<PAGE> 1
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the Securities
Exchange Act of 1934
Check the appropriate box:
[ ] Preliminary Information Statement [ ] Confidential, for use of the
Commission Only (as permitted
by Rule 14c-5(d) (2))
[x] Definitive Information Statement
SPECIALTY TELECONSTRUCTORS, INC.
--------------------------------------------------
(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (check the appropriate box):
[x] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11.
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4) Proposed maximum aggregate value of transaction:
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5) Total Fee Paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a) (2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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<PAGE> 2
SPECIALTY TELECONSTRUCTORS, INC.
12001 STATE HIGHWAY 14 NORTH
CEDAR CREST, NEW MEXICO 87008
(505) 281-2197
To all Stockholders of SPECIALTY TELECONSTRUCTORS, INC.:
The accompanying Information Statement relates to the reincorporation (the
"Reincorporation") of Specialty Teleconstructors, Inc., a Nevada corporation
(the "Company"), in Delaware through the merger (the "Merger") of the Company
with and into OmniAmerica, Inc., a Delaware corporation and a wholly owned
subsidiary of the Company formed solely for the purpose of the Merger
("OmniAmerica"), pursuant to the provisions of that certain Agreement and Plan
of Merger dated as of July 24, 1998 by and between the Company and OmniAmerica
(the "Merger Agreement"). At the effective time of the Merger, the corporate
existence of the Company shall cease and, without any action on the part of the
holder thereof, each share of common stock, par value $0.01 per share, of the
Company (the "Company Common Stock") issued and outstanding immediately prior to
the Merger shall be converted into one share of common stock, par value $0.01
per share, of OmniAmerica (the "OmniAmerica Common Stock") and each outstanding
option to purchase Company Common Stock under the Company's stock option plans
shall be converted into an option to purchase the same number of shares of
OmniAmerica Common Stock. From and after the effective time of the Merger: (i)
the name of the surviving corporation shall be "OmniAmerica, Inc."; (ii)
OmniAmerica shall conduct business as presently conducted by the Company; (iii)
the charter and bylaws of OmniAmerica in effect immediately prior to the Merger
shall be the charter and bylaws of the surviving corporation; and (iv) the
directors and officers of the Company immediately prior to the Merger shall be
the directors and officers of OmniAmerica. Following the consummation of the
Merger and the resulting change of the Company's name to "OmniAmerica, Inc.,"
the OmniAmerica Common Stock will be identified by CUSIP number 68211J 10 0 and
will trade on The Nasdaq Stock Market under the symbol "XMIT."
PLEASE DO NOT SEND IN ANY OF YOUR STOCK CERTIFICATES REPRESENTING COMPANY
COMMON STOCK. FROM AND AFTER THE EFFECTIVE TIME OF THE MERGER AND WITHOUT ANY
ACTION ON THE PART OF THE HOLDER THEREOF, EACH CERTIFICATE REPRESENTING SHARES
OF COMPANY COMMON STOCK OUTSTANDING IMMEDIATELY PRIOR TO THE EFFECTIVE TIME OF
THE MERGER SHALL REPRESENT THE SAME NUMBER OF SHARES OF OMNIAMERICA COMMON STOCK
AND, ACCORDINGLY, DELIVERY OF STOCK CERTIFICATES REPRESENTING COMPANY COMMON
STOCK WILL CONSTITUTE DELIVERY FOR TRANSACTIONS IN SHARES OF OMNIAMERICA COMMON
STOCK AFTER THE EFFECTIVE DATE OF THE MERGER. FOLLOWING CONSUMMATION OF THE
MERGER, POSITIONS IN SHARES OF COMPANY COMMON STOCK HELD WITH THE DEPOSITORY
TRUST COMPANY WILL BE TRANSFERRED AUTOMATICALLY TO POSITIONS IN THE SAME NUMBER
OF SHARES OF OMNIAMERICA COMMON STOCK.
The accompanying Information Statement also relates to the adoption by the
Company of a new stock option plan (the "1998 Stock Option Plan") that shall
become effective immediately prior to the Merger. The Company's existing stock
option plans and the 1998 Stock Option Plan shall become option plans of
OmniAmerica by operation of law in connection with the Merger.
The Board of Directors of the Company has approved and adopted the Merger
Agreement and the 1998 Stock Option Plan by unanimous written consent in lieu of
a meeting of the Board. The holders of approximately 59.3% of the Company Common
Stock have approved the Merger Agreement and the 1998 Stock Option Plan by
written consent in lieu of a meeting of the stockholders.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
Sincerely,
SPECIALTY TELECONSTRUCTORS, INC.
August 24, 1998
<PAGE> 3
SPECIALTY TELECONSTRUCTORS, INC.
12001 STATE HIGHWAY 14 NORTH
CEDAR CREST, NEW MEXICO 87008
(505) 281-2197
---------------------
INFORMATION STATEMENT
---------------------
August 24, 1998
---------------------
This Information Statement is being furnished by the Board of Directors
(hereinafter the "Board of Directors" or the "Board") of Specialty
Teleconstructors, Inc., a Nevada corporation (the "Company"), to all holders of
the outstanding shares of common stock, par value $.01 per share, of the Company
(the "Company Common Stock") in connection with the reincorporation of the
Company in Delaware (the "Reincorporation") and its related name change to
"OmniAmerica, Inc." The Reincorporation will be effected by merging (the
"Merger") the Company with and into OmniAmerica, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company formed solely for the purpose of
the Merger ("OmniAmerica"), pursuant to the provisions of that certain Agreement
and Plan of Merger dated as of July 24, 1998 by and between the Company and
OmniAmerica (the "Merger Agreement"), a copy of which is attached hereto as
Exhibit A. At the effective time of the Merger, the corporate existence of the
Company shall cease and, without any action on the part of the holder thereof,
each share of Company Common Stock issued and outstanding immediately prior to
the Merger shall be converted into one share of common stock, par value $0.01
per share, of OmniAmerica (the "OmniAmerica Common Stock") and each outstanding
option to purchase Company Common Stock under the Company's stock option plans
shall be converted into an option to purchase the same number of shares of
OmniAmerica Common Stock. From and after the effective time of the Merger: (i)
the name of the surviving corporation shall be "OmniAmerica, Inc."; (ii)
OmniAmerica shall conduct business as presently conducted by the Company; (iii)
the charter and bylaws of OmniAmerica in effect immediately prior to the Merger
shall be the charter and bylaws of the surviving corporation; and (iv) the
directors and officers of the Company immediately prior to the Merger shall be
the directors and officers of OmniAmerica. Following the consummation of the
Merger and the resulting change of the Company's name to "OmniAmerica, Inc.,"
the OmniAmerica Common Stock will be identified by CUSIP number 68211J 10 0 and
will trade on The Nasdaq Stock Market (the "Nasdaq") under the symbol "XMIT."
This Information Statement is also being furnished by the Board of
Directors to holders of outstanding shares of Company Common Stock in connection
with the adoption by the Company, effective immediately prior to the Merger, of
a new stock option plan (the "1998 Stock Option Plan"), a copy of which is
attached hereto as Exhibit B. Pursuant to a unanimous written consent dated as
of July 24, 1998, the Board amended, effective such date, each of the Company's
Amended and Restated 1994 Stock Option Plan, Outside Director's Plan and 1997
Stock Incentive Plan (collectively, the "Existing Stock Option Plans") so that
no further grants may be made thereunder. All prior grants of options under the
Existing Stock Option Plans, whether vested or unvested, shall remain in full
force and effect and shall not be affected in any way as a result of such
amendment. New options shall be granted solely under the 1998 Stock Option Plan.
The Existing Stock Option Plans and the 1998 Stock Option Plan shall become
option plans of OmniAmerica by operation of law in connection with the Merger.
The Board has approved and adopted the Merger Agreement and the 1998 Stock
Option Plan by unanimous written consent dated as of July 24, 1998 in lieu of a
meeting of the Board. The holders of approximately 59.3% of the Company Common
Stock (the "Majority Holders") have approved the Merger Agreement and the 1998
Stock Option Plan by written consent dated as of July 24, 1998 in lieu of a
meeting of the stockholders. SUCH WRITTEN CONSENTS PROVIDE THAT THE MERGER
AGREEMENT AND THE 1998 STOCK OPTION PLAN SHALL BECOME EFFECTIVE NO EARLIER THAN
20 CALENDAR DAYS AFTER THIS INFORMATION STATEMENT IS FIRST MAILED TO
STOCKHOLDERS OF THE COMPANY. THE COMPANY ANTICIPATES THAT THE EFFECTIVE DATE OF
THE MERGER AND THE 1998 STOCK OPTION PLAN SHALL BE ON OR ABOUT SEPTEMBER 14,
1998.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY. PLEASE DO NOT SEND IN ANY OF YOUR STOCK CERTIFICATES.
This Information Statement is first being mailed to stockholders on or
about August 24, 1998.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
GENERAL..................................................... 3
THE REINCORPORATION......................................... 5
1998 STOCK OPTION PLAN...................................... 11
INTERESTS OF CERTAIN PERSONS................................ 17
MARKET PRICE AND DIVIDENDS.................................. 17
EXECUTIVE COMPENSATION...................................... 18
PRINCIPAL STOCKHOLDERS AND STOCK OWNERSHIP OF MANAGEMENT.... 21
AVAILABLE INFORMATION....................................... 22
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 22
MISCELLANEOUS............................................... 23
EXHIBIT A -- Agreement and Plan of Merger................... A-1
EXHIBIT B -- 1998 Stock Option Plan......................... B-1
EXHIBIT C -- Certificate of Incorporation of OmniAmerica,
Inc....................................................... C-1
EXHIBIT D -- Bylaws of OmniAmerica, Inc..................... D-1
</TABLE>
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GENERAL
This Information Statement is being furnished by the Board of Directors to
all outstanding holders of Company Common Stock in connection with the
Reincorporation and the 1998 Stock Option Plan. Stockholders are urged to read
this Information Statement and the Exhibits hereto in their entirety.
THE COMPANIES PARTY TO THE REINCORPORATION
The Company. The Company is a Nevada corporation with its principal
executive offices located at 12001 State Highway 14 North, Cedar Crest, New
Mexico, 87008; telephone number (505) 281-2197. The Company is a leading
provider of broadcast and wireless communications tower services to the United
States communications industry. See "-- Description of Business." The Company
Common Stock currently is quoted on the Nasdaq under the symbol "SCTR," but as a
result of the Merger, the Company Common Stock will be converted into
OmniAmerica Common Stock, which will be quoted on the Nasdaq under the symbol
"XMIT."
OmniAmerica. OmniAmerica is a Delaware corporation with its principal
executive offices located at 12001 State Highway 14 North, Cedar Crest, New
Mexico, 87008; telephone number (505) 281-2197. OmniAmerica is a wholly owned
subsidiary of the Company organized to effect the Reincorporation and has not
conducted any unrelated activities since its incorporation. Following the
Merger, OmniAmerica will conduct the same business as is currently conducted by
the Company. From and after the effective time of the Merger, the OmniAmerica
Common Stock will be quoted on the Nasdaq under the symbol "XMIT" and will be
identified by CUSIP number 68211J 10 0.
DESCRIPTION OF BUSINESS
Statements appearing in the following discussion and elsewhere in this
Information Statement that are not historical facts are forward-looking
statements ("forward-looking statements") within the meaning of Section 27A of
the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
are intended to be covered by the safe harbors created by those sections. In
addition, such forward-looking statements may be contained in filings made by
the Company with the Securities and Exchange Commission, or press releases or
oral statements made from time to time by or with the approval of an authorized
executive of the Company. Such forward-looking statements are necessarily
estimates reflecting the best judgment of the Company's management based upon
current information and involve known and unknown risks, uncertainties and other
factors which may cause the actual results, performance or achievements of the
Company, or industry results, to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such risks, uncertainties and other factors include,
but are not limited to, those set forth in the Company's Annual Report on Form
10-KSB for the fiscal year ended June 30, 1997 under the caption "ITEM 6,
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS -- Cautionary Statements" and elsewhere therein and appearing from
time to time in filings made by the Company with the Securities and Exchange
Commission. These risks, uncertainties and other factors should not be construed
as exhaustive and the Company does not undertake, and specifically disclaims any
obligation, to update any forward-looking statements to reflect occurrences or
unanticipated events or circumstances after the date of such statements.
General. The Company is a leading provider of wireless communications and
broadcast tower services to the United States communications industry. Since
1981, the Company has built wireless communications and broadcast sites and
towers for third parties throughout the United States. As a result of its April
1998 merger (the "April Merger") with OmniAmerica Holdings Corporation, a
Delaware corporation ("OmniAmerica Holdings"), and subsequent acquisitions, the
Company now also owns and is acquiring over 200 wireless and broadcast sites and
towers providing leased space to third parties and, in addition, is conducting
site acquisition or construction related activities with respect to over 600 new
wireless and broadcast sites and towers.
Strategically, management intends to position the Company to take advantage
of increasing demand from wireless providers and broadcasters for tower space by
expanding its network of owned sites and towers and
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leasing space to multiple tenants, thereby taking advantage of fixed costs to
provide a churn-resistant recurring revenue stream. Concurrently, the Company
will continue to capitalize on its reputation for quality, on-time construction
and implementation services by building towers for third-party owners. During
the nine months ended March 31, 1998, on a pro forma basis assuming that the
April Merger had occurred on July 1, 1997, the Company's revenues were
approximately $49.7 million, with wireless infrastructure building and
implementation services accounting for approximately 80.2% and tower ownership
and leasing services accounting for approximately 9.3%, respectively, of the
Company's revenues.
Increased Industry Demand for Tower Space. The wireless communications
industry has changed dramatically in the last decade, as the rapid development
of technological advances, including the advent of digital technology, and
increased licensing of band space by the Federal Communications Commission
("FCC") have resulted in a proliferation of cellular telephones, paging devices
and similar equipment for business and personal use. This burgeoning use of
wireless communications has resulted in an increased demand for transmission
antennas, which generally results in additional demand for transmission towers.
Meanwhile, local authorities are increasingly seeking by zoning restrictions and
other means to limit the number of towers erected, particularly in densely
populated areas, augmenting a trend toward co-location of multiple tenants on
transmission towers.
Many wireless carriers, which traditionally have owned and operated their
own transmission tower assets, are responding to industry changes by evaluating
the benefits of entering into "build-to-suit" arrangements, in which an
independent tower company builds a group of tower sites which are then leased to
the wireless carrier. The independent tower company owns, leases and operates
the wireless tower infrastructure, often with multiple carriers as tenants on a
given tower. The build-to-suit program offers an end-to-end solution to wireless
carriers and is designed to reduce carriers' capital expenditures and overhead
associated with the traditional methods of acquiring and owning wireless
networks. In addition, by entering into a build-to-suit program involving
co-location, a wireless carrier can be perceived as responding to community
concerns regarding tower proliferation, thus improving its community image.
Currently, several wireless carriers have either entered into, or are
negotiating toward entering into, build-to-suit agreements with the Company.
Wireless carriers also are considering the benefits of outsourcing their
wireless infrastructure in order to improve capital and operating leverage and
to take advantage of co-location arrangements. As a result of its acquisition of
the towers and site management business of Arch Communications Group, Inc., the
Company acquired 49 outsourced towers with an option to acquire approximately
100 additional towers. The Company intends to continue to pursue additional
opportunities to acquire outsourced towers.
In addition to experiencing many of the same industry developments as
wireless providers, many broadcasters face an FCC mandate requiring the
introduction of high-definition television, which requires digital technology,
beginning in 1999. In order to comply, station owners subject to the mandate
must install new equipment capable of transmitting digital signals, while
maintaining existing analog-related structures and services. The digital
equipment will generally require more tower space than the existing analog
transmission equipment and, in some instances, stronger and taller towers will
be required. As a result, broadcasters owning their own towers may require that
their tower tenants relocate. Alternatively, broadcasters may seek to place
digital transmission equipment on leased tower space. As a result of the April
Merger, the Company owns 33.3% of Kline Iron & Steel Co., Inc., a diversified
steel fabricator that also fabricates broadcasting towers. It is anticipated
that the erection, modification and replacement of broadcast towers will
accelerate in response to demand from broadcasters that are required to install
digital television transmission equipment. The Company is working with
broadcasters to outsource their tower projects, therefore offering broadcasters
an end-to-end solution designed to reduce capital expenditures, while allowing
them to conform to government mandates to deploy digital television signals on a
timely basis. However, it is possible that technological advances in antenna
design may mitigate the need for new transmission towers in the future.
The Company currently intends to continue its business of constructing
transmission towers for third-party owners. However, there can be no assurance
that the Company will successfully enter into additional significant
build-to-suit agreements with any wireless carrier or that it will be able to
reach definitive agreements with the owners of attractive sites or develop the
sites in a cost-effective manner. In addition, as
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the Company focuses on its strategy of expanding its network of owned sites and
towers and leasing space to wireless providers and broadcasters, revenues and
earnings from its third-party construction operations are likely to decline.
Management believes that the decline in revenues and earnings from its
construction operations will be mitigated over time by the recurring revenue
stream expected from tower ownership, particularly from towers constructed by
the Company for its own account.
Company Structure. The Company's headquarters are located in Cedar Crest,
New Mexico. The Company also maintains 26 strategically-placed regional offices
dispersed throughout the United States and has 543 full-time employees.
Recent Acquisitions. During the last three years, the Company has made
eight acquisitions of assets or companies, the largest and most strategically
important of which was the April Merger. In addition, prior to the April Merger,
OmniAmerica Holdings and its subsidiaries had consummated eight acquisitions of
assets or companies.
On April 23, 1998, the Company consummated the transactions contemplated by
the Amended and Restated Agreement and Plan of Merger among the Company, OAI
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the
Company ("Acquisition"), OmniAmerica Holdings, OmniAmerica, Inc. (subsequently
renamed OmniAmerica Towers, Inc.), a Delaware corporation and wholly-owned
subsidiary of OmniAmerica Holdings, Omni/HSW Acquisition, Inc., a Delaware
corporation ("Omni/HSW"), and HMTF/Omni Partners, L.P., a Delaware limited
partnership ("OmniPartners"). At the time of the April Merger, Omni/HSW was
merged into OmniAmerica Holdings, with OmniAmerica Holdings surviving, and
immediately thereafter, Acquisition was merged into OmniAmerica Holdings, with
OmniAmerica Holdings surviving as a wholly-owned subsidiary of the Company.
At the consummation of the April Merger, the Company issued 6,750,000
shares of Company Common Stock to OmniPartners, the former stockholder of
OmniAmerica Holdings. OmniPartners is an affiliate of the Dallas-based
investment firm of Hicks, Muse, Tate & Furst Incorporated.
Management will continue to aggressively pursue acquisition opportunities
for existing wireless and broadcast communications sites and towers that meet
its geographical and economic requirements. Certain of such acquisitions, if
consummated, could be significant in size and may be funded with cash, stock of
the Company, or a combination of both. The Company is in various stages of
negotiation with owners of sites and towers that meet its criteria. However, the
tower industry is consolidating rapidly, and it is likely that other tower
operators will compete for existing assets in prime areas.
THE REINCORPORATION
The following discussion summarizes certain aspects of the Reincorporation.
This summary is not intended to be complete and is subject to, and qualified in
its entirety by reference to, the Nevada Revised Statutes (the "NRS"), the
General Corporation Law of the State of Delaware (the "DGCL"), the Merger
Agreement, a copy of which is attached hereto as Exhibit A, the Restated
Articles of Incorporation of the Company (the "Nevada Charter"), the Certificate
of Incorporation of OmniAmerica (the "Delaware Charter"), a copy of which is
attached hereto as Exhibit C, the Bylaws of the Company (the "Nevada Bylaws")
and the Bylaws of OmniAmerica (the "Delaware Bylaws"), a copy of which is
attached hereto as Exhibit D. Copies of the Nevada Charter and the Nevada Bylaws
are available from the sources specified under the caption "Available
Information" and from the Company at no charge upon written request.
PURPOSE OF THE REINCORPORATION
The primary reason for the Board's recommendation of the Reincorporation is
the well-developed case law interpreting the DGCL, which the Board believes will
allow it to more effectively perform its duties. Although the provisions of the
NRS are relatively similar to those of the DGCL, there is a lack of
predictability under Nevada law resulting from the limited body of case law
interpreting the NRS. The DGCL and the court decisions construing it are widely
regarded as the most extensive and well-defined body of corporate law in the
United States. Delaware has a long-established policy of encouraging companies
to incorporate in that state. In furtherance of that policy, Delaware has been a
leader in adopting comprehensive,
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modern and flexible corporate laws which are periodically updated and revised to
meet changing business needs. As a result, many major corporations have
initially chosen Delaware for their domicile or have subsequently reincorporated
in Delaware in a manner similar to that proposed by the Company. Following from
these conditions, Delaware's courts have developed considerable expertise in
dealing with corporate issues and a substantial body of case law has developed
construing Delaware law and establishing public policies with respect to
corporate legal issues. The Board therefore believes that the overall effect of
the Reincorporation will be to enhance the Board's ability to consider all
appropriate courses of action with respect to significant transactions, along
with more general corporate matters, for the benefit of all stockholders.
Moreover, the Board believes that enhanced certainty with respect to the duties
of directors could be an important factor in attracting and retaining quality
persons to serve on the Board of Directors.
MECHANICS OF THE REINCORPORATION
The Reincorporation will be effected by merging the Company with and into
OmniAmerica, a Delaware corporation and a wholly owned subsidiary of the Company
formed solely for the purpose of the Merger, pursuant to the provisions of the
Merger Agreement. At the effective time of the Merger, the corporate existence
of the Company shall cease and, without any action on the part of the holder
thereof, each share of Company Common Stock issued and outstanding immediately
prior to the Merger shall be converted into one share of OmniAmerica Common
Stock and each outstanding option to purchase Company Common Stock under the
Company's Existing Stock Option Plans shall be converted into an option to
purchase the same number of shares of OmniAmerica Common Stock. From and after
the effective time of the Merger: (i) the name of the surviving corporation
shall be "OmniAmerica, Inc."; (ii) OmniAmerica shall conduct business as
presently conducted by the Company; (iii) the charter and bylaws of OmniAmerica
in effect immediately prior to the Merger shall be the charter and bylaws of the
surviving corporation; and (iv) the directors and officers of the Company
immediately prior to the Merger shall be the directors and officers of
OmniAmerica. Following the consummation of the Merger and the resulting change
of the Company's name to "OmniAmerica, Inc.," the OmniAmerica Common Stock will
be identified by CUSIP number 68211J 10 0 and will trade on the Nasdaq under the
symbol "XMIT." The Merger may be abandoned by the Boards of Directors of the
Company and OmniAmerica at any time prior to the effective time of the Merger.
In addition, the Boards of Directors of the Company and OmniAmerica may amend
the Merger Agreement at any time prior to the effective time of the Merger,
provided that the Majority Holders consent to such amendment if such amendment
would adversely affect the holders of Company Common Stock.
REQUIRED STOCKHOLDERS VOTE; WRITTEN CONSENT IN LIEU OF MEETING
The Board of Directors has approved and adopted the Merger and the Merger
Agreement by unanimous written consent dated as of July 24, 1998. Under Nevada
law, the Merger and the Merger Agreement must be approved by the affirmative
vote of the holders of a majority of the outstanding shares of Company Common
Stock. The Majority Holders own a sufficient number of shares of Company Common
Stock in order for the Merger and the Merger Agreement to be approved without
the concurrence of any other holders of shares of Company Common Stock. The
Majority Holders executed and delivered to the Company a written consent dated
as of July 24, 1998 in lieu of a meeting of stockholders that approves the
Merger and the Merger Agreement.
In accordance with Rule 14c-2(b) under the Exchange Act, the
above-referenced consent specifies that the Merger shall become effective no
earlier than 20 calendar days after this Information Statement is first mailed
to stockholders of the Company.
NO DISSENTERS RIGHT IN RESPECT OF THE MERGER
Under Nevada law, there is no right of dissent with respect to a plan of
merger in favor of stockholders of any class or series that is listed on a
national securities exchange, included in the national market system by the
National Association of Security Dealers, Inc. or held of record by at least
2,000 stockholders, unless the consideration to be received in such merger is
something other than cash, shares of capital stock of the surviving corporation,
or shares of capital stock of another entity that are listed on a national
securities
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exchange, included in the national market system by the National Association of
Security Dealers, Inc. or held of record by at least 2,000 stockholders. The
Company's stockholders have no right of dissent in connection with the Merger as
the Company Common Stock is listed on the Nasdaq and all stockholders of the
Company will receive shares of capital stock of the surviving corporation in the
Merger by virtue of the conversion of the Company Common Stock into OmniAmerica
Common Stock. From and after the Merger, the shares of OmniAmerica Common Stock
will be listed on the Nasdaq. The Board of Directors of OmniAmerica has no
present intention to take any action to delist the OmniAmerica Common Stock.
CONVERSION OF COMPANY COMMON STOCK
By virtue of the Merger, each share of Company Common Stock will be
converted, without any action on the part of the holder thereof, into one share
of OmniAmerica Common Stock.
PLEASE DO NOT SEND IN ANY OF YOUR STOCK CERTIFICATES REPRESENTING SHARES OF
COMPANY COMMON STOCK. BECAUSE EACH SHARE OF COMPANY COMMON STOCK WILL BE
CONVERTED INTO ONE SHARE OF OMNIAMERICA COMMON STOCK IN THE MERGER, DELIVERY OF
STOCK CERTIFICATES REPRESENTING COMPANY COMMON STOCK WILL CONSTITUTE DELIVERY
FOR TRANSACTIONS IN SHARES OF OMNIAMERICA COMMON STOCK AFTER THE EFFECTIVE DATE
OF THE MERGER. FOLLOWING CONSUMMATION OF THE MERGER, POSITIONS IN SHARES OF
COMPANY COMMON STOCK HELD WITH THE DEPOSITORY TRUST COMPANY WILL BE TRANSFERRED
AUTOMATICALLY TO POSITIONS IN THE SAME NUMBER OF SHARES OF OMNIAMERICA COMMON
STOCK.
APPROVALS
A Certificate of Merger must be filed with the State of Delaware and
Articles of Merger must be filed with the State of Nevada to effect the Merger.
Except for these filings, no federal or state regulatory requirements must be
complied with and no approvals must be obtained in connection with the Merger.
COMPARISON OF RIGHTS OF COMPANY STOCKHOLDERS AND OMNIAMERICA STOCKHOLDERS
General. The following is a summary of the material differences between the
rights of Company stockholders and the rights of OmniAmerica stockholders. These
differences arise from differences between Nevada and Delaware corporate law and
variations in the provisions of the Nevada Charter and Nevada Bylaws and the
Delaware Charter and Delaware Bylaws.
Authorized Capital Stock. The Delaware Charter authorizes the issuance of
110,000,000 shares of capital stock (100,000,000 of OmniAmerica Common Stock and
10,000,000 of preferred stock, par value $0.01 per share (the "OmniAmerica
Preferred Stock")), whereas the Nevada Charter authorizes 22,000,000 shares of
capital stock (20,000,000 million shares of Company Common Stock and 2,000,000
shares of preferred stock, par value $0.01 per share (the "Company Preferred
Stock")). As of July 24, 1998, there were 15,063,385 shares of Company Common
Stock and no shares of Company Preferred Stock outstanding. As of July 24, 1998,
there were 1,000 shares of OmniAmerica Common Stock and no shares of OmniAmerica
Preferred Stock outstanding. As a result of the Merger and assuming the
consummation of the Merger on July 24, 1998, there will be (i) 15,063,385 shares
of OmniAmerica Common Stock outstanding, (ii) 654,526 shares of OmniAmerica
Common Stock reserved for issuance upon the exercise from time to time of
outstanding options under the Existing Stock Option Plans, (iii) 675,000 shares
of OmniAmerica Common Stock reserved for issuance with respect to options which
may be granted under the 1998 Stock Option Plan and (iv) 83,607,089 unissued and
unreserved shares of OmniAmerica Common Stock. No shares of OmniAmerica
Preferred Stock will be issued in connection with the Merger. Shares of
OmniAmerica Common Stock may be issued for cash, property, services rendered or
cancellation of indebtedness, or any combination thereof, and at such price or
prices and on such terms as the Board of Directors determines to be reasonable
under the circumstances and consistent with Delaware law. Such shares may
generally be issued by the Board of Directors without authorization from
OmniAmerica's stockholders (although Delaware law could require the holders of a
majority of the OmniAmerica Common Stock present in person or by proxy at a
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meeting called for that purpose to approve certain stock issuances and
OmniAmerica's listing agreement with the Nasdaq requires approval of certain
stock issuances by a majority of the votes cast on a proposal in person or by
proxy, provided that the total votes cast on the proposal represents over 50% in
interest of all securities entitled to vote on the proposal). As of the date of
this Information Statement, other than with respect to the Merger, there are no
plans to authorize the issuance of any shares of OmniAmerica capital stock,
although acquisition and financing opportunities will continue to be evaluated.
Stockholders should note that certain disadvantages may result from the
authorization of a greater number of shares of capital stock. For example, the
issuance of a significant amount of OmniAmerica Common Stock could result in a
substantial dilution of the beneficial ownership and/or voting power of the
holders of OmniAmerica Common Stock as such holders have no preemptive rights
and, therefore, would not be entitled to preferential rights to purchase any
additional shares of OmniAmerica Common Stock. In addition, the increase in
authorized capital stock of OmniAmerica Common Stock or OmniAmerica Preferred
Stock could have an anti-takeover effect because the Board of Directors would
have the ability to issue a significant number of shares of OmniAmerica Common
Stock and/or OmniAmerica Preferred Stock as a defense to an attempted takeover.
Although the Board of Directors is required to make any determination to issue
such stock based on its judgment as to the best interests of the stockholders of
OmniAmerica, the Board of Directors could act in a manner that would discourage
an acquisition attempt or other transaction that a majority of the stockholders
might believe to be in their best interests or in which stockholders might
receive a premium for their stock over the then market price of such stock.
Amendments to Charter and Bylaws. To amend a Nevada or a Delaware corporate
charter, each of the NRS and the DGCL requires the affirmative recommendation of
the board of directors and the approval of at least a majority of all
outstanding shares entitled to vote therefor unless a greater number is required
by the charter. Unlike the Delaware Charter, which is silent on this issue and
thus defaults to Delaware law, the Nevada Charter provides that the provisions
thereof may only be amended or repealed by the affirmative vote of the holders
of at least two-thirds of the then outstanding Company Common Stock and
outstanding shares of Company Preferred Stock entitled to vote, voting
separately, or by a majority of the Continuing Directors (as defined in the
Nevada Charter) and holders of 50% of the then outstanding Company Common Stock
and Company Preferred Stock entitled to vote, voting separately. The Nevada
Charter and Nevada Bylaws provide that the Board of Directors has the power to
adopt, amend or repeal the Nevada Bylaws, subject to approval by a majority of
the Continuing Directors (as defined in the Nevada Charter), and the
stockholders have the power to adopt, amend or repeal the Bylaws by the
affirmative vote of the holders of not less than two-thirds of the outstanding
shares entitled to vote thereon. The Delaware Charter and the Delaware Bylaws
provide that the Board of Directors has the power to adopt, amend and repeal the
Delaware Bylaws.
Dividends. Under the DGCL, unless otherwise provided in the certificate of
incorporation, a corporation may declare and pay dividends out of surplus, or,
if no surplus exists, out of net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year (provided that the amount
of capital of the corporation following the declaration and payment of the
dividend is not less than the aggregate amount of the capital represented by the
issued and outstanding stock of all classes having a preference upon the
distribution of assets). In addition, the DGCL provides that a corporation may
redeem or repurchase its shares only out of surplus. The NRS provides that no
distribution (including dividends on, or redemption or repurchases of, shares of
capital stock) may be made if, after giving effect to such distribution, the
corporation would not be able to pay its debts as they become due in the usual
course of business, or the corporation's total assets would be less than the sum
of its total liabilities plus the amount that would be needed, if the
corporation were to be dissolved at the time of distribution, to satisfy the
preferential rights of stockholders whose preferential rights are superior to
those receiving the distribution. As of the date of this Information Statement,
neither the Company nor OmniAmerica intends to pay dividends or make any other
distribution on its capital stock. Nevertheless, the difference between the DGCL
and the NRS with respect to amounts available for dividends or other
distributions could conceivably affect future dividends or other distributions,
if any are declared.
Examination of Books and Records. Under Nevada law, any person who has been
a stockholder of record of a corporation for at least 6 months immediately
preceding his demand, or any person holding, or thereunto authorized in writing
by the holders of, at least five percent of all of its outstanding shares, upon
at
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least five days written demand is entitled to inspect in person or by agent or
attorney the corporation's stock ledger; provided that such inspection may be
denied to a stockholder or other person upon his refusal to furnish to the
corporation an affidavit that the inspection is not desired for a purpose which
is in the interest of a business or object other than the business of the
corporation and that he has not at any time sold or offered for sale any list of
stockholders of any domestic or foreign corporation or aided or abetted any
person in procuring any record of stockholders for any such purpose. In
addition, a person must be the holder of record of, or the holder of record of
voting trust certificates for, or have been authorized in writing by the holders
of, at least fifteen percent of all outstanding shares of a corporation in order
to examine the books of account and all financial records of a corporation.
Under Delaware law, any stockholder of a corporation, regardless of his
percentage of ownership, has the right to inspect the corporation's stock
ledger, list of stockholders and its other books and records, upon a written
demand under oath in which the stockholder states a "proper purpose," as
determined under Delaware law, for such inspection.
Tender Offer and Business Combination Statutes. Delaware law regulates
hostile takeovers by providing that, with respect to a corporation electing to
be governed by Section 203 of the DGCL, an "interested stockholder," defined as
a stockholder owning 15% or more of the corporation's voting stock or an
affiliate or associate thereof, may not engage in a "business combination"
transaction, defined to include a merger, consolidation or a variety of
self-dealing transactions, with the corporation for a period of three years from
the date on which such stockholder became an "interested stockholder" unless (i)
prior to such date the corporation's board of directors approved either the
"business combination" transaction or the transaction in which the stockholder
became an "interested stockholder", (ii) the stockholder, in a single
transaction in which he became an "interested stockholder," acquires at least
85% of the voting stock outstanding at the time the transaction commenced
(excluding shares owned by certain employee stock plans and persons who are
directors and also officers of the corporation) or (iii) on or subsequent to
such date, the "business combination" transaction is approved by the
corporation's board of directors and authorized at an annual or special meeting
of the corporation's stockholders, by the affirmative vote of at least
two-thirds of the outstanding voting stock not owned by the "interested
stockholder." OmniAmerica has not elected to be governed by Section 203 of the
DGCL.
Nevada law regulates hostile takeovers of publicly traded corporations by
providing that an "interested stockholder," defined as a stockholder owning 10%
or more of the corporation's voting stock or an affiliate or associate thereof,
may not engage in a "business combination" with the corporation for a period of
three years from the date on which such stockholder became an "interested
stockholder" unless (i) prior to such date the corporation's board of directors
approved either the "business combination" transaction or the transaction in
which the stockholder became an "interested stockholder" or (ii) no earlier than
three years after such stockholder became an "interested stockholder" the
majority of the outstanding voting power approves the "business combination."
Nevada law further regulates tender offers and business combinations involving
Nevada corporations by providing that any acquisition by a person, either
directly or indirectly, of ownership of, or the power to direct the voting of,
20% or more ("Control Shares") of the outstanding voting securities of a
corporation is a "Control Share Acquisition." A Control Share Acquisition must
be approved by a majority of each class of outstanding voting securities of such
corporation excluding the shares held or controlled by the person seeking
approval before the Control Shares may be voted. A special meeting of
stockholders must be held by the corporation to approve a Control Share
Acquisition within 50 days after a request for such meeting is submitted by the
person seeking to acquire control. If the Control Shares are accorded full
voting rights and the acquiring person has acquired Control Shares with a
majority or more of the voting power of the Corporation, all stockholders who
have not voted in favor of granting full voting rights to the Control Shares
shall have dissenter's rights as provided by applicable Nevada law. Nevada law
provides that a corporation may opt out of the Control Share protections by
expressly specifying so in its articles or bylaws. The Nevada Bylaws specify
that such protections do not apply to certain transactions.
Indemnification of Directors and Officers and Advancement of Expenses. The
DGCL and the NRS have nearly identical provisions regarding indemnification by a
corporation of its officers, directors, employees and agents, except that the
NRS provides broader indemnification in connection with stockholder derivative
lawsuits. Delaware and Nevada law differ in their provisions for advancement of
expenses incurred by an
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officer or director in defending a civil or criminal action, suit or proceeding.
The DGCL provides that expenses incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or proceeding
may be paid by the corporation in advance of the final disposition of the
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation. Thus, a corporation has
the discretion to decide whether or not to advance expenses. Under the NRS, a
corporation's articles or bylaws or an agreement made by the corporation may
provide that the corporation must pay expenses in advance of the final
disposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined that he is not entitled to be indemnified by the corporation. Thus, a
corporation may have no discretion to decide whether or not to advance expenses.
Personal Liability of Directors. Under Delaware law, directors are jointly
and severally liable to a corporation for violations of statutory provisions
relating to the purchase or redemption of a corporation's own shares or the
payment of dividends, for a period of six years from the date of such unlawful
act. A director who was either absent or dissented from the taking of such
action may exonerate himself from liability by causing his dissent to be entered
in the corporation's minutes. Under Nevada law, directors are jointly and
severally liable to the corporation for violations of statutory provisions
relating to the purchase of a corporation's own shares, the payment of
dividends, the distribution of assets in liquidation or any loans or guarantees
made to a director, until the repayment thereof. Under Nevada law, absent
directors are not liable as long as they did not vote for or assent to any of
the illegal acts and, unlike Delaware law, Nevada law allows a director who was
present at a meeting which approved an illegal act to avoid liability, even if
he did not register his dissent in the minutes of the meeting, by voting against
the illegal act and registering his dissent at a later time in a separate
writing filed with the secretary of the meeting.
Under Delaware law, Delaware corporations are permitted to adopt charter
provisions limiting, or even eliminating, the liability of a director to a
company and its stockholders for monetary damages for breach of fiduciary duty
as a director, provided that such liability does not arise from certain
proscribed conduct, including breach of the duty of loyalty, acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law or liability to the corporation based on unlawful dividends or
distributions or improper personal benefit. While Nevada law has similar
provisions permitting the adoption of charter provisions limiting personal
liability, it differs from Delaware law in two respects. First, the applicable
NRS provisions apply to both directors and officers. Second, while the
applicable DGCL provisions except from limitation on liability a breach of the
duty of loyalty, the Nevada counterpart does not contain this exception. The
Delaware Charter, like the Nevada Charter, contains a provision limiting the
personal liability of directors. However, unlike the Delaware Charter, the
Nevada Charter also limits the liability of officers. Under the laws of either
state, the charter provisions will not have any effect on the availability of
equitable remedies such as an injunction or recision based upon a breach of the
duty of care, or on liabilities which arise under certain federal statutes such
as the securities laws.
Dissenters' Rights. Both Delaware law and Nevada law provide that
stockholders have the right, in some circumstances, to dissent from certain
corporate reorganizations and to instead demand payment of the fair cash value
of their shares. Under both Delaware and Nevada law, unless a corporation's
charter provides otherwise, dissenters do not have appraisal rights with respect
to a merger or consolidation by a corporation, the shares of which are either
listed on a national securities exchange, included in the national market system
by the National Association of Securities Dealers, Inc. or held of record by at
least 2,000 stockholders, unless the stockholders are required to accept in
exchange for their shares anything other than cash, shares in the surviving
corporation, shares in another entity which are listed on a national securities
exchange, included in the national market system by the National Association of
Securities Dealers, Inc. or held of record by at least 2,000 stockholders, or
any combination of cash or shares as so described. No stockholder of the Company
has rights of dissent in connection with the Merger as the Company Common Stock
is listed on the Nasdaq and all stockholders of the Company will receive shares
of capital stock of the surviving corporation by virtue of the conversion of the
Company Common Stock into OmniAmerica Common Stock. From and after the Merger,
the shares of OmniAmerica Common Stock will be listed on the Nasdaq. The Board
of Directors of OmniAmerica has no present intention to take any action to
delist the OmniAmerica Common Stock.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE REINCORPORATION
For federal income tax purposes (i) the Merger will constitute a
reorganization within the meaning of 368(a) of the Code, (ii) no gain or loss
will be recognized by Company stockholders as a consequence of the Merger, (iii)
a stockholder's aggregate tax basis in OmniAmerica Common Stock from and after
the Merger will be the same as such holder's aggregate tax basis in the shares
of Company Common Stock immediately prior to the Merger, (iv) a stockholder's
holding period in OmniAmerica Common Stock received in the Merger will include
the period in which the Company Common Stock was held, provided the Company
Common Stock was held as a capital asset at the time of the Merger, and (v) no
gain or loss will be recognized by the Company or OmniAmerica as a consequence
of the Merger.
1998 STOCK OPTION PLAN
BACKGROUND AND PURPOSE
Prior to the adoption of the 1998 Stock Option Plan by the Board of
Directors on July 24, 1998, only 17,163 shares of Company Common Stock remained
available for grant under the three Existing Stock Option Plans. In order to
provide for a sufficient number of available options to attract, retain and
motivate key employees and certain non-employees, the Board determined it was
necessary to create a new stock option plan. Because the 1998 Stock Option Plan
provides the flexibility to grant various types of awards to both key employees
and non-employees and due to the relatively few number of shares remaining
available under the Existing Stock Option Plans, simultaneously with the
adoption of the 1998 Stock Option Plan, the Board of Directors approved
amendments to the Existing Stock Option Plans providing that no further grants
may be made thereunder. All options granted under the Existing Stock Option
Plans prior to such amendments, whether or not then vested, will remain in full
force and effect and will not be affected as a result of such amendments. As a
result of the Merger, the 1998 Stock Option Plan and the Existing Stock Option
Plans, as amended, will become plans of OmniAmerica by operation of law.
REQUIRED STOCKHOLDERS VOTE; WRITTEN CONSENT IN LIEU OF MEETING
The Board of Directors adopted the 1998 Stock Option Plan by unanimous
written consent dated as of July 24, 1998 and directed that the 1998 Stock
Option Plan be submitted to the stockholders of the Company for their approval.
Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations promulgated thereunder require stockholder approval, in
accordance with state law, of the 1998 Stock Option Plan with respect to
incentive stock options granted thereunder within twelve months of the adoption
of the 1998 Stock Option Plan by the Board of Directors. Under Nevada law, the
approval of the 1998 Stock Option Plan requires the affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock. The
Majority Holders own a sufficient number of shares of Company Common Stock in
order for the 1998 Stock Option Plan to be approved without the concurrence of
any other holder of shares of Company Common Stock. The Majority Holders
executed and delivered to the Company a written consent dated as July 24, 1998
in lieu of a meeting of stockholders that approves the 1998 Stock Option Plan.
In accordance with Rule 14c-2(b) under the Exchange Act, the
above-referenced consent specifies that the 1998 Stock Option Plan shall become
effective no earlier than 20 calendar days after this Information Statement is
first mailed to stockholders of the Company.
SUMMARY OF 1998 STOCK OPTION PLAN
The following summary of the 1998 Stock Option Plan is qualified in its
entirety by reference to the full text of the 1998 Stock Option Plan, a copy of
which is attached hereto as Exhibit B.
Eligibility. The 1998 Stock Option Plan is intended to motivate certain key
employees (including officers and directors) and eligible non-employees to put
forth maximum efforts toward the growth, profitability and success of the
Company or its related entities by providing incentives to such persons through
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the ownership and performance of the Company Common Stock. All employees
(including officers and directors) of the Company or its related entities, and
certain eligible non-employees rendering services to the Company or its related
entities, who have been designated as having a direct and significant effect on
the performance of the Company or its related entities by the Committee (as
defined below) or Board of Directors of the Company, as the case may be, will be
eligible to participate in and receive stock options under the 1998 Stock Option
Plan.
Administration. The 1998 Stock Option Plan will be administered by the
Compensation Committee of the Board of Directors (the "Committee"); provided,
that the entire Board of Directors of the Company may act as the Committee if it
chooses to do so; and provided further, that for purposes of designating any
Performance-Based Options (as defined below) applicable to key employees who
constitute "covered employees" within the meaning of Section 162(m) of the Code,
"Committee" shall mean the members of the Compensation Committee who qualify as
"outside directors" within the meaning of Section 162(m) of the Code and, for so
long as the Company is subject to the reporting requirements of the Exchange
Act, as "Non-Employee Directors" within the meaning of Rule 16b-3 ("Rule 16b-3")
under the Exchange Act; provided, that, alternatively, for purposes of granting
options other than Performance-Based Options thereunder, the Board of Directors
may authorize such grants and may take any other actions permitted pursuant to
Section 162(m) of the Code, Rule 16b-3 and applicable law and regulations. The
Committee will have the plenary authority to control, operate, manage and
administer the 1998 Stock Option Plan in accordance with its terms.
Shares Available Under the 1998 Stock Option Plan. The aggregate number of
shares of Company Common Stock available for grants of stock options under the
1998 Stock Option Plan during its term will be 675,000 shares. Shares of Company
Common Stock available for issuance under the 1998 Stock Option Plan may be
either authorized but unissued shares or shares of issued stock held in the
Company's treasury. Any shares of Company Common Stock underlying stock options
which terminate by expiration, forfeiture or otherwise without the issuance of
such shares will again be available for grants of stock options under the 1998
Stock Option Plan. Shares issued upon exercise of options granted under the 1998
Stock Option Plan will be "restricted securities" as defined in Rule 144 under
the Securities Act until such time as the Company determines in its discretion,
if at all, to register such shares under the Securities Act.
Maximum Individual Grants. The maximum aggregate number of shares of
Company Common Stock underlying all stock options that may be granted to any
employee during the term of the 1998 Stock Option Plan is 250,000 shares.
Stock Options. The Committee will, in its sole discretion, determine the
key employees and eligible non-employees who will receive stock options and the
number of shares of Common Stock underlying each stock option. The Committee may
grant "incentive stock options" (as such options are described under Section 422
of the Code); provided, that such options will be granted only to key employees
of the Company or its related entities, or it may grant stock options which are
not incentive stock options ("non-qualified stock options") to all participants.
Each stock option will be subject to such terms and conditions consistent with
the 1998 Stock Option Plan as the Committee may impose from time to time. In
addition, incentive stock options are subject to certain restrictions imposed by
the Code.
Stock Option Exercise Price. The Committee will determine the exercise
price of each stock option; provided, that in the case of an incentive stock
option, the exercise price will not be lower than the fair market value per
share of the Company Common Stock on the date of grant; and provided, further,
that in the case of an incentive stock option granted to a participant who, at
the time such incentive option is granted, possesses 10% of the total combined
voting power of all classes of shares of the Company or any of its related
entities, the option exercise price shall not be less than 110% of the fair
market value per share of the Company Common Stock on the date of grant. Stock
options granted under the 1998 Stock Option Plan cannot be exercised after the
tenth anniversary of the date of grant; provided, that no incentive option
granted to a participant who, at the time of such option is granted, owns stock
of the Company or any of its related entities possessing more than 10% of the
total combined voting power of all classes of stock of the Company or any of its
related entities will not be exercisable after the expiration of five years from
the date such option is granted;
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and provided, further, that non-qualified stock options may be exercised after
the tenth anniversary of the date of grant if such option expressly so provides.
Vesting of Stock Options. Unless otherwise determined by the Committee at
the time of grant, stock options will vest in annual one-third increments
commencing on the first anniversary of the date of grant. Stock options granted
under the 1998 Stock Option Plan may also be subject to such other terms and
conditions as determined by the Committee.
Payment of Stock Option Exercise Price. The stock option exercise price may
be paid in cash. The Committee may prescribe any other method of payment of the
exercise price that it determines to be consistent with applicable law and the
purposes of the 1998 Stock Option Plan, including (i) the delivery of shares of
Company Common Stock then owned by the participant, (ii) the withholding of
shares of Company Common Stock for which a stock option is exercisable or (iii)
a combination of (i) and (ii); provided, that incentive stock options will be
subject to certain limitations; and provided further, that no such procedure
will be available if there is an opinion of the Company's independent accounting
firm that the use of such a procedure could negatively affect the financial
statements of the Company or its related entities.
Termination of Employment. If a participant's employment is terminated due
to death or disability, all non-vested portions of stock options held by the
participant will be forfeited and all vested portions of stock options held by
the participant will remain exercisable until the earlier of (i) the end of the
180-day period following the date of death or termination of employment (unless
a longer or shorter period is expressly provided by such option or established
by the Committee) or (ii) the date the stock option would otherwise expire;
provided, that in the case of an incentive stock option, the vested portion of
such option must be exercised within one year after termination of the
participant's employment due to his or her disability. If the Company or any of
its related entities terminates a participant's employment for good cause or a
non-employee participant voluntarily terminates service, the participant will
forfeit all stock options, whether vested or non-vested (except as to shares of
stock already purchased thereunder), unless such participant's stock options
expressly provide otherwise. If a participant's employment or retention is
terminated for any reason other than for good cause or due to such participant's
death or disability, all non-vested portions of stock options held by the
participant will be forfeited and, with the approval of the Board of Directors,
all vested portions of stock options held by the participant will remain
exercisable until the earlier of (i) the end of the 30-day period following the
date of the termination of employment (unless a longer or shorter period is
expressly provided by such option or established by the Committee) or (ii) the
date the stock option would otherwise expire; provided, that no incentive stock
option will be exercisable more than three months after such termination of
employment; and provided, further, that the Committee may, in its sole
discretion, extend the exercise date of any option upon termination of
employment or retention for a period not to exceed six months plus one day (but
in no event after the expiration date of the option) if the Committee determines
that the stated exercise date will have an inequitable result under Section
16(b) of the Exchange Act.
Performance-Based Options. The Committee, in its sole discretion, may
designate and design stock options granted under the 1998 Stock Option Plan as
"Performance-Based Options" if it determines that compensation attributable to
such options might not otherwise be tax deductible by the Company due to the
deduction limitation imposed by Section 162(m) of the Code. Accordingly, stock
options granted under the 1998 Stock Option Plan may be granted in such a manner
that the compensation attributable to such options is intended by the Committee
to qualify as "performance-based compensation" as such term is used in Section
162(m) of the Code and the regulations promulgated thereunder and thus be exempt
from the deduction limitation imposed by Section 162(m) of the Code.
Performance-Based Options will be granted with an exercise price that is not
less than fair market value on the date of grant or, if less than fair market
value on the date of grant, the granting or vesting of such options is subject
to the achievement of a performance goals or goals based on one or more of the
following performance measures, either individually or in combination: net
sales; pre-tax income before allocation of corporate overhead and bonus; budget;
cash flow; earnings per share; net income; division, group or corporate
financial goals; return on stockholders' equity; return on assets; attainment of
strategic and operational initiatives; appreciation in and/or maintenance of the
price of the Common Stock or any other publicly-traded securities of the
Company; market share; gross profits; earnings before interest and taxes;
earnings before interest, taxes, depreciation and amortization;
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economic value-added models; comparisons with various stock market indices;
increase in number of customers; and/or reductions in costs. Performance goals
established as described above will be submitted to the stockholders of the
Company for approval and, as required by Section 162(m) of the Code, will be
disclosed to and reapproved by the Company's stockholders no later than the
first stockholder meeting that occurs in the fifth year following the year in
which the Company's stockholders previously approved such performance goals.
Change of Control. If there is a Change of Control of the Company (as
defined in the 1998 Stock Option Plan) or the Company enters into an agreement
providing for a Change of Control, the Committee may accelerate the vesting date
of all stock options outstanding under the 1998 Stock Option Plan.
Adjustment of Shares. If there is any change in the Company Common Stock,
such as due to a merger, consolidation, liquidation, recapitalization, stock
dividend, stock split, split-up, split-off, spin-off, combination of shares,
exchange of shares or other like change in capital structure of the Company
(collectively, an "Adjustment Event"), the 1998 Stock Option Plan provides for
appropriate adjustments to be made to outstanding stock options thereunder. In
the event that the Company is not a surviving entity of an Adjustment Event and,
following such Adjustment Event, stock options issued pursuant to the 1998 Stock
Option Plan have not been exercised, cancelled or terminated in connection
therewith, the Company will cause such options to be assumed, or cancelled and
replacement stock options issued, by the surviving entity or a related entity.
Termination and Amendment of 1998 Stock Option Plan. The Board of Directors
may amend, modify, suspend or terminate the 1998 Stock Option Plan at any time,
provided that such action does not materially impair the value of any
outstanding stock options without the participant's consent. No amendment of the
1998 Stock Option Plan will, without the approval of the stockholders of the
Company, increase the total number of shares which may be issued and sold under
the 1998 Stock Option Plan, decrease the minimum option exercise price in the
case of an incentive stock option, or modify the requirements as to eligibility
for incentive stock options. The Board of Directors may amend the 1998 Stock
Option Plan and the stock options granted thereunder to cause the plan and stock
options to (i) qualify as "incentive stock options" within the meaning of
Section 422 of the Code, (ii) comply with Rule 16b-3 under the Exchange Act and
the regulations promulgated thereunder, or (iii) comply with Section 162(m) of
the Code and the regulations promulgated thereunder.
Miscellaneous. By acceptance of the stock option, the participant is deemed
to (i) agree to reimburse the Company or its related entity by which the
participant is employed for any taxes required by any governmental regulatory
authority to be withheld or otherwise deducted and paid by such corporation in
respect of the participant's exercise of all or a portion of the stock option,
(ii) authorize the Company or its related entity by which the participant is
employed to withhold from any cash compensation paid to the participant or in
the participant's behalf the amount of such taxes which otherwise has not been
reimbursed by the participant, and (iii) agree that the Company may hold the
stock certificate as to which the participant is entitled upon exercise of the
stock option as security for payment of such taxes. Except as expressly provided
in any non-qualified stock option, stock options granted under the 1998 Stock
Option Plan are not transferable except by will or the laws of descent and
distribution, and stock options are exercisable, during the participant's
lifetime, only by the participant.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The statements in the following paragraphs are based on statutory authority
and judicial and administrative interpretations, as of the date of this
Information Statement, which authorities and interpretations are subject to
change at any time (possibly with retroactive effect). The law is technical and
complex and the discussion below represents only a general summary.
Incentive Stock Options. Incentive stock options ("ISOs") granted under the
1998 Stock Option Plan are intended to meet the definitional requirements of
Section 422(b) of the Code for "incentive stock options."
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An employee who receives an ISO does not recognize any taxable income upon
the grant of such ISO. Similarly, the exercise of an ISO generally does not give
rise to federal income tax to the employee, provided that (i) the federal
"alternative minimum tax," which depends on the employee's particular tax
situation, does not apply and (ii) the employee is employed by the Company or
its related entities from the date of grant of the option until three months
prior to the exercise thereof, except where such employment terminates by reason
of disability (where the three-month period is extended to one year) or death
(where this requirement does not apply). If an employee exercises an ISO after
these requisite periods, the ISO will be treated as a NSO (as defined below) and
will be subject to the rules set forth below under the caption "Non-Qualified
Stock Options."
Further, if after exercising an ISO, an employee disposes of the Company
Common Stock so acquired more than two years from the date of grant and more
than one year from the date of transfer of the Company Common Stock pursuant to
the exercise of such ISO (the "applicable holding period"), the employee will
generally recognize a capital gain or loss equal to the difference, if any,
between the amount received for the shares and the exercise price. If, however,
an employee does not hold the shares so acquired for the applicable holding
period, thereby making a "disqualifying disposition," the employee will
recognize ordinary income equal to the excess of the fair market value of the
shares at the time the ISO was exercised over the exercise price and the
balance, if any, of the gain would be capital gain (provided the employee held
such shares as a capital asset at such time). Under present law, capital gains
are generally eligible for a maximum federal income tax rate of 20% if the
holder's holding period exceeds twelve months. If the disqualifying disposition
is a sale or exchange, and the sales proceeds are less than the fair market
value of the shares on the date of exercise, the employee's ordinary income
therefrom would be limited to the gain (if any) realized on the sale.
An employee who exercises an ISO by delivering Company Common Stock
previously acquired pursuant to the exercise of another ISO is treated as making
a "disqualifying disposition" of such Company Common Stock if such shares are
delivered before the expiration of their applicable holding period. Upon the
exercise of an ISO with previously-acquired shares as to which no disqualifying
disposition occurs, despite some uncertainty, it appears that the employee would
not recognize gain or loss with respect to such previously acquired shares.
The Company will not be allowed a federal income tax deduction upon the
grant or exercise of an ISO or the disposition, after the applicable holding
period, of the Company Common Stock acquired upon exercise of an ISO. In the
event of a disqualifying disposition, the Company generally will be entitled to
a deduction in an amount equal to the ordinary income recognized by the
employee, provided that such amount constitutes an ordinary and necessary
business expense to the Company and is reasonable and the limitations of
Sections 280G and 162(m) of the Code (discussed below) do not apply.
Non-Qualified Stock Options. Non-qualified stock options ("NSOs") granted
under the 1998 Stock Option Plan are stock options that do not qualify as ISOs.
A participant who receives a NSO will not recognize any taxable income upon the
grant of such NSO. However, the participant generally will recognize ordinary
income upon exercise of a NSO in an amount equal to the excess of (i) the fair
market value of the shares of Company Common Stock at the time of exercise over
(ii) the exercise price.
As a result of Section 16(b) of the Exchange Act, under certain
circumstances, the timing of income recognition may be deferred (generally for
up to six months following the exercise of a NSO (i.e., the "Deferral Period"))
for any participant who is an officer or director of the Company or its related
entity or a beneficial owner of more than ten percent (10%) of any class of
equity securities of the Company or its related entity. Absent a written
election pursuant to Section 83(b) of the Code filed with the Internal Revenue
Service within 30 days after the date of transfer of such shares, recognition of
income by the participant will be deferred until the expiration of the Deferral
Period, if any.
The ordinary income recognized with respect to the receipt of shares upon
exercise of a NSO will be subject to both wage withholding and other employment
taxes. In addition to the customary methods of satisfying the withholding tax
liabilities that arise upon the exercise of a NSO, the Company may satisfy the
liability in whole or in part by withholding shares of Company Common Stock from
those that otherwise
15
<PAGE> 18
would be issuable to the participant or by the participant tendering other
shares owned, valued at their fair market value as of the date that the tax
withholding obligation arises.
A federal income tax deduction generally will be allowed to the Company in
an amount equal to the ordinary income recognized by the participant with
respect to a NSO, provided that such amount constitutes an ordinary and
necessary business expense to the Company and is reasonable and the limitations
of Sections 280G and 162(m) of the Code do not apply.
If a participant exercises a NSO by delivering shares of Company Common
Stock to the Company, other than shares previously acquired pursuant to the
exercise of an ISO which is treated as a "disqualifying disposition" as
described above, the participant will not recognize gain or loss with respect to
the exchange of such shares, even if their then fair market value is different
from the participant's tax basis. The participant, however, will be taxed as
described above with respect to the exercise of the NSO as if the participant
had paid the exercise price in cash, and the Company likewise generally will be
entitled to an equivalent tax deduction.
Change in Control. In general, if the total amount of payments to a
participant that are contingent upon a "change in control" of the Company (as
defined in Section 280G of the Code), including payments under the 1998 Stock
Option Plan that vest upon a "change in control," equals or exceeds three times
the participant's "base amount" (generally, such participant's average annual
compensation for the five calendar years preceding the change in control), then,
subject to certain exceptions, the payments may be treated as "excess parachute
payments" under the Code, in which case a portion of such payments would be non-
deductible to the Company and the participant would be subject to a 20% excise
tax on such portion of the payments.
Certain Limitations on Deductibility of Executive Compensation. With
certain exceptions, Section 162(m) of the Code denies a deduction to
publicly-held corporations for compensation paid to certain executive officers
in excess of $1 million per executive per taxable year (including any deduction
with respect to the exercise of a NSO or the disqualifying disposition of stock
purchased pursuant to an ISO). One such exception applies to certain
performance-based compensation, provided that such compensation has been
approved by stockholders in a separate vote and certain other requirements are
met. In general, the Company intends for stock options granted under the 1998
Stock Option Plan to qualify for the performance-based compensation exception to
Section 162(m) of the Code.
16
<PAGE> 19
INTERESTS OF CERTAIN PERSONS
No officer or director or any associate thereof has a personal interest in
the Reincorporation. Officers and directors of the Company are eligible to
receive option grants under the 1998 Stock Option Plan.
MARKET PRICE AND DIVIDENDS
The Company Common Stock currently is quoted on the Nasdaq under the symbol
"SCTR." On July 23, 1998, the day preceding the date on which the Merger
Agreement and the written consents approving the Reincorporation and the 1998
Stock Option Plan were executed, the high and low bid prices of the Company
Common Stock were $42 3/4 and $41 7/8, respectively. These prices reflect
inter-dealer prices and do not include adjustments for retail mark-ups,
mark-downs or commissions and may not represent actual transactions.
As a result of the Merger, each outstanding share of Company Common Stock
will be converted into one share of OmniAmerica Common Stock, which will be
quoted on the Nasdaq under the symbol "XMIT" and which will be identified by
CUSIP number 68211J 10 0.
To date, the Company has not declared or paid any cash dividends on the
Company Common Stock and the present policy of the Board of Directors is to
retain any earnings to provide for the Company's growth. The Credit Agreement
dated as of June 30, 1998 among the Company, the lenders party thereto, The
Chase Manhattan Bank, as administrative agent, issuing lender and swingline
lender, Bankers Trust Company, as documentation agent, and BankBoston, N.A., as
syndication agent, contains covenants that restrict the Company's ability to pay
dividends. Further, future determination to pay dividends will be at the
discretion of the Board of Directors and in light of the Company's financial
condition, results of operations, capital requirements and such other factors as
the Board of Directors deems relevant.
17
<PAGE> 20
EXECUTIVE COMPENSATION
The following table sets forth the compensation paid during each of the
three years in the period ended June 30, 1998 to the following individuals (the
"Named Executive Officers"): (i) the Chief Executive Officer and each other
individual who was serving as an executive officer of the Company at June 30,
1998 whose total annual salary and bonus for the fiscal year ended June 30, 1998
was in excess of $100,000 and (ii) Michael R. Budagher, who served as Chief
Executive Officer of the Company prior to the April Merger and who was serving
as the Vice Chairman and Chief Operating Officer of the Company at June 30,
1998.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
------------
ANNUAL COMPENSATION SECURITIES ALL
----------------------------- UNDERLYING OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) OPTIONS COMPENSATION
--------------------------- ---- --------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Carl E. Hirsch......................... 1998(1) 273,500 -- -- --
President and Chief Executive 1997 -- -- -- --
Officer (since April 23, 1998) 1996 -- -- -- --
Anthony S. Ocepek...................... 1998(1) 232,944 -- -- --
Executive Vice President and 1997 -- -- -- --
Chief Financial Officer 1996 -- -- -- --
(since April 23, 1998)
Ernie L. Carpenter..................... 1998 150,000 -- 60,000 --
President and Chief Executive Officer 1997 116,667 110,000 -- --
of Microwave Tower Service, Inc. 1996 50,000 35,000 -- --
F. Howard Mandel....................... 1998(1) 116,667 -- -- --
Vice President and General Counsel 1997 -- -- -- --
(since April 23, 1998) 1996 -- -- -- --
Michael R. Budagher.................... 1998 70,833 -- -- --
Vice Chairman and Chief Operating 1997 85,000 -- -- 850(2)
Officer (since April 23, 1998) and 1996 85,000 -- -- --
Chief Executive Officer (until April
23, 1998)
</TABLE>
- ---------------
(1) Amounts for the fiscal year ended June 30, 1998 for Messrs. Hirsch, Ocepek
and Mandel include compensation paid to such individuals as executive
officers of OmniAmerica Holdings Corporation and its subsidiaries prior to
the April Merger. OmniAmerica Holdings Corporation and its subsidiaries had
no operations prior to July 1, 1997.
(2) Reflects employer contributions under the Specialty Constructors, Inc.
Profit Sharing Plan.
18
<PAGE> 21
The following table summarizes option grants made during the fiscal year
ended June 30, 1998 to the Named Executive Officers. Other than as set forth
below, no stock options, SARs or awards under any long-term incentive plan were
granted to any Named Executive Officer in the fiscal year ended June 30, 1998.
OPTIONS GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
----------------------------------------------------- POTENTIAL REALIZABLE
NUMBER OF VALUE AT ASSUMED
SECURITIES PERCENT OF ANNUAL RATES OF STOCK
UNDERLYING TOTAL OPTIONS PRICE APPRECIATION FOR
OPTIONS GRANTED TO EXERCISE OR OPTION TERM(2)
GRANTED EMPLOYEES IN BASE PRICE EXPIRATION -----------------------
(#)(1) FISCAL YEAR ($/SH) DATE 5%($) 10%($)
---------- ------------- ----------- ---------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
Ernie L. Carpenter.......... 60,000 19.8% $12.50 12/3/07 471,671 1,195,307
</TABLE>
- ---------------
(1) The options to purchase Company Common Stock were granted under the
Company's 1997 Stock Incentive Plan and become exercisable in three equal
annual installments commencing on January 1, 1999.
(2) The potential realizable value portion of the foregoing table illustrates
the value that might be realized upon exercise of the options immediately
prior to the expiration of their term, assuming the specified compound rates
of appreciation of Company Common Stock over the term of the options. These
amounts represent certain assumed rates of appreciation only, assuming a
fair market value on the date of grant of $12.50 per share. Actual gains on
the exercise of options are dependent on the future performance of Company
Common Stock. There can be no assurance that the potential values reflected
in this table will be achieved. All amounts have been rounded to the nearest
whole dollar amount.
The following table summarizes the value of options to acquire Company
Common Stock held by the Named Executive Officers as of June 30, 1998. Other
than as set forth below, at June 30, 1998, no Named Executive Officer held any
unexercised stock options or SARs.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR ENDED OPTION VALUES(1)
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT FISCAL YEAR IN-THE-MONEY OPTIONS AT
END(#) FISCAL YEAR END($)(2)
------------------------- -------------------------
EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
------------------------- -------------------------
<S> <C> <C>
Ernie L. Carpenter................................ 0/60,000 0/1,470,000
</TABLE>
- ---------------
(1) No options were exercised by a Named Executive Officer in fiscal 1998.
(2) Reflects a market value of the underlying securities of $37.00 per share,
the closing price on The Nasdaq Stock Market on June 30, 1998, less the
exercise price.
EMPLOYMENT AGREEMENTS
Executive Employment Agreements with Messrs. Hirsch, Budagher and Ocepek.
Each of Messrs. Hirsch, Budagher and Ocepek entered into Executive Employment
Agreements with the Company effective April 23, 1998 with terms ending on April
23, 2000; provided that the term of each such employment agreement shall be
extended for successive one year terms unless either party shall give notice
that the term shall not be so extended at least 120 days prior to the end of the
initial term or annual extension, as the case may be. The employment agreements
provide that Messrs. Hirsch, Budagher and Ocepek shall serve as the President
and Chief Executive Officer, Vice Chairman and Chief Operating Officer, and
Executive Vice President and Chief Financial Officer, respectively, of the
Company. The employment agreements further provide that Messrs. Hirsch, Budagher
and Ocepek shall receive an annual base salary of $295,000, $245,000 and
$245,000, respectively, subject to increase as determined in the sole discretion
of the Board of Directors of
19
<PAGE> 22
the Company, and that each such executive officer shall be eligible for annual
bonuses based on budgeted earnings before income tax, depreciation and
amortization and other criteria established by the Board of Directors at the
beginning of each fiscal year. The employment agreements also provide that
Messrs. Hirsch, Budagher and Ocepek will be entitled to other customary benefits
generally made available to other executives of the Company. The employment
agreements provide for a severance payment equal to twelve months base salary in
the event of termination of employment by the executive for Good Reason (as
defined) or by the Company other than for Cause (as defined), Financial Cause
(as defined) or the executive's death, permanent disability or retirement and
for severance payments equal to six months base salary in the event of
termination by the Company for Financial Cause. Pursuant to the employment
agreements, Messrs. Hirsch, Budagher and Ocepek have agreed that, subject to
certain exceptions, during the term of their respective agreements and for one
year thereafter, they will not (i) solicit, entice, persuade or induce any
employee of the Company or its subsidiaries to terminate his employment with the
Company or its subsidiaries or become employed by any other person and (ii)
compete with the Company through any person or other business enterprise having
or operating transmission towers within any of the same markets as the Company
or any of its subsidiaries.
Executive Employment Agreement with Mr. Carpenter. Mr. Carpenter entered
into an Employment Agreement with Microwave Tower Service, Inc., a wholly owned
subsidiary of the Company ("MTS"), on June 30, 1997 for a term of three years
pursuant to which Mr. Carpenter serves as President and Chief Executive Officer
of MTS. The employment agreement provides that Mr. Carpenter shall receive an
annual salary of $150,000 and shall be eligible for a bonus for each fiscal year
during which Mr. Carpenter is continuously employed by MTS. The employment
agreement also provides that Mr. Carpenter will be entitled to such benefits as
are customarily provided to other employees of MTS. Pursuant to his employment
agreement, Mr. Carpenter has agreed that he will not, during the term of his
employment and for two years thereafter, (i) directly or indirectly, engage or
participate in any business or other activities in competition with MTS in the
United States, (ii) directly or indirectly, call upon any customer of MTS, the
Company or their respective subsidiaries for the purpose or selling to or
supplying such customer with products or services similar to the products and
services provided by MTS, the Company or their respective subsidiaries and (iii)
directly or indirectly, solicit or employ any person employed by MTS, the
Company or their respective subsidiaries.
COMPENSATION OF DIRECTORS
Prior to the April Merger, Directors received $500 for each Board of
Directors meeting attended and reimbursement for expenses incurred in attending
such meetings. In addition, Directors who served on committees received $100 per
hour for time spent attending meetings of such committees. The Company has not
adopted a formal policy regarding the compensation of Directors following the
April Merger. The Company anticipates that Directors will be compensated in
accordance with the policy in effect prior to the April Merger until such time
as a new policy has been adopted.
20
<PAGE> 23
PRINCIPAL STOCKHOLDERS AND STOCK OWNERSHIP OF MANAGEMENT
As of July 24, 1998, there were 15,063,385 shares of Company Common Stock
issued and outstanding. The following table sets forth certain information, as
of July 24, 1998, with respect to the beneficial ownership of shares of Company
Common Stock by (i) all persons known by the Company to be the beneficial owners
of more than 5% of the outstanding shares of Company Common Stock (as derived
solely from the Company's review of Schedules 13D and 13G on file with the
Commission and from correspondence received from or telephone conversations with
certain stockholders of the Company), (ii) each director of the Company, (iii)
each Named Executive Officer, and (iv) all executive officers and directors of
the Company as a group.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF
BENEFICIAL OWNERSHIP OF
NAME AND ADDRESS OF BENEFICIAL OWNER COMPANY COMMON STOCK(1) PERCENT OF CLASS
------------------------------------ ----------------------- ----------------
<S> <C> <C>
Thomas O. Hicks........................................ 6,678,429(2) 44.3%
200 Crescent Court, Suite 1600
Dallas, Texas 75201-6950
HMTF/Omni Partners, L.P................................ 6,651,141(3) 44.2%
200 Crescent Court, Suite 1600
Dallas, Texas 75201-6950
Tommie R. Carpenter.................................... 2,280,000(4) 15.1%
888 Coburn St. South
Salem, Oregon 97302
Michael R. Budagher.................................... 2,155,000(5) 14.3%
12001 Hwy 14 North
Cedar Crest, New Mexico 87001
John D. Emery.......................................... 12,000(6) *
Jack D. Furst.......................................... 17,604 *
Carl E. Hirsch......................................... 17,000(7) *
Jeffrey A. Howard...................................... 137,500(8) *
Lawrence D. Stuart, Jr................................. 5,065 *
Ernie L. Carpenter..................................... -- --
J. Otis Winters........................................ -- --
Anthony S. Ocepek...................................... --(7) --
F. Howard Mandel....................................... --(7) --
All executive officers and directors as a group (11 2,344,169 15.5%
persons).............................................
</TABLE>
- ---------------
* Less than 1%.
(1) Based upon information supplied or confirmed by officers, directors and the
principal stockholders. The percentage of class assumes the exercise of all
options and warrants held by the named individual that are exercisable on
July 24, 1998, or within sixty days thereafter, but not the exercise of any
other options or warrants that are outstanding.
(2) Includes (i) 24,412 shares owned of record by Mr. Hicks, (ii) 2,876 shares
owned of record by six trusts of which Mr. Hicks serves as trustee and (iii)
6,651,141 shares owned of record by HMTF/Omni Partners, L.P., a limited
partnership of which the sole general partner is HM3/OmniAmerica Partners,
LLC, a limited liability company of which the sole member is HM3
Coinvestors, L.P., a limited partnership of which the sole general partner
is Hicks, Muse GP Partners III, L.P., a limited partnership of which the
sole general partner is Hicks, Muse Fund III Incorporated, a corporation of
which Mr. Hicks is the sole director, Chairman of the Board, Chief Executive
Officer, Secretary and sole stockholder. Mr. Hicks expressly disclaims (i)
the existence of any group and (ii) beneficial ownership with respect to any
shares of Company Common Stock not owned of record by him.
21
<PAGE> 24
(3) See footnote (2) above.
(4) Includes (i) 348,600 shares owned of record by Mr. Carpenter and (ii)
1,931,400 shares owned by Carpenter Family Investments LLC (the "Carpenter
LLC"), of which Mr. Carpenter and his wife are the sole members.
(5) Consists entirely of shares owned by the Budagher Family LLC (the "Budagher
LLC"), of which Mr. Budagher is the general manager.
(6) Consists entirely of shares that are deemed beneficially owned by Mr. Emery
by virtue of options held by him that are exercisable within 60 days of July
24, 1998.
(7) In addition to shares of Company Common Stock, if any, owned of record by
Messrs. Hirsch, Ocepek and Mandel, each of Messrs. Hirsch, Ocepek and Mandel
are also limited partners of HMTF/Omni Partners, L.P. The percentage
ownership represented by Messrs. Hirsch's, Ocepek's and Mandel's limited
partnership interests are equivalent to 487,847, 487,847, and 71,118 shares,
respectively, of the shares of Company Common Stock owned by HMTF/Omni
Partners, L.P.
(8) Includes (i) 50,000 shares owned of record by Mr. Howard and (ii) 87,500
shares that are deemed beneficially owned by Mr. Howard by virtue of options
held by him that are exercisable within 60 days of July 24, 1998.
AVAILABLE INFORMATION
The Company is subject to the informational filing requirements of the
Exchange Act. In accordance therewith, the Company files periodic reports, proxy
statements and other information with the Commission under the Exchange Act
relating to its business, financial condition and other matters. Such reports,
proxy statements and other information may be inspected and copied at the
Commission's office at 450 Fifth Street, N.W., Washington, D.C. 20459, and at
the regional offices of the Commission located at Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material may
also be obtained upon payment of the Commission's prescribed fees by writing to
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements
regarding registrants, such as the Company, that file electronically with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
are incorporated into this Information Statement by reference:
(1) The Company's Annual Report on Form 10-KSB for the year ended June
30, 1997;
(2) The Company's Quarterly Report on From 10-QSB for the quarter
ended September 30, 1997;
(3) The Company's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1997;
(4) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998; and
(5) The Company's Current Report on Form 8-K dated April 23, 1998, as
amended by the Company's Form 8-KA filed on July 7, 1998, including (a) the
audited historical financial statements for (i) OmniAmerica Holdings
Corporation ("Holdings") as of December 31, 1997 and for the period from
inception (October 15, 1997) through December 31, 1997, (ii) HSW
Associates, Inc. ("HSW") as of December 31, 1997 and for each of the two
years in the period then ended, (iii) TowerCom, Limited ("TowerCom") as of
December 31, 1997 and December 31, 1996 and for the years then ended, (iv)
Miller Transmission Tower Company, Limited ("Miller") as of December 31,
1997 and December 31, 1996 and for the years then ended and (v) Kline Iron
& Steel Company, Inc. ("Kline") as of September 30, 1997 and September 30,
1996 and for the years then ended and (b) with respect to the Company,
Holdings, HSW, TowerCom, Miller and Kline, the pro forma combined income
statement for
22
<PAGE> 25
the year ended June 30, 1997, the pro forma combined balance sheet as of
March 31, 1998 and the pro forma combined income statement for the
nine-month period ended March 31, 1998.
The Company will provide, without charge, to each person to whom this
Information Statement is delivered, upon written or oral request of such person
and by first class mail or other equally prompt means within one business day of
receipt of such request, a copy of any and all of the information that has been
incorporated by reference in this Information Statement. Requests should be
directed to the Company at the following address: 12001 State Highway 14 North,
Cedar Crest, New Mexico 87008, Attention: Keith Hartnett; telephone number (505)
281-2197.
MISCELLANEOUS
The Company requests brokers, custodians, nominees and fiduciaries to
forward this Information Statement to the beneficial owners of Company Common
Stock and the Company will reimburse such holders for their reasonable expenses
in connection therewith. Additional copies of this Information Statement may be
obtained at no charge from the Company by writing to it at the following
address: 12001 State Highway 14 North, Cedar Crest, New Mexico, 87008,
Attention: Keith Hartnett.
23
<PAGE> 26
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
July 24, 1998, by and between Specialty Teleconstructors, Inc., a Nevada
corporation ("STI"), having its principal place of business at 12001 State
Highway 14 North, Cedar Crest, New Mexico 87008, and OmniAmerica, Inc., a
Delaware corporation and a wholly owned subsidiary of STI ("OmniAmerica"),
having its principal place of business at 12001 State Highway 14 North, Cedar
Crest, New Mexico 87008.
RECITALS
WHEREAS, STI shall merge ("the Merger") with and into OmniAmerica, with
OmniAmerica surviving as a Delaware corporation (as such, the "Surviving
Corporation"); and
WHEREAS, in connection with the Merger each outstanding share of STI common
stock, par value $0.01 per share ("STI Common Stock"), shall be converted into
one share of common stock, par value $0.01 per share, of OmniAmerica
("OmniAmerica Common Stock") set forth herein; and
WHEREAS, the Board of Directors and the stockholders of STI and the Board
of Directors and sole stockholder of OmniAmerica have approved and adopted this
Agreement and the transactions contemplated thereby in accordance with the
Nevada Revised Statutes (the "NRS") and the General Corporation Law of the State
of Delaware (the "DGCL"), respectively;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the provisions of the NRS and the DGCL, STI shall
be merged with and into OmniAmerica. Following the Merger, the separate
existence of STI shall cease, and OmniAmerica shall continue as the Surviving
Corporation under the laws of the State of Delaware and shall continue under the
name "OmniAmerica, Inc."
SECTION 1.2. Effective Time of the Merger. The Merger shall become
effective upon the filing of the later of the certificate of merger (the
"Certificate of Merger") to be filed pursuant to Section 252(c) of the DGCL with
the Secretary of State of the State of Delaware and the articles of merger (the
"Articles of Merger") to be filed pursuant to Section 92A.200 of the NRS with
the Secretary of State of the State of Nevada (the "Effective Time").
SECTION 1.3. Closing. Subject to the satisfaction or waiver of all
conditions to the consummation of the transactions contemplated hereby, the
closing of the Merger (the "Closing") shall take place at the offices of Weil,
Gotshal & Manges LLP, 100 Crescent Court, Suite 1300, Dallas, Texas 75201, at
such date and time as is agreed to by the parties hereto. The date and time on
which the Closing shall occur is referred to herein as the "Closing Date".
SECTION 1.4. Effects of the Merger. The Merger shall have the effects set
forth in the applicable provisions of the NRS and the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, except
as otherwise provided herein, all the property, rights, privileges, powers and
franchises of STI and OmniAmerica shall vest in the Surviving Corporation, and
all debts, liabilities and duties of STI and OmniAmerica shall become the debts,
liabilities and duties of the Surviving Corporation.
SECTION 1.5. Certificate of Incorporation of the Surviving Corporation. At
the Effective Time and without any further action on the part of the parties
hereto, the Certificate of Incorporation of OmniAmerica shall be the Certificate
of Incorporation of the Surviving Corporation.
A-1
<PAGE> 27
SECTION 1.6. Bylaws of the Surviving Corporation. At the Effective Time and
without any further action on the part of the parties hereto, the Bylaws of
OmniAmerica shall be the Bylaws of the Surviving Corporation.
SECTION 1.7. Board of Directors and Officers of the Surviving
Corporation. Each of the directors of STI immediately prior to the Effective
Time shall be, from and after the Effective Time, a director of the Surviving
Corporation in the class designated below. Each such director shall serve as
such until his respective successor is duly elected and qualified, or his
earlier death, resignation or removal.
<TABLE>
<CAPTION>
CLASS I CLASS II CLASS III
------- -------- ---------
<S> <C> <C>
Jeffrey A. Howard Ernie L. Carpenter Michael R. Budagher
Carl E. Hirsch Lawrence D. Stuart Jack D. Furst
John D. Emery J. Otis Winters
</TABLE>
Each of the officers of STI immediately prior to the Effective Time shall be,
from and after the Effective Time, an officer of the Surviving Corporation,
holding the same office he held with STI, until his respective successor is duly
elected and qualified, or his earlier death, resignation or removal.
ARTICLE II
CONVERSION OF SHARES
SECTION 2.1. Conversion of Outstanding Shares of STI Common Stock. At the
Effective Time, by virtue of the Merger and without any action on the part of
the parties hereto, (i) each issued and outstanding share of STI Common Stock
outstanding immediately prior to the Effective Time shall be converted into one
share of OmniAmerica Common Stock and (ii) each certificate representing shares
of STI Common Stock outstanding immediately prior to the Effective Time shall
represent the same number of shares of OmniAmerica Common Stock.
SECTION 2.2. Conversion of Outstanding Options to Purchase STI Common
Stock. At the Effective Time, by virtue of the Merger and without any action on
the part of the parties hereto, each outstanding option to purchase STI Common
Stock under a Plan (as hereinafter defined) shall be converted into an option to
purchase an equal number of shares of OmniAmerica Common Stock pursuant to the
terms and conditions set forth in the related option agreement and Plan.
SECTION 2.3. Cancellation of Outstanding Shares of OmniAmerica Common
Stock. At the Effective Time, by virtue of the Merger and without any action on
the part of the parties hereto, each issued and outstanding share of OmniAmerica
Common Stock outstanding immediately prior to the Effective Time shall be
cancelled and shall cease to exist and no consideration shall be deliverable in
exchange therefor.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF STI
STI represents and warrants to OmniAmerica as set forth below:
SECTION 3.1. Organization and Qualification. STI is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, with all requisite corporate power and authority
to own, operate and lease its properties and to carry on its business as it is
now being conducted, and is qualified or licensed to do business and is in good
standing in every jurisdiction where the nature of the business conducted by it
or the properties owned or leased by it requires qualification.
SECTION 3.2. Authorization. STI has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement, the
performance by STI of its obligations hereunder, and the consummation by it of
the
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transactions contemplated hereby and thereby, have been duly authorized by the
Board of Directors and stockholders of STI. No other corporate action on the
part of STI is necessary to authorize the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by STI and, assuming
this Agreement constitutes a valid and binding obligation of OmniAmerica, shall
constitute a valid and binding obligation of STI enforceable against it in
accordance with its terms, except to the extent that such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
SECTION 3.3. No Violation. Neither the execution and delivery of this
Agreement, the performance by STI of its obligations hereunder nor the
consummation by STI of the transactions contemplated hereby or thereby will (a)
violate, conflict with or result in any breach of any provision of the Articles
of Incorporation or Bylaws of STI or any of its subsidiaries, (b) violate,
conflict with or result in a violation or breach of, or constitute a default
(with or without due notice or lapse of time or both) under, or permit the
termination of, or require the consent of any other party to, or result in the
acceleration of, or entitle any party to accelerate (whether as a result of a
change in control of STI or otherwise) any obligation, or result in the loss of
any benefit, or give rise to the creation of any lien, charge, security interest
or encumbrance upon any of the properties or assets of STI or any of its
subsidiaries under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture or deed of trust, or any material license, lease, agreement
or other instrument or obligation to which STI or any of its subsidiaries is a
party or by which it or any of its properties or assets may be bound or
affected, or (c) violate any order, writ, judgment, injunction, decree, statute,
rule or regulation, of any court or governmental authority applicable to STI or
any of its subsidiaries or any of their respective properties or assets.
SECTION 3.4. Capitalization of STI. The authorized capital stock of STI
consists of 20,000,000 shares of STI Common Stock and 2,000,000 shares of
preferred stock, par value $0.1 per share (the "STI Preferred Stock"). As of the
date hereof, STI has 15,063,385 shares of STI Common Stock outstanding, all of
which have been validly issued, are fully paid and non-assessable and were not
issued in violation of any preemptive rights, and 654,526 shares of STI Common
Stock reserved for issuance upon the exercise from time to time of outstanding
options (the "Old Plan Options") under the Company's Amended and Restated 1994
Stock Option Plan, Outside Directors' Stock Option Plan and the 1997 Stock
Incentive Plan (each a "Plan" and collectively, the "Plans"). As of the date
hereof, no shares of STI Preferred Stock are outstanding.
SECTION 3.5. Consents and Approvals. Other than the filing of a certificate
of merger pursuant to the DGCL and articles of merger pursuant to the NRS and
requirements of federal and state securities laws, no filing or registration
with, no notice to and no permit, authorization, consent or approval of any
governmental authority is necessary for the consummation by STI of the
transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF OMNIAMERICA
OmniAmerica hereby represents and warrants to STI that:
SECTION 4.1. Organization and Qualification. OmniAmerica is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite power and authority to
own, lease and operate its properties and to carry on its businesses as now
being conducted, and is qualified or licensed to do business and is in good
standing in each jurisdiction in which the ownership or leasing of property by
it or the conduct of its business requires such licensing or qualification.
SECTION 4.2. Authorization. OmniAmerica has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by OmniAmerica, the performance by OmniAmerica of its obligations hereunder and
the
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<PAGE> 29
consummation by OmniAmerica of the transactions contemplated hereby have been
duly authorized by the Board of Directors and the sole stockholder of
OmniAmerica. No other corporate proceeding on the part of OmniAmerica is
necessary to authorize the execution and delivery of this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by OmniAmerica and, assuming this Agreement
constitutes a valid and binding obligation of STI, shall constitute a valid and
binding obligation of OmniAmerica, enforceable against it in accordance with its
terms, except to the extent that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
SECTION 4.3. No Violation. Neither the execution and delivery of this
Agreement by OmniAmerica and the performance by OmniAmerica of its obligations
hereunder or thereunder nor the consummation by OmniAmerica of the transactions
contemplated hereby or thereby will (a) violate, conflict with or result in any
breach of any provision of the Certificate of Incorporation or Bylaws of
OmniAmerica, (b) violate, conflict with or result in a violation or breach of,
or constitute a default (with or without due notice or lapse of time or both)
under, or permit the termination of, or require the consent of any other party
to, or result in the acceleration of, or entitle any party to accelerate any
obligation or result in the loss of a benefit or give rise to the creation of
any lien, charge, security interest or encumbrance upon any of the respective
properties or assets of OmniAmerica under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which OmniAmerica is a
party or by which they or any of their respective properties or assets may be
bound or affected or (c) violate any order, writ, judgment, injunction, decree,
statute, rule or regulation of any court or domestic or foreign governmental
authority applicable to OmniAmerica or any of its respective properties or
assets.
SECTION 4.4. Capitalization of OmniAmerica. The total number of shares of
stock which the Corporation has authority to issue is 110,000,000 shares of
capital stock, classified as (i) 10,000,000 shares of preferred stock, par value
$0.01 per share, and (ii) 100,000,000 shares of OmniAmerica Common Stock. As of
the date hereof, 1,000 shares of OmniAmerica Common Stock are issued and
outstanding.
SECTION 4.5. Consents and Approvals. Other than the filing of a certificate
of merger pursuant to the DGCL and articles of merger pursuant to the NRS and
requirements of federal and state securities laws, no filing or registration
with, no notice to and no permit, authorization, consent or approval of any
third party or any public or governmental body or authority is necessary for the
consummation by OmniAmerica of the transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
SECTION 5.1. Consents and Approvals. The parties hereto each shall
cooperate with one another and use all reasonable efforts to prepare all
necessary documentation to effect promptly all necessary filings and to obtain
all necessary permits, consents, approvals, orders and authorizations of or any
exemptions by, all third parties and governmental bodies necessary to consummate
the transactions contemplated by this Agreement.
ARTICLE VI
CLOSING CONDITION
SECTION 6.1. Condition to Each Party's Obligations under this
Agreement. The respective obligations of each party under this Agreement shall
be subject to the fulfillment at or prior to the Effective Time of the following
condition: all permits, consents, waivers, clearances, approvals and
authorizations of all third parties and governmental bodies necessary or
advisable in connection with the consummation of the Merger shall have been
obtained.
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<PAGE> 30
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Amendment and Modification. This Agreement may be amended by a
written instrument signed by the parties hereto and, as applicable, approved by
action taken by their respective boards of directors, at any time, but no
amendment shall be made which by law requires further approval by the
stockholders of any of the parties hereto without such further approval.
SECTION 7.2. Waiver of Compliance; Consents. Any failure by the other party
hereto to comply with any obligation, covenant, agreement or condition contained
herein may be waived in writing by STI and OmniAmerica, as applicable, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any other failure.
SECTION 7.3. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and, nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 7.4. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given upon the earlier of delivery thereof if
by hand or upon receipt if sent by mail (registered or certified mail, postage
prepaid, return receipt requested) or on the second next business day after
deposit if sent by a recognized overnight delivery service or upon transmission
if sent by telecopy or facsimile transmission (with request of assurance of
receipt in a manner customary for communication of such type) as follows:
<TABLE>
<S> <C> <C> <C>
(a) If to STI, to: (b) If to OmniAmerica, to:
Specialty Teleconstructors, OmniAmerica, Inc.
Inc. 12001 State Highway 14 North
12001 State Highway 14 North Cedar Crest, New Mexico 87008
Cedar Crest, New Mexico 87008 Attention: F. Howard Mandel
Attention: F. Howard Mandel Facsimile No.: 216/447-4450
Facsimile No.: 216/447-4450
and
and
Weil, Gotshal & Manges LLP
Weil, Gotshal & Manges LLP 100 Crescent Court, Suite
100 Crescent Court, Suite 1300
1300 Dallas, Texas 75201
Dallas, Texas 75201 Attention: Mary R. Korby,
Attention: Mary R. Korby, Esq.
Esq. Facsimile No.: 214/746-7777
Facsimile No.: 214/746-7777
</TABLE>
SECTION 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and where
applicable, the DGCL and the NRS, without regard to the conflicts-of-laws rules
thereof.
SECTION 7.6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
SECTION 7.7. Headings. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 7.8. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein or therein. There are no agreements,
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<PAGE> 31
representations, warranties or covenants other than those expressly set forth
herein or therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 7.9. Assignment. This Agreement shall not be assigned by operation
of law or otherwise.
SECTION 7.10. Termination of Representations and Warranties. None of the
representations and warranties of OmniAmerica and STI shall survive the
Effective Time. Notwithstanding any of the terms or provisions of this
Agreement, STI and OmniAmerica agree that neither it nor any person acting on
its behalf may assert any claims or cause of action against any officer or
director of the other party or any stockholder of such other party in connection
with or arising out of this Agreement.
SECTION 7.11. Severability. The parties agree that if one or more
provisions contained in this Agreement shall be deemed or held to be invalid,
illegal or unenforceable in any respect under any applicable law, this Agreement
shall be construed with the invalid, illegal or unenforceable provision deleted,
and the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected or impaired thereby.
SECTION 7.12. Abandonment of Merger. This Agreement may be terminated by
the board of directors of the parties hereto prior to the filing of the Articles
of Merger and Certificate of Merger notwithstanding approval of this Agreement
by the stockholders thereof.
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<PAGE> 32
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed on its behalf by its duly authorized officers, all as of the day and
year first above written.
SPECIALTY TELECONSTRUCTORS, INC.
a Nevada corporation
By: /s/ F. HOWARD MANDEL
----------------------------------
Name: F. Howard Mandel
Title: Vice President
OMNIAMERICA, INC.
a Delaware corporation
By: /s/ DANIEL S. DROSS
----------------------------------
Name: Daniel S. Dross
Title: President
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<PAGE> 33
EXHIBIT B
SPECIALTY TELECONSTRUCTORS, INC.
1998 STOCK OPTION PLAN
1. Purpose.
Specialty Teleconstructors, Inc., a Nevada corporation (herein, together
with its successors, referred to as the "Company"), by means of this 1998 Stock
Option Plan (the "Plan"), desires to afford certain key employees employed by,
and certain persons performing services for the Company and any direct or
indirect subsidiary or parent corporation thereof now existing or hereafter
formed or acquired (such corporations sometimes referred to herein as "Related
Entities") who are responsible for the continued growth of the Company an
opportunity to acquire a proprietary interest in the Company, and thus to create
in such persons an increased interest in and a greater concern for the welfare
of the Company and any Related Entities. Certain definitions used herein are
defined in Section 18 of this Plan.
The stock options described in Sections 6 and 7 (the "Options"), and the
shares of Common Stock (as hereinafter defined) acquired pursuant to the
exercise of such Options are a matter of separate inducement and are not in lieu
of any salary or other compensation for services. As used in the Plan, the terms
"parent corporation" and "subsidiary corporation" shall have the meanings
contained in Sections 424(e) and 424(f), respectively, of the Internal Revenue
Code of 1986, as amended (the "Code").
2. Administration.
The Plan shall be administered by the Compensation Committee of the Board
of Directors of the Company or by any other committee appointed by the Board of
Directors of the Company to administer this Plan (the "Committee"); provided,
that the entire Board of Directors of the Company (the "Board of Directors") may
act as the Committee if it chooses to do so; and provided, further, that (i) for
purposes of determining any Performance-Based Options (as hereinafter defined)
applicable to Key Employees (as hereinafter defined) who constitute "covered
employees" within the meaning of Section 162(m) of the Code, "Committee" shall
mean the members of the Compensation Committee of the Board of Directors who
qualify as "outside directors" within the meaning of Section 162(m) of the Code,
and such Performance-Based Options shall be subject to ratification by unanimous
approval of the members of the Board of Directors, and (ii) for so long as the
Company is subject to the reporting requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), the Committee shall be composed solely
of two or more "Non-Employee Directors" as defined in Rule 16b-3, as amended
("Rule 16b-3"), promulgated thereunder; provided, that, alternatively, for
purposes of granting Options other than Performance-Based Options hereunder, the
Board of Directors may authorize such grants and may take any other action
permitted pursuant to Section 162(m) of the Code, Rule 16b-3 and applicable law
and regulations.
The number of individuals that shall constitute the Committee shall be
determined from time to time by a majority of all the members of the Board of
Directors, and, unless that majority of the Board of Directors determines
otherwise, shall be no less than two individuals. A majority of the Committee
shall constitute a quorum (or if the Committee consists of only two members,
then both members shall constitute a quorum), and subject to the provisions of
Section 5, the acts of a majority of the members present at any meeting at which
a quorum is present, or acts approved in writing by all members of the
Committee, shall be the acts of the Committee. The Committee shall administer
the Plan so as (i) to comply at all times with the Exchange Act, and (ii) to
ensure that compensation attributable to Options granted under the Plan to Key
Employees who constitute "covered employees" within the meaning of Section
162(m) of the Code shall (A) meet the deduction limitation imposed by Section
162(m) of the Code, or (B) qualify as "performance-based compensation" as such
term is used in Section 162(m) of the Code and the regulations promulgated
thereunder and thus be exempt from the deduction limitation imposed by Section
162(m) of the Code.
The members of the Committee shall serve at the pleasure of the Board of
Directors, which shall have the power, at any time and from time to time, to
remove members from or add members to the Committee. Removal from the Committee
may be with or without cause. Any individual serving as a member of the
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<PAGE> 34
Committee shall have the right to resign from membership in the Committee by
written notice to the Board of Directors. The Board of Directors, and not the
remaining members of the Committee, shall have the power and authority to fill
vacancies on the Committee, however caused. The Board of Directors shall
promptly fill any vacancy that causes the number of members of the Committee to
be below two or any other number that Rule 16b-3 or other applicable rules under
Section 16(b) of the Exchange Act, Section 162(m) of the Code, or any successor
or analogous rules or laws may require from time to time.
3. Shares Available and Maximum Individual Grants.
Subject to the adjustments provided in Section 10, the maximum aggregate
number of shares of common stock, par value $0.01 per share, of the Company
("Common Stock") in respect of which Options may be granted for all purposes
under the Plan shall be 675,000 shares. If, for any reason, any shares as to
which Options have been granted cease to be subject to purchase thereunder,
including the expiration of such Option, the termination of such Option prior to
exercise, or the forfeiture of such Option, such shares shall thereafter be
available for grants under the Plan. Options granted under the Plan may be
fulfilled in accordance with the terms of the Plan with (i) authorized and
unissued shares of the Common Stock, or (ii) issued shares of such Common Stock
held in the Company's treasury.
The maximum aggregate number of shares of Common Stock underlying all
Options that may be granted to any single Key Employee (as hereinafter defined),
including any Options that may have been granted to such Key Employee as an
Eligible Non-Employee (as hereinafter defined), during the Term (as hereinafter
defined) of the Plan shall be 250,000 shares, subject to the adjustments
provided in Section 10. For purposes of the preceding sentence, such Options
that are cancelled or repriced shall continue to be counted in determining such
maximum aggregate number of shares of Common Stock that may be granted to any
single Key Employee, including any Options that may have been granted to such
Key Employee as an Eligible Non-Employee, during the Term of the Plan.
4. Eligibility and Bases of Participation.
Grants of Incentive Options (as hereinafter defined) and Non-Qualified
Options (as hereinafter defined) may be made under the Plan, subject to and in
accordance with Section 6, to Key Employees. As used herein, the term "Key
Employee" shall mean any employee of the Company or any Related Entity,
including officers and directors of the Company or any Related Entity who are
also employees of the Company or any Related Entity, who are regularly employed
on a salaried basis and who are so employed on the date of such grant, whom the
Committee identifies as having a direct and significant effect on the
performance of the Company or any Related Entity.
Grants of Non-Qualified Options may be made, subject to and in accordance
with Section 7, to any Eligible Non-Employee. As used herein, the term "Eligible
Non-Employee" shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust, or other entity (collectively, a "Person"), that the
Committee designates as eligible for a grant of Options pursuant to this Plan
because such Person performs bona fide consulting, advisory, or other services
for the Company or any Related Entity (other than services in connection with
the offer or sale of securities in a capital-raising transaction) and the Board
of Directors or the Committee determines that the Person has a direct and
significant effect on the performance of the Company or any Related Entity.
The adoption of this Plan shall not be deemed to give any Person a right to
be granted any Options.
5. Authority of Committee.
Subject to and not inconsistent with the express provisions of the Plan,
the Code and, if applicable, Rule 16b-3 and Section 162(m) of the Code, the
Committee shall have plenary authority to:
a. determine the Key Employees and Eligible Non-Employees to whom
Options shall be granted, the time when such Options shall be granted, the
number of Options, the purchase price or exercise price of each Option, the
period(s) during which such Options shall be exercisable (whether in whole
or in part, including whether such Options shall become immediately
exercisable upon the consummation of a
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<PAGE> 35
Change of Control), the restrictions to be applicable to Options and all
other terms and provisions thereof (which need not be identical);
b. require, as a condition to the granting of any Option, that the
Person receiving such Option agree not to sell or otherwise dispose of such
Option, any Common Stock acquired pursuant to such Option, or any other
"derivative security" (as defined by Rule 16a-1(c) under the Exchange Act)
of the Company for a period of six months following the later of (i) the
date of the grant of such Option or (ii) the date when the exercise price
of such Option is fixed if such exercise price is not fixed at the date of
grant of such Option, or for such other period as the Committee may
determine;
c. provide an arrangement through registered broker-dealers whereby
temporary financing may be made available to an optionee by the
broker-dealer, under the rules and regulations of the Board of Governors of
the Federal Reserve, for the purpose of assisting the optionee in the
exercise of an Option, such authority to include the payment by the Company
of the commissions of the broker-dealer;
d. provide the establishment of procedures for an optionee (i) to have
withheld from the total number of shares of Common Stock to be acquired
upon the exercise of an Option that number of shares having a Fair Market
Value which, together with such cash as shall be paid in respect of
fractional shares, shall equal the aggregate exercise price under such
Option for the number of shares then being acquired (including the shares
to be so withheld), and (ii) to exercise a portion of an Option by
delivering that number of shares of Common Stock already owned by such
optionee having an aggregate Fair Market Value which shall equal the
partial Option exercise price and to deliver the shares thus acquired by
such optionee in payment of shares to be received pursuant to the exercise
of additional portions of such Option, the effect of which shall be that
such optionee can in sequence utilize such newly acquired shares in payment
of the exercise price of the entire Option, together with such cash as
shall be paid in respect of fractional shares; provided, however, that (i)
in the case of an Incentive Option, no shares shall be used to pay the
exercise price under this paragraph unless (A) such shares were not
acquired through the exercise of an Incentive Option, or (B) if so
acquired, (x) such shares have been held for more than two years since the
grant of such Incentive Option and for more than one year since the
exercise of such Incentive Option (the "Holding Period"), or (y) if such
shares do not meet the Holding Period, the optionee elects in writing to
use such shares to pay the exercise price under this paragraph, and (ii) no
such procedure shall be available if there is an opinion of the Company's
independent accounting firm that the use of such a procedure could
negatively affect the financial statements of the Company or a Related
Entity;
e. provide (in accordance with Section 13 or otherwise) the
establishment of a procedure whereby a number of shares of Common Stock or
other securities may be withheld from the total number of shares of Common
Stock or other securities to be issued upon exercise of an Option to meet
the obligation of withholding for income, social security and other taxes
incurred by an optionee upon such exercise or required to be withheld by
the Company or a Related Entity in connection with such exercise unless, as
determined by the Committee in the exercise of its discretion, such
procedure is not permitted by applicable law or would result in a charge to
earnings that otherwise would not have occurred;
f. prescribe, amend, modify and rescind rules and regulations relating
to the Plan; and
g. make all determinations permitted or deemed necessary, appropriate
or advisable for the administration of the Plan, interpret any Plan or
Option provision, perform all other acts, exercise all other powers, and
establish any other procedures determined by the Committee to be necessary,
appropriate, or advisable in administering the Plan or for the conduct of
the Committee's business. Any act of the Committee, including
interpretations of the provisions of the Plan or any Option and
determinations under the Plan or any Option shall be final, conclusive and
binding on all parties.
The Committee may delegate to one or more of its members, or to one or more
agents, such administrative duties as it may deem advisable, and the Committee
or any Person to whom it has delegated duties as aforesaid may employ one or
more Persons to render advice with respect to any responsibility the Committee
or such Person may have under the Plan; provided, however, that any such
delegation shall be in
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<PAGE> 36
writing; and provided, however, that, any determination of Performance-Based
Options (as hereinafter defined) applicable to Key Employees who constitute
"covered employees" within the meaning of Section 162(m) of the Code may not be
delegated to a member of the Board of Directors who, if elected to serve on the
Committee, would not qualify as an "outside director" within the meaning of
Section 162(m) of the Code. The Committee may employ attorneys, consultants,
accountants, or other Persons and the Committee, the Company, and its officers
and directors shall be entitled to rely upon the advice, opinions, or valuations
of any such Persons. No member or agent of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan and all members and agents of the Committee shall be fully
protected by the Company in respect of any such action, determination or
interpretation.
6. Stock Option Grants to Key Employees.
Subject to the express provisions of this Plan, the Committee shall have
the authority to grant incentive stock options pursuant to Section 422 of the
Code ("Incentive Options"), to grant non-qualified stock options (options which
do not qualify under Section 422 of the Code) ("Non-Qualified Options"), and to
grant both types of Options to Key Employees. No Incentive Option shall be
granted pursuant to this Plan after the earlier of ten years from the date of
adoption of the Plan or ten years from the date of approval of the Plan by the
stockholders of the Company. Incentive Options may be granted only to Key
Employees. The terms and conditions of the Options granted under this Section 6
shall be determined from time to time by the Committee; provided, however, that
the Options granted under this Section 6 shall be subject to all terms and
provisions of the Plan (other than Section 7), including the following:
a. Option Exercise Price. Subject to Section 4, the Committee shall
establish the Option exercise price at the time any Option is granted to a
Key Employee at such amount as the Committee shall determine; provided,
that, in the case of an Incentive Option, such price shall not be less than
the Fair Market Value per share of Common Stock at the date the Option is
granted; and provided, further, that in the case of an Incentive Option
granted to a person who, at the time such Incentive Option is granted, owns
shares of the Company or any Related Entity which possess more than 10% of
the total combined voting power of all classes of shares of the Company or
of any Related Entity, the option exercise price shall not be less than
110% of the Fair Market Value per share of Common Stock at the date the
Option is granted. The Option exercise price shall be subject to adjustment
in accordance with the provisions of Section 10 of the Plan.
b. Payment. The price per share of Common Stock with respect to each
Option exercise by a Key Employee shall be payable at the time of such
exercise. Such price shall be payable in cash or by any other means
acceptable to the Committee, including delivery to the Company of shares of
Common Stock owned by the optionee or by the delivery or withholding of
shares pursuant to a procedure created pursuant to subsection 5(d) of the
Plan (but, with respect to Incentive Options, subject to the limitations
described in such subsection 5(d)). Shares delivered to or withheld by the
Company in payment of the Option exercise price shall be valued at the Fair
Market Value of the Common Stock on the day preceding the date of the
exercise of the Option.
c. Exercisability of Stock Option. Unless otherwise determined by the
Committee at the time of grant, and subject to the provisions of
subsections 6(d), (e), (f), (g) and (i) below, stock options granted to Key
Employees hereunder shall vest and become exercisable according to the
vesting schedule set forth below:
- one-third of the shares of Common Stock underlying the stock option
grant shall vest and become exercisable on the first anniversary of
the date of grant and remain exercisable until the stock option
expires; and
- an additional one-third of the shares of Common Stock underlying the
stock option grant shall vest and become exercisable on the second
anniversary of the date of grant and remain exercisable until the
stock option expires; and
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- the final one-third of the shares of Common Stock underlying the stock
option grant shall vest and become exercisable on the third
anniversary of the date of grant and remain exercisable until the
stock option expires.
No Option by its terms shall be exercisable after the expiration of ten
years from the date of grant of the Option, unless, as to any Non-Qualified
Option, otherwise expressly provided in such Option; provided, however,
that no Incentive Option granted to a person who, at the time such Option
is granted, owns stock of the Company, or any Related Entity, possessing
more than 10% of the total combined voting power of all classes of stock of
the Company, or any Related Entity, shall be exercisable after the
expiration of five years from the date such Option is granted.
d. Death. If any optionee's employment with the Company or a Related
Entity terminates due to the death of such optionee, the estate of such
optionee, or a Person who acquired the right to exercise such Option by
bequest or inheritance or by reason of the death of the optionee, shall
have the right to exercise the vested portion of such Option in accordance
with its terms at any time and from time to time within 180 days after the
date of death unless a longer or shorter period is expressly provided in
such Option or established by the Committee pursuant to Section 9 (but in
no event after the expiration date of such Option), and thereafter such
Option shall lapse and no longer be exercisable.
e. Disability. If the employment of any optionee terminates because of
his or her Disability (as defined in Section 18), such optionee or his or
her legal representative shall have the right to exercise the vested
portion of such Option in accordance with its terms at any time and from
time to time within 180 days after the date of such termination unless a
longer or shorter period is expressly provided in such Option or
established by the Committee pursuant to Section 9 (but in no event after
the expiration date of the Option), and thereafter such Option shall lapse
and no longer be exercisable; provided, however,that in the case of an
Incentive Option, the optionee or his or her legal representative shall in
any event be required to exercise the vested portion of such Incentive
Option within one year after termination of the optionee's employment due
to his or her Disability.
f. Termination for Cause. Unless an optionee's Option expressly
provides otherwise, such optionee shall immediately forfeit all rights
under his or her Option, except as to the shares of stock already purchased
thereunder, if the employment of such optionee with the Company or a
Related Entity is terminated by the Company or any Related Entity for Good
Cause (as defined below). The determination that there exists Good Cause
for termination shall be made by the Committee (unless otherwise agreed to
in writing by the Company and the optionee) and any decision in respect
thereof by the Committee shall be final and binding on all parties in
interest.
g. Other Termination of Employment. If the employment of an optionee
with the Company or a Related Entity terminates for any reason (including
if such optionee voluntarily terminates employment with or without the
consent of the Company or any Related Entity) other than those specified in
subsections 6(d), (e) or (f) above, then with the approval of the Board of
Directors, such optionee shall have the right to exercise the vested
portion of his or her Option in accordance with its terms, within 30 days
after the date of such termination, unless a longer or shorter period is
expressly provided in such Option or established by the Committee pursuant
to Section 9 (but in no event after the expiration date of the Option), and
thereafter such Option shall lapse and no longer be exercisable; provided,
that (i) no Incentive Option shall be exercisable more than three months
after such termination, and (ii) the Committee may, in the exercise of its
discretion, extend the exercise date of any Option upon termination of
employment for a period not to exceed six months plus one day (but in no
event after the expiration date of the Option) if the Committee determines
that the stated exercise date will have an inequitable result under Section
16(b) of the Exchange Act.
h. Maximum Exercise. To the extent that the aggregate Fair Market
Value of Common Stock (determined at the time of the grant of the Option)
with respect to which Incentive Options are exercisable for the first time
by an optionee during any calendar year under all plans of the Company and
any Related Entity exceeds $100,000, such Incentive Options shall be
treated as Non-Qualified Options.
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i. Continuation of Employment. Each Incentive Option shall require the
optionee to remain in the continuous employ of the Company or any Related
Entity from the date of grant of the Incentive Option until at least three
months prior to the date of exercise of the Incentive Option.
j. Interpretation of Plan. Any termination of employment of an
Optionee with the Company or any Related Entity shall in no way change or
amend the Company's at-will termination policy.
7. Stock Option Grants to Eligible Non-Employees.
Subject to the express provisions of this Plan, the Committee shall have
the authority to grant Non-Qualified Options (and not Incentive Options) to
Eligible Non-Employees; provided, however, that no Eligible Non-Employee then
serving on the Committee (or such other committee then administering the Plan)
shall be granted Options hereunder if the grant of such Options would cause such
Eligible Non-Employee to no longer be a "Non-Employee Director" as set forth in
Section 2 hereof. The terms and conditions of the Options granted under this
Section 7 shall be determined from time to time by the Committee; provided,
however, that the Options granted under this Section 7 shall be subject to all
terms and provisions of the Plan (other than Section 6), including the
following:
a. Option Exercise Price. Subject to Section 4, the Committee shall
establish the Option exercise price at the time any Non-Qualified Option is
granted to an Eligible Non-Employee at such amount as the Committee shall
determine. The Option exercise price shall be subject to adjustment in
accordance with the provisions of Section 10 of the Plan.
b. Payment. The price per share of Common Stock with respect to each
Option exercise by an Eligible Non-Employee shall be payable at the time of
such exercise. Such price shall be payable in cash or by any other means
acceptable to the Committee, including delivery to the Company of shares of
Common Stock owned by the optionee or by the delivery or withholding of
shares pursuant to a procedure created pursuant to subsection 5(d) of the
Plan. Shares delivered to or withheld by the Company in payment of the
Option exercise price shall be valued at the Fair Market Value of the
Common Stock on the day preceding the date of the exercise of the Option.
c. Exercisability of Stock Option. Unless otherwise determined by the
Committee at the time of grant and subject to the provisions of subsections
7(d), (e), (f), (g) and (i) below, stock options granted to Eligible
Non-Employees hereunder shall vest and become exercisable according to the
vesting schedule set forth below:
- one-third of the shares of Common Stock underlying the stock option
grant shall vest and become exercisable on the first anniversary of
the date of grant and remain exercisable until the stock option
expires; and
- an additional one-third of the shares of Common Stock underlying the
stock option grant shall vest and become exercisable on the second
anniversary of the date of grant and remain exercisable until the
stock option expires; and
- the final one-third of the shares of Common Stock underlying the stock
option grant shall vest and become exercisable on the third
anniversary of the date of grant and remain exercisable until the
stock option expires.
No Option shall be exercisable after the expiration of ten years from the
date of grant of the Option, unless otherwise expressly provided in such
Option.
d. Death. If the retention by the Company or any Related Entity of the
services of any Eligible Non-Employee that is a natural person terminates
because of his or her death, the estate of such optionee, or a Person who
acquired the right to exercise such Option by bequest or inheritance or by
reason of the death of the optionee, shall have the right to exercise the
vested portion of such Option in accordance with its terms, at any time and
from time to time within 180 days after the date of death unless a longer
or shorter period is expressly provided in such Option or established by
the Committee
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<PAGE> 39
pursuant to Section 9 (but in no event after the expiration date of such
Option), and thereafter such Option shall lapse and no longer be
exercisable.
e. Disability. If the retention by the Company or any Related Entity
of the services of any Eligible Non-Employee that is a natural person
terminates because of his or her Disability (as defined in Section 18),
such optionee or his or her legal representative shall have the right to
exercise the vested portion of such Option in accordance with its terms at
any time and from time to time within 180 days after the date of the
optionee's termination unless a longer or shorter period is expressly
provided in such Option or established by the Committee pursuant to Section
9 (but in no event after the expiration of the Option), and thereafter such
Option shall lapse and no longer be exercisable.
f. Termination for Cause; Voluntary Termination. If the retention by
the Company or any Related Entity of the services of any Eligible
Non-Employee is terminated (i) for Good Cause, (ii) as a result of removal
of the optionee from office as a director of the Company or of any Related
Entity for cause by action of the stockholders of the Company or such
Related Entity in accordance with the certificate of incorporation or the
by-laws of the Company or such Related Entity, as applicable, and the
corporate law of the jurisdiction of incorporation of the Company or such
Related Entity, or (iii) as a result of the voluntary termination by such
optionee of the optionee's service, then such optionee shall immediately
forfeit his, her or its rights under such Option except as to the shares of
stock already purchased. The determination that there exists Good Cause for
termination shall be made by the Committee (unless otherwise agreed to in
writing by the Company and the optionee) and any decision in respect
thereof by the Committee shall be final and binding on all parties in
interest.
g. Other Termination of Relationship. If the retention by the Company
or any Related Entity of the services of any Eligible Non-Employee
terminates for any reason other than those specified in subsections 7(d),
(e) or (f) above, then with the approval of the Board of Directors, such
optionee shall have the right to exercise the vested portion of his, her or
its Option in accordance with its terms within 30 days after the date of
such termination, unless a longer or shorter period is expressly provided
in such Option or established by the Committee pursuant to Section 9 (but
in no event after the expiration date of the Option), and thereafter such
Option shall lapse and no longer be exercisable; provided, that the
Committee may, in the exercise of its discretion, extend the exercise date
of any Option upon termination of retention of an Eligible Non-Employee's
services for a period not to exceed six months plus one day (but in no
event after the expiration date of the Option) if the Committee determines
that the stated exercise date will have an inequitable result under Section
16(b) of the Exchange Act.
8. Performance-Based Options.
The Committee, in its sole discretion, may designate and design Options
granted under the Plan as Performance-Based Options (as hereinafter defined) if
it determines that compensation attributable to such Options might not otherwise
be tax deductible by the Company due to the deduction limitation imposed by
Section 162(m) of the Code. Accordingly, Options granted under the Plan may be
granted in such a manner that the compensation attributable to such Options is
intended by the Committee to qualify as "performance-based compensation" as such
term is used in Section 162(m) of the Code and the regulations promulgated
thereunder and thus be exempt from the deduction limitation imposed by Section
162(m) of the Code ("Performance-Based Options").
Options granted under the Plan to Key Employees who constitute "covered
employees" within the meaning of Section 162(m) of the Code shall be deemed to
qualify as Performance-Based Options only if:
a. The Option exercise price is not less than the Fair Market Value
per share of Common Stock at the date the Option is granted; provided, that
in the case of an Incentive Option, such price is subject to the
limitations described in subsection 6(a); provided, further, that the
Option exercise price shall be subject to adjustment in accordance with the
provisions of Section 10 of the Plan; or
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<PAGE> 40
b. With respect a Non-Qualified Option granted at an exercise price
that is below the Fair Market Value per share of the Common Stock on the
date of grant, such Option satisfies the following requirements:
(i) the granting or vesting of such Non-Qualified Option is subject
to the achievement of a performance goal or goals based on one or more
of the following performance measures (either individually or in any
combination): net sales; pre-tax income before allocation of corporate
overhead and bonus; budget; cash flow; earnings per share; net income;
division, group or corporate financial goals; return on stockholders'
equity; return on assets; attainment of strategic and operational
initiatives; appreciation in and/or maintenance of the price of the
Common Stock or any other publicly-traded securities of the Company;
market share; gross profits; earnings before interest and taxes;
earnings before interest, taxes, depreciation and amortization; economic
value-added models; comparisons with various stock market indices;
increase in number of customers; and/or reductions in costs;
(ii) the Committee establishes in writing (A) the objective
performance-based goals applicable to a given performance period, and
(B) the individual employees or class of employees to which such
performance-based goals apply no later than ninety days after the
commencement of such performance period (but in no event after
twenty-five percent of such performance period has elapsed);
(iii) no compensation attributable to Performance-Based Options
will be paid to or otherwise received by a Key Employee who constitutes
a "covered employee" within the meaning of Section 162(m) of the Code
until the Committee certifies in writing that the performance goal or
goals (and any other material terms) applicable to such performance
period have been satisfied;
(iv) after the establishment of a performance goal, the Committee
shall not revise such performance goal (unless such revision will not
disqualify compensation attributable to the Performance-Based Options as
"performance-based compensation" under Section 162(m) of the Code) or
increase the amount of compensation payable with respect to such
Performance-Based Options upon the attainment of such performance goal;
and
(v) as required by the regulations promulgated under Section 162(m)
of the Code, the material terms of performance goals as described in
subsection 8(b)(i) shall be disclosed to and reapproved by the Company's
stockholders no later than the first stockholder meeting that occurs in
the fifth year following the year in which the Company stockholders
previously approved such performance goals.
9. Change of Control.
If (i) a Change of Control shall occur, or (ii) the Company shall enter
into an agreement providing for a Change of Control, then the Committee may
declare any or all Options outstanding under the Plan to be exercisable in full
at such time or times as the Committee shall determine, notwithstanding the
express provisions of such Options. Each Option accelerated by the Committee
pursuant to the preceding sentence shall terminate, notwithstanding any express
provision thereof or any other provision of the Plan, on such date (not later
than the stated exercise date) as the Committee shall determine.
10. Adjustment of Shares.
Except as otherwise contemplated in Section 9, and unless otherwise
expressly provided in a particular Option, in the event that, by reason of any
merger, consolidation, combination, liquidation, recapitalization, stock
dividend, stock split, split-up, split-off, spin-off, combination of shares,
exchange of shares or other like change in capital structure of the Company
(collectively, an "Adjustment Event"), the Common Stock is substituted,
combined, or changed into any cash, property, or other securities, or the shares
of Common Stock are changed into a greater or lesser number of shares of Common
Stock, the number and/or kind of shares and/or interests subject to an Option
and the per share price or value thereof shall be appropriately adjusted
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<PAGE> 41
by the Committee to give appropriate effect to such Adjustment Event. Any
fractional shares or interests resulting from such adjustment shall be
eliminated. Notwithstanding the foregoing, (i) each such adjustment with respect
to an Incentive Option shall comply with the rules of Section 424(a) of the Code
to an Incentive Option, and (ii) in no event shall any adjustment be made which
would render any Incentive Option granted hereunder other than an "incentive
stock option" for purposes of Section 422 of the Code.
In the event the Company is not the surviving entity of an Adjustment Event
and, following such Adjustment Event, any optionee will hold Options issued
pursuant to this Plan which have not been exercised, cancelled, or terminated in
connection therewith, the Company shall cause such Options to be assumed (or
cancelled and replacement Options issued) by the surviving entity or a Related
Entity. In the event of any perceived conflict between the provisions of Section
9 and this Section 10, the Committee's determinations under Section 9 shall
control.
11. Assignment or Transfer.
Except as otherwise expressly provided in any Non-Qualified Option, no
Option granted under the Plan or any rights or interests therein shall be
assignable or transferable by an optionee except by will or the laws of descent
and distribution, and during the lifetime of an optionee, Options granted to him
or her hereunder shall be exercisable only by the optionee or, in the event that
a legal representative has been appointed in connection with the Disability of
an optionee, such legal representative.
12. Compliance with Securities Laws.
The Company shall not in any event be obligated to file any registration
statement under the Securities Act of 1933, as amended (the "Securities Act") or
any applicable state securities law to permit exercise of any Option or to issue
any Common Stock in violation of the Securities Act or any applicable state
securities law. Each optionee (or, in the event of his or her death or, in the
event a legal representative has been appointed in connection with his or her
Disability, the Person exercising the Option) shall, as a condition to his or
her right to exercise any Option, deliver to the Company an agreement or
certificate containing such representations, warranties and covenants as the
Company may deem necessary or appropriate to ensure that the issuance of shares
of Common Stock pursuant to such exercise is not required to be registered under
the Securities Act or any applicable state securities law.
Certificates for shares of Common Stock, when issued, may have
substantially the following legend, or statements of other applicable
restrictions, endorsed thereon, and may not be immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED,
TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES
EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE
ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT
SUCH OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE
APPLICABLE FEDERAL OR STATE LAWS.
This legend shall not be required for shares of Common Stock issued
pursuant to an effective registration statement under the Securities Act and in
accordance with applicable state securities laws.
13. Withholding Taxes.
By acceptance of the Option, the optionee will be deemed to (i) agree to
reimburse the Company or Related Entity by which the optionee is employed for
any federal, state, or local taxes required by any government to be withheld or
otherwise deducted by such corporation in respect of the optionee's exercise of
all or a portion of the Option; (ii) authorize the Company or any Related Entity
by which the optionee is employed to withhold from any cash compensation paid to
the optionee or in the optionee's behalf, an amount sufficient to discharge any
federal, state, and local taxes imposed on the Company, or the Related Entity by
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<PAGE> 42
which the optionee is employed, and which otherwise has not been reimbursed by
the optionee, in respect of the optionee's exercise of all or a portion of the
Option; and (iii) agree that the Company may, in its discretion, hold the stock
certificate to which the optionee is entitled upon exercise of the Option as
security for the payment of the aforementioned withholding tax liability, until
cash sufficient to pay that liability has been accumulated, and may, in its
discretion, effect such withholding by retaining shares issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise which
is equal to the amount to be withheld.
14. Costs and Expenses.
The costs and expenses of administering the Plan shall be borne by the
Company and shall not be charged against any Option nor to any employee
receiving an Option.
15. Funding of Plan.
The Plan shall be unfunded. The Company shall not be required to make any
segregation of assets to assure the payment of any Option under the Plan.
16. Other Incentive Plans.
The adoption of the Plan does not preclude the adoption by appropriate
means of any other incentive plan for employees.
17. Effect on Employment.
Nothing contained in the Plan or any agreement related hereto or referred
to herein shall affect, or be construed as affecting, the terms of employment of
any Key Employee except to the extent specifically provided herein or therein.
Nothing contained in the Plan or any agreement related hereto or referred to
herein shall impose, or be construed as imposing, an obligation on (i) the
Company or any Related Entity to continue the employment of any Key Employee,
and (ii) any Key Employee to remain in the employ of the Company or any Related
Entity.
18. Definitions.
In addition to the terms specifically defined elsewhere in the Plan, as
used in the Plan, the following terms shall have the respective meanings
indicated:
"Adjustment Event" shall have the meaning set forth in Section 10
hereof.
"Affiliate" shall mean, as to any Person, a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person.
"Board of Directors" shall have the meaning set forth in Section 2
hereof.
"Change of Control" shall mean the first to occur of the following
events: (i) any sale, lease, exchange, or other transfer (in one
transaction or series of related transactions) of all or substantially all
of the assets of the Company to any Person or group of related Persons as
determined pursuant to Section 13(d) of the Exchange Act and the
regulations and interpretations thereunder (a "Group") other than one or
more members of the HMC Group, (ii) a majority of the Board of Directors of
the Company shall consist of Persons who are not Continuing Directors; or
(iii) the acquisition by any Person or Group other than one or more members
of the HMC Group of the power, directly or indirectly, to vote or direct
the voting of securities having more than 50% of the ordinary voting power
for the election of directors of the Company.
"Code" shall have the meaning set forth in Section 1 hereof.
"Committee" shall have the meaning set forth in Section 2 hereof.
"Common Stock" shall have the meaning set forth in Section 3 hereof.
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"Company" shall have the meaning set forth in Section 1 hereof.
"Continuing Director" shall mean, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company on the
date of adoption of this Plan, or (ii) was nominated for election or
elected to the Board of Directors of the Company with the affirmative vote
of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.
"Disability" shall mean permanent disability as defined under the
appropriate provisions of the applicable long-term disability plan
maintained for the benefit of employees of the Company or any Related
Entity who are regularly employed on a salaried basis unless another
meaning shall be agreed to in writing by the Committee and the optionee;
provided, however, that, in the case of an Incentive Option, "disability"
shall have the meaning specified in Section 22(e)(3) of the Code.
"Eligible Non-Employee" shall have the meaning set forth in Section 4
hereof.
"Exchange Act" shall have the meaning set forth in Section 2 hereof.
"Fair Market Value" shall, as it relates to the Common Stock, mean the
average of the high and low prices of such Common Stock as reported on the
principal national securities exchange on which the shares of Common Stock
are then listed or the NASDAQ National Market, as applicable, on the date
specified herein for such a determination; or, if there were no sales on
such date, on the next preceding day on which there were sales; or, if such
Common Stock is not listed on a national securities exchange, the last
reported bid price in the over-the-counter market; or, if such shares are
not traded in the over-the-counter market, the per share cash price for
which all of the outstanding Common Stock could be sold to a willing
purchaser in an arms length transaction (without regard to minority
discount, absence of liquidity, or transfer restrictions imposed by any
applicable law or agreement) at the date of the event giving rise to a need
for a determination. Except as may be otherwise expressly provided in a
particular Option, Fair Market Value shall be determined in good faith by
the Committee.
"Good Cause", with respect to any Key Employee, shall mean (unless
another definition is agreed to in writing by the Company and the optionee)
termination by action of the Board of Directors because of: (A) the
optionee's conviction of, or plea of nolo contendere to, a felony or a
crime involving moral turpitude; (B) the optionee's personal dishonesty,
willful misconduct, willful violation of any law, rule, or regulation
(other than minor traffic violations or similar offenses) or breach of
fiduciary duty which involves personal profit; (C) the optionee's willful
commission of material mismanagement in the conduct of his or her duties as
assigned to him by the Board of Directors or the optionee's supervising
officer or officers of the Company; (D) the optionee's willful failure to
execute or comply with the policies of the Company or his or her stated
duties as established by the Board of Directors or the optionee's
supervising officer or officers of the Company, or the optionee's
intentional failure to perform the optionee's stated duties; or (E)
substance abuse or addiction on the part of the optionee. "Good Cause",
with respect to any Eligible Non-Employee, shall mean (unless another
definition is agreed to in writing by the Company and the optionee)
termination by action of the Board of Directors because of: (A) the
optionee's conviction of, or plea of nolo contendere to, a felony or a
crime involving moral turpitude; (B) the optionee's personal dishonesty,
willful misconduct, willful violation of any law, rule, or regulation
(other than minor traffic violations or similar offenses) or breach of
fiduciary duty which involves personal profit; (C) the optionee's willful
commission of material mismanagement in providing services to the Company
or any Related Entity; (D) the optionee's willful failure to comply with
the policies of the Company in providing services to the Company or any
Related Entity, or the optionee's intentional failure to perform the
services for which the optionee has been engaged; (E) substance abuse or
addiction on the part of the optionee; or (F) the optionee's willfully
making any material misrepresentation or willfully omitting to disclose any
material fact to the board of directors of the Company or any Related
Entity with respect to the business of the Company or any Related Entity.
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"HMC Group" shall mean Hicks, Muse, Tate & Furst Incorporated, its
Affiliates, and their respective employees, officers, partners and
directors (and members of their respective families and trusts for the
primary benefit of such family members).
"Holding Period" shall have the meaning set forth in subsection 5(d)
hereof.
"Incentive Options" shall have the meaning set forth in Section 6
hereof.
The term "including" when used herein shall mean "including, but not
limited to".
"Key Employee" shall have the meaning set forth in Section 4 hereof.
"Non-Qualified Options" shall have the meaning set forth in Section 6
hereof.
"Options" shall have the meaning set forth in Section 1 hereof.
"Performance-Based Options" shall have the meaning set forth in
Section 8 hereof.
"Person" shall have the meaning set forth in Section 4 hereof.
"Plan" shall have the meaning set forth in Section 1 hereof.
"Related Entities" shall have the meaning set forth in Section 1
hereof.
"Rule 16b-3" shall have the meaning set forth in Section 2 hereof.
"Securities Act" shall have the meaning set forth in Section 11
hereof.
"Term" shall have the meaning set forth in Section 20 hereof.
19. Amendment of Plan.
The Board of Directors shall have the right to amend, modify, suspend or
terminate the Plan at any time; provided, that no amendment shall be made which
shall increase the total number of shares of the Common Stock which may be
issued and sold pursuant to Options granted under the Plan or decrease the
minimum Option exercise price in the case of an Incentive Option, or modify the
provisions of the Plan relating to eligibility with respect to Incentive Options
unless such amendment is made by or with the approval of the stockholders. The
Board of Directors shall be authorized to amend the Plan and the Options granted
thereunder, without the consent or joinder of any optionee or other Person, in
such manner as may be deemed necessary or appropriate by the Board of Directors
in order to cause the Plan and the Options granted thereunder (i) to qualify as
"incentive stock options" within the meaning of Section 422 of the Code or (ii)
to comply with Rule 16b-3 (or any successor rule) under the Exchange Act (or any
successor law) and the regulations (including any temporary regulations)
promulgated thereunder or (iii) to comply with Section 162(m) of the Code (or
any successor section) and any regulations (including any temporary regulations)
promulgated thereunder. Except as provided above, no amendment, modification,
suspension or termination of the Plan shall materially impair the value of any
Options previously granted under the Plan, without the consent of the holder
thereof.
20. Effective Date and Term.
The Plan shall be effective as of September 14, 1998, and shall be void
retroactively as to any Incentive Option if not approved by the stockholders of
the Company within twelve months thereafter. The Plan shall terminate on the
tenth anniversary of the date of adoption of the Plan or the date of approval of
the Plan by the stockholders of the Company, whichever is earlier, unless sooner
terminated by the Board of Directors (the "Term").
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EXHIBIT C
CERTIFICATE OF INCORPORATION
OF
OMNIAMERICA, INC.
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter called the "Corporation") under the General Corporation
Law of the State of Delaware, do hereby adopt the following Certificate of
Incorporation for the Corporation:
FIRST: The name of the Corporation is OmniAmerica, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the registered agent
of the Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts and activity for which corporations may be
organized under the General Corporation Law of Delaware. The Corporation
will have perpetual existence.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 110,000,000 shares of capital stock,
classified as (i) 10,000,000 shares of preferred stock, par value $.01 per
share ("Preferred Stock"), and (ii) 100,000,000 shares of common stock, par
value $.01 per share ("Common Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or
more classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof, as are stated and expressed
herein and in the resolution or resolutions providing for the issue of
such class or series adopted by the Board of Directors of the
Corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and vested in the
Board of Directors of the Corporation to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, and
with respect to each class or series of the Preferred Stock, to fix and
state by the resolution or resolutions from time to time adopted
providing for the issuance thereof the following:
(i) whether or not the class or series is to have voting rights,
full, special, or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a
separate class either alone or together with the holders of one or
more other classes or series of stock;
(ii) the number of shares to constitute the class or series and
the designations thereof;
(iii) the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or
upon the happening of any specified event, and, if redeemable, the
redemption price or prices (which may be payable in the form of cash,
notes, securities, or other property), and the time or times at
which, and the terms and conditions upon which, such shares shall be
redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied
to the purchase or redemption of such shares for
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retirement, and, if such retirement or sinking fund or funds are to
be established, the annual amount thereof, and the terms and
provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon
which and the times when such dividends are payable, the preference
to or the relation to the payment of dividends payable on any other
class or classes or series of stock, whether or not such dividends
shall be cumulative or noncumulative, and if cumulative, the date or
dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the
holders of any class or series thereof shall be entitled to receive
upon the voluntary or involuntary dissolution of, or upon any
distribution of the assets of, the Corporation;
(viii) whether or not the shares of any class or series, at the
option of the Corporation or the holder thereof or upon the happening
of any specified event, shall be convertible into or exchangeable
for, the shares of any other class or classes or of any other series
of the same or any other class or classes of stock, securities, or
other property of the Corporation and the conversion price or prices
or ratio or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and expressed
or provided for in such resolution or resolutions; and
(ix) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors of
the Corporation seem advisable.
(c) The shares of each class or series of the Preferred Stock may
vary from the shares of any other class or series thereof in any or all
of the foregoing respects. The Board of Directors of the Corporation may
increase the number of shares of the Preferred Stock designated for any
existing class or series by a resolution adding to such class or series
authorized and unissued shares of the Preferred Stock not designated for
any other class or series. The Board of Directors of the Corporation may
decrease the number of shares of the Preferred Stock designated for any
existing class or series by a resolution subtracting from such class or
series authorized and unissued shares of the Preferred Stock designated
for such existing class or series, and the shares so subtracted shall
become authorized, unissued, and undesignated shares of the Preferred
Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have
identical rights and privileges in every respect. The holders of shares
of Common Stock shall be entitled to vote upon all matters submitted to
a vote of the stockholders of the Corporation and shall be entitled to
one vote for each share of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable
to shares of the Preferred Stock or any series thereof, the holders of
shares of the Common Stock shall be entitled to receive such dividends
(payable in cash, stock, or otherwise) as may be declared thereon by the
board of directors at any time and from time to time out of any funds of
the Corporation legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in
full of the preferential amounts, if any, to be distributed to the
holders of shares of the Preferred Stock or any series thereof, the
holders of shares of the Common Stock shall be entitled to receive all
of the remaining assets of the Corporation available for distribution to
its stockholders, ratably in proportion to the number of shares of the
Common Stock held by them. A liquidation, dissolution, or winding-up of
the Corporation, as such terms are used in this Paragraph (c), shall not
be deemed to be occasioned by or to include any consolidation or merger
of the Corporation with or into any other corporation or corporations or
other entity or a sale, lease, exchange, or conveyance of all or a part
of the assets of the Corporation.
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3. General.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock
and Common Stock from time to time for such consideration (not less than
the par value thereof) as may be fixed by the board of directors of the
Corporation, which is expressly authorized to fix the same in its
absolute and uncontrolled discretion subject to the foregoing
conditions. Shares so issued for which the consideration shall have been
paid or delivered to the Corporation shall be deemed fully paid stock
and shall not be liable to any further call or assessment thereon, and
the holders of such shares shall not be liable for any further payments
in respect of such shares.
(b) The Corporation shall have authority to create and issue rights
and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities
of the Corporation, and such rights and options shall be evidenced by
instrument(s) approved by the Board of Directors of the Corporation, or
any duly authorized committee thereof. The Board of Directors of the
Corporation, or any duly authorized committee thereof, shall be
empowered to set the exercise price, duration, times for exercise, and
other terms of such options or rights; provided, however, that the
consideration to be received for any shares of capital stock subject
thereto shall not be less than the par value thereof.
FIFTH: The name of the incorporator of the Corporation is Daniel S.
Dross, and the mailing address of such incorporator is 200 Crescent Court,
Suite 1600, Dallas, Texas 75201-6950.
SIXTH: The composition of the Board of Directors of the Corporation
shall be as follows:
1. Three Classes of Directors.
The Board of Directors of the Corporation shall be divided into
three classes, designated Class I, Class II and Class III. Each class
shall consist as nearly as possible of one-third ( 1/3) of the total
number of directors making up the entire Board of Directors of the
Corporation. The term of office of the initial Class I directors
shall expire at the 1998 annual meeting of stockholders, the term of
office of the initial Class II directors shall expire at the 1999
annual meeting of stockholders and the term of office of the initial
Class III directors shall expire at the 2000 annual meeting of
stockholders, with each director to hold office until his or her
successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1998 annual meeting,
directors elected to succeed those directors whose terms then expire
shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election, with
each director to hold office until his or her successor shall have
been duly elected and qualified. If the number of directors is
changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as
nearly equal as possible, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
2. New Directorship or Vacancy.
The term of a director elected to fill a newly created
directorship or other vacancy shall expire at the same time as the
terms of the other directors of the class for which the new
directorship is created or in which the vacancy occurred.
3. Directors Elected by Preferred Stockholders.
Notwithstanding Paragraphs 1 and 2 of this Article Sixth,
whenever the holders of any one or more classes or series of
Preferred Stock shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms
of this Certificate of Incorporation or the resolutions adopted by
the Board of Directors of the Corporation pursuant to Paragraph 1 of
Article Fourth hereof, and such directors so elected shall not be
divided into classes pursuant to Paragraph 1 of this Article Sixth
unless expressly provided by such terms.
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SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation otherwise provide.
EIGHTH: The Board of Directors of the Corporation shall have the power
to adopt, amend, and repeal the bylaws of the Corporation.
NINTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation
and any person (as used herein "person" means other corporation,
partnership, association, firm, trust, joint venture, political
subdivision, or instrumentality) or other organization in which one or more
of its directors, officers, or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee which
authorizes the contract or transaction, or solely because his, her, or
their votes are counted for such purpose, if: (i) the material facts as to
his or her relationship or interest and as to the contract or transaction
are disclosed or are known to the board of directors or the committee, and
the board of directors or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or (ii) the material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii)
the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved, or ratified by the Board of Directors of the
Corporation, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
TENTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or she (i) is or was a director or officer of
the Corporation or (ii) while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent permitted under the Delaware General
Corporation Law, as the same exists or may hereafter be amended. Such right
shall be a contract right and as such shall run to the benefit of any
director or officer who is elected and accepts the position of director or
officer of the Corporation or elects to continue to serve as a director or
officer of the Corporation while this Article Tenth is in effect. Any
repeal or amendment of this Article Tenth shall be prospective only and
shall not limit the rights of any such director or officer or the
obligations of the Corporation with respect to any claim arising from or
related to the services of such director or officer in any of the foregoing
capacities prior to any such repeal or amendment to this Article Tenth.
Such right shall include the right to be paid by the Corporation expenses
incurred in defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the Delaware General
Corporation Law, as the same exists or may hereafter be amended. If a claim
for indemnification or advancement of expenses hereunder is not paid in
full by the Corporation within sixty (60) days after a written claim has
been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim, and if successful in whole or in part, the claimant shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of
costs of defense are not permitted under the Delaware General Corporation
Law, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors or
any committee thereof, independent legal counsel, or stockholders) to have
made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the
Corporation (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) that such indemnification or
advancement is not permissible shall be a defense to the action or create a
presumption that such indemnification or advancement is not permissible. In
the event of the death of
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any person having a right of indemnification under the foregoing
provisions, such right shall inure to the benefit of his or her heirs,
executors, administrators, and personal representatives. The rights
conferred above shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, bylaw, resolution of
stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of
the Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding.
ELEVENTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or amendment
of this Article Eleventh by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In
addition to the circumstances in which a director of the Corporation is not
personally liable as set forth in the foregoing provisions of this Article
Eleventh, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter
enacted, including without limitation any subsequent amendment to the
Delaware General Corporation Law.
I, the undersigned, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file, and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated herein are true and, accordingly, I do hereunto set my hand on this 23rd
day of July, 1998.
/s/ DANIEL S. DROSS
------------------------------------
Daniel S. Dross
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EXHIBIT D
BYLAWS
OF
OMNIAMERICA, INC.
A DELAWARE CORPORATION
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of OmniAmerica, Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE ONE
OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be called
at any time by the Chairman of the Board, the Chief Executive Officer or the
board of directors. Further, a special meeting of the stockholders shall be
called by the Chief Executive Officer or the Secretary at the request in writing
of the stockholders of record of not less than a majority of all shares entitled
to vote at such meeting or as otherwise provided by the certificate of
incorporation of the Corporation. A special meeting shall be held on such date
and at such time as shall be designated by the person(s) calling the meeting and
stated in the notice of the meeting or in a duly executed waiver of notice of
such meeting. Only such business shall be transacted at a special meeting as may
be stated or indicated in the notice of such meeting or in a duly executed
waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
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2.4 Notice. Written or printed notice stating the place, day, and time of
each meeting of the stockholders and, in case of a special meeting, the purpose
or purposes for which the meeting is called shall be delivered not less than ten
nor more than 60 days before the date of the meeting, either personally or by
mail, by or at the direction of the Chief Executive Officer, the Secretary, or
the officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, notice
is given when deposited in the United States mail, postage prepaid, directed to
such stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare and make a complete list of stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. For a period of
at least ten days prior to such meeting, such list shall be kept on file at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder, for any purpose germane to
the meeting, during ordinary business hours. Such list shall also be produced at
such meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled
to vote on a matter, present in person or by proxy, shall constitute a quorum at
any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation or any amendment(s) thereto, or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by another person or persons duly authorized under
sec. 212 of the Delaware General Corporation Law to act for him as proxy. Each
such proxy shall be filed with the Secretary of the Corporation before or at the
time of the meeting. No proxy shall be valid after three years from the date of
its execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be
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revocable unless expressly provided therein to be irrevocable and coupled with
an interest sufficient in law to support an irrevocable power or unless
otherwise made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders, or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion, or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, and which record date shall not be more than 60 days
and not less than ten days prior to such meeting or other action. If no record
date is fixed:
(i) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
in the State of Delaware, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the board of directors and prior action by
the board of directors is required by law or these bylaws, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these bylaws or by some person
appointed by the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting and make a
written report thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and ballots and shall receive votes, ballots, or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots, or consents, determine the
results, determine and
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retain for a reasonable period a record of the disposition of any challenges
made to any determination by them, certify their determination of the number of
shares represented at the meeting, and their count of all votes and ballots, and
do such acts as are proper to conduct the election or vote with fairness to all
stockholders. The inspector(s) shall perform his duties in accordance with
sec. 231 of the Delaware General Corporation Laws. On request of the chairman of
the meeting, the inspectors shall make a report in writing of any challenge,
request, or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE THREE
DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors which
shall constitute the entire board of directors shall be not less than one. The
first board of directors shall consist of the number of directors, if any, named
in the certificate of incorporation of the Corporation, in which case a change
in the number of directors shall be made only by amendment of the certificate.
If no directors are named in the certificate of incorporation, the first board
of directors shall consist of the number of directors elected by the
incorporator(s) at an organizational meeting or by unanimous written consent in
lieu thereof. Thereafter, within the limits above specified, the number of
directors which shall constitute the entire board of directors shall be
determined by resolution of the board of directors or by resolution of the
stockholders at the annual meeting thereof or at a special meeting thereof
called for that purpose. Except as otherwise required by law, the certificate of
incorporation of the Corporation, or these bylaws, the directors shall be
elected at an annual meeting of stockholders at which a quorum is present.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy and entitled to vote on the election of
directors. Each director so chosen shall hold office until the first annual
meeting of stockholders held after his election and until his successor is
elected and qualified or, if earlier, until his death, resignation, or removal
from office. None of the directors need be a stockholder of the Corporation or a
resident of the State of Delaware. Each director must have attained the age of
majority.
3.3 Change in Number. No decrease in the number of directors constituting
the entire board of directors shall have the effect of shortening the term of
any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director or the entire board of directors
may be removed, with or without cause, by a vote of the holders of a majority of
the shares then entitled to vote on the election of directors; provided,
however, that so long as stockholders have the right to cumulate votes in the
election of directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed, no one
of the directors may be removed without cause if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at an
election of the entire board of directors.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least
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10% of the total number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be held to fill any
such vacancies or newly-created directorships, or to replace the directors
chosen by the directors then in office. Except as otherwise provided in these
bylaws, when one or more directors shall resign from the board of directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in these bylaws with respect to the filling of other
vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 First Meeting. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall be
held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors shall be
held whenever called by the Chairman of the Board, the Chief Executive Officer,
or any director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
3.12 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
Chief Executive Officer shall preside at all meetings of the board of directors.
In the absence or inability to act of either such officer, a chairman shall be
chosen by the board of directors from among the directors present. The Secretary
of the Corporation shall act as the secretary of each meeting of the board of
directors unless the board of directors appoints another person to act as
secretary of the meeting. The board of directors shall keep regular minutes of
its proceedings which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is present
at the meeting of the board of directors at which action on any corporate matter
is taken shall be presumed to have assented to the action
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unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.15 Compensation. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR
COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the board of directors in the management of the business
and affairs of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may designate
one or more directors as alternate members of any committee. Any such alternate
member may replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of the
number of members designated by the board of directors shall constitute a quorum
for the transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a
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committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request of
the board of directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation
of authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed upon it or such director by law.
ARTICLE FIVE
NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation, or these bylaws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation, or
(b) by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or telefax). Any notice required or permitted
to be given by mail shall be deemed to be delivered and given at the time when
the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE SIX
OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation shall
be a Chief Executive Officer, a President, a Secretary, and such other officers
as the board of directors may from time to time elect or appoint, including a
Chairman of the Board, one or more Vice Presidents (with each Vice President to
have such descriptive title, if any, as the board of directors shall determine),
and a Treasurer. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner hereinafter provided. Any two or
more offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but
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such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such duties
in the management of the Corporation as are provided in these bylaws or as may
be determined by resolution of the board of directors not inconsistent with
these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the board of directors; provided, however, that
the board of directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board or the Chief Executive Officer.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 Chief Executive Officer. The Chief Executive Officer shall have
general executive charge, management, and control of the properties and
operations of the Corporation in the ordinary course of its business, with all
such powers with respect to such properties and operations as may be reasonably
incident to such responsibilities. If the board of directors has not elected a
Chairman of the Board or in the absence or inability to act of the Chairman of
the Board, the Chief Executive Officer shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the Chief Executive Officer
in the performance of the duties of the Chairman of the Board shall be
conclusive evidence that there is no Chairman of the Board or that the Chairman
of the Board is absent or unable to act.
6.8 President. The President shall have such powers and duties as may be
assigned to him by the board of directors, the Chairman of the Board or the
Chief Executive Officer. In the absence or inability to act of the Chief
Executive Officer, the President shall exercise all of the powers and discharge
all of the duties of the Chief Executive Officer. As between the Corporation and
third parties, any action taken by the President in the performance of the
duties of the Chief Executive Officer shall be conclusive evidence that there is
no Chief Executive Officer or that the Chief Executive Officer is absent or
unable to act.
6.9 Vice Presidents. Each Vice President shall have such powers and duties
as may be assigned to him by the board of directors, the Chairman of the Board,
the Chief Executive Officer, or the President and (in order of their seniority
as determined by the board of directors or, in the absence of such
determination, as determined by the length of time they have held the office of
Vice President) shall exercise the powers of the President during that officer's
absence or inability to act. As between the Corporation and third parties, any
action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
6.10 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the Chief
Executive Officer.
6.11 Assistant Treasurers. Each Assistant Treasurer shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the Chief Executive Officer. The Assistant Treasurers (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
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6.12 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the Chief Executive Officer, in the name of the Corporation, all
contracts of the Corporation and affix the seal of the Corporation thereto. He
may sign with the Chairman of the Board or the Chief Executive Officer all
certificates for shares of stock of the Corporation, and he shall have charge of
the certificate books, transfer books, and stock papers as the board of
directors may direct, all of which shall at all reasonable times be open to
inspection by any director upon application at the office of the Corporation
during business hours. He shall in general perform all duties incident to the
office of the Secretary, subject to the control of the board of directors, the
Chairman of the Board, and the Chief Executive Officer.
6.13 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the Chief Executive Officer. The Assistant Secretaries
(in the order of their seniority as determined by the board of directors or, in
the absence of such a determination, as determined by the length of time they
have held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE SEVEN
CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if he were such officer, transfer agent, or registrar at the
date of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost, Stolen, or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost, stolen, or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate or certificates representing shares
to be lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates the board of directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen, or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond with a surety or sureties satisfactory to the Corporation in
such sum as it may direct as indemnity against any claim, or expense resulting
from a claim, that may be made against the Corporation with respect to the
certificate or certificates alleged to have been lost, stolen, or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
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7.5 Regulations. The board of directors shall have the power and authority
to make all such rules and regulations as they may deem expedient concerning the
issue, transfer, and registration or the replacement of certificates for shares
of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority to
provide that certificates representing shares of stock bear such legends as the
board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of funds
of the Corporation legally available therefor such reserve or reserves as the
directors from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends, or to repair or maintain any property of
the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
board of directors; provided, that if such fiscal year is not fixed by the board
of directors and the selection of the fiscal year is not expressly deferred by
the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign by
so stating at any meeting of the board of directors or by giving written notice
to the board of directors, the Chairman of the Board, the Chief Executive
Officer, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Corporation shall
have the power and authority to transfer, endorse for transfer, vote, consent,
or take any other action with respect to any securities of another issuer which
may be held or owned by the Corporation and to make, execute, and deliver any
waiver, proxy, or consent with respect to any such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or through a
proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
Delaware General Corporation Law to be taken at any annual or
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special meeting of the stockholders, or any action which may be taken at any
annual or special meeting of the stockholders, may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders (acting for
themselves or through a proxy) of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which the holders of all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written consent of
stockholders shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action
referred to therein unless, within sixty days of the earliest dated consent
delivered in the manner required by this Section 8.9(a) to the Corporation,
written consents signed by a sufficient number of holders to take action are
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office,
principal place of business, or such officer or agent shall be by hand or by
certified or registered mail, return receipt requested.
(b) Unless otherwise restricted by the certificate of incorporation of the
Corporation or by these bylaws, any action required or permitted to be taken at
a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage, or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the stockholders or by the board of directors at any
regular meeting of the stockholders or the board of directors or at any special
meeting of the stockholders or the board of directors; provided, that in the
case of a special meeting of stockholders, notice of such alteration, amendment,
repeal, or adoption of new bylaws be contained in the notice of such special
meeting.
The undersigned, the Incorporator of the Corporation, hereby certifies that
the foregoing bylaws were adopted by written consent of the sole incorporator of
the Corporation as of July 23, 1998.
/s/ DANIEL S. DROSS
------------------------------------
Daniel S. Dross
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EXHIBIT 99.1
Report of Independent Auditors
Board of Directors
OmniAmerica Holdings Corporation
We have audited the accompanying consolidated balance sheet of
OmniAmerica Holdings Corporation (the Company) as of December 31, 1997, and the
related consolidated statements of operations, stockholder's equity, and cash
flows for the period from inception (October 15, 1997) through December 31,
1997. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
OmniAmerica Holdings Corporation at December 31, 1997, and the consolidated
results of their operations and their cash flows for the period from inception
(October 15, 1997) through December 31, 1997, in conformity with generally
accepted accounting principles.
ERNST & YOUNG LLP
February 20, 1998
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EXHIBIT 99.2
Report of Independent Auditors
Board of Directors and Stockholder
HSW Associates, Inc.
We have audited the accompanying statement of assets sold by HSW Associates,
Inc. (HSW) as of December 31, 1997, and the related statements of revenues and
direct operating expenses of assets sold by HSW Associates, Inc. for each of
the two years in the period then ended. These statements are the
responsibility of HSW's management. Our responsibility is to express an opinion
on these statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the statement of assets sold by HSW
Associates, Inc. and the related statements of revenues and direct operating
expenses of assets sold by HSW Associates, Inc. are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the statement of assets sold by HSW Associates,
Inc. and the related statements of revenues and direct operating expenses of
assets sold by HSW Associates, Inc. An audit also includes assessing the
accounting principles used and significant estimates made by management, as
well as evaluating the overall presentation of the statement of assets sold by
HSW Associates, Inc. and the related statements of revenues and direct
operating expenses of assets sold by HSW Associates, Inc. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the statements referred to above present fairly, in all
material respects, the assets sold by HSW Associates, Inc. as of December 31,
1997, and the related revenues and direct operating expenses of assets sold by
HSW Associates, Inc. for each of the two years in the period then ended, in
conformity with generally accepted accounting principles.
ERNST & YOUNG LLP
March 31, 1998
<PAGE> 63
EXHIBIT 99.3
Independent Auditors' Report
The Partners of
TowerCom, Limited:
We have audited the accompanying balance sheets of TowerCom, Limited (the
Partnership) as of December 31, 1997 and 1996 and the related statements of
operations, partners' capital and cash flows for the years then ended. These
financial statements are the responsibility of the Partnership's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Partnership as of December
31, 1997 and 1996 and the results of its operations and its cash flows for the
years then ended in conformity with generally accepted accounting principles.
KPMG PEAT MARWICK LLP
Jacksonville, Florida
March 19, 1998
<PAGE> 64
EXHIBIT 99.4
INDEPENDENT AUDITOR'S REPORT
MILLER TRANSMISSION TOWER COMPANY, LTD.
(A TEXAS LIMITED PARTNERSHIP)
New York, New York
We have audited the accompanying balance sheets of MILLER TRANSMISSION
TOWER COMPANY, LTD. (A TEXAS LIMITED PARTNERSHIP) as of December 31, 1997 and
1996 and the related statements of operations, changes in partners' deficiency
and cash flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of MILLER TRANSMISSION TOWER
COMPANY, LTD. (A TEXAS LIMITED PARTNERSHIP) as of December 31, 1997 and 1996
and the results of its operations and its cash flows for the years then ended
in conformity with generally accepted accounting principles
MENDLOWITZ WEITSEN, LLP
East Brunswick, New Jersey
March 3, 1998
<PAGE> 65
EXHIBIT 99.5
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Kline Iron & Steel Co., Inc.
Columbia, South Carolina
We have audited the accompanying balance sheets of Kline Iron & Steel, Co.,
Inc. as of September 30, 1997 and 1996, and the related statements of income,
retained earnings and cash flows for the years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Kline Iron & Steel, Co., Inc.
as of September 30, 1997 and 1996, and the results of its operations and its
cash flows for the years then ended in conformity with generally accepted
accounting principles.
Our audits were made for the purpose of forming an opinion on the basic
financial statements taken as a whole. The supplementary information is
presented for the purpose of additional analysis and is not a required part of
the basic financial statements. Such information has been subjected to the
auditing procedures applied in the audits of the basic financial statements
and, in our opinion, is fairly stated, in all material respects, in relation to
the basic financial statements taken as a whole.
DERRICK, STUBBS & STITH, L.L.P.
December 9, 1997
<PAGE> 66
EXHIBIT 99.6
INDEPENDENT AUDITOR'S REPORT
The Board of Directors
Specialty Teleconstructors, Inc.:
We have audited the accompanying consolidated balance sheets of Specialty
Teleconstructors, Inc. and subsidiaries, as of June 30, 1997 and 1996, and the
related consolidated statements of earnings, stockholders' equity and cash flows
for the years then ended. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits. We did
not audit the financial statements of Novak & Lackey Construction Co., Inc.
(N&L), a wholly owned subsidiary as of June 30, 1996 and for the year then
ended. Those financial statements of N&L reflect total assets constituting 8.47
percent and total revenues constituting 19.24 percent, respectively, of the
related consolidated totals in 1996. Those financial statements of N&L were
audited by other auditors whose report was furnished to us, and our opinion,
insofar as it relates to the amounts included for N&L, is based solely on the
report of the other auditors.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, based on our audits and the report of the other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the financial position of Specialty Teleconstructors, Inc.
and subsidiaries as of June 30, 1997 and 1996, and the results of their
operations and their cash flows for the years then ended in conformity with
generally accepted accounting principles.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
August 29, 1997
