execution by Heartland. Heartland is executing this Agreement on behalf of
----------------------
both itself and each of the Heartland Subsidiaries, each of whom shall be bound
by this Agreement by virtue of such execution by Heartland, and Heartland agrees
to cause each Heartland Subsidiary to perform and honor each of its obligations
hereunder.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
CHASE MANHATTAN CAPITAL CORPORATION
By: ________________________________________
Name:
Title:
BASEBALL PARTNERS
By: ________________________________________
Name:
Title:
PREMIER VENTURE CAPITAL CORPORATION
By: ________________________________________
Name:
Title:
HEARTLAND WIRELESS COMMUNICATIONS, INC.
By: ________________________________________
Name:
Title:
WIRELESS ONE, INC.
By: ________________________________________
Name:
Title:
MISSISSIPPI WIRELESS TV, L.P.
By: WIRELESS TV, INC.
Its: General Partner
By: ________________________________________
Name:
Title:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, L.P.
Its: General Partner
SHAREHOD.004 (7/25/96)
<PAGE>
By: ________________________________________
Name:
Title:
VANCOM, INC.
By: ________________________________________
Name:
Title:
VISION COMMUNICIATIONS, INC.
By: ________________________________________
Name:
Title:
______________________________________________
Hans Sternberg
______________________________________________
Sean R. Reilly
SHAREHOD.004 (7/25/96)
<PAGE>
SCHEDULE I
----------
TRUVISION STOCKHOLDERS
Mississippi Wireless TV, L.P.
VanCom, Inc.
Vision Communications, Inc.
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<PAGE>
SCHEDULE II
-----------
Advantage Capital Partners, Limited Partnership
Advantage Capital Partners II, Limited Partnership
Premier Venture Capital Corporation
Hans Sternberg
Sean Reilly
SHAREHOD.004 (7/25/96)
<PAGE>
SCHEDULE III
------------
For Mississippi Wireless TV, L.P., or Vision Communications, Inc.
- -----------------------------------------------------------------
c/o TruVision Wireless, Inc.
1080 River Oaks Drive
Suite A150
Jackson, Mississippi 39208
Attention: Henry M. Burkhalter
Telecopy: (601) 936-1517
with a copy (which copy will not constitute
-------------------------------------------
notice to such stockholder) to:
------------------------------
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 100
New York, New York 10022
Telecopy: (212) 751-4864
For Chase Venture Capital Associates, L.P.:
- ------------------------------------------
380 Madison Avenue
12th Floor
New York, New York 10014
Attention: Arnold Chavkin
Telecopy: (212) 622-3101
with a copy (which copy will not constitute
-------------------------------------------
notice to such stockholder) to:
------------------------------
Samuel A. Fishman
Latham & Watkins
885 Third Avenue
Suite 100
New York, New York 10022
Telecopy: (212) 751-4864
For VanCom, Inc.:
- ----------------
P.O. Box 5327
Jackson, Mississippi 39296
Attention: William Van Devender
Telecopy: (601) 354-0904
with a copy (which copy will not constitute
-------------------------------------------
notice to such Stockholder) to:
------------------------------
Walter Weems
___________________________________
___________________________________
___________________________________
Telecopy: (601) 960-6902
SHAREHOD.004 (7/25/96)
