SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
SPECIALTY TELECONSTRUCTORS, INC.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
847517 10 9
(CUSIP Number)
Thomas O. Hicks
200 Crescent Court, Suite 1600
Dallas, Texas 75201
(214) 740-7300
(Name, address and telephone number of person
authorized to receive notices and communications)
April 23, 1998
(Date of event which requires filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), (f) or (g), check the following box.
(Continued on following pages)
<PAGE>
- ---------------------------------- -------------------------------
CUSIP No. 847517 10 9 13D Page 2
- ---------------------------------- -------------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Mr. Thomas O. Hicks
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
- ------------------------------- --------------------------------
CUSIP No. 847517 10 9 13D Page 3
- ------------------------------- --------------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hicks, Muse Fund III Incorporated
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
- ------------------------------- ------------------------------
CUSIP No. 847517 10 9 13D Page 4
- ------------------------------- ------------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hicks, Muse GP Partners III, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
- -------------------------------- -----------------------------
CUSIP No. 847517 10 9 13D Page 5
- -------------------------------- -----------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HM3 Coinvestors, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
- ------------------------------- -------------------------------
CUSIP No. 847517 10 9 13D Page 6
- ------------------------------- -------------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HM3/OmniAmerica Partners, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
- ------------------------------- --------------------------------
CUSIP No. 847517 10 9 13D Page 7
- ------------------------------- --------------------------------
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
HMTF/Omni Partners, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) X
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 6,750,000
PERSON ------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
6,750,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,750,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
45.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
================================================================================
* The reporting person expressly disclaims (i) the existence of any
group and (ii) beneficial ownership with respect to any shares other
than the shares owned of record by such reporting person. See Item 5.
<PAGE>
Item 1. Security and Issuer
Common Stock, $0.01 par value (the "Common Stock")
Specialty Teleconstructors, Inc. (the "Company")
12001 State Highway 14 North
Cedar Crest, New Mexico 87008
Item 2. Identity and Background
(a) Name of Person(s) Filing this Statement (the "Filing
Parties"):
Mr. Thomas O. Hicks;
Hicks, Muse Fund III Incorporated, a Texas corporation ("Fund III
Incorporated"); Hicks, Muse GP Partners III, L.P., a Texas limited
partnership ("Hicks Muse Partners III"); HM3 Coinvestors, L.P., a
Delaware limited partnership ("HM3 Coinvestors"); HM3/OmniAmerica
Partners, LLC, a Delaware limited liability company ("HM3 LLC"); and
HMTF/Omni Partners, L.P., a Delaware limited partnership
("OmniPartners").
(b) Residence or Business Address:
The address of the principal business office of each of the Filing
Parties is 200 Crescent Court, Suite 1600, Dallas, Texas 75201.
(c) Present Principal Occupation:
Thomas O. Hicks is the controlling shareholder and the Chairman of the
Board, Chief Executive Officer and Secretary of Hicks, Muse, Tate & Furst
Incorporated ("Hicks Muse"), a private investment firm primarily engaged in
leveraged acquisitions, recapitalizations, and other principal investing
activities. Each of the other Filing Parties is a business organization
engaged in principal investing activities.
(d) Convictions in Criminal Proceedings during the last 5 Years:
None of the Filing Parties has been convicted in a criminal proceeding
during the last 5 years.
(e) Proceedings involving Federal or State Securities Laws:
None of the Filing Parties has, during the last 5 years, been a party
to any civil proceeding as a result of which he or it was subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violations with respect to such laws.
Page 8
<PAGE>
(f) Citizenship:
Mr. Hicks is a United States citizen. Each of the other Filing Parties is
organized under the jurisdiction indicated in paragraph (a) of this Item 2.
Information with respect to Executive Officers, Directors and Control Persons of
Filing Parties not otherwise disclosed herein:
John R. Muse is the Chief Operating Officer of Fund III Incorporated.
Charles W. Tate is the President of Fund III Incorporated. Each of Jack D.
Furst, Lawrence D. Stuart, Jr., Alan B. Menkes, Michael J. Levitt, David B.
Deniger and Dan H. Blanks is a Managing Director and Principal and Executive
Vice President of Fund III Incorporated. Jack D. Furst is the Chairman of the
Board of HM3 LLC. Lawrence D. Stuart, Jr. is the President of HM3 LLC.
The principal business address of each of the persons listed above is 200
Crescent Court, Suite 1600, Dallas, Texas 75201. Each of Messrs. Muse, Tate,
Furst, Stuart, Menkes, Levitt, Deniger and Blanks is presently a principal and
executive officer of Hicks Muse, a private investment firm primarily engaged in
leveraged acquisitions, recapitalizations, and other principal investing
activities, or an affiliate thereof. None of Messrs. Muse, Tate, Furst, Stuart,
Menkes, Levitt, Deniger or Blanks has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) during the last 5 years.
None of Messrs. Muse, Tate, Furst, Stuart, Menkes, Levitt, Deniger or Blanks
has, during the last 5 years, been a party to any civil proceeding as a result
of which he was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violations with respect to such laws. Each
of Messrs. Muse, Tate, Furst, Stuart, Menkes, Levitt, Deniger and Blanks is a
United States citizen.
Item 3. Source and Amount of Funds
On April 23, 1998, OmniAmerica Holdings Corporation, a Delaware corporation
("Holdings"), OmniAmerica, Inc., a Delaware corporation and wholly-owned
subsidiary of Holdings ("OmniAmerica"), OmniPartners, the Company and OAI
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the
Company ("Acquisition"), consummated the transactions contemplated by that
certain Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement"), dated as of February 16, 1998, as amended and restated as of April
22, 1998, among Holdings, OmniAmerica, OmniPartners, the Company, Acquisition
and Omni/HSW Acquisition, Inc., which, prior to its merger with and into
Holdings immediately prior to the Merger (as hereinafter defined), was a
Delaware corporation. Pursuant to the Merger Agreement, Acquisition was merged
with and into Holdings (the "Merger"), with the effect that Holdings, as the
surviving
Page 9
<PAGE>
corporation of the Merger, became a wholly-owned subsidiary of the Company. At
the consummation of the Merger, each share of the common stock, par value $.01
per share, of Holdings ("Holdings Common Stock") was converted into the right to
receive 0.09109398 shares of the Common Stock of the Company.
OmniPartners received all shares of Common Stock covered by this Schedule 13D
as a result of the Merger by virtue of its record ownership of Holdings Common
Stock immediately prior to the effective time of the Merger.
The description of the Merger Agreement contained herein is qualified in its
entirety by reference to the definitive agreement, which is filed herewith as
Exhibit 99(a).
Item 4. Purpose of Transaction
The shares of Common Stock that are the subject of this Schedule 13D were
acquired directly and indirectly by the Filing Parties pursuant to the Merger.
The Filing Parties reserve the right to acquire beneficial ownership of
additional shares of Common Stock or to sell shares of Common Stock from time to
time in the future.
Pursuant to the Merger Agreement, the size of the Board of Directors of the
Company was increased to eight members. Pursuant to the Post-Merger Stockholders
Agreement (the "Stockholders Agreement"), dated as of April 23, 1998, by and
among the Company and the stockholders of the Company signatory thereto,
including, without limitation, OmniPartners, Hicks Muse is entitled to designate
up to four directors of the Board of Directors, dependent upon the percentage of
the Company's Common Stock owned by OmniPartners and its affiliates.
The description of the Stockholders Agreement contained herein is qualified
in its entirety by reference to the definitive agreement, which is filed
herewith as Exhibit 99(b).
Item 5. Interest in Securities of Issuer
(a) As of the close of business on April 23, 1998, each of the Filing Parties
may be deemed to have beneficially owned in the aggregate 6,750,000 shares of
the Common Stock of the Company, representing approximately 45.8% of the
outstanding shares of Common Stock. Of such shares, each of the Filing Parties
has sole voting and dispositive power with respect to none of the shares, and
shared voting and dispositive power with respect to 6,750,000 shares as a result
of the relationships described in paragraph (b) below.
(b) Of the 6,750,000 shares of Common Stock for which the Filing Parties have
shared voting and dispositive power, all of such shares are held of record by
OmniPartners. HM3 LLC is the general partner of OmniPartners and, therefore, may
be deemed to
Page 10
<PAGE>
be the beneficial owner of the shares of Common Stock owned of record by
OmniPartners. HM3 Coinvestors is the sole member of HM3 LLC and, therefore, may
be deemed to be the beneficial owner of the shares of Common Stock beneficially
owned by HM3 LLC. Hicks Muse Partners III is the general partner of HM3
Coinvestors and, therefore, may be deemed to be the beneficial owner of the
shares of Common Stock beneficially owned by HM3 Coinvestors. Fund III
Incorporated is the general partner of Hicks Muse Partners III and, therefore,
may be deemed to be the beneficial owner of the shares of Common Stock
beneficially owned by Hicks Muse Partners III. Mr. Hicks is the sole director
and the Chairman of the Board, Chief Executive Officer and Secretary and owns
all of the outstanding shares of capital stock of Fund III Incorporated and,
therefore, may be deemed to be the beneficial owner of the shares of Common
Stock beneficially owned by Fund III Incorporated.
Each of the Filing Parties expressly disclaims (i) the existence of any group
and (ii) beneficial ownership with respect to any shares of Common Stock covered
by this Schedule 13D not owned of record by him or it.
(c) All of the shares of Common Stock covered by this Schedule 13D were
received by OmniPartners on the date the Merger was consummated as consideration
for shares of Holdings Common Stock held of record by OmniPartners upon the
terms set forth in the Merger Agreement.
(d) The right to receive dividends on, and proceeds from the sale of, the
shares of Common Stock that are held of record by OmniPartners described in
paragraphs (a) and (b) above is governed by the limited partnership agreements
of each of such entities (or, with respect to HM3 LLC, its limited liability
company agreement) and such dividends or proceeds may be distributed with
respect to numerous general and limited partnership interests (or, with respect
to HM3 LLC, membership interests).
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to the Securities of the
Issuer
Pursuant to the terms of the Stockholders Agreement, the Company has the
right of first offer upon the proposed transfer of shares of Common Stock of the
Company.
Also, pursuant to the Stockholders Agreement, OmniPartners and certain of its
affiliates have agreed that prior to the termination of the Stockholders
Agreement, none of them will purchase or otherwise acquire, directly or
indirectly, any additional shares of the Company's common stock. Furthermore,
none of such parties will take certain actions, including,
Page 11
<PAGE>
without limitation, soliciting proxies, encouraging the formation of voting
trusts or commencing other actions in order to seek control of the Board of
Directors.
The description of the Stockholders Agreement contained herein is qualified
in its entirety by reference to the definitive agreement, which is filed
herewith as Exhibit 99(b).
Item 7. Material to be Filed as Exhibits
99(a) Amended and Restated Agreement and Plan of Merger, dated as of April
22, 1998, among Holdings, OmniAmerica, OmniPartners, HSW, the Company
and
Acquisition.
99(b) Post-Merger Stockholders Agreement, dated as of April 23, 1998, among
the Company and the stockholders of the Company signatory thereto.
99(c) Joint Filing Agreement, dated as of May 4, 1998, among Thomas O. Hicks,
Fund III Incorporated, Hicks Muse Partners III, HM3 Coinvestors, HM3
LLC and OmniPartners.
Page 12
<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.
THOMAS O. HICKS
By: *
--------------------------
May 4, 1998 Name: Lawrence D. Stuart, Jr.
Date Title: Attorney-in-Fact
HICKS, MUSE FUND III INCORPORATED
By: *
--------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HICKS, MUSE GP PARTNERS III, L.P.
By: HICKS, MUSE FUND III INCORPORATED,
its general partner
By: *
-----------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HM3 COINVESTORS, L.P.
By: HICKS, MUSE GP PARTNERS III, L.P.,
its general partner
By: HICKS, MUSE FUND III INCORPORATED,
its general partner
By: *
----------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HM3/OMNIAMERICA PARTNERS, LLC
By: *
--------------------------
Name: Lawrence D. Stuart, Jr.
Title: President
HMTF/OMNI PARTNERS, L.P.
By: HM3/OMNIAMERICA PARTNERS, LLC,
its general partner
By: *
--------------------------
Name: Lawrence D. Stuart, Jr.
Title: President
/s/ Lawrence D. Stuart, Jr.
--------------------------------------
Lawrence D. Stuart, Jr.
* Signing on behalf of the above listed
persons, in the respective capacities
indicated above.
Exhibit 99(a)
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
among
SPECIALTY TELECONSTRUCTORS, INC.
OAI ACQUISITION CORP.
and
OMNIAMERICA, INC.
OMNIAMERICA HOLDINGS CORPORATION
OMNI/HSW ACQUISITION, INC.
HMTF/OMNI PARTNERS, L.P.
Dated April 22, 1998
AN APPENDIX OF DEFINED TERMS BEGINS ON PAGE (vi)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I THE MERGER..................................................2
1.1 Definitions..........................................2
1.2 The Merger...........................................2
1.3 Effective Time of the Merger.........................2
1.4 Certificate of Incorporation.........................2
1.5 Effects of the Merger................................2
ARTICLE II DIRECTORS AND OFFICERS.....................................3
2.1 Directors of STI, the Surviving Corporation and
OmniAmericaSub......................................3
2.2 Officers of the Surviving Corporation................3
2.3 Officers of STI......................................3
ARTICLE III CONVERSION OF SECURITIES...................................3
3.1 Consideration for Merger.............................3
3.2 Surrender of Certificates............................4
3.3 Conversion of the Sub's Securities...................4
3.4 OmniPartners to Have No Further Rights as to
OmniAmerica.........................................4
3.5 Written Consent of Sole Stockholder of the Sub.......5
3.6 Written Consent of Sole Stockholder of OmniAmerica...5
3.7 Closing..............................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................5
4.1 Representations and Warranties of OmniAmerica........5
4.1.1 Corporate and Partnership Existence and
Authority.....................................5
4.1.2 Capitalization of OmniAmerica and
OmniAmericaSub................................6
4.1.3 Validity and Authorization; Corporate Power
and Authority.................................8
4.1.4 Execution; No Violations.......................9
4.1.5 Governmental and Other Consents...............10
4.1.6 OmniAmerica Financial Statements..............10
4.1.7 Absence of Certain Liabilities................11
4.1.8 Absence of Changes............................11
4.1.9 Taxes.........................................15
4.1.10 Disputes and Litigation......................16
4.1.11 Compliance with Laws.........................17
4.1.12 Insurance....................................18
4.1.13 Title to Properties..........................18
4.1.14 Real Property and Real Property Leases.......18
4.1.15 Intangible Personal Property.................19
4.1.16 Agreements...................................20
i
<PAGE>
4.1.17 Indebtedness and Guaranties..................20
4.1.18 Debts to and from Related Parties............21
4.1.19 Certificate of Incorporation and Bylaws......21
4.1.20 Books and Records............................21
4.1.21 Employee Benefits............................22
4.1.22 Employees....................................22
4.1.23 No Conflicts of Interest.....................23
4.1.24 Environmental Matters........................23
4.1.25 Licenses.....................................24
4.1.26 No Solicitation or Negotiation...............25
4.1.27 Tower Space Leases...........................25
4.1.28 KISCO Shares.................................26
4.2 Representations and Warranties of OmniPartners......26
4.2.1 Existence and Authority.......................26
4.2.2 Validity and Authorization; Partnership
Power and Authority..........................27
4.2.3 Execution; No Violations......................28
4.2.4 Governmental and Other Consents...............29
4.2.5 Investment Intent; Compliance with Securities
Laws.........................................30
4.3 Representations and Warranties of STI...............31
4.3.1 Corporate Existence and Authority.............31
4.3.2 Capitalization of STI.........................32
4.3.3 Validity and Authorization; Corporate Power
and Authority................................32
4.3.4 Execution; No Violations......................33
4.3.5 Governmental and Other Consents...............33
4.3.6 STI Financial Statements......................34
4.3.7 Absence of Certain Liabilities................34
4.3.8 Absence of Changes............................34
4.3.9 Taxes.........................................37
4.3.10 Disputes and Litigation......................38
4.3.11 Compliance with Laws.........................39
4.3.12 Insurance....................................39
4.3.13 Title to Properties..........................40
4.3.14 Real Property and Real Property Leases.......40
4.3.15 Intangible Personal Property.................41
4.3.16 Agreements...................................41
4.3.17 Indebtedness and Guaranties..................42
4.3.18 Debts to and from Related Parties............42
4.3.19 Articles of Incorporation and Bylaws.........42
4.3.20 Books and Records............................43
4.3.21 Employee Benefits............................43
4.3.22 Employees....................................43
4.3.23 No Conflicts of Interest.....................44
4.3.24 Environmental Matters........................44
4.3.25 Licenses.....................................45
ii
<PAGE>
4.3.26 No Solicitation or Negotiation...............46
4.3.27 Fairness Opinion.............................46
4.3.28 Investment Intent; Compliance with
Securities Laws.............................46
4.3.29 Disclosure...................................46
4.4 Representations and Warranties of the Sub...........47
4.4.1 Corporate Existence and Authority.............47
4.4.2 Capitalization of the Sub. ..................48
4.4.3 Validity and Authorization; Corporate Power
and Authority................................48
4.4.4 Execution; No Violations......................49
4.4.5 Governmental and Other Consents...............49
4.5 Disclosure Schedules................................49
ARTICLE V COVENANTS..................................................49
5.1 Mutual Covenants....................................49
5.1.1 Access and Information........................50
5.1.2 Notices and Approvals.........................50
5.1.3 No Solicitation or Negotiation................51
5.1.4 Proceedings...................................52
5.1.5 Reports and Returns...........................52
5.1.6 Assist in Obtaining Licenses, Etc.............52
5.1.7 Consents......................................52
5.1.8 Insurance.....................................53
5.1.9 Preservation of Business......................53
5.1.10 Tax Treatment................................53
5.1.11 Updating of Disclosure Schedules.............53
5.1.12 Other Covenants..............................53
5.2 OmniAmerica and OmniAmericaSub Covenants............54
5.2.1 Financial Statements..........................54
5.2.2 Restriction on Transfers......................54
5.2.3 Termination of Certain Affiliate Contracts....54
5.2.4 Zoning Compliance Letters.....................55
5.2.5 Conduct of Business...........................55
5.2.6 Preservation of Vote..........................56
5.2.7 Limitation on Short-Term Liabilities..........56
5.3 OmniPartners Covenants..............................56
5.4 Omni/HSW Acquisition Covenants......................56
5.4.1 Preservation of Vote..........................56
5.4.2 Conduct of Business...........................56
5.5 STI Covenants.......................................57
5.5.1 Restriction on Transfers............................57
5.5.2 Preservation of Vote..........................57
5.5.3 SEC Confirmation..............................57
5.5.4 Interim Financial Statements..................58
5.5.5 Conduct of Business...........................58
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5.5.6 Compliance with Nevada Corporation Law........59
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING...........................60
6.1 Conditions Precedent to Obligations of STI and
the Sub............................................60
6.1.1 Representations and Warranties................60
6.1.2 Performance by OmniAmerica, OmniAmericaSub
and OmniPartners.............................60
6.1.3 Regulatory Approvals and Consents.............60
6.1.4 No Court Orders...............................60
6.1.5 No Material Adverse Change....................61
6.1.6 Certificates of OmniAmerica, OmniAmericaSub
and OmniPartners.............................61
6.1.7 Opinion of OmniAmerica's Counsel..............61
6.1.8 Audited Financial Statements and Auditors'
Consents.....................................61
6.1.9 Good Standing.................................61
6.1.10 Related Agreements...........................61
6.1.11 Termination of Affiliate Contracts...........62
6.1.12 Fairness Opinion.............................62
6.1.13 HMTF Affiliate...............................62
6.1.14 No Foreseen Material Adverse Effect..........62
6.1.15 Receipt of SEC Confirmation..................62
6.1.16 Short-Term Liabilities.......................62
6.1.17 HSW Merger...................................62
6.2 Conditions Precedent to Obligations of OmniAmerica,
OmniAmericaSub and OmniPartners...................62
6.2.1 Representations and Warranties................62
6.2.2 Performance by STI and the Sub................63
6.2.3 Regulatory Approvals and Consents.............63
6.2.4 No Court Orders...............................63
6.2.5 No Material Adverse Change....................63
6.2.6 Certificates of STI and the Sub...............63
6.2.7 Opinions of STI's Counsel.....................63
6.2.8 Good Standing.................................64
6.2.9 Related Agreements............................64
6.2.10 Tax Opinion..................................64
ARTICLE VII CLOSING AND DELIVERY OF DOCUMENTS.........................64
7.1 Deliveries by OmniAmerica, OmniAmericaSub and
OmniPartners.......................................64
7.2 Delivery by STI.....................................65
7.3 Related Agreements..................................65
ARTICLE VIII TERMINATION.............................................66
8.1 Reasons for Termination.............................66
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8.1.1 By Mutual Consent.............................66
8.1.2 By STI........................................66
8.1.3 By OmniAmerica................................66
8.1.4 Drop-Dead Date................................67
8.2 Notice of Problems..................................67
8.3 STI Termination Procedure...........................67
8.4 OmniAmerica's Termination Procedure.................68
8.5 Effect of Termination...............................68
8.6 Termination Fee.....................................68
ARTICLE IX MISCELLANEOUS.............................................69
9.2 Survival............................................69
9.3 Expenses............................................69
9.4 Notices.............................................69
9.5 Entire Agreement....................................71
9.6 Headings............................................72
9.7 Incorporated by Reference...........................72
9.8 Number and Gender of Words..........................72
9.9 Execution of Additional Documents...................72
9.10 Finders' and Related Fees...........................72
9.11 Interpretation......................................72
9.12 No Third Party Beneficiary, Etc.....................72
9.13 Reformation; Severability...........................72
9.14 Binding Effect and Assignment.......................73
9.15 Public Announcements................................73
9.16 Confidentiality.....................................73
9.17 No Other Representation.............................74
9.18 Time of the Essence.................................75
9.19 Counterparts........................................75
9.20 Governing Law.......................................75
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APPENDIX OF
DEFINED TERMS
"Acquired Businesses" means the assets and businesses acquired by
OmniAmericaSub pursuant to: (i) that Purchase and Sale Agreement by and between
Radio Seaway, Incorporated and OmniAmericaSub dated December 19, 1997; (ii) that
Purchase and Sale Agreement by and between Ardman Broadcasting Corporation of
Florida and OmniAmericaSub dated November 22, 1997; (iii) that Purchase and Sale
Agreement by and among Dein P. Spriggs, Trustee of the Dein P. Spriggs Profit
Sharing Trust and Robert D. Aebersold, Trustee of the Robert D. Aebersold
Pension Trust and OmniAmericaSub dated October 23, 1997; (iv) that Purchase
Agreement by and among OmniAmericaSub and certain of the partners of OmniTower
Ltd. and South Atlantic Venture Fund III, Limited Partnership dated December 23,
1997; and (v) that Purchase and Sale Agreement by and among Miller Transmission
Tower Company Ltd, Cowboy Tower Company LLC and OmniAmericaSub dated January 16,
1998.
"Acquisition" shall have the meaning ascribed to it in Section 5.1.3.
"Acquisition Proposal" shall have the meaning ascribed to it in Section
5.1.3.
"Affiliate" shall mean, with respect to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified. For the
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall have the meaning ascribed to it in the preamble to this
Agreement.
"Applicable Date" shall have the meaning ascribed to it in Section 8.6.
"Audited Financial Statements" shall mean the DS&S Audited Financial
Statements, the E&Y Audited Financial Statements, the KPMG Audited Financial
Statements and the WC&G Audited Financial Statements.
"Auditors' Consents" shall have the meaning ascribed to it in Section
5.2.1.
"Beneficial Ownership" shall have the meaning given to it in Rule 13d-3
under the Exchange Act.
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"Breach" shall mean, with respect to a party hereto, any representation or
warranty of such party under this Agreement being untrue when made by such party
or any breach of any of such party's covenants or agreements under this
Agreement.
"Budagher" shall mean Michael R. Budagher.
"Business Day" shall mean a day other than a Saturday, a Sunday or other
day on which commercial banks located in New York are authorized or obligated to
close.
"Carpenter" shall mean Tommie R. Carpenter.
"Closing" shall mean the consummation of the Merger and the closing of the
transactions contemplated by this Agreement.
"Closing Date" shall have the meaning ascribed to it in Section 3.7.
"Code" shall have the meaning ascribed to it in the Recitals.
"Confidential Information" shall have the meaning ascribed to it in Section
9.16.
"Contracts" shall have the meaning ascribed to it in Section 4.1.16.
"DGCL" shall have the meaning ascribed to it in the Recitals.
"Disclosing Party" shall have the meaning ascribed to it in Section 9.16.
"Disclosure Schedule" shall mean (a) in the case of OmniAmerica,
OmniAmericaSub and OmniPartners, the Disclosure Schedule delivered by
OmniAmerica, OmniAmericaSub and OmniPartners to STI at or prior to the date of
this Agreement pursuant to Sections 4.1 and 4.2, including without limitation,
the Disclosure Schedule dated as of February 16, 1998 and the Disclosure
Schedule dated as of April 22, 1998 and related to Omni/HSW Acquisition and (b)
in the case of STI and the Sub, the Disclosure Schedule delivered by STI and the
Sub to OmniAmerica, OmniAmericaSub and OmniPartners pursuant to Sections 4.3 and
4.4, including without limitation, the Disclosure Schedule dated as of February
16, 1998 and the Disclosure Schedule dated as of April 22, 1998.
"DS&S" shall mean Derrick, Stubbs & Stith.
"DS&S Audited Financial Statements" shall have the meaning ascribed to it
in Section 5.2.1.
"E&Y" shall mean Ernst & Young, LLP.
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"E&Y Audited Financial Statements" shall have the meaning ascribed to it in
Section 5.2.1.
"Effective Time" shall have the meaning ascribed to it in Section 1.3.
"Effective Time of the HSW Merger" shall mean the date and time when a
properly executed certificate of merger relating to the HSW Merger, in such form
as is required by and executed in accordance with the relevant provisions of the
DGCL, is duly filed with the Secretary of State of the State of Delaware.
"EIA" shall mean an environmental impact assessment.
"Environmental Claim" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, Liens,
Proceedings or notices of non-compliance or violation by any Person alleging
potential liability (including, without limitation, potential liability for
enforcement, investigatory costs, cleanup costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries, or penalties) arising out of, based on or resulting from (A)
the presence, or release or threatened release into the environment, of any
Hazardous Material at any location, whether owned, operated, leased or managed
by any of the OmniSubsidiaries or STI, as the case may be, with respect to its
business; (B) circumstances reasonably forming the basis of any violation, or
alleged violation, of any Environmental Law by any of the OmniSubsidiaries or
STI, as the case may be; or (C) any and all written claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence or release of any Hazardous
Materials.
"Environmental Laws" shall mean all applicable federal, state or local
laws, rules, regulations, orders or other legal requirements relating to the
regulation or protection of human health (other than OSHA and comparable state
laws and regulations relating to the protection of workers' health in the
workplace), safety, the environment or natural resources (including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata), including, without limitation, laws and regulations relating
to releases or threatened releases of Hazardous Materials, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, recycling or handling of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"FAA" shall mean the Federal Aviation Administration.
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"Fairness Opinion" shall mean the fairness opinion dated on or about
February 16, 1998 from Wasserstein Perella & Co., to the effect that the
exchange ratio specified in Section 3.1(a) is fair to STI, from a financial
point of view.
"Family Member" shall mean, as to any natural Person, such Person's spouse,
grandparent or descendant of that grandparent, children (natural or adopted),
natural or adopted siblings, mothers and fathers-in-law, sons and
daughters-in-laws, and brothers and sisters-in-law.
"FCC" shall mean the Federal Communications Commission.
"GAAP" shall mean those generally accepted accounting principles and
practices which are used in the United States and recognized as such by the
American Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and which are consistently applied for
all periods so as to properly reflect the financial position, results of
operations and cash flows on a consolidated basis of the party, except that any
accounting principle or practice required to be changed by the Accounting
Principles Board or Financial Accounting Standards Board (or other appropriate
board or committee) in order to continue as a generally accepted accounting
principle or practice may be so changed.
"General Increase" shall have the meaning ascribed to it in Section
4.1.8(g).
"Governmental Entity" shall have the meaning ascribed to it in Section
4.1.5(a).
"Hazardous Materials" shall mean any waste, material or other substance
that is listed, defined, designated or classified as, or otherwise determined to
be, hazardous, radioactive, toxic or words of similar import or a pollutant or a
contaminant under or pursuant to any Environmental Law, including any mixture or
solution thereof, and specifically including petroleum and all derivatives
thereof or synthetic substitutes therefor and asbestos or asbestos-containing
materials.
"HM Partners" shall mean Hicks, Muse & Co. Partners, L.P., a Texas limited
partnership.
"HMTF" shall mean Hicks, Muse, Tate & Furst Incorporated, a Texas
corporation.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"HSW Assets" shall mean the assets acquired by OmniAmericaSub pursuant to
that certain Purchase and Sale Agreement by and between H.S.W. Associates, Inc.
and OmniAmerica Wireless, L.P. dated October 13, 1997, as amended.
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"HSW Merger" shall mean the merger of Omni/HSW Acquisition with and into
OmniAmerica prior to the Closing in accordance with the terms of the HSW Merger
Agreement.
"HSW Merger Agreement" shall mean that certain agreement and plan of merger
to be entered into by and between Omni/HSW Acquisition and OmniAmerica prior to
the Closing, the form of which is attached hereto as Exhibit (ix) - HSW Merger
Agreement.
"KISCO" shall mean Kline Iron & Steel Co., Inc., a South Carolina
corporation.
"KISCO Shares" shall mean the 11,000 voting common shares and the 60,000
non-voting common shares of KISCO owned by OmniAmericaSub.
"Kline Consulting Agreement" shall mean that certain Consulting Agreement
dated November 14, 1997 by and between Jerome C. Kline and OmniAmericaSub.
"Kline Option Agreement" shall mean that certain Stock Option Agreement
dated as of November 14, 1997 by and between Jerome C. Kline and OmniAmerica.
"Kline Shareholders Agreement" shall mean that certain Shareholders
Agreement dated as of November 14, 1997 by and among Jerome C. Kline, KISCO and
OmniAmericaSub.
"Knowledge of OmniAmerica" shall mean the actual (rather than imputed)
knowledge of any individual member of the OmniAmerica Management and the phrase
"Known to OmniAmerica" and similar phrases shall have a correlative meaning
thereto.
"Knowledge of STI" shall mean the actual (rather than imputed) knowledge of
any individual member of STI Management and the phrase "Known to STI" and
similar phrases shall have a correlative meaning thereto.
"KPMG" shall mean KPMG Peat Marwick LLP.
"KPMG Audited Financial Statements" shall have the meaning ascribed to it
in Section 5.2.1.
"Licenses" shall have the meaning ascribed to it in Section 4.1.25.
"Lien" shall mean any mortgage, deed of trust, lien, pledge, security
interest or encumbrance of any nature whatsoever but shall exclude those certain
title exceptions that are set forth in those certain Owner Policies of Title
Insurance that are referenced on Exhibit (x)--Liens attached hereto and made a
part hereof for all purposes.
"Material Adverse Effect" shall mean (i) with respect to each of
OmniPartners, OmniAmerica or OmniAmericaSub, a material adverse effect on (x)
the business, properties,
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assets, condition (financial or otherwise), prospects or results of operations
of OmniAmerica, Omni/HSW Acquisition and the OmniSubsidiaries, taken as a whole
(other than changes in general economic conditions or in economic changes
generally affecting the tower industry), (y) its ability to consummate the
transactions contemplated in this Agreement and in the Related Agreements to
which it is a party without material delay or (z) the enforceability against it
of this Agreement or the Related Agreements identified in Section 7.3 to which
it is a party and (ii) with respect to each of STI and the Sub, a material
adverse effect on (x) the business, properties, assets, condition (financial or
otherwise), prospects or results of operations of STI, the Sub and their
respective Subsidiaries, taken as a whole (other than changes in general
economic conditions or in economic changes generally affecting the tower
construction industry), (y) its ability to consummate the transactions
contemplated in this Agreement and in the Related Agreements to which it is a
party without material delay or (z) the enforceability against it of this
Agreement or the Related Agreements identified in Section 7.3 to which it is a
party.
"Material Breach Termination" shall have the meaning ascribed to it in
Section 8.6.
"Merger" shall have the meaning ascribed to it in the Recitals.
"Merger Consideration" shall mean the 6,750,000 shares of STI Common Stock
issuable in the Merger, subject to adjustment as provided in Section 3.1(c).
"Miller Towers" shall mean the assets and the business acquired by
OmniAmericaSub pursuant to that Purchase and Sale Agreement by and among Miller
Transmission Tower Company Ltd, Cowboy Tower Company LLC and OmniAmericaSub
dated January 16, 1998.
"OmniAmerica" shall have the meaning ascribed to it in the preamble to this
Agreement.
"OmniAmerica Affiliate Contracts" shall have the meaning ascribed to it in
Section 5.2.3.
"OmniAmerica Common Stock" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmerica Consents" shall have the meaning ascribed to it in Section
4.1.5(b).
"OmniAmerica Certificate" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmerica ERISA Plans" shall have the meaning ascribed to it in Section
4.1.21(a).
"OmniAmerica Financial Statements" shall have the meaning ascribed to it in
Section 4.1.6.
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"OmniAmerica Management" shall mean Jack D. Furst, Daniel S. Dross, Steven
M. Smith, Carl E. Hirsch and Anthony S. Ocepek.
"OmniAmerica Permitted Transactions" shall mean (a) all actions and
payments in connection with the construction of the MATC tower in Milwaukee, the
Tampa Tall Tower in Tampa, and the Cowboy tower in Dallas, (b) capital
expenditures made by OmniPartners or Omni/HSW Acquisition in connection with the
improvement of assets purchased from H.S.W. Associates, Inc., (c) capital
expenditures in connection with improvement of assets purchased from Dein P.
Spriggs, Trustee of the Dein P. Spriggs Profit Sharing Trust, Robert D.
Aebersold, Trustee of the Robert D. Aebersold Pension Trust and Ardman the
Broadcasting Corporation of Florida, (d) any transactions agreed to in writing
by STI or the Sub, (e) any cancellation, renegotiation or amendment of any
OmniAmerica Affiliate Contracts; provided, that any such cancellation,
renegotiation or amendment does not materially increase the obligations of the
parties thereto, (f) any transactions entered into in accordance with the
provisions of Sections 5.2.5 (solely with respect to OmniAmerica or
OmniAmericaSub) and 5.4.2 (solely with respect to Omni/HSW Acquisition), (g) the
issuance of shares of Omni/HSW Acquisition to OmniPartners in connection with a
contribution of capital to Omni/HSW Acquisition by OmniPartners, (h) the
execution and delivery of the HSW Merger Agreement, (i) the consummation of the
HSW Merger and (j) any transactions between OmniAmerica, OmniAmericaSub,
OmniPartners, HM Partners or Omni/HSW Acquisition, on the one hand, and STI or
the Sub, on the other hand.
"OmniAmerica Plans" shall have the meaning ascribed to it in Section
4.1.21(a).
"OmniAmerica Related Persons" shall have the meaning ascribed to it in
Section 4.1.18.
"OmniAmerica Share" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmericaSub" shall have the meaning ascribed to it in the preamble of
this Agreement.
"OmniAmericaSub Common Stock" shall have the meaning ascribed to it in
Section 4.1.1(a).
"OmniAmericaSub Intellectual Property" shall have the meaning ascribed to
it in Section 4.1.15(a).
"OmniAmerica Termination Fee" shall have the meaning ascribed to it in
Section 8.6.
"Omni/HSW Acquisition" shall have the meaning ascribed to it in the
preamble of this Agreement.
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"OmniPartners" shall have the meaning ascribed to it in the preamble of
this Agreement.
"OmniPartners Consents" shall have the meaning ascribed to it in Section
4.2.4(b).
"OmniSubsidiaries" shall mean OmniAmericaSub, OmniTower Ltd. and SATC and
solely for the purposes of Section 4.1, shall include Omni/HSW Acquisition from
February 17, 1998 to the Effective Time of the HSW Merger and OmniAmerica solely
from the Effective Time of the HSW Merger.
"OmniTower Ltd." shall mean OmniTower Ltd., a Florida limited partnership
formerly known as TowerCom, Limited.
"OmniTower Ltd. Partnership Agreement" shall have the meaning ascribed to
it in Section 4.1.1(b).
"OSHA" shall mean the Occupational, Safety and Health Administration.
"Permitted Lien" shall mean (a) any Lien for Taxes not yet due and payable
or contested in good faith by appropriate Proceedings and for which adequate
reserves appear in the OmniAmerica Financial Statements with respect to
OmniAmerica, OmniAmericaSub and the Acquired Businesses and in the STI Financial
Statements with respect to STI and the Sub, (b) any Lien described as a
"Permitted Lien" in a Disclosure Schedule, (c) any Lien as would be shown by a
current survey of the property (in the case of real property), (d) any Lien of
mechanics, materialmen, laborers, warehousemen, carriers and other similar
common law or statutory liens which are not yet due and payable or are being
contested in good faith and for which adequate reserves appear in the
OmniAmerica Financial Statements with respect to OmniAmerica, OmniAmericaSub and
the Acquired Businesses and in the STI Financial Statements with respect to STI
and the Sub, (e) zoning, entitlement, land use, environmental and other
regulation by governmental agencies, (f) purchase money Liens that may arise or
be created after the date of this Agreement in the ordinary course of the
business, (g) any Lien granted to any lenders prior to the date hereof for
obligations set forth in the Disclosure Schedule or otherwise set forth in the
Financial Statements of a party (except to the extent previously discharged),
(h) any Lien arising under this Agreement or any Related Agreement or pursuant
to a Permitted Transaction and (i) other Liens and defects in title which do
not, individually or in the aggregate, materially interfere with the use of the
assets or materially detract from their value.
"Permitted Transactions" shall mean, collectively, the OmniAmerica
Permitted Transactions and the STI Permitted Transactions.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
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"Post-Merger Stockholders Agreement" shall mean that certain Post-Merger
Stockholders Agreement, effective as of the Closing Date, among Budagher,
Carpenter, OmniPartners, STI and the other parties thereto, a form of which is
attached as Exhibit 7.3(a).
"Post-Termination Date Termination" shall have the meaning ascribed to it
in Section 8.6.
"Potential Acquiror" shall have the meaning ascribed to it in Section
5.1.3.
"Pre-Merger Stockholders Agreement" shall mean that certain Pre-Merger
Stockholders Agreement, effective as of the date hereof, among Budagher,
Carpenter, STI, OmniAmerica and OmniPartners.
"Pre-Termination Date Termination" shall have the meaning ascribed to it in
Section 8.6.
"Prior Merger Agreement" shall have the meaning ascribed to it in the
Recitals.
"Proceedings" shall have the meaning ascribed to it in Section 4.1.10(a).
"Related Agreements" shall have the meaning ascribed to it in Section 7.3.
"Representatives" shall have the meaning ascribed to it in Section 9.16.
"SATC" shall mean the South Atlantic Tower Corporation, a Delaware
corporation.
"SEC" shall mean the Securities and Exchange Commission as from time to
time constituted and created under the Exchange Act, or, if at any time after
the execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Exchange Act,
then the Person performing such duties at such time.
"SEC Confirmation" shall have the meaning ascribed to it in Section 5.5.3.
"SEC Documents" shall mean the documents STI has filed with the SEC
pursuant to the Securities Act and the Exchange Act since June 30, 1996.
"SEC Filings" shall have the meaning ascribed to it in Section 5.2.1.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Significant Acquired Businesses" shall mean the assets and businesses
acquired by OmniAmericaSub pursuant to: (i) that Purchase Agreement by and among
OmniAmericaSub
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and certain of the partners of OmniTower Ltd. and South Atlantic Venture Fund
III, Limited Partnership dated December 23, 1997 and (ii) that Purchase and Sale
Agreement by and among Miller Transmission Tower Company Ltd, Cowboy Tower
Company LLC, and OmniAmericaSub dated January 16, 1998.
"STI" shall have the meaning ascribed to it in the preamble to this
Agreement.
"STI Common Stock" shall have the meaning ascribed to it in Section 3.1(a).
"STI Consents" shall have the meaning ascribed to it in Section 4.3.5(b).
"STI ERISA Plans" shall have the meaning ascribed to it in Section
4.3.21(a).
"STI Financial Statements" shall have the meaning ascribed to it in Section
4.3.6.
"STI Intellectual Property" shall have the meaning ascribed to it in
Section 4.3.15.
"STI Management" shall mean Michael R. Budagher, Ernie L. Carpenter, Dennis
K. Hartnett and Jeffrey A. Howard.
"STI Permitted Transactions" shall mean (a) any transactions agreed to in
writing by OmniAmerica, OmniAmericaSub or OmniPartners, (b) any transactions
entered into in accordance with the provisions of Section 5.5.5, (c) the
employment of Wasserstein, Perella & Co. and the payment of their fees, (d) the
discharge of indebtedness owed to Carpenter as shown in the STI Financial
Statements and (e) any transactions between OmniAmerica, OmniAmericaSub,
OmniPartners, HM Partners or Omni/HSW Acquisition, on the one hand, and STI or
the Sub, on the other hand.
"STI Plans" shall have the meaning ascribed to it in Section 4.3.21(a).
"STI Related Persons" shall have the meaning ascribed to it in Section
4.3.18.
"STI Termination Fee" shall have the meaning ascribed to it in Section 8.6.
"Stockholders Agreements" shall mean the Pre-Merger Stockholders Agreement
and the Post-Merger Stockholders Agreement.
"Sub" shall have the meaning ascribed to it in the preamble to this
Agreement.
"Sub Common Stock" shall have the meaning ascribed to it in Section 3.3.
"Subsequent Disclosure Schedule" shall have the meaning ascribed to it in
Section 5.1.11.
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"Subsequent Event" shall have the meaning ascribed to it in Section 5.1.11.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting power,
under ordinary circumstances, to elect directors, is at the time, directly or
indirectly, owned by such Person, by one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person, and (ii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
"Superior Proposal" shall have the meaning ascribed to it in Section 5.1.3.
"Surviving Corporation" shall have the meaning ascribed to it in Section
1.2.
"Taxes" shall mean all federal, state, local, foreign and other
governmental or quasi-governmental net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service,
service use, withholding, payroll, employment, unemployment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees and assessments or charges of any kind whatever in the nature of
taxes, together with any interest and any penalties, additions to tax or
additional amounts with respect thereto.
"Tax Returns" shall have the meaning ascribed to it in Section 4.1.9(a).
"Termination Date" shall have the meaning ascribed to it in Section 8.6.
"Towers" shall mean the towers owned by OmniAmerica or OmniAmericaSub,
including those acquired from the Acquired Businesses or included within the HSW
Assets.
"Tower Space Leases" shall mean each current lease of space on the Towers.
For purposes of this Agreement, (i) references to a "lease" or "leases" shall
not be deemed to include the Tower Space Leases and (ii) Tower Space Leases
shall not be deemed to be "real property leases."
"WC&G" shall mean Wilen, Clapper & Glassman.
"WC&G Audited Financial Statements" shall have meaning ascribed to it in
Section 5.2.1.
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EXHIBITS
Exhibit (ix) --HSW Merger Agreement Form of HSW Merger Agreement
Exhibit (x)--Liens List of Owner Policies of Title Insurance
Exhibit 2.1 Directors of STI, OmniAmerica and
OmniAmericaSub
following the Merger
Exhibit 5.2.3 Retained Affiliate Contracts
Exhibit 6.1.7 Form of Opinion of Weil, Gotshal & Manges
LLP
Exhibit 6.2.7(a) Form of Opinion of Haynes and Boone, LLP
Exhibit 6.2.7(b) Form of Opinion of Jones, Vargas
Exhibit 6.2.10(a) Form of Tax Opinion
Exhibit 6.2.10(b) Form of OmniAmerica Certificate
Exhibit 6.2.10(c) Form of OmniPartners Certificate
Exhibit 6.2.10(d) Form of STI Certificate
Exhibit 7.3(a) Form of Post-Merger Stockholders Agreement
Exhibit 7.3(b) Form of Monitoring and Oversight Agreement
Exhibit 7.3(c) Form of Financial Advisory Agreement
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement"),
dated as of April 22, 1998, is entered into by and among Specialty
Teleconstructors, Inc., a Nevada corporation ("STI"), OAI Acquisition Corp., a
Delaware corporation and a direct, wholly-owned subsidiary of STI (the "Sub"),
OmniAmerica, Inc., a Delaware corporation ("OmniAmericaSub"), OmniAmerica
Holdings Corporation, a Delaware corporation ("OmniAmerica"), HMTF/Omni
Partners, L.P., a Delaware limited partnership ("OmniPartners"), and Omni/HSW
Acquisition, Inc., a Delaware corporation ("Omni/HSW Acquisition").
RECITALS
The parties hereto entered into an Agreement and Plan of Merger (the
"Prior Merger Agreement") dated as of February 16, 1998 relating to the merger
of the Sub with and into OmniAmerica. The parties hereto desire to make certain
changes to the Prior Merger Agreement and to amend, restate and supersede the
Prior Merger Agreement in its entirety.
The parties hereto desire to effect the merger of the Sub with and into
OmniAmerica (the "Merger"), with the effect that OmniAmerica, as the surviving
corporation of the Merger, will become a wholly-owned subsidiary of STI.
The board of directors of OmniAmerica (a) has determined it advisable and
in the best interests of OmniAmerica and its sole stockholder to consummate the
Merger, upon the terms and subject to the conditions set forth herein and in
accordance with the applicable provisions of the Delaware General Corporation
Law ("DGCL"), (b) has adopted and approved this Agreement, the Merger and the
other transactions contemplated hereby and (c) has recommended approval of the
Merger and this Agreement to its sole stockholder.
The general partner of OmniPartners, HM3/OmniAmerica Partners LLC, has
determined it advisable and in the best interests of OmniPartners to adopt and
approve, and has adopted and approved, this Agreement, the Merger and the other
transactions contemplated hereby.
The board of directors of the Sub (a) has determined it advisable and in
the best interests of the Sub and its sole stockholder to consummate the Merger,
upon the terms and subject to the conditions set forth herein and in accordance
with the applicable provisions of the DGCL, (b) has adopted and approved this
Agreement, the Merger and the other transactions contemplated hereby and (c) has
recommended approval of the Merger and this Agreement to its sole stockholder.
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The board of directors of STI has determined it advisable and in the best
interests of STI and its stockholders to adopt and approve, and has adopted and
approved, this Agreement, the Merger and the other transactions contemplated
hereby.
The parties intend that, for federal income tax purposes, the Merger shall
qualify as a reorganization under the provisions of Section 368(a)(1)(A) and
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the
"Code").
The parties are entering into this Agreement to make certain
representations, warranties and agreements as to the Merger, and to prescribe
various conditions as to the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Definitions. Capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed thereto in the Appendix of Defined Terms
attached hereto beginning on page (vi).
1.2 The Merger. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the DGCL, at the Effective Time, the Sub
shall be merged with and into OmniAmerica with OmniAmerica being the surviving
corporation of the Merger. Upon consummation of the Merger, the separate
corporate existence of the Sub shall thereupon cease, and OmniAmerica, as the
surviving corporation in the Merger (the "Surviving Corporation"), shall
continue its corporate existence in accordance with the DGCL.
1.3 Effective Time of the Merger. The Merger shall become effective at the
date and time (the "Effective Time") when a properly executed certificate of
merger, in such form as is required by and executed in accordance with the
relevant provisions of the DGCL, is duly filed with the Secretary of State of
the State of Delaware. The parties hereto shall cause such filings to occur as
soon as practicable on the Closing Date.
1.4 Certificate of Incorporation. At the Effective Time, the Certificate
of Incorporation and Bylaws of OmniAmerica, as they are in effect immediately
prior to the Effective Time, shall be the Certificate of Incorporation and
Bylaws of the Surviving Corporation resulting from the Merger until thereafter
amended as provided by applicable law.
1.5 Effects of the Merger. The effects of the Merger shall be as provided
in the applicable provisions of the DGCL. Without limiting the foregoing, and
subject thereto, the
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corporate existence of OmniAmerica, with all its purposes, powers and objects,
shall continue unaffected and unimpaired by the Merger and, as the Surviving
Corporation of the Merger, OmniAmerica shall be governed by the laws of the
State of Delaware and, at the Effective Time, shall succeed to all rights,
assets, liabilities, properties, privileges, powers, franchises and obligations
of the Sub in accordance with the laws of the State of Delaware. As of the
Effective Time, the Surviving Corporation shall be a wholly-owned subsidiary of
STI.
ARTICLE II
DIRECTORS AND OFFICERS
2.1 Directors of STI, the Surviving Corporation and OmniAmericaSub. Prior
to the Effective Time, (a) STI shall increase the number of the members of the
board of directors of STI to eight (8) and (b) STI and OmniAmerica shall take
such action as may be necessary such that each of the boards of directors of
STI, the Surviving Corporation and OmniAmericaSub, immediately following the
Effective Time, is comprised of the persons, subject to availability, listed on
Exhibit 2.1. Each such director shall hold his or her directorship in accordance
with the applicable certificate or articles (as the case may be) of
incorporation and bylaws of STI, OmniAmerica or OmniAmericaSub.
2.2 Officers of the Surviving Corporation. The officers of OmniAmerica
immediately prior to the Effective Time shall remain the officers of the
Surviving Corporation until their respective successors shall be duly elected or
appointed, as the case may be, and qualified, or until their earlier death,
resignation or removal.
2.3 Officers of STI. STI shall take such action so that, upon the
Effective Time, the following persons, subject to availability, shall hold the
following offices with STI in accordance with the articles of incorporation and
bylaws of STI until their respective successors shall be duly elected or
appointed, as the case may be, and qualified, or until their earlier death,
resignation or removal:
Carl E. Hirsch President and Chief Executive Officer
Michael R. Budagher Chief Operating Officer
Anthony S. Ocepek Chief Financial Officer
Jeffrey A. Howard Vice President -- Corporate Development
F. Howard Mandel Vice President and General Counsel
Steven M. Smith Vice President -- Finance
ARTICLE III
CONVERSION OF SECURITIES
3.1 Consideration for Merger.
(a) At the Effective Time, by virtue of the Merger of the Sub with
and into OmniAmerica and without any action on the part of OmniAmerica or
the Sub, or their
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respective stockholders (other than the filing of the certificate of
merger referred to in Section 1.3 hereof), (i) each share (an "OmniAmerica
Share") of the common stock of OmniAmerica, par value $0.01 per share
("OmniAmerica Common Stock"), issued and outstanding immediately prior to
the Effective Time (other than shares of OmniAmerica Common Stock held in
the treasury of OmniAmerica) shall be canceled and extinguished and be
converted automatically into the right to receive 0.09109398 shares of
common stock of STI, par value $0.01 per share ("STI Common Stock"),
subject to adjustment pursuant to Section 3.1(b), payable as provided in
Section 3.2 upon surrender of the certificate formerly representing such
OmniAmerica Share (the "OmniAmerica Certificate"), and (ii) each
OmniAmerica Share then held in the treasury of OmniAmerica shall be
canceled and retired without conversion thereof and without payment of any
consideration and shall cease to exist.
(b) The Kline Option Agreement shall remain outstanding following
the Merger and shall not be entitled to receive any portion of the Merger
Consideration, but at the Effective Time, the Kline Option Agreement shall
become exercisable for 36,363 shares of STI Common Stock at an initial
exercise price of $13.75 per share, pursuant to the terms of the Kline
Option Agreement.
(c) In the event that, subsequent to the date of this Agreement but
prior to the Effective Time, the outstanding shares of STI Common Stock or
OmniAmerica Common Stock shall have been increased, decreased, changed
into or exchanged for a different number or kind of shares or securities
through a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar change in
capitalization, or there shall have been proposed any such change with a
record date prior to the Effective Time, then an appropriate and
proportionate adjustment shall be made in the Merger Consideration.
3.2 Surrender of Certificates. At the Closing, OmniPartners shall
surrender all outstanding OmniAmerica Certificates to STI and STI shall pay and
deliver to OmniPartners the Merger Consideration payable as a result of the
Merger in exchange for all such outstanding OmniAmerica Certificates.
3.3 Conversion of the Sub's Securities. At the Effective Time, each share
of common stock of the Sub, par value $0.01 per share ("Sub Common Stock"), of
the Sub issued and outstanding immediately prior to the Effective Time shall be
converted, by virtue of the Merger and without any action on the part of the
holder thereof, into one fully paid and nonassessable share of common stock, par
value $0.01 per share, of the Surviving Corporation.
3.4 OmniPartners to Have No Further Rights as to OmniAmerica. At and after
the Effective Time, OmniPartners shall cease to have any rights as a stockholder
of OmniAmerica, other than indirectly as a stockholder of STI.
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3.5 Written Consent of Sole Stockholder of the Sub. Concurrent with the
execution of this Agreement, STI, as the sole stockholder of the Sub, shall
deliver certified copies of its corporate resolutions duly adopting and
approving this Agreement, the Related Agreements, the Merger and the
transactions contemplated by this Agreement and the Related Agreements by
written consent. STI, as the sole stockholder of the Sub, shall not amend,
rescind or withdraw its adoption and approval of this Agreement and the Related
Agreements, the Merger and the transactions contemplated by this Agreement and
the Related Agreements.
3.6 Written Consent of Sole Stockholder of OmniAmerica. Concurrent with
the execution of this Agreement, OmniPartners, as the sole stockholder of
OmniAmerica, shall deliver certified copies of its partnership resolutions duly
adopting and approving this Agreement, the Related Agreements, the Merger and
the transactions contemplated by this Agreement and the Related Agreements by
written consent. OmniPartners, as the sole stockholder of OmniAmerica, shall not
amend, rescind or withdraw its adoption and approval of this Agreement and the
Related Agreements, the Merger and the transactions contemplated by this
Agreement and the Related Agreements.
3.7 Closing. Unless this Agreement is terminated and the transactions
contemplated herein abandoned pursuant to Article VIII and subject to the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VI, the Closing shall take place (a) at the offices of Haynes and Boone, LLP,
Dallas, Texas, at 10:00 A.M. local time on a date to be specified by STI and
OmniAmerica, but as soon as practicable (and in any event within two Business
Days) after the day on which the last of the conditions set forth in Article VI
is fulfilled (other than deliveries of instruments to be made at Closing) or, if
permissible, waived by the relevant party or (b) at such other date, time and
place as STI and OmniAmerica shall agree upon in writing. The date on which the
Closing occurs is referred to herein as the "Closing Date."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of OmniAmerica. To induce STI and the
Sub to enter into this Agreement and to consummate the transactions contemplated
hereby, OmniAmerica and OmniAmericaSub jointly and severally represent and
warrant to STI and the Sub as of the date hereof as follows (each such
representation and warranty being qualified in its entirety by the disclosures
set forth in the Disclosure Schedule, which such disclosures shall correspond to
the following sections and subsections):
4.1.1 Corporate and Partnership Existence and Authority.
(a) Each of OmniAmerica, OmniAmericaSub and SATC is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and authority
to own its properties and assets and to carry on its business as it has
been and is being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and
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authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. Each of OmniAmerica, OmniAmericaSub and SATC is qualified
or licensed to do business as a foreign corporation and is in good
standing in each state, nation or other jurisdiction listed on the
Disclosure Schedule, being each state, nation or other jurisdiction
wherein the character of the properties owned or held under lease by it or
the nature of the business transacted by it makes such qualification or
licensing necessary, except for any state, nation or other jurisdiction
where the failure to be so qualified or licensed would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. Prior to the Effective Time of the HSW Merger,
OmniAmerica's sole asset was and will be 1,000 shares of the common stock,
par value $0.01 per share, of OmniAmericaSub (the "OmniAmericaSub Common
Stock").
(b) OmniTower Ltd. is a limited partnership organized pursuant to
and presently existing under the laws of the State of Florida under a
limited partnership agreement as amended to May 21, 1997 (the "OmniTower
Ltd. Partnership Agreement"), and has the necessary power to carry on its
business as it has been and is now being conducted, except where the
failure to be so organized, existing and in good standing or to have such
power and authority would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
OmniTower Ltd. is qualified or licensed to do business and is in good
standing in each state, nation or other jurisdiction listed on the
Disclosure Schedule, being each state, nation or other jurisdiction
wherein the character of the properties owned or held under lease by it or
the nature of the business transacted by it makes such qualification or
licensing necessary, except for any state, nation or other jurisdiction
where the failure to be so qualified or licensed would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. The OmniTower Ltd. Partnership Agreement has not been
amended, and remains in full force and effect. OmniAmerica has previously
provided a true and correct copy of the OmniTower Ltd.
Partnership Agreement to STI.
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4.1.2 Capitalization of OmniAmerica and OmniAmericaSub.
(a) The authorized capital stock of OmniAmerica consists solely of
80,000,000 shares of OmniAmerica Common Stock of which 74,099,298 shares
are issued and outstanding. No other shares of capital stock of
OmniAmerica are issued and outstanding or reserved for issuance. All the
issued and outstanding shares of capital stock of OmniAmerica are held
solely by OmniPartners free and clear of any Lien and OmniPartners is the
record and Beneficial Owner of such shares. All of the issued and
outstanding shares of capital stock of OmniAmerica have been duly
authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and
nonassessable and were issued free of preemptive (or similar) rights.
Other than the Kline Option Agreement, there are no securities, options,
warrants, rights, calls, commitments, plans, contracts or other agreements
of any character granted or issued by OmniAmerica, OmniPartners or any of
the OmniSubsidiaries which provide for the purchase, issuance or transfer
of any shares of the capital stock of OmniAmerica, nor are there any
outstanding securities granted or issued by OmniAmerica that are
convertible into or exchangeable for or exercisable for any shares of the
capital stock of OmniAmerica, and none are authorized. All presently
exercisable voting rights in OmniAmerica are vested exclusively in the
outstanding shares of OmniAmerica Common Stock, each share of which is
entitled to one vote on every matter to come before its sole stockholder,
OmniPartners. There are no stockholders' agreements, voting trusts or
other voting arrangements with respect to any of OmniAmerica's capital
stock. Other than pursuant to the terms of the HSW Merger Agreement, there
are no outstanding obligations of OmniAmerica or any of the
OmniSubsidiaries to repurchase, redeem or otherwise acquire any
OmniAmerica Common Stock or the capital stock of any of the
OmniSubsidiaries or to provide funds to or make any investment (in the
form of a loan, capital contribution, guarantee or otherwise) in any other
entity. OmniAmerica does not have any direct Subsidiaries, other than
OmniAmericaSub.
(b) The authorized capital stock of OmniAmericaSub consists solely
of 1,000 shares of OmniAmericaSub Common Stock of which 1,000 shares are
issued and outstanding. No other shares of capital stock of OmniAmericaSub
are issued and outstanding or reserved for issuance.
(c) The authorized capital stock of SATC consists solely of 1,000
shares of common stock, par value $0.01 per share, of which 100 shares are
issued and outstanding. No other shares of capital stock of SATC are
issued and outstanding or reserved for issuance.
(d) All the issued and outstanding shares of capital stock of
OmniAmericaSub are held solely by OmniAmerica free and clear of any Lien
and OmniAmerica is the record and Beneficial Owner of such shares. All the
issued and outstanding shares of capital stock of SATC are held solely by
OmniAmericaSub free
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and clear of any Lien and OmniAmericaSub is the record and Beneficial
Owner of such shares. All of the issued and outstanding shares of capital
stock of OmniAmericaSub and SATC have been duly authorized and validly
issued in accordance and compliance with all applicable laws, rules and
regulations and are fully paid and nonassessable and were issued free of
preemptive (or similar) rights. There are no securities, options,
warrants, rights, calls, commitments, plans, contracts or other agreements
of any character granted or issued by OmniAmericaSub, OmniAmerica or any
of the OmniSubsidiaries that provide for the purchase, issuance or
transfer of any shares of the capital stock of OmniAmericaSub or SATC, nor
are there any outstanding securities granted or issued by OmniAmericaSub
or SATC that are convertible into or exchangeable for or exercisable for
any shares of the capital stock of OmniAmericaSub or SATC, and none are
authorized. All presently exercisable voting rights in OmniAmericaSub are
vested exclusively in the outstanding shares of OmniAmericaSub Common
Stock, each share of which is entitled to one vote on every matter to come
before its sole stockholder, OmniAmerica. All presently exercisable voting
rights in SATC are vested exclusively in the outstanding shares of common
stock of SATC, each share of which is entitled to one vote on every matter
to come before its sole stockholder, OmniAmericaSub. There are no voting
trusts, stockholders' agreements or other voting arrangements with respect
to any of OmniAmericaSub's or SATC's capital stock. OmniAmericaSub does
not have any direct Subsidiaries other than SATC. SATC does not have any
Subsidiaries other than OmniTower Ltd.
(e) The only general or limited partners of OmniTower Ltd. are
OmniAmericaSub and SATC. No other partnership interests are issued and
outstanding or reserved for issuance. All the issued and outstanding
partnership interests of OmniTower Ltd. are held by either SATC or
OmniAmericaSub free and clear of any Lien and either SATC or
OmniAmericaSub is the Beneficial Owner of such interests. All of the
outstanding partnership interests in OmniTower Ltd. have been duly
authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and
nonassessable. There are no securities, options, warrants, rights, calls,
commitments, plans, contracts or other agreements of any character granted
or issued by OmniTower Ltd. that provide for the purchase, issuance or
transfer of any partnership interests in OmniTower Ltd., nor are there any
outstanding securities granted or issued by OmniTower Ltd. that are
convertible into or exchangeable for or exercisable for any partnership
interests of OmniTower Ltd. Other than the OmniTower Ltd. Partnership
Agreement, all presently exercisable voting rights in OmniTower Ltd. are
vested exclusively in the outstanding partnership interests and there are
no voting trusts, partners' agreements or other voting arrangements with
respect to any of the partnership interests in OmniTower Ltd. OmniTower
Ltd. does not have any Subsidiaries.
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4.1.3 Validity and Authorization; Corporate Power and Authority.
(a) OmniAmerica has all necessary corporate power and authority to
execute, deliver and perform this Agreement, the Related Agreements, the
HSW Merger Agreement and the other instruments called for by this
Agreement to which it is or is to be a party. The execution, delivery and
performance of this Agreement by OmniAmerica and the consummation by
OmniAmerica of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of
OmniAmerica (subject to the filing of appropriate merger documents as
required by the DGCL). This Agreement has been duly executed and delivered
by OmniAmerica and, assuming the valid authorization, execution and
delivery hereof by STI and the Sub, constitutes the legal, valid and
binding obligation of OmniAmerica, enforceable against OmniAmerica in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting or relating to the enforcement of creditors' rights generally
and by general principles of equity (whether applied in a proceeding at
law or in equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which OmniAmerica is a party are executed and
delivered at the Closing, such Related Agreements and other instruments
will have been duly authorized, executed and delivered by OmniAmerica, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (except OmniAmerica and its Affiliates),
enforceable against OmniAmerica in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(c) OmniAmericaSub has all necessary power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called for by this Agreement to which it is or is to be a
party. The execution, delivery and performance of this Agreement by
OmniAmericaSub and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on its part. This Agreement has been duly executed and delivered by
OmniAmericaSub and, assuming the valid authorization, execution and
delivery hereof by STI and the Sub, constitutes the legal, valid and
binding obligation of OmniAmericaSub, enforceable against it in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
or relating to the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
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(d) When the Related Agreements and the other instruments called for
by this Agreement to which OmniAmericaSub is a party are executed and
delivered at the Closing, such Related Agreements and instruments will
have been duly authorized, executed and delivered by OmniAmericaSub, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (other than OmniAmerica and its Affiliates),
enforceable against it in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
4.1.4 Execution; No Violations. The execution and delivery of this
Agreement by each of OmniAmerica and OmniAmericaSub do not, and the execution
and delivery of the Related Agreements to which they are parties and solely with
respect to OmniAmerica, the execution and delivery of the HSW Merger Agreement,
the consummation of the transactions contemplated hereby and thereby and
compliance with the provisions hereof and thereof by each of OmniAmerica and
OmniAmericaSub will not: (a) violate, conflict with, modify, result in the
incurrence of any prepayment penalties or cause any default under or
acceleration, termination or cancellation of any obligation or the loss of a
benefit under (or give any party any right to declare any default or
acceleration upon notice or passage of time or both), in whole or in part, (i)
any provision of the certificate of incorporation or bylaws of OmniAmerica or
OmniAmericaSub, (ii) any Lien, indenture, lease, loan or credit agreement, note,
bond, mortgage or other agreement (other than, with respect to termination,
agreements terminable without material penalty either at will or upon 90 days'
or less notice by the terminating party), obligation, instrument, permit,
concession, franchise or license applicable to OmniAmerica or any of the
OmniSubsidiaries or (iii) assuming all the consents, filings and registrations
referred to in Section 4.1.5 are obtained or made, any order, injunction,
decree, or judgment to which OmniAmerica or any of the OmniSubsidiaries is a
party or by which either of OmniAmerica or any of the OmniSubsidiaries or any of
their respective properties is bound; (b) result in the creation of any Lien
upon or right of first refusal with respect to any property or asset (whether
real, personal, mixed, tangible or intangible) of OmniAmerica or any of the
OmniSubsidiaries, except as may be approved by STI, (c) assuming all the
consents, filings and registrations referred to in Section 4.1.5 are obtained or
made, violate any statute, ordinance, law, rule or regulation applicable to
OmniAmerica or any of the OmniSubsidiaries, or (d) permit any federal or state
regulatory agency to impose any restrictions or limitations of any nature on
OmniAmerica or any of the OmniSubsidiaries or any of their respective
activities, except in the case of clauses (a)(ii), (b), (c) and (d), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not reasonably be expected to have
a Material Adverse Effect on OmniAmerica or OmniAmericaSub.
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4.1.5 Governmental and Other Consents.
(a) Except for filings under the HSR Act, the filing of the
certificate of merger contemplated by Section 1.3 and the filing of the
certificate of merger contemplated by the HSW Merger Agreement, no
consent, approval or authorization of, or designation, declaration,
registration or filing with, any domestic (federal or state) or foreign
court, commission, governmental body, regulatory agency, authority or
tribunal (a "Governmental Entity") is required on the part of OmniAmerica
or OmniAmericaSub in connection with the execution or delivery of this
Agreement, the Related Agreements to which it is a party, the HSW Merger
Agreement solely with respect to OmniAmerica or the consummation by it of
the transactions contemplated hereby and thereby, except as would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with OmniAmerica's
and OmniAmericaSub's valid execution, delivery or performance of this
Agreement, the Related Agreements to which each is a party and the HSW
Merger Agreement solely with respect to OmniAmerica or the consummation of
any of the transactions contemplated hereby or thereby on the part of
OmniAmerica or OmniAmericaSub (collectively, the "OmniAmerica Consents"),
including but not limited to the consents required under the Contracts,
except, in each case, as would not reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.1.6 OmniAmerica Financial Statements.
(a) (i) The Disclosure Schedule contains true and correct copies of
(A) the consolidated balance sheet for OmniAmerica at December 31, 1997,
and the related statements of profit and loss and cash flows since the
inception of OmniAmerica and (B) the balance sheets for each of the
Significant Acquired Businesses at December 31, 1997, 1996 and 1995 and
the related statements of profit and loss and cash flows for each of the
one-year periods then ended and (ii) when delivered pursuant to Section
5.2.1, similar financial statements to those described in clause (a)(i)(B)
for each additional month ending before the Closing for each of
OmniAmerica and the Significant Acquired Businesses (collectively, the
"OmniAmerica Financial Statements").
(b) The OmniAmerica Financial Statements have been prepared in
accordance with GAAP and present fairly in all material respects the
financial position of the Significant Acquired Businesses and OmniAmerica
as of the dates thereof and the results of Significant Acquired
Businesses' and OmniAmerica's operations and cash flows for the periods
then ended, except that in the case of the OmniAmerica Financial
Statements described in clause (a)(ii) above are also subject to recurring
year-end adjustments, if any, that are normal in nature and amount.
OmniAmerica and the
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Significant Acquired Businesses maintain a system of accounting, including
without limitation a system of internal controls, which permits them to
prepare financial statements that present fairly their respective
financial positions and results of operations in all material respects.
4.1.7 Absence of Certain Liabilities. Except (a) for liabilities
incurred in the ordinary course of business consistent with past practice, (b)
for transaction expenses not to exceed $650,000 incurred in connection with this
Agreement, (c) for liabilities set forth on any balance sheet (including the
notes thereto) included in the OmniAmerica Financial Statements, (d) for
liabilities incurred in connection with the OmniAmerica Permitted Transactions
and (e) for liabilities assumed by OmniAmericaSub in connection with the
acquisition of the Acquired Businesses, as of December 31, 1997, neither the
Acquired Businesses, OmniAmerica nor any of the OmniSubsidiaries had incurred
any liabilities or obligations of any nature, whether or not accrued, contingent
or otherwise, and whether due or to become due, that would be required to be
reflected or reserved against in a consolidated balance sheet (assuming the
consummation prior to December 31, 1997 of the acquisition of each of the
Acquired Businesses) of the Acquired Businesses, OmniAmerica and the
OmniSubsidiaries (including the notes thereto) prepared in accordance with GAAP
applying the same practices and procedures as were applied in the preparation of
the OmniAmerica Financial Statements. Prior to the Effective Time of the HSW
Merger, OmniAmerica had not conducted and will not conduct any business, other
than holding the OmniAmericaSub Common Stock, had no and will incur no
liabilities (whether fixed or contingent) whatsoever (other than its obligations
hereunder) and had no and will not have any employees.
4.1.8 Absence of Changes. Except as expressly provided in this
Agreement or in connection with the OmniAmerica Permitted Transactions, since
December 31, 1997, OmniAmerica and OmniAmericaSub have conducted their
businesses only in the ordinary course and in a manner consistent with past
practice and, since such date, there has not been:
(a) Any change or aggregate of changes in the condition (financial
or otherwise), business, assets, or liabilities of any of the
OmniSubsidiaries that has had, or would reasonably be expected to result
in, a Material Adverse Effect on OmniAmerica;
(b) Any change in the capitalization of OmniAmerica or any of the
OmniSubsidiaries, including, without limitation, the issuance by
OmniAmerica or any of the OmniSubsidiaries of any shares of stock of any
class, any subscriptions, options, warrants, convertible securities,
rights, calls, agreements, commitments or rights affecting or relating in
any manner whatsoever to any equitable interests in OmniAmerica or any of
the OmniSubsidiaries;
(c) Any purchase, redemption or other acquisition by OmniAmerica or
any of the OmniSubsidiaries, or any commitment, plan or agreement by
OmniAmerica or
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any of the OmniSubsidiaries to purchase, redeem or otherwise acquire any
shares of its capital stock or other equitable interests;
(d) Any merger or consolidation or agreement to merge or consolidate
by OmniAmerica or any of the OmniSubsidiaries with another Person, or any
purchase of or investment in or agreement to purchase or invest by
OmniAmerica or any of the OmniSubsidiaries in the business of another
Person;
(e) Any declaration, payment or setting aside by OmniAmerica or any
of the OmniSubsidiaries of any dividends or other distributions of any
assets of any kind whatsoever to its stockholders or other equitable
owners, except for ordinary salary payments for services actually rendered
and reasonable expense reimbursements in the ordinary course of business;
(f) Any amendment to the certificate of incorporation or bylaws or
other organizational documents of OmniAmerica or any of the
OmniSubsidiaries;
(g) Any increase in the compensation or rate of compensation or
commission payable or to become payable by any of the OmniSubsidiaries to
any of its directors, officers, salaried employees earning more than
$75,000 per annum, salesmen or agents, or any General Increase in the
compensation or rate of compensation payable or to become payable to any
of its hourly employees or salaried employees earning $75,000 per annum or
less ("General Increase" for purposes hereof shall mean any increase
(including by means of increased bonuses) applicable to a class or group
of employees and does not include increases granted to individual
employees for merit, length of service, change in position or
responsibility, regularly scheduled salary increase or bonus in accordance
with a general incentive plan or other reasons applicable to specific
employees and not generally to a class or group thereof), or any hiring of
any employee at a salary in excess of $75,000 per annum, or any
termination of any key employee or any employee whose compensation was in
excess of $75,000 per annum;
(h) Any material change in any existing, or adoption of or entering
into any new, benefit plan or arrangement (whether written or oral)
affecting any of the officers, directors, employees, salesmen or agents of
any of the OmniSubsidiaries, including, without limitation, any bonus,
profit-sharing, pension, deferred compensation, severance or termination
pay benefit, stock option, group life or health insurance or other similar
plans, agreements or arrangements;
(i) Any release, cancellation, modification or waiver of any
financial obligation, indebtedness, liability or Lien in favor of any of
the OmniSubsidiaries, unless such obligation, indebtedness, liability or
Lien has been paid in full at the time of release or such as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica;
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(j) Any waivers, compromises or settlements by any of the
OmniSubsidiaries of any right or claim of any of the OmniSubsidiaries in
excess of $50,000 in the aggregate; or any institution or settlement of,
or agreement to settle, any litigation, action or proceeding before any
Governmental Entity relating to any of the OmniSubsidiaries or any of its
properties;
(k) Any mortgage, pledge or other subjection to any Lien or option
of any property, asset, right or business of OmniAmerica or any of the
OmniSubsidiaries, other than Permitted Liens and those incurred in the
ordinary course of business and consistent with past practice;
(l) Any assumptions or guarantees (except endorsements of negotiable
instruments in the ordinary course of business and consistent with past
practice) by OmniAmerica or any of the OmniSubsidiaries of the obligations
of any Person, except in the ordinary course of business and consistent
with past practice, but in no event in excess of $50,000 when all such
assumptions, guarantees and endorsements are aggregated;
(m) Any payment or satisfaction by OmniAmerica or any of the
OmniSubsidiaries of any material liability, obligation or indebtedness,
other than those reflected on the OmniAmerica Financial Statements and
those incurred in the ordinary course of business and consistent with past
practice;
(n) Any loan, advance, or capital contribution to, or investment in,
any Person in an aggregate amount in excess of $100,000 (excluding any
loan, advance or capital contribution to, or investment in, OmniAmerica or
any of the OmniSubsidiaries), any commitment to so loan, advance,
contribute capital or invest, or any renewal, refunding or extension of
any existing loan, advance or investment made by OmniAmerica or any of the
OmniSubsidiaries to any Person, except in the ordinary course of business
and consistent with past practice;
(o) Any actions taken or transactions entered into by any of the
OmniSubsidiaries involving more than $100,000 in the aggregate, other than
in the ordinary course of business and consistent with past practice, or
any capital expenditures or commitments therefor in excess of $100,000 in
the aggregate, other than in the ordinary course of business;
(p) Any creations, renewals, material changes or terminations, or
any notice of any proposed renewal, material change or termination of any
contract, agreement, commitment, obligation, lease or license involving
more than $5,000,000 in the aggregate or extending beyond six (6) months
from the date of this Agreement, to which any of the OmniSubsidiaries is a
party or by which any of the OmniSubsidiaries or its properties are bound;
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(q) Any sale, assignment, lease, abandonment or other disposition by
any of the OmniSubsidiaries of any real property, or any sale, assignment,
transfer, license, lapse, or other disposition by any of the
OmniSubsidiaries of any material trademark, trade name, copyright (or
pending application for any material trademark or copyright), or other
intangible asset;
(r) Any sale, assignment or transfer of any contract, agreement,
lease, or asset by any of the OmniSubsidiaries, except in the ordinary
course of business and consistent with past practice, other than to an
OmniSubsidiary;
(s) Any general labor dispute, or threat of a general labor dispute,
or any attempt or threat of any attempt by a union to organize any
employees of any of the OmniSubsidiaries who are not now covered under an
existing union or collective bargaining agreement;
(t) Any lapse of any material insurance policy or coverage of any of
the OmniSubsidiaries, except for normal renewals and/or replacements;
(u) Any failure by any of the OmniSubsidiaries to replenish
inventories and supplies in a normal and customary manner consistent with
prior practice; any purchase commitment by any of the OmniSubsidiaries in
excess of the normal, ordinary and usual requirements of business or at
any price in excess of the then current market price;
(v) Any material damage, destruction or loss to the business or
properties of any of the OmniSubsidiaries, whether or not covered by
insurance, including, without limitation, any damage, destruction or loss
as a result of fire, explosion, accident, earthquake, lightning, aircraft,
vehicle, smoke, hail, flood, drought, storm, strike, work stoppage,
lockout, sabotage, embargo, condemnation, riot, civil disturbance,
vandalism or act of God or public enemy the result of which is a Material
Adverse Effect on OmniAmerica;
(w) Any granting of powers of attorney by any of the
OmniSubsidiaries; any material writing up or writing down of the carrying
value of any of its assets; any material change in the depreciation or
amortization policies or rates heretofore adopted; or
(x) Any other material action taken or transaction entered into by
any of the OmniSubsidiaries other than in the ordinary course of business.
For purposes hereof, the "ordinary course of business" for OmniAmerica and
the OmniSubsidiaries shall include the ordinary course of conduct of the
Acquired Businesses since January 1, 1997.
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4.1.9 Taxes.
(a) Each of OmniAmerica and the OmniSubsidiaries has duly and timely
filed all required federal, state, local and other tax returns,
information returns, notices and reports (including, without limitation,
income, property, sales, use, franchise, capital stock, excise, value
added, employment, withholding, FICA, medicare and unemployment)
(collectively, "Tax Returns") related to OmniAmerica and any of the
OmniSubsidiaries heretofore due, and all such Tax Returns are correct,
accurate and complete in all material respects;
(b) All deposits of estimated income and withholding, FICA and
medicare Taxes required to be made by OmniAmerica and any of the
OmniSubsidiaries have been duly and timely made;
(c) There has not been during the past five (5) years any audits or
examinations of any tax returns filed by OmniAmerica or any of the
OmniSubsidiaries, no audits or judicial or administrative proceeding with
respect to any Taxes due from OmniAmerica or any of the OmniSubsidiaries
are in progress, and neither OmniAmerica nor any of the OmniSubsidiaries
have been notified by any tax authority that any such audits, examinations
or proceedings are contemplated or pending;
(d) All Taxes with respect to OmniAmerica or any of the
OmniSubsidiaries that have become due and payable on or before December
31, 1997 have been timely paid in full or adequately reserved against in
accordance with GAAP on the OmniAmerica Financial Statements, and all
Taxes which have become due and payable subsequent to December 31, 1997
have been paid in full or adequately reserved against on its books of
account and the amounts reflected on the OmniAmerica Financial Statements
and such books are sufficient for the payment of all unpaid Taxes with
respect to the periods then ended and for all periods prior thereto. There
are no Liens on any of the assets of OmniAmerica or any of the
OmniSubsidiaries that arose in connection with any failure (or alleged
failure) to pay any Tax, except those that are not yet due and payable or
are being contested in good faith by appropriate proceedings;
(e) There are no agreements, waivers or other arrangements providing
for an extension of time with respect to the assessment or collection of
any Tax against OmniAmerica or any of the OmniSubsidiaries, nor are there
any actions, suits, proceedings, investigations or claims now pending
against OmniAmerica or any of the OmniSubsidiaries in respect of any Tax,
or any matters under discussion with any federal, state, local or foreign
authority, or any claims for refund by OmniAmerica or any of the
OmniSubsidiaries for overpaid Taxes relating to any Taxes, or any claims
for additional Taxes asserted by any such authority, and there is no basis
for the assertion of any additional Taxes against OmniAmerica or any of
the OmniSubsidiaries;
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(f) The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional Taxes on
OmniAmerica or any of the OmniSubsidiaries, except for Taxes relating to
the consummation of OmniAmerica Permitted Transactions;
(g) Each of the OmniSubsidiaries has withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or
owing to any employee, creditor, independent contractor or other third
party;
(h) None of the OmniSubsidiaries is a party to any "safe harbor
lease" that is subject to the provisions of Section 168(f)(8) of the Code
as in effect prior to the Tax Reform Act of 1986, or to any "long-term
contract" within the meaning of Section 460 of the Code;
(i) There are no accounting method changes in effect or being
requested with respect to OmniAmerica or any of the OmniSubsidiaries that
could give rise to an adjustment under Section 481 of the Code for periods
after the Closing Date;
(j) Each of OmniAmerica and the OmniSubsidiaries has disclosed (in
accordance with Section 6662(d)(2)(B)(ii) of the Code) on its federal
income tax returns all positions taken therein that could give rise to a
substantial understatement of federal income tax within the meaning of
Section 6662(d) of the Code; and
(k) For purposes of this Agreement, all references to sections of
the Code shall include any predecessor provisions to such sections and any
similar provisions of state, local or foreign law.
4.1.10 Disputes and Litigation. (a) There is no suit, arbitration,
action, litigation, proceeding, investigation, claim, complaint or accusation
pending (the "Proceedings") of which OmniAmerica or any of the OmniSubsidiaries
has received written notice or, to the Knowledge of OmniAmerica Management,
threatened against or affecting OmniAmerica or any of the OmniSubsidiaries or
any of their properties, assets or businesses or to which OmniAmerica or any of
the OmniSubsidiaries is a party, in any court or before any arbitrator of any
kind or before or by any Governmental Entity (including, without limitation, any
federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality), the result of which, individually or
in the aggregate, would reasonably be expected to result in a Material Adverse
Effect on OmniAmerica; (b) to the Knowledge of OmniAmerica Management, there is
no pending or threatened change in any Environmental Law or zoning or building
laws, regulations or ordinances the result of which would reasonably be expected
to result in a Material Adverse Effect on OmniAmerica; and (c) there is no
outstanding order, writ, injunction, decree, judgment, determination or award by
any court, arbitrator or Governmental Entity against or affecting OmniAmerica or
any of the OmniSubsidiaries or any of their properties, assets or businesses
which would reasonably be expected to have a Material Adverse Effect on
OmniAmerica. None of the items nor
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aggregate of items listed in the Disclosure Schedule would, if adversely
determined, reasonably be expected to have a Material Adverse Effect on
OmniAmerica. To the Knowledge of OmniAmerica Management, there is no Proceeding,
formal or informal, pending or threatened which would give rise to any right of
indemnification on the part of any director or officer of OmniAmerica or any of
the OmniSubsidiaries.
4.1.11 Compliance with Laws. Each of the OmniSubsidiaries presently
is, and has at all times been, in compliance in all material respects with any
applicable federal, state, local, foreign and other laws, rules and regulations
(including, without limitation, EIA wind-loading and other EIA standards as
adopted in the local building code for towers, and FAA, FCC and OSHA
regulations), other than those where noncompliance would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica, and none of the
OmniSubsidiaries has received any written or, to the Knowledge of OmniAmerica
Management, oral notice of any claimed violation of any such law, rule or
regulation which would reasonably be expected to have a Material Adverse Effect
on OmniAmerica. Except with respect to the matters addressed in Section 4.1.9,
each of the OmniSubsidiaries has filed all returns, reports and other documents
and furnished all information required or requested by any federal, state, local
or foreign governmental or quasi-governmental agency and all such returns,
reports, documents and information are true and complete in all respects except
where such failure to file or inaccuracies would not reasonably be expected to
result in a Material Adverse Effect on OmniAmerica. All permits, licenses,
orders, franchises and approvals of all federal, state, local and foreign
governmental or quasi-governmental or regulatory bodies required of each of the
OmniSubsidiaries for the conduct of its business have been obtained, other than
those where noncompliance would not reasonably be expected to have a Material
Adverse Effect on OmniAmerica, no violations are or have been recorded in
respect of any such permits, licenses, orders, franchises and approvals, and
there is no Proceeding, formal or informal, pending or, to the Knowledge of
OmniAmerica Management, threatened, which may revoke, limit, or question the
validity, sufficiency or continuance of any such permit, license, order,
franchise or approval, except in each case where the same would not reasonably
be expected to have a Material Adverse Effect on OmniAmerica. Such permits,
licenses, orders, franchises and approvals are valid and sufficient for all
activities presently carried on by each of the OmniSubsidiaries, except in each
case where the same would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica. None of the OmniSubsidiaries, nor any officer, director,
employee, stockholder or agent of the OmniSubsidiaries has made any offer,
payment, promise to pay, or authorization of the payment of any money, offer,
gift, promise to give, or authorization of anything of value to any Person named
or identified in Section 30A of the Exchange Act for any unlawful purpose
described in Section 30A of the Exchange Act. Notwithstanding anything in this
Section 4.1.11 to the contrary, no representation is made by OmniPartners,
OmniAmerica or any of the OmniSubsidiaries concerning its compliance with Rule
10b-5 as promulgated under the Exchange Act in connection with the sale of the
OmniAmerica Shares pursuant to this Agreement.
4.1.12 Insurance. The Disclosure Schedule sets forth a true and
complete list of all insurance policies (including the policy number, the name
of the insurer,
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the amounts of coverage, the premium rate, the cash value, if any, the
expiration date and the risks and losses insured against) currently maintained
by each of the OmniSubsidiaries on its properties, assets, products, businesses
and personnel, and OmniAmerica shall deliver copies of all such policies,
agreements, studies and analyses to STI not later than seven (7) days after the
date of this Agreement. All of the foregoing insurance policies are in full
force and effect and are fully paid as to all premiums heretofore due. None of
the OmniSubsidiaries has failed to give any notice, if the failure thereof would
reasonably be expected to have a Material Adverse Effect on OmniAmerica, or
present any material claim under such insurance policies in timely fashion, nor
has any of the OmniSubsidiaries received any written notification of the
cancellation of any of such policies or that any of them will not be renewed,
except as to such cancellations as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
4.1.13 Title to Properties. The properties and assets of the
OmniSubsidiaries consist of (a) all of the properties and assets reflected on
the OmniAmerica Financial Statements as owned by them and (b) all other material
properties and assets presently carried on OmniSubsidiaries' books as owned by
them or used in their businesses, except, in each case, properties and assets
licensed or leased by any of the OmniSubsidiaries or as to which any of the
OmniSubsidiaries otherwise has the right to use and assets subsequently disposed
of in the ordinary course of business. Each of the OmniSubsidiaries has good and
indefeasible title to all of its respective properties and assets (whether real,
personal, mixed, tangible or intangible) owned by it free and clear of all
Liens, except Permitted Liens, if any. To the Knowledge of OmniAmerica
Management, the Towers and any improvements thereto are in good condition and
repair, ordinary wear and tear excepted, and do not have any structural or
material defects, except where the failure to be in such condition would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
4.1.14 Real Property and Real Property Leases. The Disclosure
Schedule contains a true and complete list of (a) all real property owned by the
OmniSubsidiaries, (b) all real estate leases to which any of the
OmniSubsidiaries is a party, and (c) all other material interests, if any, in
real property owned or claimed by any of the OmniSubsidiaries. To the Knowledge
of OmniAmerica Management, each of the OmniSubsidiaries has material easements
and rights, including parking rights and easements for power lines, water lines,
roadways and other access, necessary to conduct the businesses it now conducts
and enjoys peaceful and undisturbed possession of all properties occupied by it.
To the Knowledge of OmniAmerica Management, neither the whole nor any portion of
any real property owned, occupied or leased to or by any of the OmniSubsidiaries
has been adversely rezoned or condemned or otherwise taken by any public
authority and, to the Knowledge of OmniAmerica Management, no such rezoning,
condemnation or other taking is threatened or contemplated. To the Knowledge of
OmniAmerica Management, none of the real properties owned, occupied or leased to
or by any of the OmniSubsidiaries or the occupancy or operation thereof,
constitutes a nuisance or violation of any law or any building, zoning or other
ordinance, code or regulation or any private or public covenant or restriction,
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and no written notice from any Governmental Entity or other Person has been
served upon any of the OmniSubsidiaries or any Person who had previously owned
the Acquired Businesses during the two-year period prior to the date of this
Agreement claiming any outstanding violation of any such law, ordinance, code,
regulation, covenant or restriction, or requiring or calling attention to the
need for any material amount of work, repairs, construction, alterations or
installations on or in connection with any of such properties which has not been
complied with, except as such that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica. All
leases of real property to which any of the OmniSubsidiaries is a party are
valid, binding and in full force and effect, and, there exists no material
default thereunder by any of the OmniSubsidiaries or, to the Knowledge of
OmniAmerica Management, any other party thereto, nor any events which, with
notice or lapse of time, or both, would constitute a material default by any of
the OmniSubsidiaries thereunder, and all rents heretofore payable under such
leases have been paid in full. Each of the OmniSubsidiaries shall deliver to STI
not later than seven (7) days after the date of this Agreement, true, correct
and complete copies of all deeds, title commitments, title policies, and surveys
to the real property listed on the Disclosure Schedule and true, correct and
complete copies of all real estate leases listed on the Disclosure Schedule,
including all amendments, modifications, letter agreements and assignments
relating thereto.
4.1.15 Intangible Personal Property.
(a) The Disclosure Schedule contains a true and complete list of all
material trademarks, service marks, trade names (including the name
"OmniAmerica" and all derivations thereof used by OmniAmericaSub),
patents, copyrights and applications for the foregoing owned by
OmniAmericaSub (collectively, the "OmniAmericaSub Intellectual Property"),
all material licenses to which OmniAmericaSub is a licensor or licensee,
and all non-competition covenants of OmniAmericaSub. OmniAmericaSub is the
sole and exclusive owner of the OmniAmericaSub Intellectual Property
indicated on the Disclosure Schedule to be owned by it free and clear of
all Liens, except Permitted Liens, if any, and has the right to use the
OmniAmericaSub Intellectual Property, having not granted or entered into
any agreement, covenant, license or sublicense with respect thereto.
(b) No written claims or demands have been asserted against any of
the OmniSubsidiaries with respect to any of the OmniAmericaSub
Intellectual Property, and no Proceedings have been instituted, are
pending or, to the Knowledge of OmniAmerica Management, threatened against
OmniAmericaSub which challenge the rights of OmniAmericaSub with respect
to any of such assets. To the Knowledge of OmniAmerica Management, the
businesses and operations of OmniAmericaSub and the use or publication of
the OmniAmericaSub Intellectual Property does not involve infringement or
claimed infringement of any United States trademark, trade name, copyright
or patent.
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(c) No director, officer or stockholder, or, to the Knowledge of
OmniAmerica Management, employee, consultant, distributor, representative,
advisor, salesman or agent of any of the OmniSubsidiaries owns, directly
or indirectly, in whole or in part, any trademarks, trade names, or
copyrights, or applications for the foregoing, or other material tangible
personal property which OmniAmericaSub is presently using or the use of
which is necessary for the business of any of the OmniSubsidiaries as now
conducted. None of the directors, officers or stockholders of any of the
OmniSubsidiaries has entered into any agreement regarding know-how, trade
secrets, or prohibition or restriction of competition, or solicitation of
customers or any other similar restrictive agreement or covenant, whether
written or oral, with any Persons other than the OmniSubsidiaries.
4.1.16 Agreements. The Disclosure Schedule contains a true and
complete list of all (i) oral contracts, leases, and licenses the breach of
which would result in a Material Adverse Effect on OmniAmerica and (ii) all
written contracts, leases, and licenses, (collectively, the "Contracts") in each
case to which any of the OmniSubsidiaries is a party or its properties may be
bound and which (a) involve obligations by any party thereto in excess of
$250,000; (b) require the consent of any party thereto to the consummation of
the transactions contemplated by this Agreement or the Related Agreements; (c)
contain covenants limiting the freedom of any of the OmniSubsidiaries to compete
in any line of business or with any Person or in any geographical area; (d)
contain any provision or option relating to the acquisition by any of the
OmniSubsidiaries of any business or relating to the sale by any of the
OmniSubsidiaries of any business, other than pursuant to the OmniAmerica
Permitted Transactions; (e) contain an agreement or commitment by any of the
OmniSubsidiaries for a material capital expenditure, other than OmniAmerica
Permitted Transactions; or (f) are contracts or agreements to which the United
States government is a party; provided, that notwithstanding the foregoing
provisions of this Section 4.1.16, the Disclosure Schedule need not list, and
the term "Contracts" shall not include, agreements for which the obligations of
the parties thereto have been fulfilled. All of the Contracts were entered into
by the OmniSubsidiary that is a party thereto in the ordinary course of
business, are valid and binding and in full force and effect against the
OmniSubsidiary that is a party thereto and, to the Knowledge of OmniAmerica
Management, each of the other parties thereto, and there exists no material
breach or default by the OmniSubsidiary that is a party thereto, or any event
which, with notice or lapse of time or both, would constitute a material breach
or default by the OmniSubsidiary that is a party thereto, or to the Knowledge of
OmniAmerica Management, by any other party thereto. OmniAmericaSub shall deliver
to STI not later than seven (7) days after the date of this Agreement, true and
complete copies, including all amendments, modifications and assignments
relating thereto, of all of the aforesaid written agreements and true and
correct summaries of all such oral agreements.
4.1.17 Indebtedness and Guaranties. The Disclosure Schedule sets
forth a true and complete list of all promissory notes, loan agreements,
security agreements and guarantees relating to indebtedness for borrowed money
or money loaned to others to which any of the OmniSubsidiaries is a party or
obligor. Neither OmniAmerica nor any of the
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OmniSubsidiaries has an existing obligation to guarantee any dividend,
obligation or indebtedness of any Person (except for the endorsement of
negotiable instruments in the ordinary course of business and consistent with
past practice). All of the aforesaid items were entered into in the ordinary
course of business, are valid and binding and in full force and effect as
against the OmniSubsidiary that is a party thereto and there exists no material
breach or default by the OmniSubsidiary that is a party thereto, or any event
which with notice or lapse of time or both, would constitute a material breach
or default by the OmniSubsidiary that is a party thereto or, to the Knowledge of
OmniAmerica Management, any other parties thereto.
4.1.18 Debts to and from Related Parties. Except for the advancement
and reimbursement of business expenditures upon arms' length terms or pursuant
to valid employment agreements or employee health and benefit plans, there
presently is no indebtedness owing to any of the OmniSubsidiaries by, or any
contractual agreements between any of the OmniSubsidiaries, on the one hand, and
any stockholder, director, partner, or officer of any of the OmniSubsidiaries,
any Family Member of their respective families, or to the Knowledge of
OmniAmerica Management, any Affiliate or "associate" (as such term is defined in
Rule 405 of the Securities Act) of any of the foregoing individuals
(collectively, "OmniAmerica Related Persons"), on the other hand, and none of
the OmniAmerica Related Persons owns any material property or rights, tangible
or intangible (other than an equitable interest), used in any of the
OmniSubsidiaries' businesses. Except as set forth in the OmniAmerica Financial
Statements and the E&Y Audited Financial Statements, none of the
OmniSubsidiaries is indebted to any OmniAmerica Related Person, in any amount
whatsoever, other than, to the Knowledge of OmniAmerica Management, for payment
of salaries, normal fringe benefits, reimbursement of reasonable business
expenditures and compensation for services actually rendered to OmniAmericaSub
in the ordinary course of their businesses.
4.1.19 Certificate of Incorporation and Bylaws. Not later than three
(3) days after the date of this Agreement, OmniAmerica, OmniAmericaSub and SATC
shall deliver to STI true and complete copies of their respective certificates
of incorporation and bylaws as currently in effect. The certificates of
incorporation and bylaws were duly adopted and are in full force and effect, and
there are no amendments or modifications thereto except as included in said
certificates of incorporation and bylaws. None of OmniAmerica, OmniAmericaSub or
SATC is in violation of any of the provisions of its certificate of
incorporation or bylaws.
4.1.20 Books and Records. The minute books of OmniAmerica,
OmniAmericaSub and SATC contain accurate records of all material actions taken
by the stockholders and directors of OmniAmerica, OmniAmericaSub or SATC, as the
case may be. The books, records and accounts of OmniAmerica and the
OmniSubsidiaries, all of which have been made available to STI, have been
maintained in accordance with the requirements of Section 13(b)(2) of the
Exchange Act (regardless of the fact that neither OmniAmerica nor any of the
OmniSubsidiaries is currently subject to that Section), including the
maintenance of an adequate system of internal controls. The stock certificate
books and stock transfer ledgers
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ofOmniAmerica, OmniAmericaSub and SATC are correct and complete and reflect
accurately the number of shares of stock held by their respective sole
stockholders.
4.1.21 Employee Benefits.
(a) Neither OmniAmerica nor any of the OmniSubsidiaries maintains,
administers, or contributes to or has maintained, administered, or
contributed to (or had an obligation to maintain, administer or contribute
to) or is a party to (i) any "employee benefit plan," as defined in
Section 3(3) of ERISA) (the "OmniAmerica ERISA Plans") or (ii) any
employment or consulting, bonus or other incentive compensation, deferred
compensation, salary continuation during any leave of absence, severance,
stock award, stock option, stock purchase or fringe benefit agreements,
policies or arrangements, whether written or oral (together with the
OmniAmerica ERISA Plans, the "OmniAmerica Plans").
(b) None of the OmniAmerica Plans is subject to Title IV of ERISA.
None of the OmniAmerica Plans provides retiree medical or life insurance
benefits to any Person. None of the OmniAmerica Plans provides for payment
of a benefit, the increase of a benefit amount, the payment of a
contingent benefit, or the acceleration of the payment or vesting of a
benefit by reason of the execution of this Agreement or the consummation
of the transactions contemplated by this Agreement. Neither OmniAmerica
nor OmniAmericaSub has an obligation to adopt, or is considering the
adoption of, any new OmniAmerica Plan or, except as required by law, the
amendment of any existing OmniAmerica Plan. Each OmniAmerica ERISA Plan
intended to be qualified under Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service that it
is so qualified and, to the Knowledge of OmniAmerica Management, nothing
has occurred since the date of such letter that could reasonably be
expected to affect the qualified status of such OmniAmerica ERISA Plan.
OmniAmerica Management is not aware of any claims relating to the
OmniAmerica Plans (other than routine claims for benefits). Each
OmniAmerica Plan has been operated in all respects in accordance with its
terms and the requirements of all applicable law, except to the extent as
would not reasonably be expected to have a Material Adverse Effect on
OmniAmerica.
Neither OmniAmerica nor any of the OmniSubsidiaries nor any member of their
"controlled group" has any withdrawal liability, under Title IV of ERISA, the
terms of the applicable plan, any collective bargaining agreement or any other
labor agreement or otherwise, with respect to any "multi-employer" plan (within
the meaning of Section 3(37) or 4001(a)(3) of ERISA) to which they contribute
(or had any obligation to contribute); nor has any event occurred or any
circumstance exist that presents a risk of the occurrence of any withdrawal
liability with respect to any such multi-employer plan.
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4.1.22 Employees.
(a) The Disclosure Schedule sets forth a true and complete list of
all collective bargaining agreements to which any of the OmniSubsidiaries
is a party.
(b) To the Knowledge of OmniAmerica Management, OmniAmerica and each
of the OmniSubsidiaries are in full compliance with all federal, state and
local laws respecting employment, wages and hours in each case except to
the extent as would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica. To the Knowledge of OmniAmerica Management, each of
the OmniSubsidiaries is in compliance in all material respects with all
applicable federal and state laws and regulations respecting occupational
safety and health standards other than those where noncompliance would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica,
and none of the OmniSubsidiaries has received written complaints from any
federal or state agency or regulatory body alleging outstanding violations
of any such laws and regulations which violations would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on OmniAmerica.
(c) To the Knowledge of OmniAmerica Management, except pursuant to
applicable law, the employment of all persons and officers employed by
each of the OmniSubsidiaries is terminable at will, without any penalty or
severance obligation of any kind on the part of the employer. All material
sums due for employee compensation and benefits and all vacation time
owing to any employees have been duly and adequately accrued on the books
of each of the OmniSubsidiaries in accordance with GAAP. To the Knowledge
of OmniAmerica Management, all employees of the OmniSubsidiaries are
either United States citizens or are authorized to be employed in the
United States in accordance with all applicable laws.
(d) None of the OmniSubsidiaries has experienced since December 31,
1996, any general labor troubles or strife, work stoppages, slowdowns by
its employees. To the Knowledge of OmniAmerica Management, none of the
OmniSubsidiaries has experienced since December 31, 1996 any union or
collective bargaining organization efforts or negotiations, or requests
for negotiations, for any representation or any labor contract relating to
any employees of the OmniSubsidiaries not covered by a union or collective
bargaining agreement as of December 31, 1996.
(e) Each of the OmniSubsidiaries subscribes to, or is otherwise
insured under, the worker's compensation or similar statute in each of the
states in which it has employees with respect to such employees.
4.1.23 No Conflicts of Interest. The Disclosure Schedule sets forth
a list of all agreements which each of the OmniSubsidiaries has with its
directors, officers, employees, consultants, distributors, representatives,
advisors, salesmen and agents that prohibit or restrain such individuals from
competing with one or more of the OmniSubsidiaries
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in their respective businesses. None of the OmniSubsidiaries owns, directly or
indirectly, a controlling interest in, any Person which is a customer, supplier,
competitor or potential competitor of one or more of the OmniSubsidiaries.
4.1.24 Environmental Matters.
(a) To the Knowledge of OmniAmerica Management, each of the
OmniSubsidiaries has been and is in material compliance with all
applicable Environmental Laws and possesses all licenses, permits or
similar authorizations required under Environmental Laws for the conduct
of its business as it is currently being conducted.
(b) None of the OmniSubsidiaries has received any written
communication from any Person that alleges that any of the
OmniSubsidiaries is not in compliance with, or is liable under applicable
Environmental Laws.
(c) There is no Environmental Claim pending or, to the Knowledge of
OmniAmerica Management, overtly threatened (i) against any of the
OmniSubsidiaries, (ii) against any Person whose liability for any
Environmental Claim any of the OmniSubsidiaries has retained or assumed
either contractually or, to the Knowledge of OmniAmerica Management, by
operation of law, or (iii) against any real or personal property or
operations which are now or, to the Knowledge of OmniAmerica Management,
have been previously owned, leased, operated or managed, in whole or in
part, based on activities conducted by any of the OmniSubsidiaries.
(d) None of the OmniSubsidiaries is subject to any material
liabilities under Environmental Laws and, to the Knowledge of OmniAmerica
Management, there are no facts, circumstances or conditions relating to
the operations of the OmniSubsidiaries that could reasonably be expected
to result in the OmniSubsidiaries incurring material liabilities under
Environmental Laws.
(e) There are no underground storage tanks, no aboveground storage
tanks, asbestos or asbestos-containing materials or polychlorinated
biphenyls located on, under or at any property owned, operated or leased
by any of the OmniSubsidiaries, except in material compliance with
Environmental Laws.
(f) OmniAmericaSub has made available to STI any environmental
reports, audits or assessments on any real property currently or formerly
owned or leased by any of the OmniSubsidiaries that are in the possession,
custody or control of OmniAmerica.
4.1.25 Licenses. Each of the OmniSubsidiaries has all licenses,
permits, approvals, authorizations, exemptions, classifications, registrations
and certificates (including, without limitation, all registrations or other
filings with respect to the Towers required by the
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FAA and FCC), and all consents or agreements with Governmental Entities
(collectively "Licenses") necessary to conduct its business in the manner and to
the extent that it has been conducted, other than any Licenses the failure of
which to have would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on OmniAmerica. The Disclosure
Schedule contains a list of every material License. All Licenses are in full
force and effect and no Proceedings are pending or, to the Knowledge of
OmniAmerica Management, threatened which may result in the revocation,
modification, non-renewal or suspension of any of the Licenses, the denial of
any pending application for a License, the issuance of a cease and desist order
or the imposition of any administrative penalty or sanction, other than those
which would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on OmniAmerica. There does not exist under any
License any default or violation, or event which, with notice or lapse of time
or both, would constitute a default or violation or would result in the
withdrawal of such License, other than defaults or violations which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica, nor is there, to the Knowledge of OmniAmerica
Management, any basis for assertion of any default or violation.
4.1.26 No Solicitation or Negotiation. Neither OmniAmerica nor any
of the OmniSubsidiaries has made any agreement to sell the stock, business or
substantially all of the assets of OmniAmerica or any of the OmniSubsidiaries to
another Person, or to merge, consolidate or combine assets or business of
OmniAmerica or any of the OmniSubsidiaries with another Person (except for the
OmniAmerica Permitted Transactions) and is not currently engaged in negotiations
or discussions concerning any other sale of the stock, or the sale, merger or
combination of any material asset or business of OmniAmerica or any of the
OmniSubsidiaries to or with another Person (except for the OmniAmerica Permitted
Transactions).
4.1.27 Tower Space Leases. The Disclosure Schedule contains a true,
correct and complete summary of each material Tower Space Lease, including the
name of the lessee, the term of the lease and the monthly revenue derived
therefrom. OmniAmerica has made available to STI true, correct and complete
copies of all of the material Tower Space Leases. Other than the Tower Space
Leases, there are no leases, occupancies, tenancies or licenses in effect
pertaining to a Tower, and other than lessees or tenants under Tower Space
Leases, to the Knowledge of OmniAmerica Management, no persons, tenants,
licensees or entities occupy space on a Tower. There are no options or rights to
renew, extend or terminate the Tower Space Leases or expand any leased or
licensed premises, except as shown in the Tower Space Leases. The Tower Space
Leases and any guaranties thereof are in full force and effect. OmniAmericaSub
is the sole owner of the landlord's or licensor's interest in the Tower Space
Leases. As of the Closing Date and as contemplated herein, no rents due under,
or other interest in, any of the Tower Space Leases will have been sold,
assigned or transferred by any of the OmniSubsidiaries or otherwise pledged or
encumbered in any way. Neither the landlord nor, to the Knowledge of OmniAmerica
Management, any tenant or licensee is in material default under any Tower Space
Lease nor has OmniAmerica or any of the OmniSubsidiaries received any written
notice from any tenant or licensee of any default
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under its current Tower Space Lease or of any tenant's or licensee's termination
of its current Tower Space Lease in advance of the scheduled expiration date of
its Tower Space Lease unless such defaults or terminations would not,
individually and in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica. All of the improvements to be constructed by
OmniAmerica or any of the OmniSubsidiaries, if any, contemplated under the Tower
Space Leases or as required therein or in any collateral agreement, plans or
specifications respecting the Tower Space Leases have been fully completed and
paid for, except for such of the foregoing the failure to pay for would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
4.1.28 KISCO Shares. OmniAmericaSub owns good and transferable title
to the KISCO Shares, free and clear of any Liens. The KISCO Shares are validly
issued, fully paid and nonassessable. The Kline Shareholders Agreement is a
valid and binding obligation of KISCO and, to the Knowledge of OmniAmerica
Management, Jerome C. Kline, enforceable against KISCO in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
4.2 Representations and Warranties of OmniPartners. To induce STI and the
Sub to enter into this Agreement and to consummate the transactions contemplated
hereby, OmniPartners represents and warrants to STI and the Sub as of the date
hereof as follows (each such representation and warranty being qualified in its
entirety by the disclosures set forth in the Disclosure Schedule, which such
disclosures shall correspond to the following sections and subsections):
4.2.1 Existence and Authority.
(a) OmniPartners is a partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware. OmniPartners
has all requisite partnership power and authority to own its properties
and assets and to carry on its business as it has been and is being
conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect on OmniAmerica or OmniAmericaSub.
(b) HM Partners is a partnership duly organized, validly existing
and in good standing under the laws of the State of Texas. HM Partners has
all requisite partnership power and authority to own its properties and
assets and to carry on its business as it has been and is being conducted,
except where the failure to be so organized, existing and in good standing
or to have such power and authority would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
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(c) On the date of this Agreement prior to the Effective Time of the
HSW Merger, Omni/HSW Acquisition is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. On
the date of this Agreement prior to the Effective Time of the HSW Merger,
Omni/HSW Acquisition has all requisite corporate power and authority to
own its properties and assets and to carry on its business as it has been
and is being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.2.2 Validity and Authorization; Partnership Power and Authority.
(a) OmniPartners has all necessary partnership power and authority
to execute, deliver and perform this Agreement, the Related Agreements and
the other instruments called for by this Agreement to which it is or is to
be a party. The execution, delivery and performance of this Agreement by
OmniPartners and the consummation by OmniPartners of the transactions
contemplated hereby have been duly and validly authorized by all necessary
partnership action on the part of OmniPartners (subject to the filing of
appropriate merger documents as required by the DGCL). This Agreement has
been duly executed and delivered by OmniPartners and, assuming the valid
authorization, execution and delivery hereof by STI and the Sub,
constitutes the legal, valid and binding obligation of OmniPartners,
enforceable against OmniPartners in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which OmniPartners is a party are executed and
delivered at the Closing, such Related Agreements and instruments will
have been duly authorized, executed and delivered by OmniPartners, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (other than OmniAmerica and its Affiliates),
enforceable against OmniPartners in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(c) HM Partners has all necessary partnership power and authority to
execute, deliver and perform the Related Agreements to which it is to be a
party. The consummation by HM Partners of the transactions contemplated
thereby have been duly and validly authorized by all necessary partnership
action on the part of HM Partners. When the Related Agreements to which HM
Partners is a party are executed and delivered at the Closing, such
Related Agreements will have been duly authorized,
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executed and delivered by HM Partners, and will be, assuming the valid
authorization, execution and delivery thereof by each other party thereto
(other than OmniAmerica and its Affiliates) enforceable against HM
Partners in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting or relating to the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
(d) Omni/HSW Acquisition has all necessary corporate power and
authority to execute, deliver and perform the HSW Merger Agreement. The
consummation by Omni/HSW Acquisition of the transactions contemplated
thereby have been duly and validly authorized by all necessary corporate
action on the part of Omni/HSW Acquisition.
4.2.3 Execution; No Violations.
(a) OmniPartners' execution and delivery of this Agreement do not,
and the execution and delivery of the Related Agreements to which it is a
party, the consummation of the transactions contemplated hereby and
thereby and compliance with the provisions hereof and thereof by
OmniPartners will not: (i) violate, conflict with or cause any default
under (or give any party any right to declare any default upon notice or
passage of time or both), in whole or in part, any limited partnership
agreement, indenture, lease, agreement, instrument, and assuming all the
consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, any order, injunction, decree, or judgment to which
OmniPartners is a party or by which OmniPartners or any of its properties
is bound, (ii) result in the creation of any Lien upon or right of first
refusal with respect to any property or asset (whether real, personal,
mixed, tangible or intangible) of OmniAmerica or any of the
OmniSubsidiaries except as may be approved by STI, (iii) assuming all the
consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, violate any statute, ordinance, law, rule or regulation
applicable to OmniPartners, OmniAmerica or any of the OmniSubsidiaries or
any of their respective properties or assets or (iv) permit any federal or
state regulatory agency to impose any restrictions or limitations of any
nature on OmniAmerica or any of the OmniSubsidiaries or any of its
activities, except in the case of clauses (ii), (iii) and (iv), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not, individually, or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(b) HM Partners' execution and delivery of each of the Related
Agreements to which it is a party, the consummation by HM Partners of the
transactions contemplated thereby and compliance with the provisions
thereof by HM Partners will not: (i) violate, conflict with or cause any
default under (or give any party any right to declare any default upon
notice or passage of time or both), in whole or in part, any
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limited partnership agreement, indenture, lease, agreement, instrument,
and assuming all the consents, filings and registrations referred to in
Section 4.2.4 are obtained or made, any order, injunction, decree, or
judgment to which HM Partners is a party or by which HM Partners or any of
its properties is bound, (ii) result in the creation of any Lien upon or
right of first refusal with respect to any property or asset (whether
real, personal, mixed, tangible or intangible) of OmniAmerica or any of
the OmniSubsidiaries except as may be approved by STI, (iii) assuming all
the consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, violate any statute, ordinance, law, rule or regulation
applicable to HM Partners, OmniAmerica or any of the OmniSubsidiaries or
any of their respective properties or assets or (iv) permit any federal or
state regulatory agency to impose any restrictions or limitations of any
nature on OmniAmerica or any of the OmniSubsidiaries or any of its
activities, except in the case of clauses (ii), (iii) and (iv), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not, individually, or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(c) Omni/HSW Acquisition's execution and delivery of the HSW Merger
Agreement, the consummation by Omni/HSW Acquisition of the transactions
contemplated thereby and compliance with the provisions thereof by
Omni/HSW Acquisition will not: (i) violate, conflict with or cause any
default under (or give any party any right to declare any default upon
notice or passage of time or both), in whole or in part, any certificate
of incorporation, indenture, lease, agreement, instrument, any order,
injunction, decree, or judgment to which Omni/HSW Acquisition is a party
or by which Omni/HSW Acquisition or any of its properties is bound, (ii)
result in the creation of any Lien upon or right of first refusal with
respect to any property or asset (whether real, personal, mixed, tangible
or intangible) of OmniAmerica or any of the OmniSubsidiaries except as may
be approved by STI, (iii) violate any statute, ordinance, law, rule or
regulation applicable to Omni/HSW Acquisition, OmniAmerica or any of the
OmniSubsidiaries or any of their respective properties or assets or (iv)
permit any federal or state regulatory agency to impose any restrictions
or limitations of any nature on OmniAmerica or any of the OmniSubsidiaries
or any of its activities, except in the case of clauses (ii), (iii) and
(iv), any such violations, conflicts, modifications, defaults,
accelerations, rights, restrictions, limitations or Liens that as would
not, individually, or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.2.4 Governmental and Other Consents.
(a) Except for filings under the HSR Act and the filing of the
certificate of merger contemplated by Section 1.3, no consent, approval or
authorization of, or designation, registration, declaration or filing
with, any Governmental Entity is required on the part of OmniPartners in
connection with the execution or delivery of this Agreement, the Related
Agreements to which it is a party or the consummation by it of
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the transactions contemplated hereby and thereby, except as would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. No consent, approval or authorization of, or designation,
registration, declaration or filing with, any Governmental Entity is
required on the part of HM Partners in connection with its execution or
delivery of the Related Agreements to which it is a party or the
consummation by it of the transactions contemplated thereby, except as
would not reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with (i)
OmniPartners' valid execution, delivery or performance of this Agreement
and the Related Agreements to which it is a party or the consummation of
any of the transactions contemplated hereby or thereby on the part of
OmniPartners and (ii) HM Partners' valid execution, delivery or
performance of the Related Agreements to which it is a party or the
consummation of any of the transactions contemplated thereby on the part
of HM Partners (collectively, the "OmniPartners Consents"), except, in
each case, as would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica or OmniAmericaSub.
4.2.5 Investment Intent; Compliance with Securities Laws.
(a) OmniPartners is acquiring the Merger Consideration for
investment for its own account, not as a nominee or agent for any other
Person, and not with a view to the resale or distribution of any part
thereof in violation of the Securities Act. OmniPartners does not have any
present intention of selling, granting any participation in, or otherwise
distributing the Merger Consideration otherwise than pursuant to an
effective registration statement under the Securities Act or in a
transaction exempt from the registration requirements under the Securities
Act and applicable state securities laws. Except as set forth in the
Stockholders Agreements, OmniPartners does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or
grant participations to such Person or to any third Person, with respect
to any of the Merger Consideration.
(b) OmniPartners acknowledges that the issuance of the Merger
Consideration will not be registered under the Securities Act or any state
securities laws on the basis of a claimed exemption by STI that the
issuance of the Merger Consideration as provided for herein is exempt from
registration under the Securities Act and such state securities laws.
OmniPartners acknowledges that the availability of such exemptions is
predicated in part on OmniPartners' representations set forth in this
Section and that STI and the Sub are relying on such representations.
(c) OmniPartners has received all the information it considers
necessary or appropriate for deciding whether to accept the Merger
Consideration. OmniPartners has had an opportunity to ask questions and to
receive answers from STI regarding the
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terms and conditions of the issuance of the Merger Consideration and the
business, properties, and financial condition of STI and to obtain
additional information (to the extent STI possessed such information or
could acquire it without unreasonable effort or expense) necessary to
verify the accuracy of any information furnished to OmniPartners
(including the representations and warranties of STI and the Sub herein)
or to which OmniPartners had access.
(d) OmniPartners acknowledges that it is able to bear the economic
risk of the investment in the Merger Consideration, and has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in the Merger
Consideration.
(e) OmniPartners is an Accredited Investor as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
(f) OmniPartners acknowledges that the Merger Consideration or any
portion thereof may not be sold, transferred or otherwise disposed of
without registration under the Securities Act or an applicable exemption
therefrom and that in the absence of an effective registration statement
covering the Merger Consideration or an available exemption from
registration under the Securities Act, the Merger Consideration must be
held indefinitely. OmniPartners further acknowledges that the Merger
Consideration may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that rule are met.
(g) OmniPartners acknowledges that each certificate representing any
of the Merger Consideration will be endorsed with a legend substantially
similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SO
REGISTERED OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
4.3 Representations and Warranties of STI. To induce OmniAmerica,
OmniAmericaSub and OmniPartners to enter into this Agreement and to consummate
the transactions contemplated hereby, STI represents and warrants to
OmniAmerica, OmniAmericaSub and OmniPartners as of the date hereof as follows
(each such representation and warranty being qualified in its entirety by the
disclosures set forth (a) in the Disclosure
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Schedule of STI, which such disclosures shall correspond to the following
sections and subsections or (b) in the SEC Documents):
4.3.1 Corporate Existence and Authority. STI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has all requisite corporate power and authority to own its properties
and assets and to carry on its business as it has been and is being conducted,
except where the failure to be so organized, existing and in good standing or to
have such power and authority would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on STI. STI is
qualified or licensed to do business as a foreign corporation and is in good
standing in each state, nation or other jurisdiction listed on the Disclosure
Schedule, being each state, nation or other jurisdiction wherein the character
of the properties owned or held under lease by it or the nature of the business
transacted by it makes such qualification or licensing necessary, except for any
state, nation or other jurisdiction where the failure to be so qualified or
licensed would not reasonably be expected to have a Material Adverse Effect on
STI.
4.3.2 Capitalization of STI. The authorized capital stock of STI
consists solely of 20,000,000 shares of STI Common Stock of which 8,055,652
shares are issued and outstanding and 2,000,000 shares of preferred stock, of
which none are issued and outstanding. No other shares of capital stock of STI
are issued and outstanding or reserved for issuance. All of the issued and
outstanding shares of capital stock of STI have been duly authorized and validly
issued in accordance and compliance with all applicable laws, rules and
regulations and are fully paid and nonassessable and were issued free of
preemptive (or similar) rights. There are no securities, options, warrants,
rights, calls, commitments, plans, contracts or other agreements of any
character granted or issued by STI which provide for the purchase, issuance or
transfer of any shares of the capital stock of STI, nor are there any
outstanding securities granted or issued by STI that are convertible into or
exchangeable for or exercisable for any shares of the capital stock of STI, and
none are authorized. All presently exercisable voting rights in STI are vested
exclusively in the outstanding shares of STI Common Stock, each share of which
is entitled to one vote on every matter to come before its stockholders. Except
for the Stockholders Agreements, there are no stockholders agreements, voting
trusts or other voting arrangements with respect to any of STI's capital stock.
There are no outstanding obligations of STI to repurchase, redeem or otherwise
acquire any STI Common Stock or to provide funds to or make any investment (in
the form of a loan, capital contribution, guarantee or otherwise) in any other
entity. STI does not have any Subsidiaries, other than Novak & Lackey
Construction Co., Inc., Specialty Management, Inc., Microwave Tower Services,
Inc., Specialty Constructors, Inc., Specialty Constructors Coatings, Inc.,
Specialty Capital Services, Inc., Specialty Combined Resources, Inc., Specialty
Fortress, Inc., Specialty Training Centers, Inc. and the Sub.
4.3.3 Validity and Authorization; Corporate Power and Authority.
(a) STI has all necessary corporate power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called
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for by this Agreement to which it is or is to be a party. The execution,
delivery and performance of this Agreement by STI and the consummation by
STI of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of STI (subject
to the filing of appropriate merger documents as required by the DGCL).
This Agreement has been duly executed and delivered by STI and, assuming
the valid authorization, execution and delivery hereof by OmniAmerica,
OmniAmericaSub and OmniPartners, constitutes the legal, valid and binding
obligation of STI, enforceable against STI in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting or relating
to the enforcement of creditors' rights generally and by general
principles of equity (whether applied in a proceeding at law or in
equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which STI is a party are executed and delivered at
the Closing, such Related Agreements and instruments will have been duly
authorized, executed and delivered by STI, and will be, assuming the valid
authorization, execution and delivery thereof by each other party thereto
(except STI and its Affiliates), enforceable against STI in accordance
with their terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
or relating to the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
4.3.4 Execution; No Violations. The execution and delivery of this
Agreement by STI does not, and the execution and delivery of the Related
Agreements to which it is a party, the consummation of the transactions
contemplated hereby and thereby and compliance with the provisions hereof and
thereof by STI will not: (a) violate, conflict with, modify, result in the
incurrence of any prepayment penalties or cause any default under or
acceleration, termination or cancellation of any obligation or the loss of a
benefit under (or give any party any right to declare any default or
acceleration upon notice or passage of time or both), in whole or in part, (i)
any provision of the articles of incorporation or bylaws of STI, (ii) any Lien,
indenture, lease, loan or credit agreement, note, bond, mortgage or other
agreement (other than, with respect to termination, agreements terminable
without material penalty either at will or upon 90 days' or less notice by the
terminating party), obligation, instrument, permit, concession, franchise or
license applicable to STI or (iii) assuming all the consents, filings and
registrations referred to in Section 4.3.5 are obtained or made, any order,
injunction, decree, or judgment to which STI is a party or by which STI or any
of its properties is bound; (b) result in the creation of any Lien upon or right
of first refusal with respect to any property or asset (whether real, personal,
mixed, tangible or intangible) of STI, except as may be approved by OmniAmerica,
OmniAmericaSub or OmniPartners, (c) assuming all the consents, filings and
registrations referred to in Section 4.3.5 are obtained or made, violate any
statute, ordinance, law, rule or regulation applicable to STI, or (d) permit any
federal or state regulatory agency to impose any restrictions or limitations of
any nature on STI or any of its activities, except in the case of clauses
(a)(ii), (b), (c) and (d), any such
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violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not reasonably be expected to have
a Material Adverse Effect on STI or the Sub.
4.3.5 Governmental and Other Consents.
(a) Except for filings under the HSR Act and the filing of the
certificate of merger contemplated by Section 1.3, no consent, approval or
authorization of, or designation, declaration, registration or filing
with, any Governmental Entity is required on the part of STI in connection
with the execution or delivery of this Agreement, the Related Agreements
to which it is a party or the consummation by it of the transactions
contemplated hereby and thereby, except as would not reasonably be
expected to have a Material Adverse Effect on STI or the Sub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with STI's or the
Sub's valid execution, delivery or performance of this Agreement and the
Related Agreements to which each is a party or the consummation of any of
the transactions contemplated hereby or thereby on the part of STI or the
Sub (collectively, the "STI Consents"), including but not limited to the
consents required under the Contracts, except, in each case, as would not
reasonably be expected to have a Material Adverse Effect on STI or the
Sub.
4.3.6 STI Financial Statements.
(a) (i) The Disclosure Schedule contains true and correct copies of
the consolidated balance sheet for STI at December 31, 1997 and the
related statements of profit and loss and cash flows and (ii) when
delivered pursuant to Section 5.5.4, similar financial statements to those
described in clause (a)(i) for each additional month ending before the
Closing (collectively, the "STI Financial Statements").
(b) The STI Financial Statements have been prepared in accordance
with GAAP and present fairly in all material respects the financial
position of STI as of the dates thereof and the results of STI's
operations and cash flows for the periods then ended, except that in the
case of the STI Financial Statements described in clause (a)(ii) above are
also subject to recurring year-end adjustments, if any, that are normal in
nature and amount. STI maintains a system of accounting, including without
limitation a system of internal controls, which permits it to prepare
financial statements that present fairly its financial positions and
results of operations in all material respects.
4.3.7 Absence of Certain Liabilities. Except (a) for liabilities
incurred in the ordinary course of business consistent with past practice, (b)
for transaction expenses not to exceed $1,700,000 incurred in connection with
this Agreement, (c) for liabilities set forth on any balance sheet (including
the notes thereto) included in the STI Financial Statements and
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(d) for the STI Permitted Transactions, STI had not incurred any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, and
whether due or to become due, that would be required to be reflected or reserved
against in a consolidated balance sheet prepared in accordance with GAAP
applying the same practices and procedures as were applied in the preparation of
the STI Financial Statements.
4.3.8 Absence of Changes. Except as expressly provided in this
Agreement or in connection with the STI Permitted Transactions, since December
31, 1997, STI has conducted its business only in the ordinary course and in a
manner consistent with past practice and, since such date, there has not been:
(a) Any change or aggregate of changes in the condition (financial
or otherwise), business, assets, or liabilities that has had, or would
reasonably be expected to result in, a Material Adverse Effect on STI;
(b) Any change in the capitalization of STI, including, without
limitation, the issuance by STI of any shares of stock of any class, any
subscriptions, options, warrants, convertible securities, rights, calls,
agreements, commitments or rights affecting or relating in any manner
whatsoever to any equitable interests in STI;
(c) Any purchase, redemption or other acquisition by STI, or any
commitment, plan or agreement by STI to purchase, redeem or otherwise
acquire any shares of its capital stock or other equitable interests;
(d) Any merger or consolidation or agreement to merge or consolidate
by STI with another Person, or any purchase of or investment in or
agreement to purchase or invest by STI in the business of another Person;
(e) Any declaration, payment or setting aside by STI of any
dividends or other distributions of any assets of any kind whatsoever to
its stockholders or other equitable owners, except for ordinary salary
payments for services actually rendered and reasonable expense
reimbursements in the ordinary course of business;
(f) Any amendment to the certificate or articles, as the case may
be, of incorporation or bylaws of STI or the Sub;
(g) Any increase in the compensation or rate of compensation or
commission payable or to become payable by STI to any of its directors,
officers, salaried employees earning more than $75,000 per annum, salesmen
or agents, or any General Increase in the compensation or rate of
compensation payable or to become payable to any of its hourly employees
or salaried employees earning $75,000 per annum or less, or any hiring of
any employee at a salary in excess of $75,000 per annum, or any
termination of any key employee or any employee whose compensation was in
excess of $75,000 per annum;
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(h) Any material change in any existing, or adoption of or entering
into any new, benefit plan or arrangement (whether written or oral)
affecting any of the officers, directors, employees, salesmen or agents of
STI, including, without limitation, any bonus, profit-sharing, pension,
deferred compensation, severance or termination pay benefit, stock option,
group life or health insurance or other similar plans, agreements or
arrangements;
(i) Any release, cancellation, modification or waiver of any
financial obligation, indebtedness, liability or Lien in favor of STI,
unless such obligation, indebtedness, liability or Lien has been paid in
full at the time of release or such as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
STI;
(j) Any waivers, compromises or settlements by STI of any right or
claim of STI in excess of $50,000 in the aggregate; or any institution or
settlement of, or agreement to settle, any litigation, action or
proceeding before any Governmental Entity relating to STI or any of its
properties;
(k) Any mortgage, pledge or other subjection to any Lien or option
of any property, asset, right or business of STI, other than Permitted
Liens and those incurred in the ordinary course of business and consistent
with past practice;
(l) Any assumptions or guarantees (except endorsements of negotiable
instruments in the ordinary course of business and consistent with past
practice) by STI of the obligations of any Person, except in the ordinary
course of business and consistent with past practice, but in no event in
excess of $50,000 when all such assumptions, guarantees and endorsements
are aggregated;
(m) Any payment or satisfaction by STI of any material liability,
obligation or indebtedness, other than those reflected on the STI
Financial Statements and those incurred in the ordinary course of business
and consistent with past practice;
(n) Any loan, advance, or capital contribution to, or investment in,
any Person in an aggregate amount in excess of $100,000 (excluding any
loan, advance or capital contribution to, or investment in, STI), any
commitment to so loan, advance, contribute capital or invest, or any
renewal, refunding or extension of any existing loan, advance or
investment made by STI to any Person, except in the ordinary course of
business and consistent with past practice;
(o) Any actions taken or transactions entered into by STI involving
more than $100,000 in the aggregate, other than in the ordinary course of
business and consistent with past practice, or any capital expenditures or
commitments therefor in excess of $100,000 in the aggregate, other than in
the ordinary course of business;
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(p) Any creations, renewals, material changes or terminations, or
any notice of any proposed renewal, material change or termination of any
contract, agreement, commitment, obligation, lease or license involving
more than $5,000,000 in the aggregate or extending beyond six (6) months
from the date of this Agreement, to which STI is a party or by which STI
or its properties are bound;
(q) Any sale, assignment, lease, abandonment or other disposition by
STI of any real property, or any sale, assignment, transfer, license,
lapse, or other disposition by STI of any material trademark, trade name,
copyright (or pending application for any material trademark or
copyright), or other intangible asset;
(r) Any sale, assignment or transfer of any contract, agreement,
lease, or asset by STI, except in the ordinary course of business and
consistent with past practice;
(s) Any general labor dispute, or threat of a general labor dispute,
or any attempt or threat of any attempt by a union to organize any
employees of STI who are not now covered under an existing union or
collective bargaining agreement;
(t) Any lapse of any material insurance policy or coverage of STI,
except for normal renewals and/or replacements;
(u) Any failure by STI to replenish inventories and supplies in a
normal and customary manner consistent with prior practice; any purchase
commitment by STI in excess of the normal, ordinary and usual requirements
of business or at any price in excess of the then current market price;
(v) Any material damage, destruction or loss to the business or
properties of STI, whether or not covered by insurance, including, without
limitation, any damage, destruction or loss as a result of fire,
explosion, accident, earthquake, lightning, aircraft, vehicle, smoke,
hail, flood, drought, storm, strike, work stoppage, lockout, sabotage,
embargo, condemnation, riot, civil disturbance, vandalism or act of God or
public enemy the result of which is a Material Adverse Effect on STI;
(w) Any granting of powers of attorney by STI; any material writing
up or writing down of the carrying value of any of its assets; any
material change in the depreciation or amortization policies or rates
heretofore adopted; or
(x) Any other material action taken or transaction entered into by
STI other than in the ordinary course of business.
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4.3.9 Taxes.
(a) STI has duly and timely filed all required Tax Returns related
to STI and the Sub heretofore due, and all such Tax Returns are correct,
accurate and complete in all material respects;
(b) All deposits of estimated income and withholding, FICA and
medicare Taxes required to be made by STI have been duly and timely made;
(c) There has not been during the past five (5) years any audits or
examinations of any tax returns filed by STI, no audits or judicial or
administrative proceedings with respect to any Taxes due from STI are in
progress, and STI has not been notified by any tax authority that any such
audits, examinations or proceedings are contemplated or pending;
(d) All Taxes with respect to STI that have become due and payable
on or before December 31, 1997 have been timely paid in full or adequately
reserved against on the STI Financial Statements, and all Taxes which have
become due and payable subsequent to December 31, 1997 have been paid in
full or adequately reserved against in accordance with GAAP on its books
of account and the amounts reflected on the STI Financial Statements and
such books are sufficient for the payment of all unpaid Taxes with respect
to the periods then ended and for all periods prior thereto. There are no
Liens on any of the assets of STI that arose in connection with any
failure (or alleged failure) to pay any Tax, except those that are not yet
due and payable or are being contested in good faith by appropriate
proceedings;
(e) There are no agreements, waivers or other arrangements providing
for an extension of time with respect to the assessment or collection of
any Tax against STI, nor are there any actions, suits, proceedings,
investigations or claims now pending against STI in respect of any Tax, or
any matters under discussion with any federal, state, local or foreign
authority, or any claims for refund by STI for overpaid Taxes relating to
any Taxes, or any claims for additional Taxes asserted by any such
authority, and there is no basis for the assertion of any additional Taxes
against STI;
(f) The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional Taxes on
STI, except for Taxes relating to the consummation of STI Permitted
Transactions;
(g) STI has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any
employee, creditor, independent contractor or other third party;
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(h) STI is not a party to any "safe harbor lease" that is subject to
the provisions of Section 168(f)(8) of the Code as in effect prior to the
Tax Reform Act of 1986, or to any "long-term contract" within the meaning
of Section 460 of the Code;
(i) There are no accounting method changes in effect or being
requested with respect to STI that could give rise to an adjustment under
Section 481 of the Code for periods after the Closing Date;
(j) STI has disclosed (in accordance with Section 6662(d)(2)(B)(ii)
of the Code) on its federal income tax returns all positions taken therein
that could give rise to a substantial understatement of federal income tax
within the meaning of Section 6662(d) of the Code; and
(k) For purposes of this Agreement, all references to sections of
the Code shall include any predecessor provisions to such sections and any
similar provisions of state, local or foreign law.
4.3.10 Disputes and Litigation. (a) There is no Proceeding of which
STI has received written notice or, to the Knowledge of STI Management,
threatened against or affecting STI or any of its properties, assets or
businesses or to which STI is a party, in any court or before any arbitrator of
any kind or before or by any Governmental Entity (including, without limitation,
any federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality), the result of which, individually or
in the aggregate, would reasonably be expected to result in a Material Adverse
Effect on STI; (b) to the Knowledge of STI Management, there is no pending or
threatened change in any Environmental Law or zoning or building laws,
regulations or ordinances the result of which would reasonably be expected to
result in a Material Adverse Effect on STI; and (c) there is no outstanding
order, writ, injunction, decree, judgment, determination or award by any court,
arbitrator or Governmental Entity against or affecting STI or any of its
properties, assets or businesses which would reasonably be expected to have a
Material Adverse Effect on STI. None of the items nor aggregate of items listed
in the Disclosure Schedule would, if adversely determined, reasonably be
expected to have a Material Adverse Effect on STI. To the Knowledge of STI
Management, there is no Proceeding, formal or informal, pending or threatened
which would give rise to any right of indemnification on the part of any
director or officer of STI.
4.3.11 Compliance with Laws. STI presently is, and has at all times
been, in compliance in all material respects with any applicable federal, state,
local, foreign and other laws, rules and regulations (including, without
limitation, EIA wind-loading and other EIA standards as adopted in the local
building code for towers, and FAA, FCC and OSHA regulations), other than those
where noncompliance would not reasonably be expected to have a Material Adverse
Effect on STI, and STI has not received any written or, to the Knowledge of STI
Management, oral notice of any claimed violation of any such law, rule or
regulation which would reasonably be expected to have a Material Adverse Effect
on STI.
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Except with respect to the matters addressed in Section 4.3.9, STI has filed all
returns, reports and other documents and furnished all information required or
requested by any federal, state, local or foreign governmental or
quasi-governmental agency and all such returns, reports, documents and
information are true and complete in all respects except where such failure to
file or inaccuracies would not reasonably be expected to result in a Material
Adverse Effect on STI. All permits, licenses, orders, franchises and approvals
of all federal, state, local and foreign governmental or quasi-governmental or
regulatory bodies required of STI for the conduct of its business have been
obtained, other than those where noncompliance would not reasonably be expected
to have a Material Adverse Effect on STI, no violations are or have been
recorded in respect of any such permits, licenses, orders, franchises and
approvals, and there is no Proceeding, formal or informal, pending or, to the
Knowledge of STI Management, threatened, which may revoke, limit, or question
the validity, sufficiency or continuance of any such permit, license, order,
franchise or approval, except in each case where the same would not reasonably
be expected to have a Material Adverse Effect on STI. Such permits, licenses,
orders, franchises and approvals are valid and sufficient for all activities
presently carried on by STI, except in each case where the same would not
reasonably be expected to have a Material Adverse Effect on STI. Neither STI,
nor any officer, director, employee, stockholder or agent of STI has made any
offer, payment, promise to pay, or authorization of the payment of any money,
offer, gift, promise to give, or authorization of anything of value to any
Person named or identified in Section 30A of the Exchange Act for any unlawful
purpose described in Section 30A of the Exchange Act. Notwithstanding anything
in this Section 4.3.11 to the contrary, no representation is made by STI
concerning its compliance with Rule 10b-5 as promulgated under the Exchange Act
in connection with the sale of STI Common Stock pursuant to this Agreement.
4.3.12 Insurance. The Disclosure Schedule sets forth a true and
complete list of all insurance policies (including the policy number, the name
of the insurer, the amounts of coverage, the premium rate, the cash value, if
any, the expiration date and the risks and losses insured against) currently
maintained by STI on its properties, assets, products, businesses and personnel,
and STI shall deliver copies of all such policies, agreements, studies and
analyses to OmniAmerica not later than seven (7) days after the date of this
Agreement. All of the foregoing insurance policies are in full force and effect
and are fully paid as to all premiums heretofore due. STI has not failed to give
any notice, if the failure thereof would reasonably be expected to have a
Material Adverse Effect on STI, or present any material claim under such
insurance policies in timely fashion, nor has STI received any written
notification of the cancellation of any of such policies or that any of them
will not be renewed, except as to such cancellations as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect on
STI.
4.3.13 Title to Properties. The properties and assets of STI consist
of (a) all of the properties and assets reflected on the STI Financial
Statements as owned by it and (b) all other material properties and assets
presently carried on STI's books as owned by it or used in its businesses,
except, in each case, properties and assets licensed or leased by STI or as to
which STI otherwise has the right to use and assets subsequently disposed of in
the ordinary
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course of business. STI has good and indefeasible title to all of its respective
properties and assets (whether real, personal, mixed, tangible or intangible)
owned by it free and clear of all Liens, except Permitted Liens, if any.
4.3.14 Real Property and Real Property Leases. The Disclosure
Schedule contains a true and complete list of (a) all real property owned by
STI, (b) all real estate leases to which STI is a party, and (c) all other
material interests, if any, in real property owned or claimed by STI. To the
Knowledge of STI Management, STI has material easements and rights, including
parking rights and easements for power lines, water lines, roadways and other
access, necessary to conduct the businesses it now conducts and enjoys peaceful
and undisturbed possession of all properties occupied by it. To the Knowledge of
STI Management, neither the whole nor any portion of any real property owned,
occupied or leased to or by STI has been adversely rezoned or condemned or
otherwise taken by any public authority and, to the Knowledge of STI Management,
no such rezoning, condemnation or other taking is threatened or contemplated. To
the Knowledge of STI Management, none of the real properties owned, occupied or
leased to or by STI or the occupancy or operation thereof, constitutes a
nuisance or violation of any law or any building, zoning or other ordinance,
code or regulation or any private or public covenant or restriction, and no
written notice from any Governmental Entity or other Person has been served upon
STI during the two-year period prior to the date of this Agreement claiming any
outstanding violation of any such law, ordinance, code, regulation, covenant or
restriction, or requiring or calling attention to the need for any material
amount of work, repairs, construction, alterations or installations on or in
connection with any of such properties which has not been complied with, except
as such that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on STI. All leases of real property to which
STI is a party are valid, binding and in full force and effect, and, there
exists no material default thereunder by STI or, to the Knowledge of STI
Management, any other party thereto, nor any events which, with notice or lapse
of time, or both, would constitute a material default by STI thereunder, and all
rents heretofore payable under such leases have been paid in full. STI shall
deliver to OmniAmerica not later than seven (7) days after the date of this
Agreement, true, correct and complete copies of all deeds, title commitments,
title policies, and surveys to the real property listed on the Disclosure
Schedule and true, correct and complete copies of all real estate leases listed
on the Disclosure Schedule, including all amendments, modifications, letter
agreements and assignments relating thereto.
4.3.15 Intangible Personal Property.
(a) The Disclosure Schedule contains a true and complete list of all
material trademarks, service marks, trade names (including the name
"Speciality Teleconstructors" and all derivations thereof used by STI),
patents, copyrights and applications for the foregoing owned by STI
(collectively, the "STI Intellectual Property"), all material licenses to
which STI is a licensor or licensee, and all non-competition covenants of
STI. STI is the sole and exclusive owner of the STI Intellectual Property
indicated on the Disclosure Schedule to be owned by it free and
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clear of all Liens, except Permitted Liens, if any, and has the right to
use the STI Intellectual Property, having not granted or entered into any
agreement, covenant, license or sublicense with respect thereto.
(b) No written claims or demands have been asserted against STI with
respect to any of the STI Intellectual Property, and no Proceedings have
been instituted, are pending or, to the Knowledge of STI Management,
threatened against STI which challenge the rights of STI with respect to
any of such assets. To the Knowledge of STI Management, the businesses and
operations of STI and the use or publication of the STI Intellectual
Property does not involve infringement or claimed infringement of any
United States trademark, trade name, copyright or patent.
(c) No director, officer or stockholder, or, to the Knowledge of STI
Management, employee, consultant, distributor, representative, advisor,
salesman or agent of STI owns, directly or indirectly, in whole or in
part, any trademarks, trade names, or copyrights, or applications for the
foregoing, or other material tangible personal property which STI is
presently using or the use of which is necessary for the business of STI
as now conducted. None of the directors, officers or stockholders of STI
has entered into any agreement regarding know-how, trade secrets, or
prohibition or restriction of competition, or solicitation of customers or
any other similar restrictive agreement or covenant, whether written or
oral, with any Persons other than STI.
4.3.16 Agreements. The Disclosure Schedule contains a true and
complete list of all (i) oral contracts, leases, and licenses the breach of
which would result in a Material Adverse Effect on STI and (ii) all Contracts in
each case to which STI is a party or its properties may be bound and which (a)
involve obligations by any party thereto in excess of $250,000; (b) require the
consent of any party thereto to the consummation of the transactions
contemplated by this Agreement or the Related Agreements; (c) contain covenants
limiting the freedom of STI to compete in any line of business or with any
Person or in any geographical area; (d) contain any provision or option relating
to the acquisition by STI of any business or relating to the sale by STI of any
business, other than pursuant to the STI Permitted Transactions; (e) contain an
agreement or commitment by STI for a material capital expenditure, other than
STI Permitted Transactions; or (f) are contracts or agreements to which the
United States government is a party; provided, that notwithstanding the
foregoing provisions of this Section 4.3.16, the Disclosure Schedule need not
list, and the term "Contracts" shall not include, agreements for which the
obligations of the parties thereto have been fulfilled. All of the Contracts
were entered into by STI in the ordinary course of business, are valid and
binding and in full force and effect against STI and, to the Knowledge of STI
Management, each of the other parties thereto, and there exists no material
breach or default by STI, or any event which, with notice or lapse of time or
both, would constitute a material breach or default by STI, or to the Knowledge
of STI Management, by any other party thereto. STI shall deliver to OmniAmerica
not later than seven (7) days after the date of this Agreement, true and
complete copies, including all amendments, modifications and
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assignments relating thereto, of all of the aforesaid written agreements and
true and correct summaries of all such oral agreements.
4.3.17 Indebtedness and Guaranties. The Disclosure Schedule sets
forth a true and complete list of all promissory notes, loan agreements,
security agreements and guarantees relating to indebtedness for borrowed money
or money loaned to others to which STI is a party or obligor. STI has no
existing obligation to guarantee any dividend, obligation or indebtedness of any
Person (except for the endorsement of negotiable instruments in the ordinary
course of business and consistent with past practice). All of the aforesaid
items were entered into in the ordinary course of business, are valid and
binding and in full force and effect as against STI and there exists no material
breach or default by STI, or any event which with notice or lapse of time or
both, would constitute a material breach or default by STI or, to the Knowledge
of STI Management, any other parties thereto.
4.3.18 Debts to and from Related Parties. Except for the advancement
and reimbursement of business expenditures upon arms' length terms or pursuant
to valid employment agreements or employee health and benefit plans, there
presently is no indebtedness owing to STI by, or any contractual agreements
between STI, on the one hand, and any stockholder, director, partner, or officer
of STI, any Family Member of their respective families, or to the Knowledge of
STI Management, any Affiliate or "associate" (as such term is defined in Rule
405 of the Securities Act) of any of the foregoing individuals (collectively,
"STI Related Persons"), on the other hand, and none of the STI Related Persons
owns any material property or rights, tangible or intangible (other than an
equitable interest), used in STI's business. Except as set forth in the STI
Financial Statements, STI is not indebted to any STI Related Person, in any
amount whatsoever, other than, to the Knowledge of STI Management, for payment
of salaries, normal fringe benefits, reimbursement of reasonable business
expenditures and compensation for services actually rendered to STI in the
ordinary course of its business.
4.3.19 Articles of Incorporation and Bylaws. Not later than three
(3) days after the date of this Agreement, STI shall deliver to OmniAmerica true
and complete copies of its articles of incorporation and bylaws as currently in
effect. The articles of incorporation and bylaws were duly adopted and are in
full force and effect, and there are no amendments or modifications thereto
except as included in said articles of incorporation and bylaws. STI is not in
violation of any of the provisions of its articles of incorporation or bylaws.
4.3.20 Books and Records. The minute books of STI contain accurate
records of all material actions taken by the stockholders and directors of STI.
The books, records and accounts of STI, all of which have been made available to
OmniAmerica, have been maintained in accordance with the requirements of Section
13(b)(2) of the Exchange Act, including the maintenance of an adequate system of
internal controls.
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4.3.21 Employee Benefits.
(a) Neither STI nor the Sub maintains, administers, or contributes
to or has maintained, administered, or contributed to (or had an
obligation to maintain, administer or contribute to) or is a party to (i)
any "employee benefit plan," as defined in Section 3(3) of ERISA (the "STI
ERISA Plans") or (ii) any employment or consulting, bonus or other
incentive compensation, deferred compensation, salary continuation during
any leave of absence, severance, stock award, stock option, stock purchase
or fringe benefit agreements, policies or arrangements, whether written or
oral (together with the STI ERISA Plans, the "STI Plans").
(b) None of the STI Plans is subject to Title IV of ERISA. None of
the STI Plans provides retiree medical or life insurance benefits to any
Person. None of the STI Plans provides for payment of a benefit, the
increase of a benefit amount, the payment of a contingent benefit, or the
acceleration of the payment or vesting of a benefit by reason of the
execution of this Agreement or the consummation of the transactions
contemplated by this Agreement. Neither STI nor the Sub has an obligation
to adopt, or is considering the adoption of, any new STI Plan or, except
as required by law, the amendment of any existing STI Plan. Each STI ERISA
Plan intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter from the Internal Revenue
Service that it is so qualified and, to the Knowledge of STI Management,
nothing has occurred since the date of such letter that could reasonably
be expected to affect the qualified status of such STI ERISA Plan. STI
Management is not aware of any claims relating to the STI Plans (other
than routine claims for benefits). Each STI Plan has been operated in all
respects in accordance with its terms and the requirements of all
applicable law, except to the extent as would not reasonably be expected
to have a Material Adverse Effect on STI.
(c) Neither STI nor any member of its "controlled group" has any
withdrawal liability, under Title IV of ERISA, the terms of the applicable
plan, any collective bargaining agreement or any other labor agreement or
otherwise, with respect to any "multi-employer" plan (within the meaning
of Section 3(37) or 4001(a)(3) of ERISA) to which it contributes (or had
any obligation to contribute); nor has any event occurred or any
circumstance exist that presents a risk of the occurrence of any
withdrawal liability with respect to any such multi-employer plan.
4.3.22 Employees.
(a) The Disclosure Schedule sets forth a true and complete list of
all collective bargaining agreements to which STI is a party.
(b) To the Knowledge of STI Management, STI is in full compliance
with all federal, state and local laws respecting employment, wages and
hours in each case except to the extent as would not reasonably be
expected to have a Material Adverse
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Effect on STI. To the Knowledge of STI Management, STI is in compliance in
all material respects with all applicable federal and state laws and
regulations respecting occupational safety and health standards other than
those where noncompliance would not reasonably be expected to have a
Material Adverse Effect on STI, and STI has not received written
complaints from any federal or state agency or regulatory body alleging
outstanding violations of any such laws and regulations which violations
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on STI.
(c) To the Knowledge of STI Management, except pursuant to
applicable law, the employment of all persons and officers employed by STI
is terminable at will, without any penalty or severance obligation of any
kind on the part of the employer. All material sums due for employee
compensation and benefits and all vacation time owing to any employees
have been duly and adequately accrued on the books of STI in accordance
with GAAP. To the Knowledge of STI Management, all employees of STI are
either United States citizens or are authorized to be employed in the
United States in accordance with all applicable laws.
(d) STI has not experienced since December 31, 1996, any general
labor troubles or strife, work stoppages, slowdowns by its employees. To
the Knowledge of STI Management, STI has not experienced since December
31, 1996 any union or collective bargaining organization efforts or
negotiations, or requests for negotiations, for any representation or any
labor contract relating to any employees of STI not covered by a union or
collective bargaining agreement as of December 31, 1996.
(e) STI subscribes to, or is otherwise insured under, the worker's
compensation or similar statute in each of the states in which it has
employees with respect to such employees.
4.3.23 No Conflicts of Interest. The Disclosure Schedule sets forth
a list of all agreements which STI has with its directors, officers, employees,
consultants, distributors, representatives, advisors, salesmen and agents that
prohibit or restrain such individuals from competing with STI in its business.
STI does not own, directly or indirectly, a controlling interest in, any Person
which is a customer, supplier, competitor or potential competitor of STI.
4.3.24 Environmental Matters.
(a) To the Knowledge of STI Management, STI has been and is in
material compliance with all applicable Environmental Laws and possesses
all licenses, permits or similar authorizations required under
Environmental Laws for the conduct of its business as it is currently
being conducted.
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(b) STI has not received any written communication from any Person
that alleges that STI is not in compliance with, or is liable under,
applicable Environmental Laws.
(c) There is no Environmental Claim pending or, to the Knowledge of
STI Management, overtly threatened (i) against STI, (ii) against any
Person whose liability for any Environmental Claim STI has retained or
assumed either contractually or, to the Knowledge of STI Management, by
operation of law, or (iii) against any real or personal property or
operations which are now or, to the Knowledge of STI Management, have been
previously owned, leased, operated or managed, in whole or in part, based
on activities conducted by STI.
(d) STI is not subject to any material liabilities under
Environmental Laws and, to the Knowledge of STI Management, there are no
facts, circumstances or conditions relating to the operations of STI that
could reasonably be expected to result in STI incurring material
liabilities under Environmental Laws.
(e) There are no underground storage tanks, no aboveground storage
tanks, asbestos or asbestos-containing materials or polychlorinated
biphenyls located on, under or at any property owned, operated or leased
by STI, except in material compliance with Environmental Laws.
(f) STI has made available to OmniAmerica any environmental reports,
audits or assessments on any real property currently or formerly owned or
leased by STI that are in the possession, custody or control of STI.
4.3.25 Licenses. STI has all Licenses necessary to conduct its
business in the manner and to the extent that it has been conducted, other than
any Licenses the failure of which to have would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on STI. The
Disclosure Schedule contains a list of every material License. All Licenses are
in full force and effect and no Proceedings are pending or, to the Knowledge of
STI Management, threatened which may result in the revocation, modification,
non-renewal or suspension of any of the Licenses, the denial of any pending
application for a License, the issuance of a cease and desist order or the
imposition of any administrative penalty or sanction, other than those which
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on STI. There does not exist under any License any
default or violation, or event which, with notice or lapse of time or both,
would constitute a default or violation or would result in the withdrawal of
such License, other than defaults or violations which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
STI, nor is there, to the Knowledge of STI Management, any basis for assertion
of any default or violation. STI has delivered to OmniAmerica true and complete
copies of all of the material Licenses.
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4.3.26 No Solicitation or Negotiation. STI has not made any
agreement to sell the stock, business or substantially all of the assets of STI
to another Person, or to merge, consolidate or combine assets or business of STI
with another Person (except for the STI Permitted Transactions) and is not
currently engaged in negotiations or discussions concerning any other sale of
the stock, or the sale, merger or combination of any material asset or business
of STI to or with another Person (except for the STI Permitted Transactions).
4.3.27 Fairness Opinion. STI has received the Fairness Opinion.
4.3.28 Investment Intent; Compliance with Securities Laws.
(a) STI is acquiring the OmniAmerica Common Stock for investment for
its own account, not as a nominee or agent for any other Person, and not
with a view to the resale or distribution of any part thereof in violation
of the Securities Act. STI does not have any present intention of selling,
granting any participation in, or otherwise distributing the OmniAmerica
Common Stock otherwise than pursuant to an effective registration
statement under the Securities Act or in a transaction exempt from the
registration requirements under the Securities Act and applicable state
securities laws. Except as set forth in the Stockholders Agreements, STI
does not have any contract, undertaking, agreement or arrangement with any
Person to sell, transfer or grant participations to such Person or to any
third Person, with respect to any of the OmniAmerica Common Stock.
(b) STI acknowledges that the sale of the OmniAmerica Common Stock
will not be registered under the Securities Act or any state securities
laws on the basis of a claimed exemption by OmniPartners that the sale of
the OmniAmerica Common Stock as provided for herein is exempt from
registration under the Securities Act and such state securities laws. STI
acknowledges that the availability of such exemptions is predicated in
part on STI's representations set forth in this Section and that
OmniPartners and OmniAmerica are relying on such representations.
(c) STI has received all the information it considers necessary or
appropriate for deciding whether to accept the OmniAmerica Common Stock.
STI has had an opportunity to ask questions and to receive answers from
OmniPartners, OmniAmerica and the OmniSubsidiaries regarding the terms and
conditions of the sale of the OmniAmerica Common Stock and the business,
properties, and financial condition of OmniAmerica and the
OmniSubsidiaries and to obtain additional information (to the extent
OmniPartners, OmniAmerica or the OmniSubsidiaries possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to STI
(including the representations and warranties of OmniPartners, OmniAmerica
and OmniAmericaSub herein) or to which STI had access.
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(d) STI acknowledges that it is able to bear the economic risk of
the investment in the OmniAmerica Common Stock, and has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in the OmniAmerica
Common Stock.
(e) STI is an Accredited Investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
(f) STI acknowledges that the OmniAmerica Common Stock or any
portion thereof may not be sold, transferred or otherwise disposed of
without registration under the Securities Act or an applicable exemption
therefrom and that in the absence of an effective registration statement
covering the OmniAmerica Common Stock or an available exemption from
registration under the Securities Act, the OmniAmerica Common Stock must
be held indefinitely. STI further acknowledges that the OmniAmerica Common
Stock may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that rule are met.
(g) STI acknowledges that each certificate representing any of the
OmniAmerica Common Stock will be endorsed with a legend substantially
similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SO
REGISTERED OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
4.3.29 Disclosure. No representation or warranty by STI or Sub
contained in this Agreement, and no statement contained in any document
(including without limitation the STI Financial Statements, the closing
documents delivered pursuant to Article VII and the Disclosure Schedules or
Subsequent Disclosure Schedules of STI hereto), list, certificate or other
instrument furnished or to be furnished prior to the Effective Time by or on
behalf of STI or any Affiliate thereof to OmniAmerica or any of its
representatives in connection with the transactions contemplated hereby,
contained or will contain when furnished any untrue statement of a material
fact, or omitted or will omit when furnished to state any material fact (i)
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading or (ii) necessary
in order fully and fairly to provide the information required to be provided in
any such document, list, certificate or other instrument, which untrue statement
or omission of a material fact in each case results in a Material Adverse Effect
on STI. STI has not failed to disclose to
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OmniAmerica any fact which would reasonably be determined to have a Material
Adverse Effect on STI.
4.4 Representations and Warranties of the Sub. To induce OmniAmerica,
OmniAmericaSub and OmniPartners to enter into this Agreement and to consummate
the transactions contemplated hereby, the Sub represents and warrants to
OmniAmerica, OmniAmericaSub and OmniPartners as of the date hereof as follows
(each such representation and warranty being qualified in its entirety by the
disclosures set forth in the Disclosure Schedule, which such disclosures shall
correspond to the following sections and subsections):
4.4.1 Corporate Existence and Authority. The Sub was incorporated in
Delaware on February 13, 1998 for the sole purpose of consummating the Merger
and has not conducted any business since its incorporation, has no liabilities
(whether fixed or contingent) whatsoever (other than its obligations hereunder)
and neither has nor has had employees. The Sub is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Sub has all requisite corporate power and authority to own its properties
and assets and to carry on its business as it has been and is being conducted.
4.4.2 Capitalization of the Sub. The authorized capital stock of the
Sub consists solely of 2,000 shares of the Sub Common Stock, of which 1,000
shares are issued and outstanding, and 1,000 shares of preferred stock, par
value $1.00 per share, of which none are issued and outstanding. No other shares
of capital stock of the Sub are issued and outstanding or reserved for issuance.
All of the issued and outstanding shares of capital stock of the Sub have been
duly authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and nonassessable and
were issued free of preemptive (or similar) rights. There are no securities,
options, warrants, rights, calls, commitments, plans, contracts or other
agreements of any character granted or issued by the Sub which provide for the
purchase, issuance or transfer of any shares of the capital stock of the Sub,
nor are there any outstanding securities granted or issued by the Sub that are
convertible into or exchangeable for or exercisable for any shares of the
capital stock of the Sub, and none are authorized. All presently exercisable
voting rights in the Sub are vested exclusively in the outstanding shares of the
Sub Common Stock, each share of which is entitled to one vote on every matter to
come before sole stockholder, STI. There are no stockholders' agreements, voting
trusts or other voting arrangements with respect to any of the Sub's capital
stock. There are no outstanding obligations of the Sub to repurchase, redeem or
otherwise acquire any of the Sub Common Stock or to provide funds to or make any
investment (in the form of a loan, capital contribution, guarantee or otherwise)
in any other entity. The Sub does not have any direct Subsidiaries.
4.4.3 Validity and Authorization; Corporate Power and Authority.
(a) The Sub has full corporate power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called for by this Agreement to which it is or is to be a
party. The execution, delivery and
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performance of this Agreement by the Sub and the consummation by the Sub
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the Sub
(subject to the filing of appropriate merger documents as required by the
DGCL). This Agreement has been duly executed and delivered by the Sub and,
assuming the valid authorization, execution and delivery hereof by
OmniPartners, OmniAmerica and OmniAmericaSub, constitutes the legal, valid
and binding obligation of the Sub, enforceable against the Sub in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting or relating to enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which the Sub is a party are executed and delivered
at the Closing, such Related Agreements and instruments will have been
duly authorized, executed and delivered by the Sub, and assuming the valid
authorization, execution and delivery thereof by each other party thereto
(other than STI and its Affiliates), will be enforceable against the Sub
in accordance with their terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting or relating to the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
4.4.4 Execution; No Violations. The execution and delivery of this
Agreement by the Sub do not, and the consummation by the Sub of the transactions
contemplated hereby, and compliance by the Sub with the provisions hereof, will
not: (a) violate, conflict with, modify, result in the incurrence of any
prepayment penalties or cause any default under or acceleration, termination or
cancellation of any obligation or the loss of a benefit under (or give any party
any right to declare any default or acceleration upon notice or passage of time
or both), in whole or in part, (i) any provision of the certificate of
incorporation or bylaws of the Sub, (ii) assuming all the consents, filings and
registrations referred to in Section 4.4.5 are obtained or made, any order,
injunction, decree, or judgment to which the Sub is a party or by which the Sub
or any of its properties is bound; (b) result in the creation of any Lien upon
or right of first refusal with respect to any property or asset (whether real,
personal, mixed, tangible or intangible) of the Sub, except as may be approved
by OmniAmerica, or (c) assuming all the consents, filings and registrations
referred to in Section 4.4.5 are obtained or made, violate any statute,
ordinance, law, rule or regulation applicable to the Sub, except in the case of
clauses (b) and (c), any such violations, conflicts, modifications, defaults,
accelerations, rights, restrictions, limitations or Liens that would not
reasonably be expected to have a Material Adverse Effect on the Sub.
4.4.5 Governmental and Other Consents. Except for filings under the
HSR Act and the filing of the certificate of merger contemplated by Section 1.3,
no consent, approval or authorization of, or designation, declaration,
registration or filing with, any Governmental Entity is required on the part of
the Sub in connection with the execution or delivery of this
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Agreement or the consummation by it of the transactions contemplated hereby,
except as would not reasonably be expected to have a Material Adverse Effect on
the Sub.
4.5 Disclosure Schedules. Disclosure of any fact or item in any Disclosure
Schedule or Subsequent Disclosure Schedule referred by a particular Section
shall, should the existence of the fact or item or its contents be relevant to
any other Section, be deemed to be disclosed with respect to such other
Section(s) whether or not an explicit cross reference appears and whether or not
the Section(s) make reference to any Schedule. The disclosure of any particular
fact or item in any Disclosure Schedule or Subsequent Disclosure Schedule shall
not be deemed any admission as to whether the fact or item is "material" or
would constitute a Material Adverse Effect.
ARTICLE V
COVENANTS
5.1 Mutual Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, the parties agree that between the date of this Agreement and
the earlier of the Effective Time or the termination of this Agreement pursuant
to Article VIII, except as may be consented to in writing by the other parties
or as otherwise contemplated by this Agreement (including the Permitted
Transactions), as follows:
5.1.1 Access and Information. Each party (other than OmniPartners)
will, except to the extent limited as advised by antitrust counsel, and if so
limited, only to the extent of such advice, (a) provide the other parties and
their Representatives, during normal business hours, or otherwise if another
party reasonably requests, and upon reasonable advance notice, access to all of
the properties, assets, agreements, commitments, books, records, accounts, Tax
Returns, correspondence and documents of such party and permit them to make
copies thereof; (b) furnish the other parties and their Representatives with all
information concerning the business, properties and affairs of such party; (c)
use commercially reasonable efforts to cause its accountants to make available
to the other parties and their Representatives all financial information
relating to such party, including all working papers pertaining to audits and
reviews made by its auditors; (d) furnish the other parties true and complete
copies of all financial and operating statements of such party; (e) permit
access to customers and suppliers for consultation or verification of any
information; and (f) cause its employees, and use commercially reasonable
efforts to cause its accountants, to cooperate fully with any audit, review,
investigation or examination made by the other party and its Representatives,
including, without limitation, with respect to:
(i) The books and records of such party;
(ii) The reports of state and federal regulatory examinations;
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(iii) Leases, contracts and commitments between such party, on
the one hand, and any other Person, on the other hand;
(iv) Physical examination of any real properties owned by, or
leased to or by such party; and
(v) Physical examination of any furniture, fixtures, equipment
or other personal property owned by or leased to or by such party.
Notwithstanding the foregoing, OmniPartners shall, except to the extent limited
as advised by antitrust counsel, and if so limited, only to the extent of such
advice, provide STI and its Representatives with or access to all information,
books, records, contracts and agreements related to the business and affairs of
OmniAmericaSub. OmniAmericaSub shall deliver to STI true and complete copies of
all of its material Licenses within seven days of the date hereof.
5.1.2 Notices and Approvals. Each party agrees: (a) to give all
notices to third parties which may be necessary in connection with this
Agreement, the Related Agreements to which it is a party and the consummation of
the transactions contemplated hereby and thereby; (b) to use such party's
commercially reasonable efforts to obtain all federal, state and foreign
governmental and quasi-governmental approvals, consents, permits, authorizations
and orders necessary in connection with this Agreement, the Related Agreements
to which it is a party and the consummation of the transactions contemplated
hereby and thereby; and (c) to use such party's commercially reasonable efforts
to obtain all consents and authorizations of any other Persons necessary in
connection with this Agreement, the Related Agreements to which it is a party
and the consummation of the transactions contemplated hereby and thereby.
5.1.3 No Solicitation or Negotiation. Other than the Permitted
Transactions or as agreed to in writing by the parties hereto, none of the
parties hereto nor their respective officers, directors, principal stockholders,
employees, Representatives or advisors will, formally or informally, directly or
indirectly, (i) initiate, solicit or encourage any inquiry or the submission of
any proposal by any Person that constitutes or is reasonably likely to lead to
an Acquisition Proposal (as defined below), or (ii) engage in negotiations or
discussions with, or furnish any information or data to, any Person relating to,
or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, an
Acquisition Proposal; provided, however, that STI may negotiate with a Person,
other than Budagher, Carpenter or an Affiliate of either of them (a "Potential
Acquiror"), if (i) the Potential Acquiror has, in circumstances not involving
any prior breach by STI of the foregoing provisions, made an Acquisition
Proposal, (ii) STI's Board of Directors believes (based in part upon advice of
its Representatives, and after having an opportunity to discuss any such
Acquisition Proposal with the Potential Acquiror, which contacts shall not be
deemed a violation of this Section 5.1.3) that such Potential Acquiror has the
financial wherewithal to consummate the Acquisition contemplated by such
Acquisition Proposal and the consummation of the Acquisition contemplated by
such Acquisition Proposal would be more favorable to STI's stockholders than
would the Merger from a financial point
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of view (a "Superior Proposal") and (iii) based upon the advice of counsel to
STI's Board of Directors (notice of which advice shall have been communicated to
OmniAmerica), STI's Board of Directors determines in good faith that there is a
significant risk that the failure to negotiate with the Potential Acquiror could
constitute a breach of its fiduciary duty to STI's stockholders. Each party will
give prompt notice, both oral and written, to the other parties if such party,
any of its Subsidiaries or any of their respective officers, directors,
principal stockholders, employees, Representatives or advisors receives any
communication from a Person not a party to this Agreement that proposes any
discussion, negotiation or agreement prohibited under this Section 5.1.3. In
addition, STI will give prompt notice, both oral and written, to the other
parties of the identity of the Person making any communication from a Potential
Acquiror and whether STI has elected to negotiate with a Potential Acquiror in
accordance with this Section 5.1.3. STI shall use commercially reasonable
efforts to keep OmniAmerica fully informed of the status of any such Acquisition
Proposal or negotiation with respect thereto. STI may not enter into a
definitive agreement for an Acquisition Proposal with a Potential Acquiror with
which STI is permitted to negotiate pursuant to this Section 5.1.3 unless (i) at
least 10 Business Days prior to STI's execution thereof STI shall have furnished
OmniAmerica with a description of all of the material terms thereof and (ii) STI
shall terminate this Agreement in accordance with Section 8.1.2 hereof.
For purposes of this Agreement, (i) "Acquisition Proposal" shall mean any
bona fide proposal, whether in writing or otherwise, made by a third party to
effect an Acquisition and (ii) "Acquisition" shall mean the acquisition of
Beneficial Ownership of all or a material portion of the assets of, or any
material interest in, STI (including its Subsidiaries), OmniAmerica or
OmniAmericaSub, as applicable, pursuant to a merger, consolidation or other
business combination, sale of shares of capital stock of STI, OmniAmerica or
OmniAmericaSub, or any of their respective Subsidiaries, sale of assets, tender
offer, exchange offer, joint venture, sale/leaseback or other similar
transaction.
5.1.4 Proceedings. Each party (other than OmniPartners) shall
promptly notify the other party of any material Proceedings that are threatened
in writing or commenced against such party or its employees, consultants,
officers or directors which may relate to, or affect, the business, assets or
liabilities of such party. Such party shall not knowingly fail to comply in any
material respect with any laws, regulations, ordinances, orders, injunctions and
decrees applicable to it, its properties, and the conduct of its business.
OmniPartners shall promptly notify STI of any material Proceedings that are
threatened in writing or commenced against OmniPartners which may relate to, or
affect, the business, assets or liabilities of OmniAmerica or OmniAmericaSub.
5.1.5 Reports and Returns. Each party (other than OmniPartners)
shall duly and timely file all reports and returns required to be filed with
federal, state, local and other authorities prior to the Closing, including
without limitation any Tax Returns, which reports and returns shall be prepared
in accordance with all regulatory requirements in all material respects. Each
party (other than OmniPartners) shall promptly pay all material Taxes and other
quasi-governmental charges levied or assessed upon such party or its properties
prior to
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the date on which penalties attach thereto (unless any such Taxes or charges are
being contested in good faith and for which adequate reserves appear in the
OmniAmerica Financial Statements with respect to OmniAmerica, OmniAmericaSub and
the Acquired Businesses and in the STI Financial Statements with respect to STI
and the Sub) and all lawful claims which, if unpaid when due and payable, might
become a Lien upon property of such party, except Permitted Liens. Each party
(other than OmniPartners) shall timely make all deposits required of such party,
with respect to any estimated income and withholding, FICA and medicare Taxes
(unless any such Taxes or deposits are being contested in good faith and for
which adequate reserves appear in the OmniAmerica Financial Statements with
respect to OmniAmerica, OmniAmericaSub and the Acquired Businesses and in the
STI Financial Statements with respect to STI and the Sub).
5.1.6 Assist in Obtaining Licenses, Etc. Each party (other than
OmniPartners) shall reasonably assist the other party in obtaining all permits,
licenses and authorizations necessary for the continued operation of
OmniAmericaSub at and after the Effective Time; provided that OmniAmerica shall
not be required to pay additional sums to secure such permits, licenses or
authorizations.
5.1.7 Consents. OmniAmericaSub shall use commercially reasonable
efforts to obtain the OmniAmerica Consents; OmniPartners shall use commercially
reasonable efforts to obtain the OmniPartners Consents and STI shall use
commercially reasonable efforts to obtain the STI Consents.
5.1.8 Insurance. OmniAmericaSub and STI shall continue in force all
existing insurance now carried by such party except to the extent such insurance
is replaced with a substantially equivalent policy.
5.1.9 Preservation of Business. Each party (other than OmniPartners)
shall use its commercially reasonable efforts to preserve and keep intact its
business, to retain its officers, and to preserve the goodwill of its key
employees, and material customers, suppliers and other Persons having business
relations with such party.
5.1.10 Tax Treatment. The Merger is intended to qualify as a
reorganization within the meaning of Section 368(a)(1)(A) and Section
368(a)(2)(E) of the Code. Each party shall file (and shall cause its Affiliates
to file) all Tax Returns in a manner which is consistent with the foregoing
intended treatment. Each party shall not (and shall not permit its Affiliates
to) take any action which is inconsistent with or contrary to or which adversely
affects the foregoing intended treatment, unless a court with proper
jurisdiction issues a final, non-appealable order that such treatment is
incorrect.
5.1.11 Updating of Disclosure Schedules. If, subsequent to the date
of this Agreement and prior to the Closing Date, an event occurs that renders
untrue any representation or warranty of a party made herein (a "Subsequent
Event"), such party shall promptly deliver to the other parties an amended or
supplemental disclosure schedule (a
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"Subsequent Disclosure Schedule") which will contain a description of the
Subsequent Event. The existence of a Subsequent Event which is disclosed on a
Subsequent Disclosure Schedule shall not constitute a Breach by such party of
any of its representations or warranties hereunder or be taken into account in
determining whether the conditions precedent set forth in Section 6.1.1 or 6.2.1
has been satisfied or form a basis for any claim by the other parties hereunder;
provided, however, that this Section is not intended to permit a party to alter
or amend its representations and warranties as made herein as of the date of
this Agreement, including any Disclosure Schedule, and any Subsequent Disclosure
Schedule provided by any party pursuant to this Section shall not cure the
inaccuracy thereof as of the date of this Agreement for any purpose under this
Agreement.
5.1.12 Other Covenants. Each party shall use its commercially
reasonable efforts to satisfy the conditions to the obligations of the parties
hereunder within such party's reasonable control, and to consummate and make
effective as promptly as practicable the transactions provided for herein
including but not limited to the following:
(a) Defending the Agreement. Defending Proceedings challenging this
Agreement or any Related Agreement or the consummation of the transactions
provided for in this Agreement or any Related Agreement;
(b) Lifting Injunctions. Using commercially reasonable efforts to
lift or rescind any injunction, restraining order or other order adversely
affecting the ability of the parties to consummate the transactions
provided for in this Agreement or any Related Agreement; and
(c) Other Actions. Taking such other reasonable actions that are
necessary, appropriate or advisable.
5.2 OmniAmerica and OmniAmericaSub Covenants. To induce the other parties
to enter into this Agreement and to consummate the transactions contemplated
hereby, and without limiting any covenant, agreement, representation or warranty
made elsewhere in this Agreement, between the date of this Agreement and the
earlier of the Effective Time or termination of this Agreement pursuant to
Article VIII, OmniAmerica and OmniAmericaSub agree, except as may be consented
to by the other parties or as otherwise contemplated by this Agreement, as
follows:
5.2.1 Financial Statements. OmniAmerica and OmniAmericaSub will
exert all commercially reasonable efforts to obtain from E&Y, KPMG, WC&G and
DS&S and deliver to STI (a) reports from E&Y on such audited balance sheets,
statements of operations, stockholders' equity and cash flows of the business of
OmniAmericaSub (on a consolidated basis) and such audited statements of revenue
and direct expenses for the HSW Assets (collectively, the "E&Y Audited Financial
Statements"), (b) reports from KPMG on such audited balance sheets, statements
of income, statements of partners' capital, and statements of cash flows of the
business of OmniTower Ltd. (the "KPMG Audited Financial Statements"),
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(c) reports from WC&G on such audited balance sheets, statements of income,
statements of shareholders' equity and statements of cash flows of the business
of Miller Towers (the "WC&G Audited Financial Statements"), (d) reports from
DS&S on such audited balance sheets, statements of income, statements of
stockholders' equity and statements of cash flows of the business of KISCO (the
"DS&S Audited Financial Statements"), in each case for each of the last three
fiscal years and any required interim period as STI may be required to file with
the SEC in connection with STI's filings with the SEC under the Securities Act
and the Exchange Act (the "SEC Filings"), including specifically, under Item 7
of Form 8-K and (e) such consents of E&Y, KPMG, WC&G and DS&S to the use of the
opinions of E&Y, KPMG, WC&G and DS&S (collectively, the "Auditors' Consents")
accompanying such respective audited financial statements in the SEC Filings. In
addition, OmniAmericaSub shall deliver to STI not later than the 45th Business
Day after the end of each month, financial statements of the kind described in
Section 4.1.6 for the month ended January 1998 and each subsequent month before
the Closing.
5.2.2 Restriction on Transfers. OmniAmerica shall not enter into any
agreement to, sell, transfer, pledge, hypothecate, or dispose of any shares of
OmniAmericaSub Common Stock, except pursuant to this Agreement.
5.2.3 Termination of Certain Affiliate Contracts. OmniAmerica and
OmniAmericaSub will terminate all contracts and agreements, whether written or
oral, between OmniAmerica or OmniAmericaSub, on the one hand, and HMTF,
OmniPartners or their Affiliates (not including OmniAmerica or OmniAmericaSub),
on the other hand, other than the contracts and agreements listed on Exhibit
5.2.3 and contracts entered into in the ordinary course of business on
arms'-length terms (collectively, the "OmniAmerica Affiliate Contracts").
5.2.4 Zoning Compliance Letters. OmniAmerica and OmniAmericaSub will
exert commercially reasonable efforts to cause the local Governmental Entity in
charge of zoning to issue a zoning compliance letter for each parcel of real
property owned by OmniAmericaSub on which is located a Tower, in a form
reasonably acceptable to STI.
5.2.5 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the OmniAmerica Permitted Transactions) or approved in writing
by STI, OmniAmerica and the OmniAmericaSub agree that their businesses and
operations (including the businesses and operations of the OmniSubsidiaries)
shall be conducted only in, and they shall not take any material action except
in, the ordinary course of business and consistent with past practice,
including, without limitation, in material compliance with all applicable laws,
rules and regulations, including the rules and regulations of the FAA and FCC.
Without limitation, OmniAmerica and OmniSubsidiaries shall not take, nor enter
into any agreements to take, any of the following actions except in each such
case in connection with this Agreement (including the OmniAmerica Permitted
Transactions) or consented to in writing by STI (which consent may not be
unreasonably withheld) or, in the case of actions described in clauses (a) - (c)
of this Section 5.2.5, in the ordinary course of business consistent with past
practice:
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(a) dispose of, or acquire, or agree to dispose of or acquire, any material
assets, other than the OmniAmerica Permitted Transactions, (b) incur any
indebtedness for borrowed money, except for aggregate borrowings of up to
$750,000, (c) pay any discretionary bonuses (other than bonuses already accrued
on the date hereof) to, or alter the compensation or benefit of, any director,
officer or employee, (d) enter into any transaction or agreement with any
Affiliate or associate (as defined in Rule 405 under the Securities Act), (e)
institute any material reduction in force, (f) close any office, base or
station, (g) take any action not in the ordinary course of business that will
knowingly cause any of such party's representations or warranties to be untrue
or incorrect in any material respect, (h) omit any commercially reasonable
action that such party would take in the ordinary course of business, which
omission will knowingly cause any of such party's representations or warranties
to be untrue or incorrect in any material respect, (i) declare, set aside or pay
any dividends on, or make any distribution or payment with respect to, or redeem
or repurchase, any shares of capital stock, options, warrants, debt securities,
or any securities convertible into or exchangeable for or exercisable for shares
of capital stock of any of such party or take any other actions which would have
a similar effect, (j) amend any of their certificates of incorporation or bylaws
or (k) issue any shares of capital stock or any securities, options, warrants,
rights, calls, commitments, plans, contracts or other agreements of any
character whatsoever which provide for the purchase, issuance or transfer of any
shares of capital stock, or any securities that are convertible into or
exchangeable for any shares of capital stock or increase or decrease, change
into or exchange any such shares for a different number or kind of shares or
securities through a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar change in
capitalization.
5.2.6 Preservation of Vote. OmniAmerica and OmniAmericaSub shall not
withdraw, rescind, change or modify their vote in favor of this Agreement, the
Merger and other transactions contemplated by this Agreement.
5.2.7 Limitation on Short-Term Liabilities. OmniAmericaSub shall
cause the aggregate accounts payable and other short-term liabilities (other
than liabilities for unearned revenues) that would be set forth on a balance
sheet of OmniAmerica dated the Closing Date not to exceed $500,000 as of the
Closing Date.
5.3 OmniPartners Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, between the date of this Agreement and the earlier of the
Effective Time or termination of this Agreement pursuant to Article VIII,
OmniPartners shall (a) not enter into any agreement to sell, transfer, pledge,
hypothecate, or dispose of any shares of OmniAmerica Common Stock or
OmniAmericaSub Common Stock, except pursuant to this Agreement, (b) not
withdraw, rescind, change or modify its vote in favor of this Agreement, the
Merger and other transactions contemplated by this Agreement, (c) not take, nor
enter into any agreements to take, any action not in the ordinary course of
business that will knowingly cause any of OmniPartners' representations or
warranties to be untrue or incorrect in any material respect,
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(d) not omit to take any commercially reasonable action that OmniPartners would
take in the ordinary course of business, which omission will knowingly cause any
of OmniPartners' representations or warranties to be untrue or incorrect in any
material respect or (e) cause the HSW Merger to occur prior to the Effective
Time.
5.4 Omni/HSW Acquisition Covenants. To induce the other parties to enter
into this Agreement and to consummate the transactions contemplated hereby, and
without limiting any covenant, agreement, representation or warranty made
elsewhere in this Agreement, between the date of this Agreement and the earlier
of the Effective Time of the HSW Merger or termination of this Agreement
pursuant to Article VIII, Omni/HSW Acquisition agrees, except as may be
consented to by the other parties or as otherwise contemplated by this
Agreement, as follows:
5.4.1 Preservation of Vote. Omni/HSW Acquisition shall not withdraw,
rescind, change or modify its vote in favor of this Agreement and other
transactions contemplated by this Agreement.
5.4.2 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the OmniAmerica Permitted Transactions) or approved in writing
by STI, Omni/HSW Acquisition agrees that its businesses and operations shall be
conducted only in, and it shall not take any material action except in, the
ordinary course of business of the HSW Assets and consistent with past practice
of the HSW Assets, including, without limitation, in material compliance with
all applicable laws, rules and regulations, including the rules and regulations
of the FAA and FCC. Without limitation, Omni/HSW Acquisition shall not take, nor
enter into any agreements to take, any of the following actions except in each
such case in connection with this Agreement or consented to in writing by STI
(which consent may not be unreasonably withheld) or, in the case of actions
described in clauses (a) - (c) of this Section 5.4.2, in the ordinary course of
business consistent with past practice: (a) dispose of, or acquire, or agree to
dispose of or acquire, any material assets, (b) incur any indebtedness for
borrowed money, except for borrowings of up to $500,000, (c) pay any
discretionary bonuses (other than bonuses already accrued on the date hereof)
to, or alter the compensation or benefit of, any director, officer or employee,
(d) enter into any transaction or agreement with any Affiliate or associate (as
defined in Rule 405 under the Securities Act), (e) institute any material
reduction in force, (f) close any office, base or station, (g) take any action
not in the ordinary course of business of the HSW Assets that will knowingly
cause any of the representations or warranties of OmniPartners concerning
Omni/HSW Acquisition to be untrue or incorrect in any material respect, (h) omit
any commercially reasonable action that it would take in the ordinary course of
business of the HSW Assets, which omission will knowingly cause any of the
representations or warranties of OmniPartners concerning Omni/HSW Acquisition to
be untrue or incorrect in any material respect, (i) declare, set aside or pay
any dividends on, or make any distribution or payment with respect to, or redeem
or repurchase, any shares of capital stock, options, warrants, or any securities
convertible into or exchangeable for or exercisable for shares of capital stock
of any such party, (j) amend its certificate of incorporation or bylaws or (k)
issue any shares of capital stock of such party or
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any securities, options, warrants, rights, calls, commitments, plans, contracts
or other agreements of any character whatsoever which provide for the purchase,
issuance or transfer of any shares of capital stock, or any securities that are
convertible into or exchangeable for any shares of capital stock of Omni/HSW
Acquisition, or increase or decrease, change into or exchange any such shares
for a different number or kind of shares or securities through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar change in capitalization.
5.5 STI Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, between the date of this Agreement and the earlier of the
Effective Time or termination of this Agreement pursuant to Article VIII, STI
agrees, except as may be consented to by the other parties or as otherwise
contemplated by this Agreement, as follows:
5.5.1 Restriction on Transfers. STI shall not enter into any
agreement to sell, transfer, pledge, hypothecate, or dispose of any shares of
the Sub Common Stock, except pursuant to this Agreement.
5.5.2 Preservation of Vote. STI shall not withdraw, rescind, change
or modify its vote in favor of this Agreement, the Merger and other transactions
contemplated by this Agreement.
5.5.3 SEC Confirmation. STI shall use commercially reasonable
efforts to obtain written confirmation from the SEC that it may satisfy the
financial statement requirements of Item 7 of Form 8-K with respect to the HSW
Assets by filing audited and pro forma statements of assets acquired and
liabilities assumed and of revenues and direct expenses for each of the last
three fiscal years (the "SEC Confirmation").
5.5.4 Interim Financial Statements. STI shall deliver to OmniAmerica
not later than the 45th Business Day after the end of each month, financial
statements of the kind described in Section 4.3.6 for the month ended January
1998 and each subsequent month before Closing.
5.5.5 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the STI Permitted Transactions) or approved in writing by
OmniAmerica, OmniAmericaSub or OmniPartners, STI agrees that the businesses and
operations of STI and the Sub shall be conducted only in, and STI and the Sub
shall not take any material action except in, the ordinary course of business
and consistent with past practice, including, without limitation, in material
compliance with all applicable laws, rules and regulations, including the rules
and regulations of the FAA and FCC. Without limitation, STI and the Sub shall
not take, nor enter into any agreements to take, any of the following actions
except in each such case in connection with this Agreement (including the STI
Permitted Transactions) or consented to in writing by OmniAmerica,
OmniAmericaSub or OmniPartners (which consent
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may not be unreasonably withheld) or, in the case of actions described in
clauses (a) - (c) of this Section 5.5.5, in the ordinary course of business
consistent with past practice: (a) dispose of, or acquire, or agree to dispose
of or acquire, any material assets, other than the STI Permitted Transactions,
(b) incur any indebtedness for borrowed money, except in the ordinary course
pursuant to its existing lines of credit, (c) pay any discretionary bonuses
(other than bonuses already accrued on the date hereof) to, or alter the
compensation or benefit of, any director, officer or employee, (d) enter into
any transaction or agreement with any Affiliate or associate (as defined in Rule
405 under the Securities Act), (e) institute any material reduction in force,
(f) close any office, base or station, (g) take any action not in the ordinary
course of business that will knowingly cause any of such party's representations
or warranties to be untrue or incorrect in any material respect, (h) omit any
commercially reasonable action that such party would take in the ordinary course
of business, which omission will knowingly cause any of such party's
representations or warranties to be untrue or incorrect in any material respect,
(i) declare, set aside or pay any dividends on, or make any distribution or
payment with respect to, or redeem or repurchase, any shares of capital stock,
options, warrants, debt securities, or any securities convertible into or
exchangeable for or exercisable for shares of capital stock of any of such party
or take any other actions which would have a similar effect, (j) amend STI's
articles of incorporation or bylaws or the Sub's certificate of incorporation or
bylaws or (k) issue any shares of capital stock of such party or its
Subsidiaries or any securities, options, warrants, rights, calls, commitments,
plans, contracts or other agreements of any character whatsoever which provide
for the purchase, issuance or transfer of any shares of capital stock, or any
securities that are convertible into or exchangeable for any shares of capital
stock or increase or decrease, change into or exchange any such shares for a
different number or kind of shares or securities through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar change in capitalization. Notwithstanding the foregoing,
the parties hereto expressly agree that STI and the Sub shall be entitled to
enter into agreements to build towers for themselves or third parties, provided
that each such agreement would not be required to be disclosed in a filing with
the SEC pursuant to Item 601(b)(10) of Regulation S-K promulgated pursuant to
the Securities Act.
5.5.6 Compliance with Nevada Corporation Law. STI agrees to take all
necessary action to ensure that the Merger and the other transactions
contemplated by the Merger Agreement will be exempt from the provisions of
Sections 78.378 to 78.3793 of the Nevada Revised Statutes.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of STI and the Sub. The
obligations of STI and the Sub under this Agreement shall be subject to the
fulfillment of each and all of the following conditions at or before the Closing
(unless an earlier time is specified in this Agreement, in which case on or
before such earlier time), each of which is individually hereby deemed material,
and any one or more of which may be waived in writing by STI:
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6.1.1 Representations and Warranties. Each of the representations
and warranties made by OmniAmerica, OmniAmericaSub and OmniPartners contained in
this Agreement shall be true and correct as of the date when made and (except
for changes contemplated by this Agreement and except to the extent any such
representation or warranty speaks of an earlier date, in which case such
representation or warranty shall have been true and correct as of such date)
shall be true and correct on and as of the Closing Date to the same extent and
with the same effect as if made on and as of the Closing Date; provided, that
this condition shall be deemed to be satisfied notwithstanding that any
representation or warranty may not be true and correct so long as the same shall
not reasonably be expected to have a Material Adverse Effect on OmniAmerica.
6.1.2 Performance by OmniAmerica, OmniAmericaSub and OmniPartners.
OmniAmerica, OmniAmericaSub and OmniPartners each shall have fully performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date
(unless an earlier time is specified in this Agreement, in which case on or
before such earlier time), including, without limitation, the execution and
delivery by it of all documents and instruments required under the terms of
Article VII of this Agreement; provided, that this condition shall be deemed to
be satisfied notwithstanding that any such obligation (other than the delivery
of the documents under Article VII) shall not have been so performed or complied
with so long as the same shall not reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
6.1.3 Regulatory Approvals and Consents. There shall have been duly
and validly obtained all consents, approvals, authorizations, permits and orders
of all federal, state, foreign and other governmental regulatory agencies
required in connection with this Agreement and the consummation of the
transactions contemplated hereby, including under the HSR Act, the OmniAmerica
Consents, the OmniPartners Consents, the STI Consents and all consents,
approvals, authorizations, permits and orders shall be in full force and effect
as of the Closing Date, except in each case for any consents, approvals,
authorizations, permits or orders the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
6.1.4 No Court Orders. On the Closing Date, there shall be no
effective injunction, writ, temporary restraining order or any order of any
nature issued by any Governmental Entity of competent jurisdiction (i) directing
that the transactions contemplated herein or any of them not be consummated as
herein provided or (ii) awarding damages or any other remedy to any Person with
respect to any of the transactions contemplated hereby, nor shall any Proceeding
by any Governmental Entity seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered or enforced which makes the consummation of the Merger illegal.
6.1.5 No Material Adverse Change. There shall not have occurred
since the date hereof any change, effect, event or occurrence in the business,
properties, assets, condition (financial or otherwise), prospects or results of
operations of OmniAmerica,
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OmniAmericaSub or OmniPartners, except for such changes, effects, events or
occurrences that do not have, and cannot reasonably be expected to have, a
Material Adverse Effect on OmniAmerica.
6.1.6 Certificates of OmniAmerica, OmniAmericaSub and OmniPartners.
OmniAmerica shall have provided to STI a certificate, dated the Closing Date,
executed by OmniAmerica confirming that the conditions in Section 6.1.1 and
Section 6.1.2 as to OmniAmerica have been satisfied. OmniAmericaSub shall have
provided to STI a certificate, dated the Closing Date, executed by
OmniAmericaSub confirming that the conditions in Section 6.1.1 and Section 6.1.2
as to OmniAmericaSub have been satisfied. OmniPartners shall have provided to
STI a certificate, dated the Closing Date, executed by OmniPartners confirming
that the conditions in Section 6.1.1 and Section 6.1.2 as to OmniPartners have
been satisfied.
6.1.7 Opinion of OmniAmerica's Counsel. OmniAmerica shall have
delivered to STI at the Closing the opinion of OmniAmerica's counsel, Weil,
Gotshal & Manges LLP, which opinion shall be dated the Closing Date and
addressed to STI, substantially in the form attached hereto as Exhibit 6.1.7.
6.1.8 Audited Financial Statements and Auditors' Consents.
OmniAmerica shall have delivered to STI the Audited Financial Statements and STI
shall have no reasonable reason to believe that it will not receive the
Auditors' Consents when necessary to make its SEC Filings.
6.1.9 Good Standing. OmniAmerica shall have furnished to STI at the
Closing certificates of the appropriate governmental officials, dated within
thirty (30) days of the Closing Date, confirming that OmniAmerica is in good
standing and is duly qualified to transact business in the State of Delaware and
in each jurisdiction listed as a foreign jurisdiction on the Disclosure Schedule
and that OmniAmericaSub is in good standing and is duly qualified to transact
business in the State of Delaware and in each jurisdiction listed as a foreign
jurisdiction on the Disclosure Schedule, unless the failure to be in good
standing or so qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on OmniAmerica.
6.1.10 Related Agreements. The parties to the Related Agreements
(other than STI and the Sub) shall have executed and delivered the Related
Agreements to which each is a party; provided, however, that only OmniPartners,
HMTF, Carl E. Hirsch, Anthony S. Ocepek and Jerome C. Kline shall be required to
execute and deliver the Post-Merger Stockholders Agreement.
6.1.11 Termination of Affiliate Contracts. All OmniAmerica Affiliate
Contracts shall have been terminated.
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6.1.12 Fairness Opinion. The Fairness Opinion shall not have been
withdrawn or materially and adversely modified.
6.1.13 HMTF Affiliate. OmniPartners shall be an Affiliate of HMTF.
6.1.14 No Foreseen Material Adverse Effect. STI shall not have a
reasonable belief that the acquisition of the Acquired Businesses in accordance
with the terms and conditions of this Agreement and the Related Agreements will
or reasonably could result in STI becoming liable for any of the Acquired
Businesses' liabilities or obligations of any nature (whether or not accrued,
contingent or otherwise, and whether due or to become due) related to periods
prior to OmniAmerica's or OmniAmericaSub's acquisition of the related Acquired
Business (other than such liabilities and obligations as are included in the
OmniAmerica Financial Statements) which in the aggregate will or reasonably
could result in a Material Adverse Effect on STI.
6.1.15 Receipt of SEC Confirmation. STI shall have received the SEC
Confirmation.
6.1.16 Short-Term Liabilities. OmniAmericaSub's aggregate accounts
payable and other short-term liabilities (other than liabilities for unearned
revenue) that would be set forth on a balance sheet of OmniAmerica dated the
Closing Date shall not exceed $500,000 (not including expenses incurred in
connection with or related to the Merger), all of which shall have been incurred
in the ordinary course of business.
6.1.17 HSW Merger. The HSW Merger shall have been consummated prior
to the Effective Time.
6.2 Conditions Precedent to Obligations of OmniAmerica, OmniAmericaSub and
OmniPartners. The obligations of OmniAmerica, OmniAmericaSub and OmniPartners
under this Agreement shall be subject to the fulfillment of each and all of the
following conditions at or before the Closing (unless an earlier time is
specified in this Agreement, in which case on or before such specified time),
each of which is individually hereby deemed material, and any one or more of
which may be waived in writing by OmniAmerica, OmniAmericaSub or OmniPartners.
6.2.1 Representations and Warranties. Each of the representations
and warranties made by STI and the Sub contained in this Agreement shall be true
and correct as of the date when made and (except for changes contemplated by
this Agreement and except to the extent that any such representation or warranty
speaks of an earlier date, in which case such representation or warranty shall
have been true and correct as of such date) shall be true and correct on and as
of the Closing Date to the same extent and with the same effect as if made on
and as of the Closing Date; provided, that this condition shall be deemed to be
satisfied notwithstanding that any representation or warranty may not be true
and correct so long as the same shall not reasonably be expected to have a
Material Adverse Effect on STI.
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6.2.2 Performance by STI and the Sub. STI and the Sub each shall
have fully performed and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date (unless an earlier time is specified in this Agreement, in
which case on or before such earlier time), including without limitation, the
execution and delivery by it of all documents and instruments required under the
terms of Article VII of this Agreement; provided, that this condition shall be
deemed to be satisfied notwithstanding that any such obligation (other than the
delivery of the documents under Article VII) shall not have been so performed or
complied with so long as the same shall not reasonably be expected to have a
Material Adverse Effect on STI.
6.2.3 Regulatory Approvals and Consents. There shall have been duly
and validly obtained all consents, approvals, authorizations, permits and orders
of all federal, state, foreign and other governmental regulatory agencies
required in connection with this Agreement and the consummation of the
transactions contemplated hereby, including under the HSR Act, the OmniAmerica
Consents, the OmniPartners Consents, the STI Consents and all such consents,
approvals, authorizations, permits and orders shall be in full force and effect
as of the Closing Date, except in each case for any consent, approval,
authorization, permit or order the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect on STI.
6.2.4 No Court Orders. On the Closing Date, there shall be no
effective injunction, writ, temporary restraining order or any order of any
nature issued by any Governmental Entity of competent jurisdiction (i) directing
that the transactions contemplated herein or any of them not be consummated as
herein provided or (ii) awarding damages or any other remedy to any Person with
respect to any of the transactions contemplated hereby, nor shall any Proceeding
by any Governmental Entity seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered or enforced which makes the consummation of the Merger illegal.
6.2.5 No Material Adverse Change. There shall not have occurred
since the date hereof any change, effect, event or occurrence in the business,
properties, assets, condition (financial or otherwise), prospects or results of
operations of STI, except for such changes, effects, event or occurrences that
do not have, and cannot reasonably be expected to have, a Material Adverse
Effect on STI.
6.2.6 Certificates of STI and the Sub. STI and the Sub shall have
furnished to OmniAmerica certificates, dated the Closing Date, executed by STI
and the Sub, respectively, confirming that the conditions in Section 6.2.1 and
Section 6.2.2 have been satisfied.
6.2.7 Opinions of STI's Counsel. STI shall have delivered to
OmniPartners at the Closing the opinions of STI's counsel, Haynes and Boone, LLP
and Jones, Vargas, which opinions shall be dated the Closing Date and addressed
to OmniPartners, substantially in the forms attached hereto as Exhibit 6.2.7(a)
and Exhibit 6.2.7(b), respectively.
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6.2.8 Good Standing. STI shall have furnished to OmniAmerica at the
Closing certificates of the appropriate governmental officials, dated within
fifteen (15) days of the Closing Date, confirming (a) that STI is in good
standing and duly qualified to transact business in the State of Nevada, (b)
that the Sub is in good standing and duly qualified to transact business in the
State of Delaware and (c) that STI and the Sub are in good standing and are duly
qualified to transact business in each jurisdiction listed as a foreign
jurisdiction on the Disclosure Schedule, unless the failure to be in good
standing or so qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on STI.
6.2.9 Related Agreements. The parties to the Related Agreements
(other than OmniAmerica, OmniAmericaSub, OmniPartners and HM Partners) shall
have executed and delivered the Related Agreements to which each is a party;
provided, however, that only Budagher and Carpenter shall be required to execute
and deliver the Post-Merger Stockholders Agreement.
6.2.10 Tax Opinion. OmniAmerica shall have received an opinion of
Weil, Gotshal & Manges LLP or other law or professional service firm reasonably
acceptable to OmniAmerica, substantially in the form of Exhibit 6.2.10(a), which
opinion shall be based upon certificates of OmniAmerica, OmniPartners and STI
substantially in the forms (respectively) of Exhibit 6.2.10(b), Exhibit
6.2.10(c) and Exhibit 6.2.10(d).
ARTICLE VII
CLOSING AND DELIVERY OF DOCUMENTS
At the Closing, the following shall occur as a single integrated
transaction:
7.1 Deliveries by OmniAmerica, OmniAmericaSub and OmniPartners. At the
Closing, OmniAmerica, OmniAmericaSub and OmniPartners shall use commercially
reasonable efforts to deliver or cause to be delivered to STI the following
items:
(a) The stock certificates representing the OmniAmerica Common Stock;
(b) The opinion of OmniAmerica's counsel described in Section 6.1.7;
(c) Copies of the OmniAmerica Consents and the OmniPartners Consents;
(d) The certificates identified in Section 6.1.6 hereof;
(e) The good standing certificates identified in Section 6.1.9 hereof;
and
(f) Copies, certified or otherwise identified to STI's satisfaction,
of all corporate documents that STI shall reasonably request, including
resolutions of the
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board of directors (or a written consent in lieu thereof) of OmniAmerica
and resolutions of the sole stockholder (or a written consent in lieu
thereof) of OmniAmerica, dated on or before the date hereof to authorize
this Agreement, the Merger, the Related Agreements and the transactions and
other acts contemplated either by this Agreement or the Related Agreements.
7.2 Delivery by STI. At the Closing, STI shall deliver or cause to be
delivered to OmniPartners the following items:
(a) The Merger Consideration in accordance with Section 3.2;
(b) The opinions of STI's counsel described in Section 6.2.7;
(c) Copies of the STI Consents;
(d) The certificates identified in Section 6.2.6 hereof;
(e) Evidence of payment of the Wasserstein Perella & Co. fee;
(f) The good standing certificates identified in Section 6.2.8 hereof;
and
(g) Copies, certified or otherwise identified to OmniPartners'
satisfaction, of all corporate documents that OmniPartners shall reasonably
request, including resolutions of the boards of directors (or written
consents in lieu thereof) of STI and the Sub and a written consent of the
sole stockholder of the Sub, dated on or before the date hereof to
authorize this Agreement, the Merger, the Related Agreements and the
transactions and other acts contemplated either by this Agreement or the
Related Agreements.
7.3 Related Agreements. At the Closing, the parties, as appropriate, shall
execute and deliver the following documents (the "Related Agreements"):
(a) A Post-Merger Stockholders Agreement, effective as of the
Closing Date, among Budagher, Carpenter, OmniPartners, STI and the other
parties thereto, the form of which is attached as Exhibit 7.3(a).
(b) A Monitoring and Oversight Agreement, effective as of the
Closing Date, among STI, the Sub, OmniAmerica, OmniAmericaSub, HM Partners
and the other parties thereto, the form of which is attached as Exhibit
7.3(b).
(c) A Financial Advisory Agreement, effective as of the Closing
Date, among STI, the Sub, OmniAmerica, OmniAmericaSub, HM Partners and the
other parties thereto, the form of which is attached as Exhibit 7.3(c).
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ARTICLE VIII
TERMINATION
8.1 Reasons for Termination. This Agreement may be terminated and the
Merger abandoned before the Closing as follows:
8.1.1 By Mutual Consent. By the mutual written consent of the
parties.
8.1.2 By STI. So long as STI or the Sub is not then in material
breach of its obligations hereunder, by STI after compliance with the procedure
set forth in this Article, if (i) any of OmniAmerica's, OmniAmericaSub's or
OmniPartners' representations or warranties contained herein is untrue or
incorrect and the basis for such untruth or incorrectness has caused, or is
reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (ii) OmniAmerica, OmniAmericaSub or OmniPartners fails
to perform any of its covenants or agreements contained herein and such Breach
has caused, or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub
to suffer a Material Adverse Effect, (iii) any Governmental Entity shall have
issued an order, injunction, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise permanently prohibiting the
Merger and such order, injunction, decree, ruling or other action shall have
become final and nonappealable (other than an order arising as a result of
litigation between or in respect of STI and its stockholders); provided, that
such order, injunction, decree, ruling or other action does not result primarily
from acts or omissions not in the ordinary course of business following the date
hereof on the part of STI or its Affiliates in conducting STI's operations and
activities, or (iv) any of the conditions to the consummation by STI or the Sub
of the transactions provided for herein shall have become impossible to satisfy;
provided, that a willful material Breach of this Agreement by OmniAmerica,
OmniAmericaSub or OmniPartners that is reasonably likely to result in a Material
Adverse Effect on OmniAmerica, OmniAmericaSub or OmniPartners shall be deemed to
cause such conditions to be incapable of being satisfied for purposes of this
Section 8.1.2. In addition, STI may terminate this Agreement immediately without
complying with the provisions of Sections 8.2 or 8.3 if (i) STI's Board of
Directors reasonably believes that an Acquisition Proposal is a Superior
Proposal and (ii) the ten Business Day period referred to in Section 5.1.3 has
expired; provided, that notwithstanding the foregoing, the provisions of Section
8.6 shall expressly survive. Further, STI may terminate this Agreement
immediately without complying with the provisions of Sections 8.2 or 8.3 if the
condition contained in Section 6.2.10 is not satisfied and all other conditions
set forth in Section 6.2 are, or are able to be, satisfied.
8.1.3 By OmniAmerica. So long as OmniAmerica, OmniPartners or
OmniAmericaSub is not then in material breach of its obligations hereunder, by
OmniAmerica after compliance with the procedure set forth in this Article, if
(i) any of STI's or the Sub's representations or warranties contained herein is
untrue or incorrect and the basis for such untruth or incorrectness has caused,
or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (ii) STI or the Sub fails to perform any of its
covenants or agreements contained herein and such Breach has caused, or is
reasonably
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likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a Material Adverse
Effect, (iii) any Governmental Entity shall have issued an order, injunction,
decree or ruling or taken any other action permanently enjoining, restraining or
otherwise permanently prohibiting the Merger and such order, injunction, decree,
ruling or other action shall have become final and nonappealable (other than an
order arising as a result of litigation between or in respect of OmniAmerica and
its Affiliates); provided that such order, injunction, decree, ruling or other
action does not result primarily from acts or omissions not in the ordinary
course of business following the date hereof on the part of OmniAmerica or its
Affiliates in conducting OmniAmerica's operations and activities, or (iv) any of
the conditions to the consummation by OmniAmerica, OmniAmericaSub or
OmniPartners of the transactions provided for herein shall become impossible to
satisfy; provided, that a Material Breach Termination by STI or the Sub that is
reasonably likely to result in a Material Adverse Effect on STI or the Sub shall
be deemed to cause such conditions to be incapable of being satisfied for
purposes of this Section 8.1.3.
8.1.4 Drop-Dead Date. By OmniAmerica or STI if the Closing shall not
have occurred by the Termination Date, provided, such date shall be extended by
the number of days, if any, to cure any matter that is the subject of a notice
under Section 8.3 (STI Termination Procedure) or Section 8.4 (OmniAmerica
Termination Procedure).
8.2 Notice of Problems. Each party will promptly give written notice to
the other parties when any of them becomes aware of the occurrence or failure to
occur, or the impending or threatened occurrence or failure to occur, of any
fact or event that would cause or constitute, or would be likely to cause or
constitute (a) any of its representations or warranties contained herein being
untrue or incorrect in any material respect, (b) its failure to perform in any
material respect any of its covenants or agreements contained herein or (c) any
of the conditions to Closing set forth in Article VI it must satisfy being or
becoming impossible to satisfy. No such notice shall affect the representations,
warranties, covenants, agreements or conditions of the parties hereunder or
their liability therefor, or prevent any party from relying on the
representations and warranties contained herein.
8.3 STI Termination Procedure. If STI discovers, by reason of a notice
given pursuant to this Agreement or otherwise, that (a) any of OmniAmerica's,
OmniAmericaSub's or OmniPartners' representations or warranties is untrue or
incorrect when made and the basis for such untruth or incorrectness has caused,
or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (b) OmniAmerica, OmniAmericaSub or OmniPartners has
failed to perform any of its covenants or agreements contained herein in any
material respect, and such Breach has caused, or is reasonably likely to cause,
STI, OmniAmerica or OmniAmericaSub to suffer a Material Adverse Effect or (c)
any of the conditions to STI's or the Sub's obligations to consummate the
transactions provided for herein have become impossible to satisfy, then STI may
deliver a notice to OmniAmerica of such event, specifying the factual basis
therefor in reasonable detail. OmniAmerica, OmniAmericaSub and OmniPartners
shall have the right to cure any matter referred to in clause (a) or (b) of this
Section within fifteen (15) Business Days following the date of delivery
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of such notice. Upon such notice and, in the case of clause (a) or (b), upon
OmniAmerica's, OmniAmericaSub's and OmniPartners' failure to cure, STI may
terminate this Agreement by giving a notice of termination to OmniAmerica.
8.4 OmniAmerica's Termination Procedure. If OmniAmerica, OmniAmericaSub or
OmniPartners discovers, by reason of a notice given pursuant to this Agreement
or otherwise, that (a) any of STI's or the Sub's representations or warranties
is untrue or incorrect when made and the basis for such untruth or incorrectness
has caused, or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub
to suffer a Material Adverse Effect, (b) STI or the Sub has failed to perform
any of its covenants or agreements contained herein in any material respect and
such Breach has caused, or is reasonably likely to cause, STI, OmniAmerica or
OmniAmericaSub to suffer a Material Adverse Effect or (c) any of the conditions
to OmniAmerica's, OmniAmericaSub's or OmniPartners' obligations to consummate
the transactions provided for herein has become impossible to satisfy, then
OmniAmerica may deliver a notice to STI of such event, specifying the factual
basis therefor in reasonable detail. STI and the Sub shall have the right to
cure any matter referred to in clause (a) or (b) of this Section within fifteen
(15) Business Days following the date of delivery of such notice. Upon such
notice and, in the case of clause (a) or (b), upon STI's and the Sub's failure
to cure, OmniAmerica may terminate this Agreement by giving a notice of
termination to STI.
8.5 Effect of Termination. Upon termination of this Agreement pursuant to
this Article, no party shall have any liability or continuing obligation to
another party arising out of this Agreement, or out of actions taken in
connection with this Agreement, except that Sections 8.5 and 8.6 and Article IX
shall survive termination of this Agreement. Notwithstanding the foregoing,
termination of this Agreement shall not relieve any party from its liability for
the Breach, prior to termination, of its covenants or agreements.
Termination Fee. In the event the Merger and the transactions contemplated by
this Agreement have not been consummated on or prior to June 30, 1998 or as
extended by mutual agreement of the parties hereto (the "Termination Date") and
(a) such failure is the result of STI's willful material Breach (a "Material
Breach Termination"), or, (b) in the alternative, STI (i) determines to accept
an Acquisition Proposal at any time prior to the Termination Date (a
"Pre-Termination Date Termination"), or (ii) enters into an Acquisition Proposal
within twelve (12) months from the Termination Date with any party with whom it
has had discussions regarding an Acquisition Proposal prior to the Termination
Date (or with any party that initiates an Acquisition Proposal subsequent to the
Termination Date to overbid an Acquisition Proposal initiated prior to the
Termination Date) (a "Post-Termination Date Termination"), STI will pay to
OmniAmerica on the Applicable Date (as defined below) in cash by wire transfer
of immediately available funds to an account designated by OmniAmerica a
termination fee in an amount equal to $4.5 million, plus reasonable documented
out-of-pocket expenses (the "STI Termination Fee") incurred by OmniAmerica in
connection with the transactions contemplated hereby. "Applicable Date" means
(i) in the case of a Material Breach Termination or a Pre-Termination Date
Termination, concurrently with such termination, or (ii) in the case of a
Post-Termination Date Termination, upon consummation of any such Acquisition
Proposal. In
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the event the Merger and the transactions contemplated by this Agreement have
not been consummated on or prior to the Termination Date and such failure is the
result of OmniAmerica's willful material Breach, OmniAmerica will pay to STI in
cash by wire transfer of immediately available funds to an account designated by
STI a termination fee in an amount equal to $4.5 million, plus reasonable
documented out-of-pocket expenses (the "OmniAmerica Termination Fee") incurred
by STI in connection with the transactions contemplated hereby concurrently with
such termination. STI's receipt of the OmniAmerica Termination Fee shall be
STI's, the Sub's and their Affiliates' sole and exclusive remedy for a willful
material breach of the representations or warranties of OmniAmerica,
OmniAmericaSub or OmniPartners. OmniAmerica's receipt of the STI Termination Fee
shall be OmniAmerica's, OmniAmericaSub's, OmniPartners' and their Affiliates'
sole and exclusive remedy for a willful material breach of the representations
or warranties of STI or the Sub. Except as provided in this Section 8.6, each
party's remedies for a Breach of this Agreement shall be cumulative rather than
mutually exclusive.
ARTICLE IX
MISCELLANEOUS
9.1 [Intentionally Deleted]
9.2 Survival. The representations and warranties required to be made by
STI, the Sub, OmniAmerica, OmniAmericaSub and OmniPartners, respectively, in
this Agreement, or in any certificate delivered by STI, the Sub, OmniAmerica,
OmniAmericaSub or OmniPartners, respectively, pursuant hereto will not survive
the Closing; provided, that the representation and warranty of STI contained in
Section 4.3.2 shall survive the Closing indefinitely; provided further, the
representations and warranties of STI set forth in Section 4.3.29 shall survive
the Closing until December 31, 1998 (the "Survival Period"). Notwithstanding any
provision to the contrary herein, no party hereto shall have any liability
following Closing for a Breach of this Agreement prior to Closing; provided,
that (i) STI shall be liable to OmniPartners, its successors and assigns,
following Closing for a Breach of Section 4.3.2, which shall survive
indefinitely, and (ii) STI shall be liable to OmniPartners, its successors and
assigns, following Closing for a Breach of Section 4.3.29 for the term of the
Survival Period.
9.3 Expenses. If the transactions contemplated hereby are not consummated,
each of the parties hereto shall bear all fees and expenses relating to or
arising from its compliance with the various provisions of this Agreement and
such party's covenants to be performed hereunder, and except as otherwise
specifically provided for herein, each of the parties hereto agrees to pay all
of its own expenses (including, without limitation, attorneys' and accountants'
fees) incurred in connection with this Agreement, the transactions contemplated
hereby, the negotiations leading to the same and the preparations made for
carrying the same into effect, and, to the extent practical, all such fees and
expenses of the parties hereto shall be paid prior
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to Closing. If the transactions contemplated hereby are consummated, STI and
OmniAmerica shall bear all the foregoing fees and expenses.
9.4 Notices. Any notice, request, instruction or other document required
by the terms of this Agreement, or deemed by any of the parties hereto to be
desirable, to be given to any other party hereto shall be in writing and shall
be given by prepaid telex or telecopy or delivered or mailed by certified mail,
postage prepaid, with return receipt requested, to the following addresses:
If to OmniAmerica OmniAmerica, Inc.
or OmniAmericaSub 11111 Santa Monica Blvd.
Los Angeles, California 90025
Attention: Carl E. Hirsch
Telephone: (310) 478-1111
Telecopy: (310) 445-4606
With copies to: Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Daniel S. Dross
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
and
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201
Attention: Mary R. Korby, Esq.
Telephone: (214) 746-7700
Telecopy: (214) 746-7777
If to OmniPartners or HMTF/Omni Partners, L.P.
Omni/HSW Acquisition: 200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Daniel S. Dross
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
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With copies to: Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Daniel S. Dross
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
and
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201
Attention: Mary R. Korby, Esq.
Telephone: (214) 746-7700
Telecopy: (214) 746-7777
If to STI or the Sub: Specialty Teleconstructors, Inc.
12001 Highway 14 North
Cedar Crest, New Mexico 87008
Attention: Michael R. Budagher
Jeffrey A. Howard
Telephone: (505) 281-2197
Telecopy: (505) 281-8652
With a copy to: Greg R. Samuel, Esq.
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202-3789
Telephone: (214) 651-5000
Telecopy: (214) 200-0577
The persons and addresses set forth above may be changed from time to time
by a notice sent as aforesaid. If notice is given by delivery in accordance with
the provisions of this Section, said notice shall be conclusively deemed given
at the time of such delivery. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed given upon
the second Business Day following deposit thereof in the United States mail. If
notice is given by telex or telecopy in accordance with the provisions of this
Section, such notice shall be conclusively deemed given upon receipt.
9.5 Entire Agreement. This Agreement (together with the Disclosure
Schedules, the Subsequent Disclosure Schedules and exhibits hereto), the Related
Agreements, and the other documents delivered pursuant hereto and referenced
herein set forth the entire agreement and understanding of the parties hereto
with respect to the transactions contemplated hereby, and
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supersede all other prior agreements, arrangements and understandings related to
the subject matter hereof, including without limitation, (i) that certain letter
agreement dated January 13, 1998 by and between STI and OmniAmerica, (ii) the
Confidentiality Agreements between OmniAmericaSub and STI dated October 29, 1997
and October 31, 1997 and (iii) the Prior Merger Agreement. No understanding,
promise, inducement, statement of intention, representation, warranty, covenant
or condition, written or oral, express or implied, whether by statute or
otherwise, has been made by any party hereto with respect to the subject matter
hereof which is not embodied in this Agreement, and no party hereto shall be
bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth with
respect to the subject matter hereof.
9.6 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
9.7 Incorporated by Reference. The Disclosure Schedules and Subsequent
Disclosure Schedules are incorporated as a part of this Agreement by reference.
9.8 Number and Gender of Words. When the context so requires in this
Agreement, words of any gender shall include either or both of the other genders
and the singular number shall include the plural.
9.9 Execution of Additional Documents. Each party hereto shall make,
execute, acknowledge and deliver such other instruments and documents, and take
all such other actions as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
9.10 Finders' and Related Fees. Each of the parties hereto is responsible
for, and shall indemnify the other parties against, any claim by any third party
to a fee, commission, bonus or other remuneration arising by reason of any
services alleged to have been rendered to or at the instance of said party to
this Agreement with respect to this Agreement or to any of the transactions
contemplated hereby, including, without limitation, any fee payable by STI to
Wasserstein, Perella & Co.
9.11 Interpretation. References to "Sections" herein are references to
sections of this Agreement. The words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision.
9.12 No Third Party Beneficiary, Etc. Except as otherwise expressly
provided for herein, there shall be no third party beneficiary of this Agreement
and this Agreement shall not inure to the benefit of, be enforceable by, or
create any right or cause of action in any Person other than the parties hereto
and their heirs, executors, administrators, legal representatives, successors
and permitted assigns.
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9.13 Reformation; Severability. In case any provision hereof shall be
invalid, illegal or unenforceable, such provision shall be reformed to best
effectuate the intent of the parties and permit enforcement thereof, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If such provision is not capable of
reformation, it shall be severed from this Agreement and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9.14 Binding Effect and Assignment. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
executors, administrators, legal representatives and permitted assigns. This
Agreement, and the rights and obligations created hereunder, may not be
transferred or assigned by any party without the prior written consent of the
other parties.
9.15 Public Announcements. Any public announcement or similar publicity
with respect to this Agreement will be issued, if at all, at such time and in
such manner as STI determines; provided, that OmniAmerica will be given a copy
of such press release a reasonable time in advance of the issuance of such
proposed press release. Unless consented to by STI in advance or required by
legal requirements, prior to the Closing, OmniAmerica, OmniAmericaSub and
OmniPartners shall keep this Agreement strictly confidential and may not make
any disclosure of this Agreement to any Person.
9.16 Confidentiality. Between the date of this Agreement and for the two
(2) year period following (i) termination of this Agreement pursuant to Article
VIII or (ii) Closing, STI, the Sub, OmniAmerica, OmniAmericaSub and OmniPartners
will maintain in confidence, and will cause their respective directors,
officers, employees, agents, and advisors (the "Representatives") to maintain in
confidence, any written, oral, electronic, or other information of every kind
(including all analyses, compilations, forecasts, studies or other documents
prepared by a receiving party that contain or in any way reflect Confidential
Information) that has been or may be furnished by either party or its
Representatives obtained in confidence (the "Confidential Information") from
another party to this Agreement (the "Disclosing Party"), and will not use, and
will cause their respective Representatives not to use, any such information
except for the purpose of this Agreement or in connection with any Proceedings
between any of the parties, unless (a) such information is already known to such
party and such party is not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary in making any release, report, filing
(including filings with the SEC or, if required by applicable law, release
required by the NASDAQ Stock Market) or obtaining any consent or approval
required for the consummation of the transactions contemplated by this
Agreement, or (c) the furnishing or use of such information is required by
Proceedings. Each party shall only reveal Confidential Information of the
Disclosing Party to the receiving party's Representatives (a) who reasonably
need to have the Confidential Information for purposes of evaluating the
potential Merger and (b) who are aware of the confidential nature of the
Confidential Information and of this Section 9.16. Each party shall cause its
Representatives to observe the restrictions of this Section 9.16 and shall be
responsible for any Breach of this Section 9.16 by
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its Representatives. If this Agreement is terminated for any reason, each party
must promptly return to the Disclosing Party all Confidential Information
obtained from the Disclosing Party that is by nature returnable, and each
receiving party will thereafter continue to comply with its obligations under
this Section 9.16.
9.17 No Other Representation.
(a) Notwithstanding anything to the contrary contained in this
Agreement, STI and the Sub acknowledge and agree that except for the
representations and warranties made by OmniAmerica and OmniAmericaSub in
Section 4.1 hereof and OmniPartners in Section 4.2, that none of
OmniAmerica, OmniAmericaSub or OmniPartners has made any other
representations or warranties of any kind (including any representation or
warranty with respect to any projections, forecasts or forward looking
statements relating to OmniAmerica and OmniAmericaSub, or any other
information that may have been provided to STI and the Sub in connection
with the transactions contemplated hereby and neither STI nor the Sub has
relied upon any projections, forecasts or other information).
(b) The limitations on STI's and the Sub's claims, rights and
remedies set forth in this Agreement are a material consideration for
OmniAmerica's, OmniAmericaSub's and OmniPartners' willingness to enter
into this Agreement and the Related Agreements and to consummate the
transactions contemplated hereby and thereby.
(c) Notwithstanding anything to the contrary contained in this
Agreement, OmniAmerica, OmniAmericaSub and OmniPartners acknowledge and
agree that except for the representations and warranties made by STI in
Section 4.3 and the Sub in Section 4.4 hereof, that neither STI nor the
Sub has made any other representations or warranties of any kind
(including any representation or warranty with respect to any projections,
forecasts or forward looking statements relating to STI or the Sub, or any
other information that may have been provided to OmniAmerica,
OmniAmericaSub and OmniPartners in connection with the transactions
contemplated hereby and none of OmniAmerica, OmniAmericaSub or
OmniPartners has relied upon any projections, forecasts or other
information).
(d) The limitations on OmniAmerica's, OmniAmericaSub's and
OmniPartners' claims, rights and remedies set forth in this Agreement are
a material consideration for STI's and the Sub's willingness to enter into
this Agreement and the Related Agreements and to consummate the
transactions contemplated hereby and thereby.
(e) Whether or not the Closing shall occur, no incorporator,
director, officer, employee of STI, the Sub, OmniAmerica, OmniAmericaSub
or OmniPartners (in each case solely in their capacities as such) shall
have any liability to any Person
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under the terms of this Agreement or as a result of the transactions
contemplated hereby, and no recourse of any kind shall be had by the
parties hereto against any such incorporator, director, officer, employee
of STI, the Sub, OmniAmerica, OmniAmericaSub or OmniPartners (in each case
solely in their capacities as such) whether by virtue of any
constitutional provision or statute or rule of law, or by enforcement of
any assessment or penalty or in any other manner, all such liability being
expressly waived and released by the parties hereto to the fullest extent
permitted by law as part of the consideration of entering into this
Agreement.
9.18 Time of the Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
9.19 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.20 Governing Law. This Agreement and the Related Agreements shall be
governed by, construed, interpreted and applied in accordance with the laws of
the State of Texas, without giving effect to any conflict of laws rules that
would refer the matter to the laws of another jurisdiction.
Each party hereto hereby irrevocably submits to the jurisdiction of the
United States District Court for the Northern District of Texas and, if such
court does not have jurisdiction, of the courts of the State of Texas in Dallas
County, for the purposes of any action arising out of this Agreement or any of
the Related Agreements, or the subject matter hereof or thereof, brought by any
other party.
To the extent permitted by applicable law, each party hereby waives and
agrees not to assert, by way of motion, as a defense or otherwise in any such
action, any claim (i) that it is not subject to the jurisdiction of the
above-named courts, (ii) that the action is brought in an inconvenient forum,
(iii) that it is immune from any legal process with respect to itself or its
property, (iv) that the venue of the suit, action or proceeding is improper or
(v) that this Agreement or any of the Related Agreements or the subject matter
hereof or thereof may not be enforced in or by such courts.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written hereinabove.
SPECIALTY TELECONSTRUCTORS, INC.
By: /s/ Jeffrey A. Howard
-----------------------------
Jeffrey A. Howard
Vice President and Chief Financial Officer
OAI ACQUISITION CORP.
By: /s/ Jeffrey A. Howard
-----------------------------
Jeffrey A. Howard
Vice President and Chief Financial Officer
OMNIAMERICA HOLDINGS CORPORATION
By: /s/ Daniel S. Dross
-----------------------------
Daniel S. Dross
Vice President and Secretary
OMNIAMERICA, INC.
By: /s/ Daniel S. Dross
-----------------------------
Daniel S. Dross
Vice President, Secretary and Treasurer
OMNI/HSW ACQUISITION, INC.
By: /s/ Daniel S. Dross
-----------------------------
Daniel S. Dross
Vice President, Secretary and Treasurer
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HMTF/OMNI PARTNERS, L.P.
By: HM3/OMNIAMERICA PARTNERS, LLC, its
general partner
By: /s/ Daniel S. Dross
-----------------------------
Daniel S. Dross
Vice President, Secretary and Treasurer
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EXHIBIT (ix)--HSW Merger Agreement
Form of HSW Merger Agreement
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EXHIBIT (x)--Liens
List of Owner Policies of Title Insurance
Title Policies
Ardman Broadcasting Corporation
Beeline
TowerCom, Limited (Tampa)
H.S.W. Associates, Inc. (pro forma)
Title Commitments
Radio Seaway, Incorporated
Miller Transmission Tower Company Ltd.
TowerCom, Limited (Orange & Dade Counties)
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EXHIBIT 2.1
Directors of STI, OmniAmerica and
OmniAmericaSub Following the Merger
Lawrence D. Stuart, Jr.
Jack D. Furst
Carl E. Hirsch
One independent director appointed by HTMF to be
named within 10 days after the date of this
Agreement
Michael R. Budagher
Ernie L. Carpenter
John D. Emery
Jeffrey A. Howard
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EXHIBIT 5.2.3
Retained Affiliate Contracts
Kline Option Agreement
Kline Shareholders Agreement
Kline Consulting Agreement
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EXHIBIT 6.1.7
Form of Opinion of Weil, Gotshal & Manges LLP
[Weil, Gotshal & Manges LLP letterhead]
, 1998
Specialty Teleconstructors, Inc.
12001 State Highway 14 North
Cedar Crest, New Mexico 87008
Ladies and Gentlemen:
We have acted as counsel to OmniAmerica Holdings Corporation, a
Delaware corporation (the "Company"), OmniAmerica, Inc., a Delaware corporation
that is a wholly-owned subsidiary of the Company ("OmniAmerica"), HMTF/Omni
Partners, L.P., a Delaware limited partnership that is the sole stockholder of
the Company ("OmniPartners"), Omni/HSW Acquisition, Inc., a Delaware corporation
and wholly-owned subsidiary of OmniPartners ("Omni/HSW"), and Hicks, Muse & Co.
Partners, L.P., a Texas limited partnership ("HMC Partners"), in connection with
the preparation, authorization, execution and delivery of, and the consummation
of the transactions contemplated by, the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of February __, 1998, by and among the Company,
OmniAmerica, OmniPartners, Specialty Teleconstructors, Inc., a Nevada
corporation ("STI"), and OAI Acquisition Corp., a Delaware corporation that is a
wholly-owned subsidiary of STI ("Acquisition"). Capitalized terms defined in the
Merger Agreement and used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Merger Agreement, the related
Disclosure Schedule and Subsequent Disclosure Schedule, if any, to the Merger
Agreement, the Exhibits to the Merger Agreement, and the Related Agreements and
such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, OmniAmerica, OmniPartners, Omni/HSW and HMC
Partners and have made such inquiries of such officers and representatives, as
we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed
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or photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Company, OmniAmerica,
OmniPartners, Omni/HSW and HMC Partners and upon the representations and
warranties of the Company, OmniAmerica, OmniPartners, Omni/HSW and HMC Partners
contained in the Merger Agreement. As used herein, "to our knowledge" and "of
which we are aware" mean the conscious awareness of facts or other information
by any lawyer in our firm actively involved in the transactions contemplated by
the Merger Agreement.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. Each of the Company, OmniAmerica and Omni/HSW is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. OmniPartners is a limited partnership duly organized and validly
existing under the laws of the State of Delaware and has all requisite
partnership power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. HMC Partners is a limited
partnership duly organized and validly existing under the laws of the State of
Texas and has all requisite partnership power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
2. The authorized capital stock of (i) the Company consists of
80,000,000 shares of common stock, par value $0.01 per share ("Company Common
Stock"), and (ii) OmniAmerica consists of 1,000 shares of common stock, par
value $0.01 per share ("OmniAmerica Common Stock"). As of the date hereof
(immediately prior to the consummation of the transactions contemplated by the
Merger Agreement), there are 74,099,298 shares of Company Common Stock and 1,000
shares of OmniAmerica Common Stock issued and outstanding. All of such
outstanding shares of Company Common Stock and OmniAmerica Common Stock are duly
authorized, validly issued, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof, and have not been issued in
violation of any preemptive rights pursuant to law or in the Company's or
OmniAmerica's Certificate of Incorporation or Bylaws or, to our knowledge,
pursuant to any contract or agreement to which the Company or OmniAmerica is a
party or by which either of them is bound.
3. Other than as disclosed in the Merger Agreement and related
Disclosure Schedule and Subsequent Disclosure Schedule, if any, all of the
outstanding shares of capital stock of (i) OmniAmerica are owned of record by
the Company and (ii) each other Subsidiary of the Company that is a corporation
are owned of record, directly or indirectly, by the Company.
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4. Each of the Company, OmniAmerica and Omni/HSW has all requisite
corporate power and authority to execute and deliver the Merger Agreement and
the Related Agreements to which it is a party and to perform its obligations
thereunder. The execution, delivery and performance of the Merger Agreement and
the Related Agreements by each of the Company, OmniAmerica and Omni/HSW (to the
extent it is a party thereto) and the consummation by each of them of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of the Company, OmniAmerica and Omni/HSW. The
Merger Agreement and each of the Related Agreements have been duly and validly
executed and delivered by each of the Company, OmniAmerica and Omni/HSW (to the
extent it is a party thereto) and (assuming the due authorization, execution and
delivery thereof by the other parties thereto (other than OmniPartners and HMC
Partners)) constitutes the legal, valid and binding obligation of each of the
Company, OmniAmerica and Omni/HSW, enforceable against each of them in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that (a)
rights to indemnification and contribution thereunder may be limited by federal
law or state securities laws or public policy relating thereto and (b) no
opinion is expressed with respect to Section __ of [specify in final opinion any
non-competition covenants contained in any Related Agreement].
5. Each of OmniPartners and HMC Partners has all requisite
partnership power and authority to execute and deliver the Merger Agreement and
the Related Agreements to which it is a party and to perform its obligations
thereunder. The execution, delivery and performance of the Merger Agreement and
the Related Agreements by OmniPartners and HMC Partners (to the extent it is a
party thereto) and the consummation by each of them of the transactions
contemplated thereby have been duly authorized by all necessary partnership
action on the part of OmniPartners and HMC Partners. The Merger Agreement and
each of the Related Agreements have been duly and validly executed and delivered
by OmniPartners and HMC Partners (to the extent it is a party thereto) and
(assuming the due authorization, execution and delivery thereof by the other
parties thereto (other than the Company, OmniAmerica and Omni/HSW)) constitutes
the legal, valid and binding obligation of OmniPartners and HMC Partners,
enforceable against each of them in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except that (a) rights to indemnification and contribution
thereunder may be limited by federal law or state securities laws or public
policy relating thereto and (b) no opinion is expressed with respect to Section
__ of [specify in final opinion any non-competition covenants contained in any
Related Agreement].
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6. The execution and delivery of the Merger Agreement and the
Related Agreements, the consummation of the transactions contemplated thereby
and compliance by the Company, OmniAmerica and Omni/HSW with the provisions
thereof will not constitute a default under or violate (i) any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of any of
the Company, OmniAmerica or Omni/HSW or (ii) except as disclosed in the Merger
Agreement and related Disclosure Schedule and Subsequent Disclosure Schedule, if
any, any Texas or Delaware corporate or federal law or regulation (other than
federal and state securities or blue sky laws, as to which we express no
opinion).
7. The execution and delivery of the Merger Agreement and the
Related Agreements, the consummation of the transactions contemplated thereby
and compliance by OmniPartners and HMC Partners with the provisions thereof will
not constitute a default under or violate (i) any of the terms, conditions or
provisions of the limited partnership agreement of OmniPartners or HMC Partners
or (ii) except as disclosed in the Merger Agreement and related Disclosure
Schedule and Subsequent Disclosure Schedule, if any, any Texas or Delaware
limited partnership or federal law or regulation (other than federal and state
securities or blue sky laws, as to which we express no opinion).
8. No consent, approval, waiver, license or authorization or other
action by or filing with any Texas, Delaware corporate or federal governmental
authority is required in connection with the execution and delivery by the
Company, OmniAmerica or Omni/HSW of the Merger Agreement or the Related
Agreements or the consummation by the Company, OmniAmerica or Omni/HSW of the
transactions contemplated thereby, except for (i) federal and state securities
or blue sky laws, as to which we express no opinion, (ii) the filing of the
certificate of merger contemplated by Section 1.3 of the Merger Agreement, (iii)
those the failure of which to obtain would not reasonably be expected to have a
Material Adverse Effect and (iv) those already obtained.
9. No consent, approval, waiver, license or authorization or other
action by or filing with any Texas, Delaware limited partnership or federal
governmental authority is required in connection with the execution and delivery
by OmniPartners or HMC Partners of the Merger Agreement or the consummation by
OmniPartners or HMC Partners of the transactions contemplated thereby, except
for (i) federal and state securities or blue sky laws, as to which we express no
opinion, (ii) the filing of the certificate of merger contemplated by Section
1.3 of the Merger Agreement, (iii) those the failure of which to obtain would
not reasonably be expected to have a Material Adverse Effect and (iv) those
already obtained.
The opinions expressed herein are limited to the laws of the State
of Texas, the corporate and limited partnership laws of the State of Delaware
and the federal laws of the United States, and we express no opinion as to the
effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Those opinions may not be
used or relied upon by any
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other person, nor may this letter or any copies thereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent.
Very truly yours,
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EXHIBIT 6.2.7(a)
Form of Opinion of Haynes & Boone, LLP
1. Sub is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. Sub has the requisite corporate power to execute, deliver and perform
its obligations under the Merger Agreement and the Related Agreements to which
it is a party. The execution and delivery of the Merger Agreement and the
Related Agreements by Sub and the performance of its obligations thereunder have
been duly authorized by all necessary corporate action on its part. The Merger
Agreement and the Related Agreements to which STI and Sub are a party have been
duly executed and delivered by each of STI and Sub, and (assuming the due
authorization, execution and delivery thereof by the other parties thereto
(other than STI and Sub)) each constitutes a legal, valid and binding obligation
of STI or Sub, as the case may be, enforceable against each of them in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization or similar laws affecting the rights of creditors from time to
time in effect and general principles of equity regardless of whether brought in
an action at law or in equity (it being understood such counsel need not express
any opinion as to the availability of equitable remedies) or the enforceability
of any provisions of the Merger Agreement insofar as they may be limited by
considerations of public policy.
3. Except for (i) filings under the HSR Act, (ii) as set forth on the
Disclosure Schedule to the Merger Agreement or any Subsequent Disclosure
Schedule, (iii) as contemplated by the Merger Agreement or (iv) those the
failure of which to obtain would not reasonably be expected to have a Material
Adverse Effect, no consent, approval or authorization of, or designation,
declaration or filing with, any Federal, State of Texas or Delaware corporate
governmental authority is required on the part of STI or Sub for the valid
execution or delivery of the Merger Agreement, the Related Agreements or the
performance of their respective obligations thereunder.
4. The execution and delivery by STI and Sub of the Merger Agreement and
the Related Agreements, to which each is a party, the consummation by STI and
Sub of the transactions contemplated thereby and compliance by STI and Sub with
the provisions thereof will not constitute a default under or violate (i) any of
the terms, conditions or provisions of the Certificate of Incorporation or
Bylaws of Sub or (ii) except as disclosed in the Merger
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Agreement and related Disclosure Schedule or any Subsequent Disclosure Schedule,
any statute, rule or regulation of the federal government of the United States,
the State of Texas or the DGCL applicable to STI or Sub.
5. The authorized capital stock of the Sub is as set forth in the Merger
Agreement. All of the issued and outstanding shares of the Sub are owned of
record by STI.
- ------------------------
* All opinions are subject to normal and customary exceptions and assumptions
and qualifications.
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EXHIBIT 6.2.7(b)
Form of Opinion of Jones, Vargas
1. STI is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. STI has the requisite corporate power to execute, deliver and perform
its obligations under the Merger Agreement and the Related Agreements to which
it is a party. The execution and delivery of the Merger Agreement and the
Related Agreements by STI and the performance of its obligations thereunder have
been duly authorized by all necessary corporate action on its part.
3. Except (i) as set forth on the Disclosure Schedule to the Merger
Agreement or any Subsequent Disclosure Schedule, (ii) as contemplated by the
Merger Agreement or (iii) those the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect, no consent, approval
or authorization of, or designation, declaration or filing with, any State of
Nevada governmental authority is required on the part of STI for the valid
execution or delivery of the Merger Agreement, the Related Agreements or the
performance of its obligations thereunder.
4. The execution and delivery by STI of the Merger Agreement and the
Related Agreements, to which it is a party, the consummation by STI of the
transactions contemplated thereby and compliance by STI with the provisions
thereof will not constitute a default under or violate (i) any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of STI or
(ii) except as disclosed in the Merger Agreement and related Disclosure Schedule
or any Subsequent Disclosure Schedule, any statute, rule or regulation of the
State of Nevada applicable to STI.
5. The authorized capital stock of STI is as set forth in the Merger
Agreement.
6. The Merger Consideration has been duly authorized for issuance and,
when issued in accordance with the terms and conditions of the Merger Agreement,
the Merger Consideration will be validly issued, fully paid and nonassessable
and free of preemptive rights pursuant to the laws of the State of Nevada or in
STI's Articles of Incorporation or Bylaws.
- ------------------------
* All opinions are subject to normal and customary exceptions and assumptions
and qualifications.
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EXHIBIT 6.2.10(a)
Form of Tax Opinion
, 1998
OmniAmerica, Inc.
11111 Santa Monica Blvd.
Los Angeles, California 90025
Attention: Carl E. Hirsch
Ladies & Gentlemen:
You have requested our opinion regarding certain federal income tax
consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub"), a
Delaware corporation and the wholly owned subsidiary of Specialty
Teleconstructors, Inc. ("Parent"), a Nevada corporation, with and into
OmniAmerica Holdings Corporation (the "Company"), a Delaware corporation.
In formulating our opinion, we examined such documents as we deemed
appropriate, including the Agreement and Plan of Merger among Parent, Sub and
the Company dated as of , 1998 (the "Merger Agreement") In addition, we have
obtained such additional information as we have deemed relevant and necessary
through consultation with various officers and representatives of Parent and the
Company.
Our opinion set forth below assumes (1) the accuracy of the
statements and facts concerning the Merger set forth in the Merger Agreement,
(2) the consummation of the Merger in the manner contemplated by, and in
accordance with the terms set forth in, the Merger Agreement and (3) the
accuracy of (i) the representations made by Parent, which are set forth in the
Officers' Certificate delivered to us by Parent, dated the date hereof, (ii) the
representations made by the Company, which are set forth in the Officers'
Certificate delivered to us by the Company, dated the date hereof, and (iii) the
representations made by HMTF/Omni Partners, LP ("HMFT") set forth in the
Certificate delivered to us by HMTF, dated the date hereof.
Based upon the facts and statements set forth above, our examination
and review of the documents referred to above and subject to the assumptions set
forth above, we are of the opinion that for federal income tax purposes:
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1. The Merger will constitute a reorganization within the meaning of
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code").
2. No gain or loss will be recognized by the shareholders of the
Company upon their exchange of common stock of the Company ("Company Common")
for common stock of Parent ("Parent Common"), except for cash received in lieu
of a fractional share interest in Parent Common.
We express no opinion concerning any tax consequences of the Merger other
than those specifically set forth herein.
Our opinion is based on current provisions of the Code, the Treasury
Regulations promulgated thereunder, published pronouncements of the Internal
Revenue Service and case law, any of which may be changed at any time with
retroactive effect. Any change in applicable laws or facts and circumstances
surrounding the Merger, or any inaccuracy in the statements, facts, assumptions
and representations on which we have relied, may affect the continuing validity
of the opinions set forth herein. We assume no responsibility to inform you of
any such change or inaccuracy that may occur or come to our attention.
Very truly yours,
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EXHIBIT 6.2.10(b)
Form of OmniAmerica Certificate
, 1998
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from the Company
as of the date of this letter (the "Closing Date") and thereafter. We understand
that you are relying upon this letter in rendering your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company;
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock; (iv) the term "Merger Agreement" shall mean the Agreement
and Plan of Merger dated as of , 1998 among Parent, Sub and the Company; and (v)
the term "Code" shall mean the Internal Revenue Code of 1986, as amended.
The Company hereby represents, warrants, and undertakes as follows:
1. The fair market value of the Parent Common to be received by each
holder of Company Common will be approximately equal to the fair market
value of the Company Common surrendered in exchange therefor.
2. Within the two year period ending on the Closing Date, no
outstanding stock of the Company has been (i) redeemed by the Company,
(ii) acquired by a person related to the Company (within the meaning of
Treasury Regulations Section 1.368- 1(e)(3) determined without regard to
Treasury Regulation Section 1.368-1(e)(3)(i)(A)) for consideration other
than Company Common or Parent Common, or (iii) the subject of any
distribution by the Company.
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3. The Company is not aware of any plan, intention, obligation or
commitment on the part of any shareholder of the Company to sell, exchange
or otherwise dispose of the Parent Common to be received in the Merger by
such holder of Company Common directly or indirectly to Parent or to a
person related to Parent (within the meaning of Treasury Regulations
Section 1.368-1(e)(3)) for consideration other than Parent Common.
4. Following the Merger, the Company will hold at least 90 percent
of the fair market value of its net assets and at least 70 percent of the
fair market value of its gross assets held immediately prior to the
Merger. For purposes of this representation, amounts paid by the Company
to dissenters, amounts paid by the Company to shareholders who receive
cash or other property, amounts used by the Company to pay reorganization
expenses, and all redemptions and distributions (except for regular,
normal dividends) made by the Company within the preceding three years
will be included as assets of the Company immediately prior to the Merger.
5. The Company has no plan or intention to issue additional shares
of its stock that would result in Parent losing control of the Company
within the meaning of Section 368(c) of the Code.
6. As of the Closing Date, the Company has continued to actively
conduct the same trade or business it has conducted since .
[7. In accordance with the Merger Agreement, the Company and the
shareholders of the Company will pay their respective expenses, if any,
incurred in connection with the Merger.]
8. There is no intercorporate indebtedness existing between the
Company and Parent or between the Company and Sub that was issued,
acquired, or will be settled at a discount.
9. In the Merger, shares of Company Common representing control of
the Company, as defined in Section 368(c) of the Code, will be exchanged
solely for voting stock of Parent. For purposes of this representation,
shares of Company Common exchanged for cash or other property originating
with Parent will be treated as outstanding Company Common on the date of
the Merger.
10. At the time of the Merger, the Company will not have outstanding
any warrants, options, convertible securities, or any other type of right
pursuant to which any person could acquire stock in the Company that, if
exercised or converted, would affect Parent's acquisition or retention of
control of the Company, as defined in Section 368(c) of the Code.
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11. The Company is not an investment company, as defined in Section
368(a)(2)(F)(iii) and (iv) of the Code.
12. On the date of the Merger, the fair market value of the assets
of the Company will exceed the sum of its liabilities, plus the amount of
liabilities, if any, to which the assets of the Company are subject.
13. The Company is not under the jurisdiction of a court in a title
11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
14. The payment of cash in lieu of fractional shares of Parent
Common in the Merger is solely for the purpose of avoiding the expense and
inconvenience to Parent of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to the holders of Company
Common instead of issuing fractional shares of Parent Common will not
exceed one percent of the total consideration to be issued in the Merger
to the holders of Parent Common in exchange for their shares of Parent
Common.
15. The business reasons for the Merger are .
16. There are no agreements, understandings, or arrangements
affecting any of the factual matters relevant to the Merger other than the
Merger Agreement.
17. None of the compensation to be received by any holder of Company
Common who is an employee of the Company will be separate consideration
for, or allocable to, any of their Company Common. None of the Parent
Common to be received by any holder of Company Common will be separate
consideration for, or allocable to, any employment agreement.
18. There are no dividends in arrears with respect to the Company
Common.
Very truly yours,
OMNIAMERICA HOLDINGS CORPORATION
By:
Its:
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EXHIBIT 6.2.10(c)
Form of OmniPartners Certificate
, 1998
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from HMTF/Omni
Partners, LP (the "Stockholder") as of the date of this letter (the "Closing
Date") and thereafter. We understand that you are relying upon this letter in
rendering your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company; and
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock.
The Stockholder hereby represents, warrants, and undertakes as
follows:
1. Within the two year period ending on the Closing Date, no
outstanding stock of the Company has been (i) redeemed by the Company,
(ii) acquired by a person related to the Company (within the meaning of
Treasury Regulations Section 1.368- 1(e)(3) determined without regard to
Treasury Regulation Section 1.368-1(e)(3)(i)(A)) for consideration other
than Company Common or Parent Common, or (iii) the subject of any
distribution by the Company.
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2. The Stockholder has no plan, intention, obligation or commitment
to sell, exchange or otherwise dispose of the Parent Common to be received
in the Merger by such holder of Company Common directly or indirectly to
Parent or to a person related to Parent (within the meaning of Treasury
Regulations Section 1.368-1(e)(3)) for consideration other than Parent
Common.
Very truly yours,
HMTF/OMNI PARTNERS, LP
By:
Its:
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EXHIBIT 6.2.10(d)
Form of STI Certificate
, 1998
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from Parent (as
hereinafter defined) as of the date of this letter (the "Closing Date") and
thereafter. We understand that you are relying upon this letter in rendering
your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company;
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock; (iv) the term "Merger Agreement" shall mean the Agreement
and Plan of Merger dated as of , 1998 among Parent, Sub and the Company; and (v)
the term "Code" shall mean the Internal Revenue Code of 1986, as amended.
Parent hereby represents, warrants, and undertakes as follows:
1. The fair market value of the Parent Common to be received by each
holder of Company Common will be approximately equal to the fair market
value of the Company Common surrendered in exchange therefor.
2. Parent has no plan, intention, obligation or commitment and no
person related to Parent (within the meaning of Treasury Regulations
Section 1.368-1(e)(3)) has any plan, intention, obligation or commitment
to purchase, exchange, redeem or otherwise acquire (directly or
indirectly) any Parent Common to be received in the Merger by any holder
of Company Common in exchange for any consideration other than Parent
Common.
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3. Following the Merger, Sub will hold at least 90 percent of the
fair market value of its net assets and at least 70 percent of the fair
market value of its gross assets held immediately prior to the Merger.
Parent anticipates that following the Merger, the Company, as the survivor
in the Merger, will hold all of the assets of the Company and Sub held
immediately prior to the Merger.
4. Sub was incorporated at the direction of Parent for the sole
purpose of entering into the Merger Agreement and effecting the Merger.
From the date of incorporation of Sub and at all times thereafter, Parent
has owned and will own all of the issued and outstanding stock of Sub.
5. Parent has no plan or intention to cause the Company to issue
additional shares of its stock that would result in Parent losing control
of the Company within the meaning of Section 368(c) of the Code.
6. Parent has no plan or intention to liquidate the Company; to
merge the Company with or into another corporation; to sell or otherwise
dispose of the stock of the Company except for transfers of stock to
corporations controlled by Parent (within the meaning of Section 368(c) of
the Code); or to cause the Company to sell or otherwise dispose of any of
its assets or any of the assets acquired from Sub, except for dispositions
made in the ordinary course of business or transfers of assets to a
corporation controlled by the Company (within the meaning of Section
368(c) of the Code).
7. Sub will have no liabilities assumed by the Company, and will not
transfer to the Company any assets subject to liabilities, in the Merger.
8. Following the Merger, Parent and members of its qualified group
(within the meaning of Treasury Regulation Section 1.368-1(d)(4)(ii)) will
continue the historic business of the Company and use a significant
portion of the Company's historic business assets in a business.
[9. As required under the Merger Agreement, Parent and Sub will pay
their respective expenses, if any, incurred in connection with the
Merger.]
10. There is no intercorporate indebtedness existing between the
Company and Parent or between the Company and Sub that was issued,
acquired, or will be settled at a discount.
11. Parent does not own and has not owned during the past five
years, any shares of the stock of the Company. No related party to Parent
(within the meaning of Treasury Regulations Section 1.368-1(e)(3)) owns
(or has owned within the past five years) any shares of stock of the
Company.
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12. Neither Parent nor Sub is an investment company, as defined in
Section 368(a)(2)(F)(iii) and (iv) of the Code.
13. The payment of cash in lieu of fractional shares of Parent
Common in the Merger is solely for the purpose of avoiding the expense and
inconvenience to Parent of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to the holders of Company
Common instead of issuing fractional shares of Parent Common will not
exceed one percent of the total consideration to be issued in the Merger
to the holders of Parent Common in exchange for their shares of Parent
Common.
14. The business reasons for the Merger are .
15. There are no agreements, understandings, or arrangements
affecting any of the factual matters relevant to the Merger other than the
Merger Agreement.
16. None of the compensation to be received by any holder of Company
Common who is an employee of the Company will be separate consideration
for, or allocable to, any of their Company Common. None of the Parent
Common to be received by any holder of Company Common will be separate
consideration for, or allocable to, any employment agreement.
Very truly yours,
SPECIALTY TELECONSTRUCTORS, INC.
By:
Its:
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EXHIBIT 7.3(a)
Form of Post-Merger Stockholders Agreement
102
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EXHIBIT 7.3(b)
Form of Monitoring and Oversight Agreement
103
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EXHIBIT 7.3(c)
Form of Financial Advisory Agreement
104
Exhibit 99(b)
POST-MERGER STOCKHOLDERS AGREEMENT
THIS POST-MERGER STOCKHOLDERS AGREEMENT (this "Stockholders
Agreement"), dated as of April 23, 1998, is made and entered into by and among
Specialty Teleconstructors, Inc., a Nevada corporation (the "Company"), and the
securityholders listed on the signature pages hereof.
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"Accredited Investor" means an "Accredited Investor," as defined in
Regulation D, or any successor rule then in effect.
"Advice" shall have the meaning provided in Section 3.5.
"Affiliate" means, with respect to any Person, any Person who, directly or
indirectly, controls, is controlled by or is under common control with that
Person. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of Voting Securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Bankruptcy Code" means the United States Bankruptcy Code
(Title XI, USC).
"Beneficial Ownership" with respect to any securities or assets shall mean
having "beneficial ownership" (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons who are
Affiliates of such Person (excluding officers and directors of the Company, the
Company and their controlled
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Affiliates) who together with such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act and in any event with respect to
Budagher shall include securities held of record by the Budagher Family Limited
Partnership #1.
"Budagher" means Michael R. Budagher.
"Business Day" means a day other than a Saturday, a Sunday or other day on
which commercial banks located in New York are authorized or obligated to be
closed.
"Carpenter" means Tommie R. Carpenter.
"Carpenter Priority Shares" shall have the meaning provided
in Section 3.1.4(b).
"Closing" shall mean the date on which the transactions contemplated by
the Merger Agreement are consummated.
"Common Stock" means shares of the Common Stock, par value $0.01 per
share, of the Company, and any capital stock into which such Common Stock
thereafter may be converted or otherwise changed, including successive
conversions and changes.
"Common Stock Equivalents" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock of the Company, whether at the time of issuance or
upon the passage of time or the occurrence of some future event.
"Company" shall have the meaning provided in the introductory paragraph
hereof and shall include the Company's successors by merger, consolidation or
share exchange.
"Company Sale" shall have the meaning provided in Section 4.6.
"Co-Seller" shall have the meaning provided in Section 4.2.1.
"Demand Registration" shall have the meaning provided in Section 3.1.1(a).
"Demand Request" shall have the meaning provided in Section 3.1.1(a).
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"Designees" shall have the meaning provided in Section 2.1.1(a).
"Election Period" shall have the meaning provided in Section 4.1.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Excluded Registration" means a registration under the Securities Act of
(i) securities registered on Form S-8 or any similar successor form and (ii)
securities registered to effect the acquisition of or combination with another
Person.
"Existing Stockholders" means, collectively, Budagher (individually and as
general partner of the Budagher Family, LLC), the Budagher Family, LLC, a
limited liability company organized under the laws of the State of Nevada, and
Carpenter. For purposes of this Stockholders Agreement, Budagher shall be deemed
to own personally all of the shares of Common Stock and Common Stock Equivalents
held by the Budagher Family, LLC.
"Existing Stockholders Designee" shall have the meaning
provided in Section 2.1.1(a).
"Family Member" means, as to any natural Person, such Person's spouse,
grandparent or descendant of that grandparent, children (natural and adopted),
natural or adopted siblings, mothers and fathers-in-law, sons and
daughters-in-law, and brothers and sisters-in-law.
"Fully-Diluted Common Stock" means, at any time, the then outstanding
Common Stock of the Company plus (without duplication) all shares of Common
Stock issuable, whether at such time or upon the passage of time or the
occurrence of future events and without regard to the amount of any conversion
or exercise price, upon the exercise, conversion, or exchange of all
then-outstanding Common Stock Equivalents.
"Group" shall have the meaning given such term in Section 13(d)(3) of the
Exchange Act.
"HMC Group" means HMTF/Omni and its Affiliates and its and their
respective officers, directors, and employees (and members of their respective
families and trusts for the primary benefit of such family members) and any
Person identified as a member of the HMC Group on the signature pages hereof.
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"HMTF" means Hicks, Muse, Tate & Furst Incorporated, a Texas corporation.
"HMTF Designee" shall have the meaning provided in Section 2.1.1(a).
"HMTF Group" shall have the meaning provided in Section 8.1.
"HMTF/Omni" means HMTF/Omni Partners, L.P., a Delaware limited
partnership.
"Holder" means (i) a securityholder listed on the signature pages hereof
and (ii) any direct or indirect transferee of any such securityholder who shall
become a party to this Stockholders Agreement.
"Independent Director" means a Person who is not (i) a member of the HMC
Group, (ii) an Existing Stockholder or (iii) an employee of the Company or any
of its Subsidiaries or a Family Member of any such employee.
"Inspectors" shall have the meaning provided in Section 3.4.11.
"Investment Banker" shall have the meaning provided in Section 4.6.
"Material Adverse Effect" shall have the meaning provided in Section
3.1.4(a).
"Merger Agreement" shall mean the Amended and Restated Agreement and Plan
of Merger, dated as of April 22, 1998, among the Company, OAI Acquisition Corp.,
a Delaware corporation and wholly-owned subsidiary of the Company, OmniAmerica,
OmniAmerica, Inc., a Delaware corporation and wholly-owned subsidiary of
OmniAmerica, HMTF/Omni and Omni/HSW Acquisition, Inc., a Delaware corporation.
"NASD" means National Association of Securities Dealers, Inc.
"NASDAQ" shall have the meaning provided in Section 3.4.13.
"OmniAmerica" means OmniAmerica Holdings Corporation, a Delaware
corporation.
"Participation Offer" shall have the meaning provided in Section 4.2.1.
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"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Preferred Stock" means shares of stock of the Company which have a
preference as to dividends or distribution upon liquidation or dissolution of
the Company, and any capital stock into which such preferred stock thereafter
may be changed.
"Prohibited Actions" shall have the meaning provided in Section 8.2.2.
"Records" shall have the meaning provided in Section 3.4.11.
"Registrable Shares" means at any time the Common Stock of the Company
owned by the Holders, whether owned on the date hereof or acquired hereafter;
provided, however, that Registrable Shares shall not include any shares (i) the
sale of which has been registered pursuant to the Securities Act and which
shares have been sold pursuant to such registration, (ii) which have been sold
to the public pursuant to Rule 144 or 144A of the SEC under the Securities Act
or (iii) which are eligible for sale under Rule 144(k) of the SEC under the
Securities Act.
"Registration Expenses" shall have the meaning provided in Section 3.6.
"Regulation D" means Regulation D promulgated under the Securities Act by
the SEC.
"Requesting Holders" shall have the meaning provided in Section 3.1.5.
"Required Filing Date" shall have the meaning provided in Section
3.1.1(b).
"Required Holders" means Holders who then own beneficially more than
66-2/3% of the aggregate number of shares of Common Stock subject to this
Stockholders Agreement.
"SEC" means the Securities and Exchange Commission as from time to time
constituted and created under the Exchange Act, or, if at any time after the
execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Exchange Act,
then the Person performing such duties at such time.
"Securities" means the Common Stock.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Seller Affiliates" shall have the meaning provided in Section 3.7.1.
"Stockholders Agreement" means this Post-Merger Stockholders Agreement, as
the same may be amended from time to time.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting power,
under ordinary circumstances, to elect directors, is at the time, directly or
indirectly, owned by such Person, by one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person, and (ii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
"Suspension Event" shall have the meaning provided in Section 3.5.
"Suspension Notice" shall have the meaning provided in Section 3.5.
"Tag Seller Group" shall have the meaning provided in Section 4.2.1.
"Third Party Offer" shall have the meaning provided in Section 8.2.5.
"Total Voting Power" shall have the meaning provided in Section 8.2.3.
"Transfer" means any disposition of any Security or any interest therein
that would constitute a "sale" thereof within the meaning of the Securities Act.
"Transfer Notice" shall have the meaning provided in Section 5.3.
"Transferor" shall have the meaning provided in Section 4.1.1(a).
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"Transferor Shares" shall have the meaning provided in Section 4.1.2.
"Voting Securities" means Common Stock, Common Stock Equivalents, and
securities of the Company generally conveying the right to vote with holders of
Common Stock in the election of directors or any securities convertible into or
exchangeable or exercisable for any such securities, or warrants, contractual
rights or other rights of any kind to acquire any such securities.
SECTION 1.2 Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in
the plural include the singular;
(4) provisions apply to successive events and transactions;
and
(5) "herein," "hereof" and other words of similar import
refer to this Stockholders Agreement as a whole and not to any
particular Article, Section or other subdivision. ARTICLE 2
MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES
SECTION 2.1 Board of Directors.
2.1.1 Board Representation.
(a) At all times during the term hereof, subject to Section 2.1.3, the
Board of Directors of the Company shall consist of eight members (plus such
number of directors as may be elected from time to time pursuant to the terms of
any Preferred Stock that may be issued and outstanding from time to time in
accordance with the provisions of Article 6 hereof). Subject to Section 2.1.3,
HMTF shall be entitled to designate to the Board of Directors of the Company (i)
four individuals as long as the HMC Group owns, in the aggregate, at least 50%
of the number of shares of Common Stock owned by HMTF/Omni at the Closing;
provided, however, that one of the four individuals designated by HMTF shall be
an Independent Director, (ii) two individuals as
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long as the HMC Group owns, in the aggregate, at least 25% but less than 50% of
the number of shares of Common Stock owned by HMTF/Omni at the Closing and (iii)
one individual as long as the HMC Group owns, in the aggregate, at least 10% but
less than 25% of the number of shares of Common Stock owned by HMTF/Omni at the
Closing (such designees being referred to herein individually as an "HMTF
Designee" and collectively as the "HMTF Designees"). Subject to Section 2.1.3,
the Existing Stockholders shall be entitled to designate to the Board of
Directors of the Company (i) four individuals as long as (A) the Existing
Stockholders own, in the aggregate, at least 50% of the number of shares of
Common Stock owned by them at the Closing and (B) Budagher owns at least 50% of
the number of shares of Common Stock owned by him at the Closing; provided,
however, that one of the four individuals designated by the Existing
Stockholders shall be an Independent Director, (ii) three individuals as long as
(A) the Existing Stockholders own, in the aggregate, at least 49% of the number
of shares of Common Stock owned by them at the Closing and (B) Budagher owns at
least 50% of the number of shares of Common Stock owned by him at the Closing,
(iii) two individuals as long as the Existing Stockholders own, in the
aggregate, at least 25% but less than 49% of the number of shares of Common
Stock owned by them at the Closing and (iv) one individual as long as the
Existing Stockholders own, in the aggregate, at least 10% but less than 25% of
the number of shares of Common Stock owned by them at the Closing (such
designees being referred to herein individually as an "Existing Stockholders
Designee" and collectively as the "Existing Stockholders Designees", and
together with the HMTF Designees, as the "Designees"). The Holders agree that
they will cause an individual designated by HMTF from the HMTF Designees to be
elected as Chairman of the Board of the Company. Each Holder shall vote his or
its shares of Common Stock at any regular or special meeting of stockholders of
the Company or in any written consent executed in lieu of such a meeting of
stockholders and shall take all other actions necessary to give effect to the
agreements contained in this Stockholders Agreement (including, without
limitation, the election of Persons designated by HMTF or the Existing
Stockholders to be elected as directors as described in the preceding sentences)
and to ensure that the articles of incorporation and bylaws of the Company as in
effect immediately following the date hereof do not, at any time hereafter,
conflict in any respect with the provisions of this Stockholders Agreement. In
order to effectuate the provisions of this Section 2, each Holder hereby agrees
that when any action or vote is required to be taken by such Holder pursuant to
this Stockholders Agreement, such Holder shall use his or its best efforts to
call, or cause the appropriate officers and directors of the Company to call, a
special or annual meeting of stockholders of the Company
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or execute or cause to be executed a consent in writing in lieu of any such
meetings pursuant to the applicable provisions of the Nevada Revised Statutes,
as amended from time to time, or any successor statutes.
(b) The Holders acknowledge that Section 4.03 of the Amended and Restated
Articles of Incorporation of the Company provides for staggered terms of the
directors, with directors serving in Class 1, Class 2, or Class 3. The Holders
agree that until the first annual meeting of stockholders following the date
hereof, the Designees shall be classified as follows: Class 1 --one HMTF
Designee, one Existing Stockholders Designee and one Independent Director
designated by HMTF; Class 2 -- one HMTF Designee, one Existing Stockholders
Designee and one Independent Director designated by the Existing Stockholders;
and Class 3 --one HMTF Designee and one Existing Stockholders Designee.
2.1.2 Vacancies. If, prior to his election to the Board of Directors of
the Company pursuant to Section 2.1.1 hereof, any Designee shall be unable or
unwilling to serve as a director of the Company, the Holder or Holders who
designated such Designee shall be entitled to designate a replacement who shall
then be a Designee for purposes of this Section 2. If, following an election to
the Board of Directors of the Company pursuant to Section 2.1.1 hereof, any
Designee shall resign or be removed or be unable to serve for any reason prior
to the expiration of his term as a director of the Company, the Person who
designated such director pursuant to Section 2.1.1 shall, within 30 days of such
event, notify the Board of Directors of the Company in writing of a replacement
Designee, and either (i) the Holders shall vote their shares of Common Stock, at
any regular meeting or special meeting at which the filling of positions on the
Board of Directors of the Company is legally permitted or in any written consent
executed in lieu of such a meeting of stockholders, and shall take all such
other actions necessary to ensure the election to the Board of Directors of the
Company of such replacement Designee to fill the unexpired term of the Designee
who such replacement Designee is replacing or (ii) the Board of Directors shall
elect or appoint such replacement Designee to fill the unexpired term of the
Designee who such replacement Designee is replacing. If HMTF requests that any
HMTF Designee, or the Existing Stockholders request that any Existing
Stockholders Designee, be removed as a director (with or without cause), by
written notice thereof to the Company, then the Company shall take all actions
necessary to effect, and each of the Holders shall vote all his or its capital
stock in favor of, such removal upon such request.
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2.1.3 Termination of Rights. The right of HMTF to designate directors
under Section 2.1.1, and the obligation of the Holders to vote their shares for
the HMTF Designees, shall terminate upon the first to occur of (i) the
termination or expiration of this Stockholders Agreement or this Article 2, (ii)
such time as HMTF elects in writing to terminate its rights under this Article
2, or (iii) such time as the HMC Group ceases to own, in the aggregate, at least
10% of the number of shares of Common Stock owned by HMTF/Omni at the Closing.
The right of the Existing Stockholders to designate directors under Section
2.1.1, and the obligation of the Holders to vote their shares for the Existing
Stockholders Designees, shall terminate upon the first to occur of (i) the
termination or expiration of this Stockholders Agreement or this Article 2, (ii)
such time as a majority in interest of the Existing Stockholders elect in
writing to terminate their rights under this Article 2, or (iii) such time as
the Existing Stockholders cease to own, in the aggregate, at least 10% of the
number of shares of Common Stock owned by the Existing Stockholders at the
Closing.
2.1.4 Costs and Expenses. The Company will pay all reasonable
out-of-pocket expenses incurred by Designees in connection with their
participation in meetings of the Board of Directors (and committees thereof) of
the Company and the Boards of Directors (and committees thereof) of the
Subsidiaries of the Company.
2.1.5 Calculation of Share Numbers. For purposes of this Article 2 only,
any calculation of the number of shares of Common Stock owned by a Holder shall
be determined by the Board of Directors of the Company, as follows: (i) "owned"
shall mean Beneficial Ownership and (ii) each calculation shall be equitably
adjusted for subsequent stock splits, reverse stock splits, stock combinations,
recapitalizations, stock dividends and the like.
SECTION 2.2 Other Activities of the Holders; Fiduciary Duties.
It is understood and accepted that the Holders and their Affiliates have
interests in other business ventures which may be in conflict with the
activities of the Company and its Subsidiaries and that, subject to applicable
law, nothing in this Stockholders Agreement shall limit the current or future
business activities of the Holders whether or not such activities are
competitive with those of the Company and its Subsidiaries. Nothing in this
Stockholders Agreement, express or implied, shall relieve any officer or
director of the Company or any of its Subsidiaries, or any Holder, of any
fiduciary or other duties or obligations they may have to the Company's
stockholders.
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ARTICLE 3
REGISTRATION RIGHTS
SECTION 3.1 Demand Registration.
3.1.1 Request for Registration.
(a) Subject to Section 3.1.6, at any time, (i) members of the HMC Group
owning 35% or more of the aggregate number of Registrable Shares then owned by
the HMC Group or (ii) Existing Stockholders owning 35% or more of the aggregate
number of Registrable Shares then owned by the Existing Stockholders may request
the Company, in writing (a "Demand Request"), to effect the registration under
the Securities Act of all or part of its or their Registrable Shares (a "Demand
Registration").
(b) Each Demand Request shall specify the number of Registrable Shares
proposed to be sold. Subject to Section 3.1.6, the Company shall file the Demand
Registration (including by means of a shelf registration pursuant to Rule 415
under the Securities Act if so requested by the HMC Group in such Demand Request
(but, in the case of a shelf registration, only (i) if the Company is then
eligible to use such a shelf registration and if Form S-2 or Form S-3 (or any
successor form) is then available to the Company and (ii) if such Demand Request
is made by the HMC Group on a date that is at least three years after the
Closing)) within 90 days after receiving a Demand Request (the "Required Filing
Date") and shall use all commercially reasonable efforts to cause the same to be
declared effective by the SEC as promptly as practicable after such filing;
provided, that the Company need effect only three Demand Registrations at the
request of the HMC Group and an aggregate of three Demand Registrations at the
request of the Existing Stockholders; provided, no such Holders will be entitled
to make such a request while any other registration statement (other than a
shelf registration statement) is on file with the Commission prior to its
becoming effective or within 90 days after such registration statement has been
declared effective, or, in the case of a shelf registration, until 90 days after
such shelf registration ceases to be effective. No Holder can request a Demand
Registration within 270 days following the termination of a prior shelf
registration that was the result of such Holder's Demand Request.
3.1.2 Effective Registration and Expenses. A registration will not count
as a Demand Registration until it has become effective and, with respect to
registrations other than shelf registrations, all Registrable Shares covered by
such registration statement have been disposed of in accordance with
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the intended methods of disposition (unless the Requesting Holders withdraw all
their Registrable Shares and the Company has performed its obligations hereunder
in all material respects, in which case such demand will count as a Demand
Registration unless the Requesting Holders pay all Registration Expenses (as
hereinafter defined) in connection with such withdrawn registration); provided,
that if, (i) after it has become effective, an offering of Registrable Shares
pursuant to a registration is interfered with by any stop order, injunction, or
other order or requirement of the SEC or other governmental agency or court
(other than an order, injunction, or other requirement resulting from a
misstatement or omission of the Holder making such Demand Request) or (ii) the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, such
registration will be deemed not to have been effected and will not count as a
Demand Registration; provided, further, that the Company shall not be required
to maintain a shelf registration after 270 days from the date of effectiveness.
3.1.3 Selection of Underwriters. The offering of Registrable Shares
pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holders (as hereinafter defined) of a
majority of the Registrable Shares to be registered in a Demand Registration
shall select the investment banking firm or firms to manage the underwritten
offering; provided, that such selection shall be subject to the consent of the
Company, which consent shall not be unreasonably withheld. Notwithstanding the
prior sentence, no "shelf" registration will be required to be in the form of an
underwritten offering.
3.1.4 Priority on Demand Registrations.
(a) No securities to be sold for the account of any Person (including the
Company) other than the HMC Group shall be included in a Demand Registration in
which the HMC Group has requested inclusion, irrespective of the identity of the
party making the Demand Request, unless the managing underwriter or underwriters
shall advise the Company or the HMC Group in writing that the inclusion of such
securities will not materially and adversely affect the price or success of the
offering (a "Material Adverse Effect"). Furthermore, in the event the managing
underwriter or underwriters shall advise the Company or the HMC Group that even
after exclusion of all securities of other Persons pursuant to the immediately
preceding sentence, the amount of Registrable Shares proposed to be included in
such Demand Registration by the HMC Group is sufficiently large to cause a
Material Adverse Effect, the Registrable Shares of the
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HMC Group to be included in such Demand Registration shall equal the number of
shares which the Company is so advised can be sold in such offering without a
Material Adverse Effect and such Registrable Shares shall be allocated pro rata
among the members of the HMC Group on the basis of the number of Registrable
Shares requested to be included by each such Holder. If any Registrable Shares
of any Holder requested to be registered pursuant to a Demand Request under
Section 3.1.1 are excluded from a Demand Registration pursuant to this Section
3.1.4, such Holder having Registrable Shares so excluded shall have the right to
withdraw all, but not less than all, such Registrable Shares from such
registration and such registration will not count as a Demand Registration with
respect to such Holder.
(b) Notwithstanding Section 3.1.4(a) above, Carpenter shall have the right
to sell in a Demand Registration under this Article 3 all or any portion of the
Carpenter Priority Shares on a pari passu basis with the HMC Group, calculated
pro rata on the basis of the number of Registrable Shares owned by each party.
In the event that Carpenter requests inclusion of the Carpenter Priority Shares
in a Demand Registration in which the HMC Group participates and the managing
underwriter or underwriters advises the Company or the HMC Group that the
inclusion of such securities likely will result in a Material Adverse Effect so
that it becomes necessary to reduce the number of Registrable Shares to be
registered, in no event shall the number of Carpenter Priority Shares to be sold
in such registration be reduced to fewer than 150,000 shares, irrespective of
the other provisions hereof, unless the number of Registrable Shares to be sold
by the HMC Group in such offering is also reduced to fewer than 150,000 shares,
in which event each of the HMC Group, on the one hand, and Carpenter, on the
other hand, will suffer equivalent share-for-share reduction thereafter to the
extent necessary to reach the number of Registrable Shares that can be sold in
such offering without a Material Adverse Effect. At such time as the Carpenter
Priority Shares have been disposed of pursuant to an effective registration
statement, Carpenter's rights pursuant to this Section 3.1.4(b) shall terminate.
For purposes hereof, "Carpenter Priority Shares" shall mean a number of shares
of Common Stock equal to 10% of the number of shares of Common Stock owned of
record by Carpenter at the Closing. As used in this Section 3.1.4, any reference
to the number of shares of Common Stock owned by Carpenter shall be deemed to
include subsequent equitable adjustments as necessary to reflect stock splits,
reverse stock splits, stock combinations, recapitalizations, stock dividends and
the like.
(c) In the event that the managing underwriter or underwriters shall
advise the Company or the HMC Group in writing
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that the inclusion of additional Registrable Shares in a Demand Registration by
the Requesting Holders will not have a Material Adverse Effect, the Requesting
Holders shall be permitted to include in such registration that number of
Registrable Shares that in the view of the managing underwriter in the aggregate
does not create a Material Adverse Effect. In the event that the managing
underwriter or underwriters shall advise the Company or the HMC Group in writing
that the maximum number of Registrable Shares requested to be included by the
Requesting Holders (other than the HMC Group and Carpenter, to the extent of his
rights under Section 3.1.4(b)) likely will have a Material Adverse Effect, such
Requesting Holders will be permitted to include that number of Registrable
Shares that, in the view (expressed in writing) of the managing underwriter or
underwriters, will not result in a Material Adverse Effect, pro rata among such
Requesting Holders on the basis of the number of Registrable Shares requested to
be included in such registration by each such Requesting Holder.
3.1.5 Rights of Nonrequesting Holders. Upon receipt of any Demand Request,
the Company shall promptly (but in any event within 10 days) give written notice
of such proposed Demand Registration to all other Holders entitled to
registration rights under this Section 3.1, who shall have the right,
exercisable by written notice to the Company within 20 days of their receipt of
the Company's notice, to elect to include in such Demand Registration such
portion of their Registrable Shares as they may request. All Holders requesting
to have their Registrable Shares included in a Demand Registration in accordance
with the preceding sentence shall be deemed to be "Requesting Holders" for
purposes of this Section 3.1; provided, if any member of the HMC Group or any of
the Existing Stockholders participates as a Requesting Holder in a Demand
Registration such Holder's participation shall be counted as a Demand Request of
the HMC Group or the Existing Stockholders, respectively.
3.1.6 Deferral of Filing. The Company may defer the filing (but not the
preparation) of a registration statement required by Section 3.1 until a date
not later than 180 days after the Required Filing Date (or, if longer, 180 days
after the effective date of the registration statement contemplated by clause
(ii) below) if (i) at the time the Company receives the Demand Request, the
Company or any of its Subsidiaries is engaged in confidential negotiations or
other confidential business activities, disclosure of which would be required in
such registration statement (but would not be required if such registration
statement were not filed), and the Board of Directors of the Company determines
in good faith that such disclosure would be materially detrimental to the
Company and its
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stockholders or would have a material adverse effect on any such confidential
negotiations or other confidential business activities, or (ii) prior to
receiving the Demand Request, the Board of Directors had determined to effect a
registered underwritten public offering of the Company's securities for the
Company's account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering. A deferral of the
filing of a registration statement pursuant to this Section 3.1.6 shall be
lifted, and the requested registration statement shall be filed forthwith, but
no later than 90 days thereafter, if, in the case of a deferral pursuant to
clause (i) of the preceding sentence, the negotiations or other activities are
disclosed or terminated, or, in the case of a deferral pursuant to clause (ii)
of the preceding sentence, the proposed registration for the Company's account
is abandoned. In order to defer the filing of a registration statement pursuant
to this Section 3.1.6, the Company shall promptly (but in any event within 10
Business Days), upon determining to seek such deferral, deliver to each
Requesting Holder a certificate signed by an executive officer of the Company
stating that the Company is deferring such filing pursuant to this Section 3.1.6
and a general statement of the reason for such deferral (but only to the extent
such general statement is in compliance with applicable securities laws) and an
approximation of the anticipated delay. Within 20 days after receiving such
certificate, the holders of a majority of the Registrable Shares held by the
Requesting Holders and for which registration was previously requested may
withdraw such Demand Request by giving notice to the Company; if withdrawn, the
Demand Request shall be deemed not to have been made for all purposes of this
Stockholders Agreement. The Company may defer the filing of a particular
registration statement pursuant to this Section 3.1.6 only once.
SECTION 3.2 Piggyback Registrations.
3.2.1 Right to Piggyback. Each time the Company proposes to register any
of its equity securities of the same class (other than pursuant to an Excluded
Registration or a Demand Registration) under the Securities Act for sale to the
public (whether for the account of the Company or the account of any
securityholder of the Company) and the form of registration statement to be used
permits the registration of Registrable Shares, the Company shall give prompt
written notice to each Holder of Registrable Shares (which notice shall be given
not less than 30 days prior to the effective date of the Company's registration
statement), which notice shall offer each such Holder the opportunity to include
any or all of its or his
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Registrable Shares in such registration statement, subject to the limitations
contained in Section 3.2.2 hereof. Each Holder who desires to have its or his
Registrable Shares included in such registration statement shall so advise the
Company in writing (stating the number of Registrable Shares desired to be
registered) within 20 days after the date of such notice from the Company. Any
Holder shall have the right to withdraw such Holder's request for inclusion of
such Holder's Registrable Shares in any registration statement pursuant to this
Section 3.2.1 by giving written notice to the Company of such withdrawal.
Subject to Section 3.2.2 below, the Company shall include in such registration
statement all such Registrable Shares so requested to be included therein;
provided, however, that the Company may at any time withdraw or cease proceeding
with any such registration if it shall at the same time withdraw or cease
proceeding with the registration of all other equity securities originally
proposed to be registered.
3.2.2 Priority on Registrations. If the managing underwriter advises the
Company that the inclusion of Registrable Shares would cause a Material Adverse
Effect, the Company will be obligated to include in such registration statement
the Registrable Shares of the Holders in sequence, in accordance with the
following:
(a) in the case of an offering by the Company for its own account, (A)
first, any and all securities for sale by the Company, (B) second, Registrable
Shares requested to be included in such registration by the HMC Group, pro rata
based on the ratio which such requested Registrable Shares from each Holder who
is a member of the HMC Group bears to the total number of Registrable Shares
requested to be included in such registration statement by Holders who are
members of the HMC Group, (C) third, Registrable Shares requested to be included
in such registration by the other Holders, pro rata based on the ratio which
such requested Registrable Shares bears to the total number of Registrable
Shares requested to be included in such registration statement by such Holders,
and (D) fourth, securities requested to be included in such registration
statement pursuant to any other registration rights that may have been, or may
hereafter be, granted by the Company, pro rata based on the ratio which such
requested securities bears to the total number of securities requested to be
included in such registration statement by all other Persons;
(b) in the case of an offering by the Company for the account of any of
its securityholders (other than the Holders) of any class of equity security
pursuant to the exercise of demand registration rights by such securityholders,
(A) first,
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securities requested to be registered by any such securityholder pursuant to the
exercise of such demand registration rights and Registrable Shares requested to
be included in such registration by the HMC Group, pro rata based on the ratio
which such requested securities bears to the total number of securities
requested to be included in such registration statement by the Persons
exercising such demand and the HMC Group, (B) second, Registrable Shares
requested to be registered by the other Holders, pro rata based on the ratio
which such requested Registrable Shares bears to the total number of Registrable
Shares requested to be registered by such Holders, and (C) third, securities for
the account of the Company. If as a result of the provisions of this Section
3.2.2 any Holder shall not be entitled to include all Registrable Shares in a
registration that such Holder has requested to be so included, such Holder may
withdraw such Holder's request to include Registrable Shares in such
registration statement; and
(c) notwithstanding the other provisions of this Section 3.2.2, the
provisions of Section 3.1.4(b) shall apply as to the Carpenter Priority Shares.
No Person may participate in any registration statement hereunder unless
such Person (i) agrees to sell such person's Registrable Shares on the basis
provided in any underwriting arrangements approved by the Company and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, and other documents reasonably required under the terms
of such underwriting arrangements; provided, however, that no such Person shall
be required to make any representations or warranties in connection with any
such registration other than representations and warranties as to (i) such
Person's ownership of his or its Registrable Shares to be sold or transferred
free and clear of all liens, claims, and encumbrances, (ii) such Person's power
and authority to effect such transfer, and (iii) such matters pertaining to
compliance with securities laws as may be reasonably requested; provided,
further, that the obligation of such Person to indemnify pursuant to any such
underwriting arrangements shall be several, not joint and several, among such
Persons selling Registrable Shares, and the liability of each such Person will
be in proportion to, and provided further that such liability will be limited
to, the net amount received by such Person from the sale of his or its
Registrable Shares pursuant to such registration.
3.3 Holdback Agreement. Unless the managing underwriter otherwise agrees,
(i) each of the Holders agrees, (ii) the Company agrees, and (iii) each Holder
and the Company agrees to use his or its commercially reasonable efforts to
cause its
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controlled Affiliates to agree, not to effect any public sale or private offer
or distribution of any Common Stock or Common Stock Equivalents during the ten
Business Days prior to the effectiveness under the Securities Act of any
underwritten registration and during such time period after the effectiveness
under the Securities Act of any underwritten registration (not to exceed 180
days) (except, if applicable, as part of such underwritten registration) as the
Company and the managing underwriter may agree.
3.4 Registration Procedures. Whenever any Holder has requested that any
Registrable Shares be registered pursuant to this Stockholders Agreement, the
Company will use its commercially reasonable efforts to effect the registration
and the sale of such Registrable Shares in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
3.4.1 Prepare and file with the SEC a registration statement on any
appropriate form (subject to Section 3.1.1(b)) under the Securities Act with
respect to such Registrable Shares and use its commercially reasonable efforts
to cause such registration statement to become effective;
3.4.2 Prepare and file with the SEC such amendments, post-effective
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 30 days (or such lesser period
as is necessary for the underwriters in an underwritten offering to sell unsold
allotments);
3.4.3 Furnish to each Holder of Registrable Shares and the underwriters of
the securities being registered such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus), any
documents incorporated by reference therein and such other documents as such
Holder or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such Holder or the sale of such
securities by such underwriters (it being understood that, subject to Section
3.5 and the requirements of the Securities Act and applicable state securities
laws, the Company consents to the use of the prospectus and any amendment or
supplement thereto by each Holder and the underwriters in connection with the
offering and sale of the Registrable Shares covered by the registration
statement of which such prospectus, amendment or supplement is a part);
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3.4.4 Use its commercially reasonable efforts to register or qualify (to
the extent required by law) such Registrable Shares under such other securities
or blue sky laws of such jurisdictions as the managing underwriter reasonably
requests; use its commercially reasonable efforts to keep each such registration
or qualification (or exemption therefrom) effective during the period in which
such registration statement is required to be kept effective; and do any and all
other acts and things which may be reasonably necessary or advisable to enable
each Holder to consummate the disposition of the Registrable Shares owned by
such Holder in such jurisdictions; provided, however, that the Company will 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 or (ii)
consent to general service of process in any such jurisdiction;
3.4.5 Advise each Holder of such Registrable Shares who is a selling
securityholder in such registration, promptly after the Company shall receive
notice or obtain knowledge thereof, (i) of the issuance of any stop order by the
SEC suspending the effectiveness of such registration statement or (ii) of the
initiation or threatening of any proceeding for such purpose and promptly use
its commercially reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal at the earliest possible moment if such stop
order should be issued;
3.4.6 Promptly notify each Holder who is a selling securityholder in such
registration and each underwriter and (if requested by any such Person) confirm
such notice in writing (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed and, with respect to a registration
statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by any state securities or other regulatory authority of
any order suspending the qualification or exemption from qualification of any of
the Registrable Shares under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, and (iii) of the happening of
any event which makes any statement made in a registration statement or related
prospectus untrue in any material respect or which requires the making of any
changes in such registration statement, prospectus or documents so that they
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, as promptly as practicable thereafter, prepare and
file with the SEC and furnish a supplement or amendment to such prospectus so
that, as thereafter deliverable to the purchasers of such Registrable Shares,
such prospectus will not contain any untrue statement of
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a material fact or omit a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
3.4.7 Make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall cover
said 12-month period, and which requirement will be deemed to be satisfied if
the Company timely files complete and accurate information on Forms 10-Q, 10-K
and 8-K under the Exchange Act and otherwise complies with Rule 158 under the
Securities Act;
3.4.8 If requested by the managing underwriter or any Holder promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any Holder of securities registered
in such registration reasonably requests to be included therein, including,
without limitation, with respect to the Registrable Shares being sold by such
Holder thereunder, the purchase price being paid therefor by the underwriters
and with respect to any other terms of the underwritten offering of the
Registrable Shares to be sold in such offering, and promptly make all required
filings of such prospectus supplement or post-effective amendment;
3.4.9 As promptly as practicable after filing with the SEC of any document
which is incorporated by reference into a registration statement (in the form in
which it was incorporated), deliver a copy of each such document to each Holder
of securities registered in such registration;
3.4.10 Cooperate with the Holders of securities registered in such
registration and the managing underwriter to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive legends
unless required under applicable law) representing securities sold under any
registration statement, and enable such securities to be in such denominations
and registered in such names as the managing underwriter or such Holders of
securities registered in such registration may request and keep available and
make available to the Company's transfer agent prior to the effectiveness of
such registration statement a supply of such certificates;
3.4.11 Promptly make available for inspection by any Holder of securities
registered in such registration, any underwriter participating in any
disposition pursuant to any
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registration statement, and any attorney, accountant or other agent or
representative retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, that, unless the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the registration
statement or the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, the Company shall not be
required to provide any information under this subparagraph if (i) the Company
believes, after consultation with counsel for the Company, that to do so would
cause the Company to forfeit an attorney-client privilege that was applicable to
such information or (ii) if either (A) the Company has requested and been
granted from the SEC confidential treatment of such information contained in any
filing with the SEC or documents provided supplementally or otherwise or (B) the
Company reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing any such
information with respect to (i) or (ii) such Holder of Registrable Shares
requesting such information agrees to enter into a confidentiality agreement in
customary form and subject to customary exceptions; and provided, further, that
each such Holder of Registrable Shares agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company at its expense, to undertake
appropriate action and to prevent disclosure of the Records deemed confidential;
3.4.12 Furnish to each Holder selling securities in such registration and
underwriter a signed counterpart of (i) an opinion or opinions of counsel to the
Company, and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as the Holders selling securities in such registration or managing
underwriter reasonably requests;
3.4.13 Cause the Registrable Shares included in any registration statement
to be (i) listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed, or (ii) authorized to be
quoted and/or listed (to the extent applicable) on the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ") or the National Market
System of NASDAQ if the Registrable Shares so qualify;
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3.4.14 Provide a CUSIP number for the Registrable Shares included in any
registration statement not later than the effective date of such registration
statement;
3.4.15 Cooperate with each Holder selling securities in such registration
and each underwriter participating in the disposition of such Registrable Shares
and their respective counsel in connection with any filings required to be made
with the NASD;
3.4.16 During the period when the prospectus is required to be delivered
under the Securities Act, promptly file all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
3.4.17 Notify each Holder selling securities in such registration promptly
of any request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
3.4.18 Prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, are required in
connection with the distribution of the Registrable Shares; and
3.4.19 Enter into such agreements (including underwriting agreements in
the managing underwriter's customary form) as are customary in connection with
an underwritten registration.
3.5 Suspension of Dispositions. Each Holder agrees by acquisition of any
Registrable Shares that, upon receipt of any notice (a "Suspension Notice") from
the Company of the happening of any event of the kind described in Sections
3.4.5(i) or 3.4.6(iii) (a "Suspension Event"), such Holder will forthwith
discontinue disposition of Registrable Shares until such Holder's receipt of the
copies of the supplemented or amended prospectus, or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, such Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Shares current at the time of receipt of the
Suspension Notice. In the event the Company shall give any Suspension Notice,
the time
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period regarding the effectiveness of registration statements set forth in
Section 3.4.2 hereof shall be extended by the number of days during the period
from and including the date of the giving of the Suspension Notice to and
including the date when each seller of Registrable Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus or the Advice. The Company shall use its commercially
reasonable efforts and take such actions as are reasonably necessary to render
the Advice as promptly as practicable following the conclusion of the Suspension
Event. The Company shall suspend the use of any shelf registration statement
during a Suspension Event and shall so notify any Holders having securities
registered thereunder in accordance with this Section 3.5.
3.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 3, including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Rule 2720(b)(15) of the NASD Conduct Rules and of its counsel), as may be
required by the rules and regulations of the NASD, fees and expenses of
compliance with securities or "blue sky" laws (including reasonable fees and
disbursements of counsel in connection with "blue sky" qualifications of the
Registrable Shares), rating agency fees, printing expenses (including expenses
of printing certificates for the Registrable Shares in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is reasonably requested by a Holder of Registrable
Shares), messenger and delivery expenses, the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the fees and expenses incurred
in connection with any listing of the Registrable Shares, fees and expenses of
counsel for the Company and its independent certified public accountants
(including the expenses of any special audit or "cold comfort" letters required
by or incident to such performance), Securities Act liability insurance (if the
Company elects to obtain such insurance), the fees and expenses of any special
experts retained by the Company in connection with such registration, and the
fees and expenses of other Persons retained by the Company and reasonable fees
and expenses of one firm of counsel for the sellers (which shall be selected by
the Holders of a majority of the Registrable Shares being included in any
particular registration statement) (all such expenses being herein called
"Registration Expenses") will be borne by the Company whether or not any
registration statement becomes effective; provided that
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in no event shall Registration Expenses include any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable Shares or any
counsel, accountants, or other Persons retained or employed by the Holders.
3.7 Indemnification.
3.7.1 The Company agrees to indemnify and reimburse, to the fullest extent
permitted by law, each Holder of Registrable Shares, and each of its employees,
advisors, agents, representatives, partners, officers, and directors and each
Person who controls such Holder (within the meaning of the Securities Act or the
Exchange Act) and any agent or investment advisor thereof (collectively, the
"Seller Affiliates") (i) against any and all losses, claims, damages,
liabilities, and expenses, joint or several (including, without limitation,
attorneys' fees and disbursements except as limited by Section 3.7.3) based
upon, arising out of, related to or resulting from any untrue or alleged untrue
statement of a 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, (ii)
against any and all loss, liability, claim, damage, and expenses whatsoever
(including reasonable fees and disbursements of counsel), as incurred, to the
extent of the aggregate amount paid in connection with the settlement or
disposition of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (iii) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, to the extent that any such expense or cost is not
paid under subparagraph (i) or (ii) above; except insofar as the same are made
in reliance upon and in strict conformity with information furnished in writing
to the Company by such Holder or any Seller Affiliate expressly for use therein
or arise from such Holder's or any Seller Affiliate'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 or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 3.7.1 will be made by
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periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
3.7.2 In connection with any registration statement in which a
Holder of Registrable Shares is participating, each such Holder will 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 fullest extent permitted by law, each such Holder will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 3.7.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any 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 alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such Holder or any of its Seller Affiliates
expressly for inclusion in the registration statement; provided that the
obligation to indemnify will be several, not joint and several, among such
Holders of Registrable Shares, and the liability of each such Holder of
Registrable Shares will be in proportion to, and provided further, that such
liability will be limited to, the net amount received by such Holder from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such Holder of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such Holder has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
3.7.3 Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person unless such failure materially
prejudices the ability of the indemnifying party to defend such claim) 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
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such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any
Person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (A)
the indemnifying party has agreed to pay such fees or expenses, or (B) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (X) such settlement or compromise contains a full and
unconditional release of the indemnified party or (Y) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will 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 and one additional local counsel
in each jurisdiction involved, as necessary, 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, in which event the indemnifying party shall be obligated to pay the
reasonable fees and disbursements of such additional counsel or counsels.
3.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 3.7.1 or Section 3.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified
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party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 3.7.4 were determined by pro rata allocation (even if the Holders or any
underwriters or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 3.7.4. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 3.7.3, defending any such action or claim. Notwithstanding the
provisions of this Section 3.7.4, no Holder shall be required to contribute an
amount greater than the dollar amount by which the proceeds received by such
Holder with respect to the sale of any Registrable Shares exceeds the amount of
damages which such Holder has otherwise been required to pay by reason of such
statement or omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations in this Section 3.7.4 to contribute
shall be several, and not joint, in proportion to the amount of Registrable
Shares registered by them. If indemnification is available under this Section
3.7, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 3.7.1 and Section 3.7.2 without regard to the
relative fault of said indemnifying party or indemnified party or any other
equitable consideration provided for in this Section 3.7.4.
3.7.5 The indemnification and contribution provided for under this
Stockholders Agreement will 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 will survive the
transfer of Securities and the termination of this Stockholders Agreement.
3.7.6 The Company hereby agrees that it will not enter into, grant, assume
obligations under, or otherwise permit to exist any registration rights of any
Person or Persons except as expressly set forth herein unless (i) such
registration rights are not inconsistent or in conflict with the registration
rights granted in this Article 3 and (ii) the Person or Persons receiving the
benefits of such registration rights acknowledge in writing that such
registration rights are subject to the terms and provisions of the registration
rights granted herein.
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ARTICLE 4
TRANSFERS OF SECURITIES
SECTION 4.1 Right of First Offer.
4.1.1 Sale of Shares of Common Stock.
(a) If the HMC Group (taken as a whole) or either of the Existing
Stockholders (each, a "Transferor") proposes to Transfer for value 90% or more
of the number of shares of Common Stock then owned by the Transferor to any
third party, in one transaction or a series of related transactions (other than
sales to the public pursuant to an effective registration statement or sales to
the public pursuant to Rule 144 under the Securities Act), the Transferor shall
first give written notice to the Company of such desire, setting forth the terms
and conditions of the proposed sale and the price at which the Transferor
desires to sell. The Company shall thereupon, within ten (10) Business Days
following its receipt of the foregoing notice (the "Election Period"), notify
the Transferor in writing of its election to either (i) acquire the Common Stock
proposed to be sold by the Transferor, in which event the Company shall be
obligated to acquire such stock upon the same terms and conditions contained in
such notice, subject to a definitive written agreement between the parties, or
(ii) not to acquire such interests. Failure to respond to the Transferor with
regard to a notice of a proposed sale prior to the expiration of the Election
Period shall be deemed to be an election not to acquire the capital stock of the
Transferor.
(b) If the Transferor satisfies all of the foregoing conditions and the
Company has not given notice of its intention to purchase the Common Stock of
the Transferor to be transferred, the Transferor may, upon the expiration of the
Election Period and subject to Section 4.2, transfer such Common Stock to any
other Person at a purchase price equal to or higher than the price set forth in
the notice given the Company and otherwise upon the same terms and conditions
contained in the election notice.
4.1.2 Procedure for Sale. In the event the Company elects pursuant to this
Section 4.1 to purchase the Common Stock proposed to be sold by the Transferor,
the closing of the purchase by the Company of the shares of such Common Stock
held by the Transferor shall take place at the principal place of business of
the Company no later than 30 days after the date such notice of election is made
in accordance with the terms hereof.
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At the closing, the Company will pay the purchase price for the shares to the
Transferor by wire transfer of immediately available funds upon the Transferor's
delivery to the Company of valid certificates evidencing the shares of Common
Stock being purchased pursuant to such sale (the "Transferor Shares"). Such
certificates will be duly endorsed for transfer to the Company, and upon
delivery of such certificates to the Company, the Transferor will be deemed to
represent and warrant to the Company that the Transferor Shares are owned by
such Transferor free and clear of all liens, adverse claims, and other
encumbrances other than as provided in this Stockholders Agreement.
4.1.3 Time to Purchase. At any time pursuant to which the Company elects
to purchase under this Section 4.1 the shares of Common Stock held by a
Transferor, it shall have 30 days to arrange financing for and take any steps
necessary to comply with applicable law in order to consummate such purchase. If
the Company does not consummate such purchase within such 30-day period, it
shall have no liability to any of the Holders as a result of such failure, but
all rights of the Company under this Section 4.1 to purchase the shares of
Common Stock held by such Transferor shall thereafter terminate and be of no
further force or effect.
SECTION 4.2 Tag Along Rights.
4.2.1 Applicability. In the event (i) any member of the HMC Group or any
one of the Existing Stockholders desires to effect a Transfer, (ii) such party
has offered its shares of Common Stock to the Company pursuant to Section 4.1
and (iii) the Company has determined not to or has failed to consummate the
purchase of such party's shares of Common Stock, then at least 30 days prior to
such Transfer, the party or parties desiring to effect the Transfer shall make
an offer (the "Participation Offer") to each non-selling Holder (each, a
"Co-Seller") to include in the proposed Transfer a portion of such Co-Seller's
Common Stock which represents the same percentage of such Co-Seller's
Fully-Diluted Common Stock as the shares proposed to be sold in the Transfer by
such member of the HMC Group or such Existing Stockholder (as the case may be,
the "Tag Seller Group") represent of the Tag Seller Group's aggregate
Fully-Diluted Common Stock; provided that, if a member of the HMC Group is the
Tag Seller Group and the consideration to be received by such member of the HMC
Group includes any securities, only Co-Sellers who have certified to the
reasonable satisfaction of HMTF that they are Accredited Investors shall be
entitled to participate in such Transfer, unless the transferee consents
otherwise.
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4.2.2 Terms of Participation Offer. The Participation Offer shall describe
the terms and conditions of the proposed Transfer and shall be conditioned upon
(i) the consummation of the transactions contemplated in the Participation Offer
with the transferee named therein, and (ii) each Co-Seller's execution and
delivery of all agreements and other documents that members of the Tag Seller
Group are required to execute and deliver in connection with such Transfer
(provided that the Co-Seller shall not be required to make any representations
or warranties in connection with such sale or transfer other than
representations and warranties as to (A) such Co-Seller's ownership of his or
its Common Stock to be sold or transferred free and clear of all liens, claims,
and encumbrances, (B) such Co-Seller's power and authority to effect such
transfer and (C) such matters pertaining to compliance with securities laws as
the transferee may reasonably require). If any Co-Seller shall accept the
Participation Offer, the Tag Seller Group shall reduce, to the extent necessary,
the number of shares of Common Stock it otherwise would have sold in the
proposed transfer so as to permit those Co-Sellers who have accepted the
Participation Offer to sell the number of shares of Common Stock that they are
entitled to sell under this Section 4.2, and the Tag Seller Group and such
Co-Sellers shall transfer the number of shares of Common Stock specified in the
Participation Offer to the proposed transferee in accordance with the terms of
such transfer as set forth in the Participation Offer.
SECTION 4.3 Certain Events Not Deemed Transfers.
In no event shall any (i) exchange, reclassification, or other conversion
of shares into any cash, securities, or other property pursuant to a merger or
consolidation of the Company or any Subsidiary with, or any sale or transfer by
the Company or any Subsidiary of all or substantially all its assets to, any
Person, or (ii) statutory share exchange involving, or recapitalization of, the
Company or any Subsidiary in which holders of Common Stock are treated
substantially the same or (iii) transfer by a Holder pursuant to an effective
registration statement pursuant to Section 4.1 or Section 4.2 hereof, or (iv)
transfer by a Holder pursuant to Rule 144 under the Securities Act, constitute a
Transfer of shares of Common Stock by the HMC Group or the Existing Stockholders
for purposes of Section 4.1 or Section 4.2. In addition, Sections 4.1 and 4.2
hereof shall not apply to any transfer, sale, or disposition of shares of Common
Stock solely among members of (i) the HMC Group as a group or (ii) the Existing
Stockholders as a group.
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SECTION 4.4 Transfer and Exchange.
When Securities are presented to the Company with a request to register
the transfer of such Securities or to exchange such Securities for Securities of
other authorized denominations, the Company shall register the transfer or make
the exchange as requested if the requirements of this Stockholders Agreement for
such transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company, duly
executed by the Holder thereof or its attorney and duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith.
SECTION 4.5 Replacement Securities.
If a mutilated Security is surrendered to the Company or if the Holder of
a Security claims and submits an affidavit or other evidence, satisfactory to
the Company, to the effect that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue a replacement Security if the
Company's requirements are met. If required by the Company, such Holder must
provide an indemnity bond, or other form of indemnity, sufficient in the
judgment of the Company to protect the Company against any loss which may be
suffered. The Company may charge such Holder for its reasonable out-of-pocket
expenses in replacing a Security which has been mutilated, lost, destroyed or
wrongfully taken.
SECTION 4.6 Sale of the Company.
If due to market conditions between Closing and the fifth anniversary of
Closing, the HMC Group shall not have successfully completed, on or before the
fifth anniversary of the Closing, a sale of all of the shares of Common Stock
owned by HMTF/Omni at the Closing, then at any time after such fifth anniversary
until the sixth anniversary of the Closing, the HMC Group may propose a sale of
the Company by means of the sale of all or substantially all of the equity
securities of the Company or all or substantially all of the assets of the
Company or in any manner otherwise advised (a "Company Sale") pursuant to an
auction process managed by an investment banking firm of recognized national
standing (an "Investment Banker") selected by HMTF. In the event of a proposal
for a Company Sale, each of the Holders party hereto agrees that HMTF and the
Investment Banker shall be entitled, so long as they act in good faith, to
manage
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exclusively the sale process for such Company Sale and to take all such acts on
behalf of the Holders selling in such transaction as they deem necessary,
appropriate or advisable. Each of the parties hereto further agrees to cooperate
in good faith in consummating the Company Sale and to use commercially
reasonable efforts to cause to be done all things that are necessary or
appropriate to consummate the Company Sale as proposed (including, without
limitation, the voting of any Common Stock or other voting capital stock of the
Company to approve such Company Sale).
ARTICLE 5
LIMITATION ON TRANSFERS
SECTION 5.1 Restrictions on Transfer.
The Securities shall not be Transferred or otherwise conveyed, assigned or
hypothecated before satisfaction of (i) the conditions specified in this Section
5.1 and Sections 5.2 and 5.3, which conditions are intended to ensure compliance
with the provisions of the Securities Act with respect to the Transfer of any
Security and (ii) if applicable, Article 4 hereof. Any purported Transfer in
violation of this Article 5 and/or, if applicable, Article 4 hereof shall be
void ab initio and of no force or effect. Other than (i) Transfers subject to
Section 4.1 hereof or (ii) Transfers to the public pursuant to an effective
registration statement or sales to the public pursuant to Rule 144 under the
Securities Act or an effective registration statement, each Holder will cause
any proposed transferee of any Security or any interest therein held by it to
agree in writing to take and hold such securities subject to the provisions and
upon the conditions specified in this Stockholders Agreement.
SECTION 5.2 Restrictive Legends.
5.2.1 Securities Act Legend. Except as otherwise provided in Section 5.4
hereof, each Security held by a Holder, and each Security issued to any
subsequent transferee of such Security, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT
TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
ASSIGNED,
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EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 UNDER SUCH
ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
5.2.2 Other Legends. Except as otherwise permitted by the last sentence of
Section 5.1, each Security issued to each Holder or a subsequent transferee
shall include a legend in substantially the following form:
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING AND OTHER
TERMS AND CONDITIONS SET FORTH IN THE STOCKHOLDERS AGREEMENT DATED AS
OF APRIL 23, 1998, A COPY OF WHICH MAY BE OBTAINED FROM SPECIALTY
TELECONSTRUCTORS, INC. AT ITS PRINCIPAL EXECUTIVE OFFICES.
SECTION 5.3 Notice of Proposed Transfers.
Prior to any Transfer or attempted Transfer of any Security, the Holder of
such Security shall (i) give ten days' prior written notice (a "Transfer
Notice") to the Company of such Holder's intention to effect such Transfer,
describing the manner and circumstances of the proposed Transfer, and (ii)
either (A) provide to the Company an opinion reasonably satisfactory to the
Company from counsel to such Holder who shall be reasonably satisfactory to the
Company (or supply such other evidence reasonably satisfactory to the Company)
that the proposed Transfer of such Security may be effected without registration
under the Securities Act, or (B) certify in writing to the Company that the
Holder reasonably believes the sale meets all of the conditions set forth in
Rule 144A(d) promulgated under the Securities Act (and any successor rules and
regulations thereto) required in order to effect a Transfer pursuant to Rule
144A. After receipt of the Transfer Notice and opinion (if required), the
Company shall, within five days thereof, so notify the Holder of such Security
and such Holder shall thereupon be entitled to Transfer such Security in
accordance with the terms of the Transfer Notice subject to such Holder's
compliance with the other provisions hereof. Each Security issued upon such
Transfer shall bear the restrictive legend set forth in Section 5.2.1, unless in
the opinion of such counsel such legend is not required in order to ensure
compliance with the Securities Act, and Section 5.2.2, if applicable. The Holder
of the Security giving the Transfer Notice shall not be entitled to Transfer
such Security until receipt of the notice from the Company under this Section
5.3.
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SECTION 5.4 Termination of Certain Restrictions.
Notwithstanding the foregoing provisions of this Article 5, (i) the
restrictions imposed by Section 5.1 upon the transferability of the Securities
and the legend requirements of Sections 5.2.1 and 5.2.2 shall terminate as to
any Security when and so long as such Security shall have been effectively
registered under the Securities Act and disposed of pursuant thereto and (ii)
the legend requirements of Section 5.2.1 shall terminate when the Company shall
have received an opinion of counsel reasonably satisfactory to it that such
Security may be transferred without registration thereof under the Securities
Act and that such legends may be removed. Whenever the restrictions imposed by
Sections 5.2.1 and/or 5.2.2 shall terminate as to any Security, the Holder
thereof shall be entitled to receive from the Company, at the Company's expense,
a new Security not bearing the restrictive legend set forth in Section 5.2.1
and/or 5.2.2.
ARTICLE 6
CERTAIN TRANSACTIONS
SECTION 6.1 Transactions Requiring Consent of the Designees.
6.1.1 Majority Vote. Without the affirmative vote of a majority of both
the HMTF Designees, on the one hand, and the Existing Stockholders Designees, on
the other hand, (i) the Company shall not, and the Company shall not permit any
of its Subsidiaries to, enter into any of the following:
(a) any acquisition of any other business or assets involving an aggregate
purchase price (including debt assumed) in excess of $5,000,000 (whether paid in
cash or securities);
(b) the sale or other disposition (including by way of a merger,
consolidation, statutory share exchange, lease or sale/leaseback transaction) of
assets, in any one transaction or series of related transactions, which
constitute all or substantially all of the assets of the Company and its
Subsidiaries considered as a whole, other than to a wholly-owned Subsidiary of
the Company;
(c) any debt financing involving more than $10,000,000;
(d) the issuance or sale of shares constituting more than 20% of the
voting securities of the Company or any Subsidiary of the Company to any Person
or Group (other than any issuance or sale to the Company or any wholly-owned
Subsidiary of the
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Company) or the issuance or sale of any shares of Preferred Stock of the
Company;
(e) any merger or consolidation or business combination between the
Company or a Subsidiary and any other entity (other than a wholly-owned
Subsidiary of the Company), or any other recapitalization transaction or stock
repurchase or redemption, or any statutory share exchange;
(f) the sale or other disposition (including by way of a merger,
consolidation, statutory share exchange, lease or sale/leaseback transaction) of
any operating division of the Company (whether or not incorporated as a separate
Subsidiary), in any one transaction or series of related transactions, other
than to a wholly-owned Subsidiary of the Company;
(g) any liquidation or dissolution of the Company;
(h) approval of an annual consolidated budget for the Company and its
Subsidiaries; or
(i) the filing of a voluntary petition under the Bankruptcy Code or any
state insolvency statute, the appointment of a receiver or trustee, or agreement
to the filing of an involuntary petition under the Bankruptcy Code.
ARTICLE 7
AFFILIATE TRANSACTIONS
The Company shall not enter into any material transaction (including,
without limitation, agreements which are standard in the industry) with any
director or significant stockholder of the Company or any Affiliate thereof
unless such transaction (a) has been approved by the Independent Directors in
accordance with the requirements of applicable law and (b) is on an arm's-length
basis on terms no less favorable to the Company than could be obtained in a
transaction with an independent third party. This Article 7 shall not apply to
the exercise of the Option (as defined therein) pursuant to that certain
Management and Option Agreement, dated the date hereof, among the Company,
HSW/Omni Acquisition, Inc. and HMTF/Omni. Furthermore, notwithstanding the prior
provisions of this Article 7, the Company shall not exercise its rights under
Section 4.1 hereof without the consent of a majority of the directors who are
not HMTF Designees, if the HMC Group is the Transferor, or the Existing
Stockholders Designees, if an Existing Stockholder is the Transferor.
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ARTICLE 8
STANDSTILL ARRANGEMENTS
SECTION 8.1 Share Ownership of HMTF Group.
Except as set forth on Schedule A hereto, the HMTF Group does not own any
Voting Securities. As used in this Article 8, "HMTF Group" means (i) HMTF/Omni,
(ii) HMTF, (iii) Carl E. Hirsch, (iv) Anthony S. Ocepek and (v) Jerome C. Kline.
SECTION 8.2 Standstill Arrangements.
8.2.1 Acquisition of Additional Voting Securities. Each member of the HMTF
Group hereby covenants and agrees that prior to the termination of this
Stockholders Agreement, such member will not, directly or indirectly (through
controlled Affiliates or otherwise), purchase or cause to be purchased or
otherwise acquire (other than (i) pursuant to a stock split, stock dividend,
recapitalization, reorganization or similar Company action applicable to all
Company stockholders holding the security in respect of which such action is
taken or (ii) from another member of the HMTF Group in accordance with the terms
hereof) or make any proposal to or agree to acquire, or become or agree to
become the Beneficial Owner of, any Voting Securities in addition to the Common
Stock such Person owns on the date hereof.
8.2.2 Prohibited Actions.
Each member of the HMTF Group hereby agrees that, prior to the
termination of this Stockholders Agreement, such member of the HMTF Group will
not, directly or indirectly, solicit, request, advise, or encourage others to
take any of the following actions (collectively, the "Prohibited Actions"):
(a) form, join in or in any other way participate in a "partnership,
limited partnership, syndicate or other group" within the meaning of Section
13(d)(3) of the Exchange Act with respect to Voting Securities or deposit any
Voting Securities in a voting trust or similar arrangement or subject any Voting
Securities to any voting agreement or pooling arrangement, other than solely
with one or more Affiliates of HMTF/Omni with respect to the Common Stock owned
on the date hereof or pursuant to this Stockholders Agreement;
(b) solicit proxies or written consents of stockholders with respect to
Voting Securities under any circumstances, or make any "solicitation" of any
"proxy" to vote any Voting Securities, or become a "participant" in any election
contest
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with respect to the Company (as such terms are defined or used in Rules 14a-1
and 14a-11 under the Exchange Act) or seek to advise or influence any Person
with respect to the voting of any Voting Securities;
(c) seek to call, or to request the call of, a special meeting of the
stockholders of the Company or seek to make, or make, a stockholder proposal at
any meeting of the stockholders of the Company with the purpose or intent of
affecting control of the Company;
(d) commence, or announce any intention to commence, any tender offer for
any Voting Securities;
(e) publicly make a proposal or bid with respect to, or announce publicly
any intention or desire to make any proposal or bid with respect to, (i) the
acquisition of all or substantially all of the assets of the Company or of the
assets or stock of any of its Subsidiaries or of all or any portion of the
outstanding Voting Securities, or (ii) any merger, consolidation, statutory
share exchange, other business combination, restructuring, recapitalization,
liquidation or other extraordinary transaction involving the Company or any of
its Subsidiaries;
(f) act to seek control of the Board of Directors of the Company;
provided, however, that (1) this clause shall not be interpreted to preclude any
director designated by HMTF from exercising such director's fiduciary duties
under applicable law and (2) no member of the HMTF Group shall be in violation
of this Section 8.2.2 as a result of exercising or enforcing or seeking to
enforce such member's rights pursuant to this Agreement;
(g) initiate any action, suit or proceeding against the Company or any
Subsidiary of the Company, the Board of Directors of the Company, or the
officers of the Company in their capacity as such, other than an action, suit or
proceeding to enforce the rights of the members of the HMTF Group under this
Agreement;
(h) arrange, or in any way participate in, any financing for any
transaction referred to in Section 8.2.2(a) through (g) above; or
(i) make public, directly or indirectly (including by disclosure to any
journalist or other representative of the media): (i) any request, or otherwise
seek (in any fashion that would require public disclosure by the Company,
HMTF/Omni or their respective Affiliates) to obtain any waiver or amendment of
any provision of this Article 8 or (ii) the taking of any action restricted by
this Article 8.
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8.2.3 Exclusions from the Standstill Arrangements. Notwithstanding
anything in this Stockholders Agreement to the contrary (including Sections
8.2.1 and 8.2.2 hereof), nothing in this Stockholders Agreement shall prohibit
(a) purchases of Voting Securities that do not result in the HMTF Group
Beneficially Owning Voting Securities that possess, as of the time of
determination, in excess of 49.9% (as calculated with respect to convertible,
exchangeable or exercisable securities of the Company by reference to the
maximum number of votes to which a holder of such security is entitled to cast
in either a converted or unconverted, exchanged or unexchanged, or exercised or
unexercised basis, as the case may be, currently or at any time in the future)
of the total number of votes (the "Total Voting Power") that could be cast in
the election of directors of the Company at such time, (b) purchases of Voting
Securities or the taking of Prohibited Actions that have been previously
approved in writing by the Company as specifically expressed in a vote adopted
by the Board of Directors of the Company or, after the date hereof, previously
approved in writing by the Company as specifically expressed in a vote adopted
by a majority of the directors of the Company that are not HMTF Designees, (c)
any member of the HMTF Group's compliance with the applicable provisions of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder, and (d) the exercise by a member of the HMTF Group of its rights
pursuant to this Stockholders Agreement.
8.2.4 Notification of the Company. Each member of the HMTF Group hereby
covenants and agrees that such Person will promptly notify the Company when and
if such Person receives any oral or written request of such Person or any of its
Affiliates to participate in any of the transactions or actions referred to in
Sections 8.2.2(a) through (i).
8.2.5 Rights of HMTF Group. Notwithstanding any other provision of this
Article 8, (a) no member of the HMTF Group shall be in violation of this Article
8 by virtue of the fact that such Person approached the Board of Directors of
the Company, or any member thereof, with respect to any action addressed in
Section 8.2.2 of this Article 8. Further, nothing contained in this Article 8,
express or implied, shall be construed to prevent any member of the Board of
Directors of the Company from complying with any fiduciary or other duties or
obligations such party may have to the Company's stockholders. Furthermore, the
prohibitions set forth in Sections 8.2.1 and 8.2.2 shall not apply in the event
that the Company receives a Third Party Offer that a majority of the Existing
Stockholder Designees sitting on the Board of Directors has not rejected within
twenty Business Days following receipt thereof. As used
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in this Stockholders Agreement, "Third Party Offer" shall mean a noncollusive
bona fide proposal or offer from any Person other than a member of the HMTF
Group or an Affiliate thereof relating to the direct or indirect acquisition or
purchase of material operating assets or Voting Securities by way of sale,
merger, consolidation, business combination, liquidation, dissolution,
recapitalization or any similar transaction for a specified consideration or
consideration within a specified range.
ARTICLE 9
TERMINATION
The provisions of this Agreement shall terminate on the earlier of April
23, 2008 or the sale contemplated by Section 4.6. Notwithstanding the prior
sentence, the provisions of Section 3.7 hereof shall survive the termination of
this Agreement indefinitely. In addition, the provisions of Section 4.1 hereof
shall terminate when either of the Existing Stockholders, on the one hand, or
the HMC Group, on the other hand, Beneficially Own less than 10% of the number
of shares of Common Stock issued and outstanding on the date of determination.
The provisions of Section 4.6 hereof shall terminate when the HMC Group
Beneficially Owns less than 50% of the number of shares of Common Stock issued
on the Closing Date.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows (or at such other address as may be
substituted by notice given as herein provided):
39
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If to the Company:
Specialty Teleconstructors, Inc.
12001 State Highway 14 North
Cedar Crest, New Mexico 87008
Telecopy: (505) 281-8652
Attn: President
Copies to:
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202-3789
Telecopy: (214) 651-5940
Attn: Gregory R. Samuel
Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Telecopy: (214) 740-7313
Attn: Lawrence D. Stuart, Jr.
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
Telecopy: (214) 746-7777
Attn: Mary R. Korby, Esq.
If to any Holder, at its address listed on the signature pages hereof, and
in the case of any notices required under Article 4 to be sent to a Holder
who is an Existing Stockholder, a copy shall be sent to Gregory R. Samuel,
Haynes & Boone, LLP, 901 Main Street, Suite 3100, Dallas, Texas 75202-3789
(Fax (214) 651-5940).
Any notice or communication hereunder shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered back,
if telexed; when receipt is acknowledged, if telecopied; and five calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
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SECTION 10.2 Entire Agreement.
This Stockholders Agreement (together with any schedules or exhibits
hereto) sets forth the entire agreement and understanding of the parties hereto
with respect to the transactions contemplated hereby, and supersedes all other
prior agreements, arrangements and understandings related to the subject matter
hereof (including without limitation any demand or piggyback registration rights
granted to Carpenter). No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto with respect to the subject matter hereof which is not embodied in this
Stockholders Agreement, and no party hereto shall be bound by or liable for any
alleged understanding, promise, inducement, statement, representation, warranty,
covenant or condition not so set forth with respect to the subject matter
hereof.
SECTION 10.3 Governing Law; Jurisdiction.
THIS STOCKHOLDERS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 10.4 Successors and Assigns.
Whether or not an express assignment has been made pursuant to the
provisions of this Stockholders Agreement, provisions of this Stockholders
Agreement that are for the Holders' benefit as the holders of any Securities are
also for the benefit of, and enforceable by, all subsequent holders of
Securities, except as otherwise expressly provided herein. This Stockholders
Agreement shall be binding upon the Company, each Holder, and their respective
heirs, devisees, successors and assigns.
SECTION 10.5 Duplicate Originals.
All parties may sign any number of copies of this Stockholders Agreement.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 10.6 Severability.
In case any provision in this Stockholders Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
41
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SECTION 10.7 No Waivers; Amendments.
10.7.1 No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
10.7.2 Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders; provided, that no such amendment or waiver
shall, (i) unless signed by all of the Holders, amend the provisions of Section
2 or any definition used herein, (ii) unless signed by all of the Holders
affected, (A) amend the provisions of this Section 10.7.2 or any definition used
therein or (B) change the number of Holders which shall be required for the
Holders or any of them to take any action under this Section 10.7.2 or any other
provision of this Stockholders Agreement and (iii) unless signed by Holders who
then Beneficially Own more than 85% of the aggregate number of shares of Common
Stock subject to this Stockholders Agreement, amend the provisions of Sections
4.1, 4.2, 5.1 or 8. Furthermore, unless signed by a majority of the HMTF
Designees, on the one hand, and the Existing Stockholders Designees, on the
other hand, no amendment shall be effective as to Section 6.1 or any definition
used therein, and each Holder, on behalf of itself and such Holder's transferees
hereunder, delegates to such Persons the right to so amend such provision.
SECTION 10.8 Actions of Existing Stockholders.
Any action required to be taken or right which is exercisable by the
Existing Stockholders hereunder, other than pursuant to Section 3.1.1.(a), may
be taken by Budagher in his sole and absolute discretion on behalf of all
Existing Stockholders, and Budagher shall have no liability to Carpenter or any
other Person with respect to any such action or any such right exercised.
SECTION 10.9 Nominees for Beneficial Owners.
In the event that any Registrable Shares are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election in
writing delivered to the Company, be treated as the Holder of such Registrable
Shares for purposes
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of any request or other action by any Holder or Holders of Registrable Shares
pursuant to this Stockholders Agreement or any determination of any number or
percentage of Registrable Shares held by any Holder or Holders of Registrable
Shares contemplated by this Stockholders Agreement. If the beneficial owner of
any Registrable Shares so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Shares.
SECTION 10.10 Calculation of Percentage Interests in Registrable Shares.
For purposes of this Stockholders Agreement, all references to a
percentage of the Registrable Shares shall be calculated based upon the number
of shares of Registrable Shares outstanding at the time such calculation is
made.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
43
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SIGNATURES TO STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed, all as of the date first written above.
SPECIALTY TELECONSTRUCTORS, INC.
By: /s/ Michael R. Budagher
-----------------------------
Michael R. Budagher
President
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
HMTF/OMNI PARTNERS, L.P.
By: HM3/OmniAmerica Partners, LLC, its General
Partner
/s/ Daniel S. Dross
---------------------------------------
Daniel S. Dross
Vice President, Secretary and Treasurer
Address: c/o Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Fax: 214-740-7313
Attention: Lawrence D.
Stuart, Jr.
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ Michael R. Budagher
----------------------------
MICHAEL R. BUDAGHER
Address: 3702 Holland Ave., #2
Dallas, Texas 75219
BUDAGHER FAMILY, LLC
By: /s/ Michael R. Budagher
---------------------------------
Michael R. Budagher, general manager
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ Tommie R. Carpenter
----------------------------
TOMMIE R. CARPENTER
Address: 2260 Canyon Song Ave.
Laughlin, Nevada 89029
Mailing
Address: P.O. Box 30869
Laughlin, Nevada 89028
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
HICKS, MUSE, TATE & FURST INCORPORATED
/s/ Daniel S. Dross
--------------------------
Daniel S. Dross
Senior Vice President
Address: c/o Hicks, Muse, Tate &
Furst Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Fax: 214-740-7313
Attention: Lawrence D.
Stuart, Jr.
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ Jerome C. Kline
---------------------------
JEROME C. KLINE
Address: 360 Alexander Circle
Columbia, SC 29206
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ Anthony S. Ocepek
----------------------------
ANTHONY S. OCEPEK
Address: 2335 S. Ocean Blvd.
Palm Beach, FL 33480
<PAGE>
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ Carl E. Hirsch
-----------------------------
CARL E. HIRSCH
Address: 3100 S. Ocean Blvd.
Palm Beach, FL 33480
<PAGE>
SCHEDULE A
Carl E. Hirsch -- 17,000 shares
Exhibit 99(c)
JOINT FILING AGREEMENT
The undersigned, and each of them, do hereby agree and consent to the
filing of a single statement on behalf of all of them on Schedule 13D and
amendments thereto, in accordance with the provisions of Rule 13d-1(f)(1) under
the Securities Exchange Act of 1934, as amended.
THOMAS O. HICKS
By: *
------------------------------
Dated: May 4, 1998 Name: Lawrence D. Stuart, Jr.
Title: Attorney-in-Fact
HICKS, MUSE FUND III INCORPORATED
By: *
------------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HICKS, MUSE GP PARTNERS III, L.P.
By: HICKS, MUSE FUND III INCORPORATED,
its general partner
By: *
------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HM3 COINVESTORS, L.P.
By: HICKS, MUSE GP PARTNERS III, L.P.,
its general partner
By: HICKS, MUSE FUND III INCORPORATED,
its general partner
By: *
-------------------------
Name: Lawrence D. Stuart, Jr.
Title: Executive Vice President
HM3/OMNIAMERICA PARTNERS, LLC
By: *
------------------------------
Name: Lawrence D. Stuart, Jr.
Title: President
HMTF/OMNI PARTNERS, L.P.
By: HM3/OMNIAMERICA PARTNERS, LLC,
its general partner
By: *
---------------------------
Name: Lawrence D. Stuart, Jr.
Title: President
/s/ Lawrence D. Stuart, Jr.
-------------------------------------
Lawrence D. Stuart, Jr.
* Signing on behalf of the above listed persons,
in the respective capacities indicated above.
