PURCHASE AGREEMENT by and between RURAL CELLULAR CORPORATION and ALLTEL COMMUNICATIONS, INC. dated DECEMBER 13, 2006
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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by
and
between
RURAL
CELLULAR CORPORATION
and
ALLTEL
COMMUNICATIONS, INC.
dated
DECEMBER
13, 2006
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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TABLE
OF CONTENTS
2. Formation
of, and Contributions to, Newco 8
3. Purchase
and Sale of the Newco Interest; Purchase Price 11
4. Time,
Manner and Place of Closing 15
5. Closing
Deliveries 15
6. Conditions
Precedent to Seller’s ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
▇. Conditions
Precedent to Purchaser’s Obligation to Close 17
8. Seller
Representations and Warranties 17
9. Purchaser
Representations and Warranties 23
10. FCC
and
DOJ Filings 25
11. Transition
Services Agreement; Dual Licensing Agreement and Deliverables List 25
12. License
to Excluded Shared Assets; Intellectual Property;*** 25
13. Compliance
with Governing Regulatory Documents 26
14. *** 26
15. Intellectual
Property Consents 29
16. Permits
and Deferred Assets 29
17. No
Inconsistent Actions 29
18. Disclosure
of Materially Inaccurate Representations 30
19. Confidentiality
Agreement Remains in Effect 31
20. Reasonable
Efforts to Consummate Agreement 31
21. Access
to
Transferred Assets, Financial Information and Officers 32
22. Allocation
of Consideration 32
23. Damage
to
Transferred Assets Prior to Closing 33
24. No
Interference 33
25. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Indemnification
of Seller Indemnitees 34
27. Subrogation 35
28. Termination 35
29. Governing
Law 36
30. Counterparts 36
31. Additional
Instruments 36
32. Notices 36
33. *** 37
34. Miscellaneous 38
*Schedule
1A - ***
*Schedule
1B - Market
*Schedule
2(b)(i) - Licenses
*Schedule
2(b)(ii) - Network Assets and Leases
*Schedule
2(b)(vi) - Retail Leases
*Schedule
2(c)(ii) - Excluded Shared Assets
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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*Schedule
2(c)(iii) - Excluded Marks
*Schedule
2(d) - Assumed Liabilities
*Schedule
3(c) - Estimated Net Working Capital Calculation
*Schedule
8(l) - Compliance with Laws
*Schedule
8(w) - Operating Contracts
*Schedule
8(dd) - Financial Statements
*Schedule
8(ee) - ETC Disclosures
*Schedule
14 - ***
*Exhibit
A - Form of Transition Services Agreement
*Exhibit
B - [Reserved]
*Exhibit
C - Form of Consent to Assignment Agreement
*Exhibit
D - Form of Facilities Use Agreement
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*
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Omitted
in accordance with Item 601(b)(2) of Regulation S-K as not material
to an
investment decision. The Registrant will supply any omitted exhibit
or
schedule to the Commission upon
request.
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***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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ii
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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THIS
PURCHASE AGREEMENT (this “Agreement”)
is
entered into on December 13, 2006, by and between Rural Cellular
Corporation, a Minnesota corporation (“Purchaser”),
and
ALLTEL Communications, Inc., a Delaware corporation (“Seller”).
WHEREAS,
the
Governing Regulatory Documents oblige ALLTEL Corporation, a Delaware
corporation, to sell or cause its Affiliates, successors and assigns to sell,
certain assets, including the Transferred Assets;
WHEREAS,
WWC
Holding Co., Inc. (the “Contributing
Entity”)
(i)
holds the Transferred Assets including the Licenses and the spectrum encompassed
by the Licenses, and (ii) is engaged in the Business in the Market;
WHEREAS,
immediately prior to Closing, Seller shall cause the Contributing Entity to
contribute to Newco the Transferred Assets (other than the Licenses), the
Additional Subscribers’ contracts and the Assumed Liabilities; and
WHEREAS,
at the
time of closing, Seller shall cause the Contributing Entity to transfer the
Licenses to Purchaser or its designated Affiliate; and
WHEREAS,
Purchaser, or its designated Affiliate, wishes to purchase from Seller its
entire right, title and interest in Newco, and receive from the Contributing
Entity, the Licenses, and Seller desires to sell to Purchaser or its designated
Affiliate its entire interest in Newco and cause to be assigned to Purchaser
or
its designated Affiliate the Licenses, in each instance on the terms and
conditions set forth in this Agreement;
NOW,
THEREFORE,
in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge the parties hereby agree as follows:
1. Definitions.
Except
as
otherwise provided herein, the capitalized terms set forth below shall have
the
following meanings:
“Additional
Subscribers”
means
those customers *** that are not located in the Market, but the support of
whom
is integrated for billing, financial, marketing, and customer service purposes
with Subscribers.
“Affiliate”
means,
with respect to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, Controls, is controlled by, or is under
common control with, such first-named Person. For the avoidance of doubt (i)
each of the Contributing Entity and Newco are Affiliates of Seller, but with
respect to Newco only prior to the Effective Time; and (ii) Newco is an
Affiliate of Purchaser, but only from and after the Effective Time.
“Agreement”
has
the
meaning given in the Preamble.
“Applicable
Rate”
means
the “Prime Rate” set forth in the “Money Rates” table of The Wall Street
Journal, New York edition, on the date of calculation.
“Arbitrator”
has
the
meaning given in Section
3(d)(iii)(1).
“Assumed
Liabilities”
has
the
meaning given in Section
2(d).
“Base
Purchase Price”
has
the
meaning given in Section
3(b).
“Business”
means
the business of marketing, selling and providing mobile wireless voice and
data
telecommunications services (including the provision of long distance
telecommunications services for wireless calls) in the Market.
“Cause”
has
the
meaning given in Section
14(d)(i).
“Cellular
One License Assignment”
means
the Consent to Assignment Agreement in the form attached to this Agreement
as
Exhibit
C,
to be
entered into on the Closing Date between Seller, on behalf of itself and its
Affiliates, and Purchaser, as consented to by Cellular One Properties, LLC,
as a
successor in interest to Cellular One Group, relating to the transfer of the
licenses granted by the Cellular One Group to use the Cellular One service
▇▇▇▇
and certain related trademarks, service marks and designs in the
Market.
“Closing”
means
the closing of the transactions contemplated by this Agreement.
“Closing
Date”
means
the date on which the Closing occurs.
“Closing
Date Statement”
has
the
meaning given in Section
3(d)(i).
“Closing
Net Working Capital”
has
the
meaning given in Section
3(d)(i).
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Communications
Act”
means
the Communications Act of 1934, as amended.
“Comparable
Severance Payments”
has
the
meaning given in Section
14(d)(i).
“Confidentiality
Agreement”
has
the
meaning given in Section
19.
“Contributing
Entity”
has
the
meaning given in the Recitals.
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
1
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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“Control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”), as applied to any Person, means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities
or
other ownership interest, by contract or otherwise.
“Cost
Attachment”
has
the
meaning set forth in the Transition Service Agreement.
“Current
Assets”
means
all assets (in the aggregate) that are Transferred Assets that are current
(as
determined by GAAP); provided that Current Assets shall not include for purposes
of determining the Estimated Working Capital or Closing Net Working Capital
any
Excluded Assets.
“Current
Liabilities”
means
all Assumed Liabilities that are current (as determined by GAAP).
“Damaged
Assets”
has
the
meaning given in Section
23.
“Deferred
Asset”
has
the
meaning given in Section
16.
“Deliverables
List”
has
the
meaning given in Section
11(c).
“Descriptive
Memorandum”
means
the document titled “Summary of Divestiture Assets” distributed by Seller to
Purchaser on or about October 6, 2006, consisting of 20 numbered pages plus
selected financial information consisting of an unaudited balance sheet and
statement of income, and accompanying notes, as of June 30, 2006.
“Designated
Area”
has
the
meaning given in Section
8(ee).
“Dispute”
has
the
meaning given in Section
34(h).
“Dispute
Notice”
has
the
meaning given in Section
34(h)(i).
“Divestiture
Trustee”
has
the
meaning given in the DOJ Consent Decree.
“DOJ”
means
the United States Department of Justice.
“DOJ
Consent”
means
the DOJ’s approval of the transactions contemplated by this Agreement, as
required by the terms of the DOJ Consent Decree.
“DOJ
Consent Decree”
means
the proposed Final Judgment filed in United
States of America v. Alltel Corporation and Midwest Wireless Holdings
L.L.C.,
Case
No. 0:06 CV 03631, in the United States District Court for the District of
Minnesota.
“Effective
Time”
has
the
meaning given in Section
4.
“Employees”
means
the employees set forth on Schedule 14 whose
primary responsibility is the operation, development, sale, or license of the
Transferred Assets.
“Encumbrances”
when
used with respect to the Transferred Assets and Newco Membership Interest,
means
all mortgages, liens,
security interests, encumbrances (including leases, subleases, options or rights
of first refusal) and defects of title of any nature whatsoever, other than
those created by or attaching through the Purchaser or its
Affiliates.
“Environmental
Laws”
means
the common law, CERCLA (defined below), RCRA (defined below), National
Environmental Policy Act of 1969 (“NEPA”),
National Historic Preservation Act of 1966 and any applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, directives, authorizations, concessions and franchises of all
governmental authorities, including 47 C.F.R. §§ 1.1301 1.1319, and all
applicable judicial, administrative and regulatory decrees, judgments and
orders, any of which relate to (i) the protection of human health or the
environment from the effects of Hazardous Substances, including those pertaining
to reporting, licensing, permitting, investigating and remediating discharges,
releases or threatened releases of Hazardous Substances into the air, surface
water, sediments, groundwater or land; (ii) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances; or (iii) the ownership, occupancy, construction or
operation of the Transferred Assets.
“Escalation
Procedure”
has
the
meaning given in Section
34(h)(i).
“Estimated
Net Working Capital”
has
the
meaning given in Section
3(c).
“Estimated
Purchase Price”
has
the
meaning given in Section
3(b).
“Excluded
Assets”
has
the
meaning given in Section
2(c).
“Excluded
Shared Assets”
means
any asset used substantially in the operation of Seller’s and its Affiliates’
overall wireless telecommunications services business which must be retained
to
continue existing operations of the wireless properties that Seller and its
Affiliates are not required to divest by the Governing Regulatory Documents,
and
that are not capable of being divided between the Business and the wireless
telecommunications services business of Seller and its Affiliates that are
not
being divested, which includes but is not limited to those assets enumerated
on
Schedule 2(c)(ii)
hereto.
“Facilities
Use Agreement”
means
the Facilities Use Agreement attached herein as Exhibit
D.
“FAA”
means
the Federal Aviation Administration.
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
2
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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“FCC”
means
the United States Federal Communications Commission or any successor agency
or
organization.
“FCC
Consent”
means
any consent of the FCC to the transfer and assignment of the Licenses, all
in
accordance with the terms of this Agreement.
“FCC
License Assignment”
has
the
meaning given in Section
5(b)(ii).
“FCC
Order”
means
FCC Order 06-146 in WT Docket No. 05-339, released October 2, 2006.
“FDS”
has
the
meaning set forth in the Transition Service Agreement.
“Final
Order”
means
action by a governmental authority which has not been vacated, reversed, set
aside, annulled or suspended and as to which: (i) no request for stay by such
authority of the action is pending, no such stay is in effect, and, if any
deadline for filing any such request is designated by statute or regulation,
it
has passed; (ii) no petition for rehearing or reconsideration of the action
is
pending before such governmental authority, and the time for filing any such
petition has passed; (iii) such governmental authority does not have the action
under reconsideration on its own motion and the time for such reconsideration
has passed; and (iv) no appeal to a court, or request for stay by a court,
of
such governmental authority’s action is pending or in effect, and, if any
deadline for filing any such appeal or request is designated by statute or
rule,
it has passed.
“Financial
Statements”
has
the
meaning given in Section
8(dd).
“FTC”
means
the United States Federal Trade Commission or any successor agency or
organization.
“GAAP”
means
United States generally accepted accounting principles.
“Good
Reason”
has
the
meaning given in Section
14(d)(i).
“Governing
Regulatory Documents”
means
(i) the DOJ Consent Decree (ii) the Preservation of Assets Order and (iii)
the
FCC Order.
“GSM”
means
the Global System for Mobile Communications.
“Hazardous
Substance”
means
any hazardous or toxic substance, pollutant, contaminant or other material
which, as of the date of this Agreement, is defined as hazardous or toxic under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (“CERCLA”),
and
its implementing regulations; defined as a hazardous waste or regulated
substance under the Resource Conservation and Recovery Act of 1976, as amended
(“RCRA”)
and
its implementing regulations; or is regulated under any applicable Environmental
Laws, including any substance which has been determined by regulation, ruling
or
otherwise by any governmental authority to be a hazardous or toxic substance
regulated under federal or state law, and shall include petroleum and petroleum
products, asbestos and polychlorinated biphenyls.
“HSR
Act”
means
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended, and the
rules and regulations promulgated thereunder.
“Licenses”
means
the FCC licenses and authorizations to construct, own and operate a wireless
communications system listed on Schedule
2(b)(i).
“Losses”
means
any loss, damage, cost, expense, liability, obligation, claim, action, suit,
demand, judgment and reasonable attorneys’ fees, but excluding any exemplary,
consequential or
punitive damages (other than exemplary, consequential or punitive damages
payable to third parties).
“Management
Trustee”
shall
have the meaning given in the DOJ Consent Decree.
“Management
Trustee Agreement”
means
the Management Trustee Agreement dated October 3,
2006
between
Midwest, Alltel Corporation and the Management Trustee.
“Market”
means
the markets specified on Schedule
1B.
“Midwest”
means
Midwest Wireless Holdings L.L.C., a Delaware limited liability
company.
“Multi-line
Business Customer”
means
a
corporate or business customer of the Business that contracts with Seller or
its
Affiliate for mobile wireless services to provide multiple telephones to its
employees and such services for such employees are provided pursuant to a
contract with the corporate or business customer.
“Newco”
means
Southern Minnesota, LLC, a Delaware limited liability company.
“Newco
Membership Interest”
has
the meaning given in Section
3(d).
“Participant”
has
the
meaning given in Section
14(d)(i).
“PCS”
means
Personal Communications Services as that term is defined in 47 C.F.R.
§ 24.5.
“Person”
means
any individual, corporation, association, partnership, joint venture, trust,
estate, limited liability company, limited liability partnership, governmental
authority, or other entity or organization.
“Postpay
Subscribers”
means
the aggregate number of mobile telephone numbers subscribed to the Business
and
associated with a land line rate center that falls within the Market that are
in
active service and are without unpaid charges attributable to such number over
120 days past due, ignoring telephone numbers assigned pursuant to prepaid
and
reseller contracts.
***Information
omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
3
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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“Preservation
of Assets Order”
means,
collectively, the Preservation of Assets Stipulation and Preservation of Assets
Order in each case executed on September 7, 2006 and filed with the U.S.
District Court for the District of Minnesota in United
States of America v. Alltel Corporation and Midwest Wireless Holdings
L.L.C.,
Case
No. 0:06-CV-03631, in the United States District Court for the District of
Minnesota.
“Purchaser”
has
the
meaning given in the Preamble.
“Purchaser
Deductible”
has
the
meaning given in Section
25.
“Purchaser
Indemnitees”
means
Purchaser and its Affiliates and their respective managers, officers, directors,
employees, agents, successors and assigns.
“Purchaser
Material Adverse Effect”
means
an event, change or occurrence that, individually or together with any other
event, change or occurrence, has or is reasonably likely to have a material
adverse effect on the ability of Purchaser to consummate the transactions
contemplated by this Agreement; provided, however, that in no event shall any
event, occurrence, fact, condition, change development or effect resulting
from
compliance by Purchaser or its Affiliates with the terms and conditions of
this
Agreement or the Governing Regulatory Documents be deemed a Purchaser Material
Adverse Effect.
“Purchase
Price”
has
the
meaning given in Section
3(b).
“Resolution
Period”
has
the
meaning given in Section
3(d)(ii).
“Resolved
Items”
has
the
meaning given in Section
3(d)(ii).
“Response”
has
the
meaning given in Section
34(h)(i).
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Seller”
has
the
meaning given in the Preamble.
“Seller
Deductible”
has
the
meaning given in Section
26.
“Seller
Indemnitees”
means
Seller and its Affiliates, and their respective managers, officers, directors,
employees and agents.
“Seller
Material Adverse Effect”
means
an event, change or occurrence that, individually or together with any other
event, change or occurrence, has or is reasonably likely to have a material
adverse effect on (i) the Transferred Assets, (ii) the operations of the
Business, taken as a whole, or (iii) the ability of Seller to consummate the
transactions contemplated by this Agreement; provided, however, that in no
event
shall any of the following be deemed to constitute a Seller Material Adverse
Effect: any event, occurrence, fact, condition, change development or effect
resulting from (a) compliance by Seller or its Affiliates with the terms and
conditions of this Agreement or the Governing Regulatory Documents, (b) a loss
of Subscribers or Employees resulting from the announcement or pendency of
the
transactions contemplated by this Agreement, (c) changes affecting the wireless
communication industry generally or the economy generally, or (d) any action
taken by Purchaser or its Affiliates relating to the Business (except as may
be
expressly provided by this Agreement or any related agreement).
***
“Subscriber”
means
a
mobile telephone number subscribed to the Business and associated with a land
line rate center that falls within the Market.
“Tax”
or “Taxes”
means
any taxes, duties, assessments, fees, levies, or similar governmental charges,
imposed by any taxing authority, wherever located (i.e., whether federal, state,
local, municipal, or foreign), including all net income, gross income, gross
receipts, net receipts, sales, use, transfer, franchise, privilege, profits,
social security, disability, withholding, payroll, telecommunications, utility
user, unemployment, employment, excise, severance, property, windfall profits,
value added, ad valorem or occupation tax, or any other similar governmental
charge or imposition, together with any interest, additions or penalties with
respect thereto and any interest in respect of such additions or penalties,
but
excluding FCC payments and fees and copyright payments and fees.
“Transfer
Taxes”
has
the
meaning set forth in Section 2(d)(v).
“Transferred
Assets”
has
the
meaning given in Section
2(b).
“Transition
Services Agreement”
has
the
meaning set forth in Section
11.
“Unresolved
Items”
has
the
meaning given in Section
3(d)(iii).
“Working
Capital Target”
has
the
meaning given in Section
3(b).
2. Formation
of, and Contributions to, Newco.
(a) Immediately
prior to the Effective Time, Seller shall (i) cause the Contributing Entity
to
contribute to Newco all of the Contributing Entity’s right, title, and interest
to the Transferred Assets (other than the Licenses),
***Information
omitted
and filed separately with the Securities and Exchange Commission pursuant
to a
request for confidential treatment.
4
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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and
the
Additional Subscribers’ contracts and (ii) cause Newco to assume the Assumed
Liabilities. All contributions of assets to, or assumptions of liability by,
Newco shall be made pursuant to documents of transfer, assignment and
contribution or assumption in form reasonably satisfactory to Purchaser. All
proposed documents shall be provided to Purchaser for review and comment at
least five (5) business days prior to Closing.
(b) “Transferred
Assets”
means
all assets, tangible or intangible, properties or rights owned, leased or
licensed by the Contributing Entity and primarily used or held for use in the
operation of the Business, other than the Excluded Assets, including, without
limitation:
(i) the
Licenses set forth on Schedule
2(b)(i);
(ii) all
network assets and other equipment used or held for use in the Market (including
transport facilities, test equipment, network management equipment,
communication equipment (including transmitters and receivers, antennae,
generators, towers, and network facilities)) and the tower leases set forth
on
Schedule
2(b)(ii);
(iii) all
owned
or leased real property used or held for use to support the network assets
used
in the Business, including the cell sites set forth on Schedule
2(b)(ii);
(iv) engineering
records, customer and billing files and data in electronic form (and hard copies
to the extent same exists), network plans, including all FCC and FAA compliance
records of the Business;
(v) all
federal, state and local licenses and permits used or held for use in the
Market;
(vi) all
retail facilities, contracts and operations of the Business, including the
retail leases set forth on Schedule
2(b)(vi);
(vii) equipment,
furniture and other personal property (owned or leased) of the Business;
(viii) inventory;
(ix) the
accounts receivable relating to the Business including any accounts receivable
or current assets that have been written off by Seller or its Affiliates in
accordance with GAAP in the ordinary course of business consistent with past
practice. For purposes of clarification, Purchaser acknowledges that portions
of
written off accounts receivables and other current assets may have been sold
to
third parties in the ordinary course of business and are not assets of Seller
subject to inclusion in Transferred Assets;
(x) contracts
primarily related to the Business, including Subscriber contracts, Multi-line
Business Customer contracts and local agent contracts, if any;
(xi) the
minute book, membership records and other records of Newco having exclusively
to
do with the organization and capitalization of Newco;
(xii) prepaid
expenses related to the other Transferred Assets, and customer security
deposit;
(xiii) the
Cellular One License Assignment (solely to the extent that consent of assignment
of Cellular One Properties, LLC is obtained prior to Closing);
(xiv) rights
to
the NPA-NXX number blocks associated with the Business;
(xv) reseller
customers located in the Market;
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
5
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CONFIDENTIAL
TREATMENT REQUESTED
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Exhibit
2.1 Redacted
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(xvi) Radio
Shack locations and Wal-Mart Connect Kiosks used by Seller in the
Business;
(xvii) to
the
extent not otherwise described in subparagraphs (i) through (xvi) above, any
other asset relating to the Business and constituting a “Divestiture Asset” as
such term is defined in the DOJ Consent Decree.
(c) “Excluded
Assets”
means:
(i) cash
and
cash equivalents other than cash included in cash registers in the Market as
of
the Closing Date;
(ii) Excluded
Shared Assets;
(iii) trademarks,
trade names and intellectual property, including but not limited to the marks
set forth on Schedule
2(c)(iii),
and all
rights related thereto;
(iv) employee
benefit and welfare plans;
(v) Any
recovery in respect of any accounts receivable or current assets that have
been
written off in accordance with GAAP in the ordinary course of business
consistent with past practice (and any recovery in respect thereof) prior to
the
Closing Date;
(vi) claims
for tax refunds and/or credits for periods prior to the Closing;
(vii) minute
books and tax returns of transferors (other than Newco);
(viii) insurance
policies and rights to insurance proceeds;
(ix) any
agreement, contract, commitment or arrangement with any labor union, labor
organization or other representative of employees;
(x) all
licenses, authorizations and permits to use PCS spectrum in the Market except
as
listed on Schedule
2(b)(i);
(xi) assets
used solely to operate Seller’s GSM roaming business in the Market, including
GSM roaming contracts and equipment; and
(xii) assets
used solely to operate Seller’s PCS business, including PCS roaming contracts
and equipment.
(d) “Assumed
Liabilities”
means
all of the liabilities and other obligations (i) relating to the Transferred
Assets, to the extent such liabilities and other obligations are generally
consistent with the description of the Business and Transferred Assets set
forth
in the Descriptive Memorandum (ii) arising from contracts (including Subscriber
contracts) or leases included in the Transferred Assets, or (iii) as otherwise
listed on Schedule 2(d)
hereto,
(y) only to the extent such liabilities and other obligations arise from and
after the Effective Time, and (z) exclude any liabilities or obligations arising
from a breach of any of such contracts by the Contributing Entity or its
Affiliates. The Assumed Liabilities shall specifically exclude the following
liabilities or obligations of Seller or its Affiliates, whether or not related
to the Transferred Assets or the Business: (i) all liabilities or obligations
in
connection with, resulting from, or arising out of, directly or indirectly,
the
ownership, operation or control, as applicable, of the Transferred Assets,
Business or Newco Membership Interest prior to the Closing Date or the Excluded
Assets at any time, including the cost and expenses of the Management Trustee
and the Divestiture Trustee incurred in furtherance of performing their duties
and responsibilities pursuant to the Governing Regulatory Documents; (ii) any
and all employment related claims, wages, commissions, salaries, bonus,
compensation, claims,
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
6
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
damages,
pending proceedings, awards, vacation pay, paid time off, sick pay, holiday
pay,
severance pay, disability benefits or other claims or expenses incurred, earned
or accrued prior to the Closing by the Employees and their dependents and
beneficiaries under any benefit plans or otherwise other than as expressly
provided in Section
14(c)(ii)
of this
Agreement and only to the extent such amounts are included in the calculation
of
Closing Net Working Capital; (iii) all liabilities or obligations for vendor
payments with respect to capital expenditures that have been performed or
delivered prior to the Closing Date except to the extent such amounts are
included in the calculation of Closing Net Working Capital; provided that all
liabilities and obligations for vendor commitments and capital expenditures
performed or delivered on or after the Closing Date shall be the responsibility
of and paid by Purchaser; (iv) any and all Taxes that are obligations of Seller
or an Affiliate of Seller; (v) any liability of Seller or any Affiliates of
Seller for Taxes arising in connection with the consummation of the transactions
contemplated hereby (other than those described in Section
34(f)
“Transfer
Taxes”);
or
(vi) Taxes with respect to taxable periods (or any portion thereof) ending
prior
to the Closing Date that arise out of the Transferred Assets or Business;
provided that, (x) any Tax attributable to a taxable period which begins before
and ends after the Closing Date shall be apportioned between the portion of
such
period ending prior to the Closing Date and the portion beginning on the day
after the Closing Date (y) in the case of real property taxes, personal property
taxes, and similar ad valorem obligations, by apportioning such Taxes in
accordance with local custom and practice based on the number of calendar days
in the Tax period, and (z) in the case of all other Taxes (other than Transfer
Taxes), on the basis of the actual activities of the Transferred Assets, as
determined from the books and records of the Business for such partial period;
(vii) any liabilities or obligations incurred by Seller, the Contributing Entity
or Newco in the preparation, negotiation or performance under this Agreement;
(viii) any indebtedness for borrowed money (including capital lease
obligations); (ix)
liabilities and obligations arising before, on or after the Effective Time
with
respect to any employee of Seller or its Affiliates that does not accept
Purchaser’s offer of employment contemplated by Section
14;
(x)
liabilities and obligations arising on or before the Effective Time with respect
to any employee of Seller or its Affiliates that accepts Purchaser’s offer of
employment contemplated by Section
14,
other
than as expressly provided in Section
14(c)(ii)
and only
to the extent such amounts are included in the calculation of Closing Net
Working Capital; and (xi) liabilities and obligations, including indemnity
obligations, arising at any time under the Management Trustee Agreement other
than as expressly provided in Section
14(c)(ii)
of this
Agreement, only to the extent such amounts are included in the calculation
of
Closing Net Working Capital.
3. Purchase
and Sale of the Newco Interest; Purchase Price.
(a) Subject
to the terms and conditions of this Agreement and in reliance on the
representations, warranties and covenants herein set forth, at the Closing,
Seller will, or will cause its Affiliate to, sell, transfer, convey, assign
and
deliver to Purchaser or its designated Affiliate, and Purchaser or its
designated Affiliate will purchase and acquire from Seller or its Affiliate,
(i)
all of Seller’s or its Affiliate’s right, title and interest in and to its
entire membership interest in Newco (the “Newco
Membership Interest”),
which
shall constitute 100% of Newco’s membership interest and right to acquire
Newco’s membership interest; and (ii) the Licenses.
(b) In
consideration for the Newco Membership Interest and the Licenses, Purchaser
shall pay to Seller an aggregate amount of cash equal to *** (the “Base
Purchase Price”)
plus
an
amount equal to the difference between the Estimated Net Working Capital and
***
(the “Working
Capital Target”)
if the
Estimated Net Working Capital is greater than the Working Capital Target or,
in
the alternative, minus
an
amount equal to the difference between the Estimated Net Working Capital and
the
Working Capital Target if Estimated Net Working Capital is less than the Working
Capital Target (the Base Purchase Price, as adjusted for the difference between
the Working Capital Target and the Estimated Working Capital, the “Estimated
Purchase Price”).
The
Estimated Purchase Price shall be subject to adjustment as provided in
Section 3(d) (as adjusted, the “Purchase
Price”).
The
Estimated Purchase Price shall be paid by wire transfer of immediately available
funds by 12:00 noon New York time on the Closing Date, to such account as Seller
shall designate to Purchaser in writing.
(c) Not
less
than 14 calendar days prior to the Closing Date, Seller will deliver to
Purchaser (i) a written statement (with appropriate supporting documentation
showing the Current Assets and Current Liabilities) of its good faith estimate
of the amount by which the Current Assets, as of the Closing Date, are greater
or less than the Current Liabilities as of the Closing Date (the “Estimated
Net Working Capital”),
which
shall be calculated on a
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
7
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
basis
consistent with the calculation set forth on Schedule 3(c)
and
(ii) the Estimated Purchase Price based thereon. Seller shall cooperate
with Purchaser to provide Purchaser with a reasonable opportunity to review
and
comment upon Seller’s calculation of the estimated Current Assets as of the
Closing Date, estimated Current Liabilities as of the Closing Date and the
Estimated Net Working Capital based thereon. Seller shall provide Purchaser
and
its authorized representatives reasonable access during normal business hours
and without significant disruption to the business of the Seller and its
Affiliates and to all books, records and employees of Seller and its Affiliates
having relevant information concerning the Estimated Net Working Capital. Within
10 calendar days after receipt of Seller’s calculation of the Estimated Purchase
Price, Purchaser shall, in a written notice to Seller, either accept Seller’s
calculation of the Estimated Purchase Price or provide a written notice
containing Purchaser’s good faith calculation of the Estimated Net Working
Capital amount and describing any objections to Seller’s calculation with
reasonable particularity. If Seller shall not have received a written notice
of
a revised calculation within this 10 calendar day period, Purchaser will be
deemed irrevocably to have accepted Seller’s calculation of the Estimated Net
Working Capital for the purpose of calculating the Estimated Purchase Price
to
be paid at Closing and for no other purpose. If Purchaser notifies Seller of
its
revised calculation in accordance with this Section, Purchaser and Seller shall
attempt to resolve their differences through representatives who are duly
authorized to negotiate with respect to all differences, and any resolution
by
them as to disputed amounts shall be in writing. If the parties are not able
to
resolve their differences prior to the Closing Date, the parties shall use
the
arithmetic mean of the two calculations of Estimated Purchase Price delivered
by
each of Purchaser and Seller in accordance with this Section 3(c)
solely
for the purpose of calculating the Estimated Purchase Price to be paid at
Closing.
(d) Closing
Date Statement.
(i) (a)
As
promptly as practicable following the Closing (but in no event later than
60 calendar days thereafter), Seller shall prepare and deliver to Purchaser
a written statement (with appropriate supporting documentation showing the
calculation of individual items of Current Assets and Current Liabilities,
collectively, the “Closing
Date Statement”)
of its
good faith determination of the amount by which the Current Assets, as of the
Closing Date, are greater than or less than the Current Liabilities as of the
Closing Date (the “Closing
Net Working Capital”)
calculated on a basis consistent with the accounting principles and
methodologies set forth on Schedule 3(c).
Solely
for purposes of calculating the Closing Net Working Capital, the parties agree
that if the Closing occurs (A) prior to the fifteenth day of a calendar month
the Closing Net Working Capital shall be calculated as of the first day of
said
month, and (B) on or after the fifteenth day of a calendar month, the Closing
Net Working Capital shall be calculated as of the last day of said
month.
(b) If
the
Closing Date is other than the first day or last day of the calendar month,
Closing Net Working Capital will be adjusted as follows: The Seller shall
prepare a statement that sets forth its good faith determination of the earnings
before interest, taxes, depreciation and amortization for the Market for
the
month in which Closing occurs (the “EBITDA”) and shall deliver such EBITDA
calculation with, and as an integral part of, the Closing Date Statement.
Financial statements shall be prepared in a manner consistent with the
methodologies and principles of the Seller and its Affiliates referenced
in
Section 8(dd). Subject to the provisions of this Section 3(d) regarding
resolution of Unresolved Items, EBITDA will be allocated between Purchaser
and
Seller proportionate to the number of days that the Market was owned by each
Party in the month in which Closing occurs. For example; assuming a 30-day
month, if the Closing Date is the 10th calendar day of such month, Purchaser
will be allocated two-thirds ((30 -10)/30) and Seller will be allocated
one-third (10/30) of the EBITDA.
(ii) Within
45
calendar days after receipt of the Closing Date Statement, Purchaser shall,
in a
written notice to Seller, either accept the Closing Date Statement or describe
any objections with reasonable particularity. If Seller shall not have received
a written notice of proposed adjustments within this 60 calendar day period,
Purchaser will be deemed irrevocably to have accepted such Closing Date
Statement solely for the purpose of calculating Closing Net Working Capital.
In
addition, any item included in the Closing Date Statement that is not objected
to by Purchaser with reasonable particularity shall be deemed to have been
irrevocably accepted by Purchaser solely for the purpose of calculating Closing
Net Working Capital (“Resolved
Items”)
and
any amounts included within such item shall be deemed to be final, binding
and
conclusive for such purpose. If Purchaser notifies Seller of its objections
to
the Closing Date Statement in accordance with this Section, the parties shall,
within 10 calendar days (or such longer period as the parties may mutually
agree) following such notice (the “Resolution
Period”),
attempt through representatives who are duly authorized to negotiate with
respect to all outstanding differences to resolve their differences, and any
written resolution by them as to any disputed amounts shall be final, binding
and conclusive.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
8
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(iii) Any
amounts remaining in dispute at the conclusion of the Resolution Period
(“Unresolved
Items”)
shall
be submitted to binding arbitration in the state of Delaware for a resolution
of
the Unresolved Items. Except as otherwise provided in this Section 3(d),
the arbitration shall be pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.
(1) The
arbitrator (the “Arbitrator”)
shall
be selected by the parties in good faith and in a timely fashion, but in no
event later than 10 calendar days after the expiration of the Resolution Period.
In the event that the parties are unable to agree on the selection of the
Arbitrator, either party may request the American Arbitration Association to
appoint the Arbitrator. Prior to the commencement of hearings, the Arbitrator
shall take an oath of impartiality.
(2) The
arbitration proceedings and all testimony, filings, documents and information
relating to or presented during the arbitration proceedings shall be deemed
to
be information subject to the confidentiality provisions of this Agreement.
(3) Any
determination of Unresolved Items, including the Closing Net Working Capital,
rendered pursuant to this Section 3(d) shall be final, conclusive and
binding upon the parties and any judgment thereon may be entered and enforced
in
any court of competent jurisdiction. The Arbitrator shall set forth in writing
the determination of the Unresolved Items and a calculation of the Closing
Net
Working Capital based upon the amount of Resolved Items and the Arbitrator’s
determinations of the Unresolved Items.
(4) Unless
Purchaser and Seller otherwise mutually agree in writing, Purchaser and Seller
shall share the fees and expenses of the Arbitrator based on the following
formulas: (i) Seller shall pay a portion of such fees and expenses equal to
the total of such fees and expenses multiplied by a fraction, the numerator
of
which is the dollar amount of Unresolved Items resolved in favor of Purchaser
and the denominator of which is the total dollar amount of Unresolved Items;
and
(ii) Purchaser shall pay a portion of fees and expenses equal to the total
of such fees and expenses multiplied by a fraction, the numerator of which
is
the dollar amount of Unresolved Items resolved in favor of Seller and the
denominator of which is the total dollar amount of Unresolved Items. Each party
shall bear all the fees, costs and expenses of its own attorneys, experts and
witnesses; provided, however, that in connection with any judicial proceeding
to
compel arbitration pursuant to this Agreement or to confirm, vacate or enforce
any determination rendered pursuant to this Section 3(d), the prevailing
party in such a proceeding shall be entitled to recover reasonable attorney’s
fees and expenses incurred in connection with such proceeding, in addition
to
any other relief to which it may be entitled.
(iv) Upon
any
(i) agreement or deemed agreement by Purchaser and Seller as to the Closing
Net Working Capital, or (ii) the Arbitrator’s determination of the Closing
Net Working Capital the parties shall, based thereupon, calculate the Purchase
Price using the equation used to calculate Estimated Purchase Prices set forth
in Section 3(c) above except that the for purposes of calculating the Purchase
Price, the Estimated Net Working Capital will be replaced by the Closing Net
Working Capital in such equation. If the Purchase Price as finally determined
above is greater than the Estimated Purchase Price, Purchaser shall promptly,
but no later than two (2) business days after such agreement or determination,
pay to Seller the amount of such difference. If the Purchase Price as finally
determined above is less than the Estimated Purchase Price, Seller shall
promptly, but no later than two (2) business days after such agreement or
determination, pay to Purchaser the amount of such difference.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
9
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(v) Any
amount payable in accordance with this Section 3(d) shall bear interest
from and after the Closing Date through but excluding the date of payment,
at
the rate per annum equal to the Applicable Rate on the Closing Date. Such
interest shall accrue daily on the basis of a 365-day year.
(vi) All
amounts payable in accordance with this Section 3(d) shall be paid by
delivery of immediately available funds by wire transfer in U.S. dollars to,
in
the case of amounts payable by Purchaser, the account identified by Seller
in
accordance with Section 3(b) above or an alternate account that Seller may
designate in writing or, in the case of amounts payable by Seller, to such
account as Purchaser may designate in writing to Seller.
(vii) During
the period of any review or dispute as provided in this Section 3(d),
Seller shall provide Purchaser and its authorized representatives reasonable
access during normal business hours and without significant disruption to the
business of Seller and its Affiliates, to all books, records and employees
of
Seller and its Affiliates having relevant information concerning the Closing
Date Statement to the extent that such information was used in the calculation
of the Closing Net Working Capital reflected thereon.
4. Time,
Manner and Place of Closing.
Unless
otherwise agreed by the parties, the Closing shall take place on the fifth
business day (or such fewer business days required in order to avoid an
obligation by Seller to divest the Transferred Assets to a Divestiture Trustee
pursuant to the Governing Regulatory Documents) after the date on which the
last
condition precedent set forth in Sections
6 and 7
(other
than such conditions precedent that are not capable of being satisfied until
the
Closing) is satisfied or waived; provided that, to the extent permitted by
the
Governing Regulatory Documents, the Closing shall occur on the last day of
an
applicable calendar month if such date follows within ten (10) days of the
date
the closing would otherwise occur but for this provision. The Closing may be
conducted by facsimile or other means of electronic transmission, but shall
be
deemed to take place at the offices of Alltel Communications, Inc., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. If the Closing occurs, for purposes of
this
Agreement, the Closing shall be deemed to have occurred at 12:00:01 a.m. Central
time on the Closing Date (the “Effective
Time”)
or
such other time as agreed upon by Purchaser and Seller.
5. Closing
Deliveries.
(a) At
the
Closing, Purchaser shall deliver or cause to be delivered to
Seller:
(i) the
Estimated Purchase Price to be wired in immediately available funds to an
account to be designated by Seller;
(ii) a
certificate of an officer of Purchaser, dated on the Closing Date, certifying
that, as of such Closing Date each of the conditions in Section
6
is
satisfied;
(iii) the
FCC
License Assignment;
(iv) executed
copies of the Transition Services Agreement and the Facilities Use Agreement;
and
(v) the
Deliverables List.
(b) At
the
Closing, Seller shall deliver or cause to be delivered to
Purchaser:
(i) an
executed copy of a document, in form and substance reasonably satisfactory
to
Purchaser, transferring the Newco Membership Interest to Purchaser (together
with related certificate, if the Newco Membership Interest is certificated);
***Information
omitted
and filed separately with the Securities and Exchange Commission pursuant
to a
request for confidential treatment.
10
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(ii) an
executed copy of a document, in form and substance reasonably satisfactory
to
Purchaser, transferring the Licenses to Purchaser or its designated Affiliate
(“FCC
License Assignment”);
(iii) a
certificate of an officer of Seller, dated on the Closing Date, certifying
that,
as of such Closing Date each of the conditions in Section
7
is
satisfied;
(iv) true
and
correct copies of (A) all contribution and assumption documents for Newco
contemplated by Section
2,
(B) the
organizational documents of Newco, as in effect on the Closing Date and
certified by an authorized Person, (C) minutes of all meetings of members or
managers (or written actions in lieu thereof) and (D) the resignations of all
directors (or the equivalent thereof) and officers, if any, of Newco;
(v) executed
copies of the Transition Services Agreement and the Facilities Use Agreement;
and
(vi) a
list of
any of the Employees that are Participants.
6. Conditions
Precedent to Seller’s Obligation to Close.
The
obligation of Seller to consummate the transactions contemplated hereby shall
be
conditioned upon the satisfaction or fulfillment, at or prior to Closing, of
the
following conditions, unless waived in writing by Seller:
(a) Each
of
Purchaser’s closing deliveries to Seller set forth in Section
5(a)
shall
have been made;
(b) Each
of
the representations of Purchaser shall be true and correct as of the date of
this Agreement and as of Closing Date as though made on and as of the Closing
Date (except as otherwise expressly provided in this Agreement), and Purchaser
shall have performed all of its covenants and agreements hereunder, except
to
the extent that any failure of any such representation or warranty to be true
and correct or failure to perform such covenant and agreement would not have
a
Purchaser Material Adverse Effect;
(c) The
DOJ
Consent shall have been obtained;
(d) The
FCC
Consent shall have been obtained and become a Final Order, without the
imposition of any terms, conditions or provisions on Seller or its Affiliates
outside the ordinary course of business; provided however, in the event that
as
of January 31, 2007, the FCC Consent either shall not have been obtained and
no
petitions have been filed during the public notice period or shall have been
obtained and no petitions were filed during the public notice period but shall
not have become a Final Order, the foregoing requirement that the FCC Consent
shall have become a Final Order shall be deemed waived.
(e) All
applicable waiting periods under the HSR Act (if applicable to the transactions
contemplated by this Agreement) shall have expired or been
terminated;
(f) The
parties shall have reached agreement regarding the terms of the FDS and the
Cost
Attachment; and
(g) On
the
Closing Date, no suit, action or other proceeding, or injunction or final
judgment relating thereto, shall be pending before any arbitrator, court or
governmental authority having jurisdiction over the parties in which it is
sought to restrain or prohibit the consummation of the transactions contemplated
by this Agreement.
7. Conditions
Precedent to Purchaser’s Obligation to Close.
The
obligation of the Purchaser to consummate the transactions contemplated hereby
shall be conditioned upon the satisfaction or fulfillment, at or prior to
Closing, of the following conditions, unless waived in writing by
Purchaser:
(a) Each
of
Seller’s closing deliveries to Purchaser set forth in Section
5(b)
shall
have been made;
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
11
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(b) Each
of
the representations of Seller shall be true and correct as of the date of this
Agreement and as of Closing Date as though made on and as of the Closing Date
(except as otherwise expressly provided by this Agreement) and Seller shall
have
performed all of its covenants and agreements hereunder, except to the extent
that any failure of any such representation or warranty to be true and correct
or failure to perform such covenant and agreement would not have a Seller
Material Adverse Effect;
(c) The
DOJ
Consent shall have been obtained;
(d) The
FCC
Consent shall have been obtained and become a Final Order, without the
imposition of any terms, conditions or provisions on Purchaser or its Affiliates
outside the ordinary course of business; provided however, in the event that
as
of January 31, 2007, the FCC Consent either shall not have been obtained and
no
petitions have been filed during the public notice period or shall have been
obtained and no petitions were filed during the public notice period but shall
not have become a Final Order, the foregoing requirement that the FCC Consent
shall have become a Final Order shall be deemed waived.
(e) All
applicable waiting periods under the HSR Act (if applicable to the transactions
contemplated by this Agreement) shall have expired or been terminated;
(f) Seller
shall have transferred to Newco the Transferred Assets and the Additional
Subscribers (except for transfers for which necessary consents of third parties
have not been obtained);
(g) the
parties shall have reached agreement regarding the terms of the FDS and the
Cost
Attachment; and
(h) On
the
Closing Date, no suit, action or other proceeding, or injunction or final
judgment relating thereto, shall be pending before any arbitrator, court or
governmental authority having jurisdiction over the parties in which it is
sought to restrain or prohibit the consummation of the transactions contemplated
by this Agreement.
8. Seller
Representations and Warranties.
Seller
represents and warrants to Purchaser that as of the date hereof, (and with
respect to Newco, only as of the Closing Date), and as of the Closing Date
except as expressly provided otherwise:
(a) Each
of
Seller, Newco and the Contributing Entity is duly organized, validly existing
and in good standing under the laws of the respective states of their
organization;
(b) As
of the
date hereof, no Divestiture Trustee has been appointed and the time specified
in
Section IV.A of the DOJ Consent Order for the divestiture of the Business has
not expired;
(c) Seller
has full power and authority to execute, deliver and perform its obligations
under this Agreement and each of Newco and the Contributing Entity has the
power
and authority to consummate the transactions contemplated by this
Agreement;
(d) the
execution, delivery and performance of this Agreement have been duly and validly
authorized and approved by all necessary action of Seller, the Contributing
Entity and Newco;
(e) this
Agreement is a legal, valid and binding obligation of Seller, enforceable
against it and the Contributing Entity in accordance with its terms, except
to
the extent enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability affecting the rights of creditors and general principals of equity
(regardless of whether such enforceability is considered in a proceeding at
law
or in equity);
(f) the
execution, delivery and performance of this Agreement by Seller and the
consummation by Seller and its Affiliates of the transactions contemplated
by
this Agreement will not result in a default under or
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
12
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
breach
of, or require the consent, authorization or approval of, or any registrations
or filings with or notices to, any Person (i) in order to comply with the
governing documents of Seller, Newco or the Contributing Entity; or (ii) under
any law or order to which Seller, Newco or the Contributing Entity is subject,
except for (x) any notices required to be filed under the HSR Act with either
the DOJ or the FTC, (y) any notice to, or any approvals of, the DOJ, in
consultation with any relevant plaintiff state, required under the DOJ Consent
Decree or otherwise, or (z) any transfer applications or other filings to be
filed with, or any approvals of, the FCC;
(g) The
Transferred Assets as of the Effective Time will include all assets, including
intangible assets, properties, franchises, licenses, permits, contracts,
operations and business that are primarily used or held for use in the operation
of the Business by the Seller or its Affiliates, except for the Excluded Assets.
Immediately prior to Closing, Newco will own the Transferred Assets (except
the
Licenses) and the Contributing Entity will hold the Licenses, and immediately
after the Closing, Purchaser will own the Newco Membership Interest, Newco
will
hold good, valid and marketable or saleable title to the Transferred Assets
(except the Licensees), and Purchaser’s designated Affiliate will hold good,
valid and marketable or saleable title to the Licenses (except to the extent
the
FCC may otherwise restrict transferability of any License), free and clear
of
all Encumbrances (other than those created or attaching through the Purchaser
or
its Affiliates);
(h) there
is
no outstanding judgment, order, writ, injunction, decree or award of any
arbitrator, court or governmental authority against Seller, Newco, the
Contributing Entity or any of their respective Affiliates materially adversely
affecting the Newco Membership Interest or the Transferred Assets or the
Business or which questions the validity of any action taken or to be taken
pursuant to this Agreement or in which it is sought to restrain or prohibit
such
transactions or to obtain damages or other relief in connection with this
Agreement;
(i) there
is
no litigation, arbitration, investigation or other proceeding of or before
any
arbitrator, court or governmental authority pending or, to the knowledge of
Seller, threatened against Seller, Newco, the Contributing Entity or any of
their respective Affiliates materially adversely affecting the Newco Membership
Interest or the Transferred Assets or the Business or which questions the
validity of any action taken or to be taken pursuant to this Agreement or in
which it is sought to restrain or prohibit such transactions or to obtain
damages or other relief in connection with this Agreement;
(j) neither
Seller nor its Affiliates or representatives has entered into any agreement
or
understanding that will result in any obligation of or claim against Purchaser,
or any of its Affiliates to pay any finder’s fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby;
(k) the
Contributing Entity holds the Licenses, and, at Closing, the Purchaser or its
Affiliate will hold the Licenses, free and clear of all Encumbrances (other
than
those created or attaching through the Purchaser or its Affiliate). The
Contributing Entity has performed all of the material obligations required
to
have been performed under the Licenses, and no event has occurred or condition
or state of facts exists which constitutes or, after notice or lapse of time
or
both, would constitute a breach of, or default under, any of the Licenses which
permits or, after notice or lapse of time or both, would permit, revocation
or
termination of any License. No notice of cancellation or default concerning
the
Licenses, or of any event, condition or state of facts described in the
preceding sentence, has been received by, or is known to, Seller, and the
Licenses are valid, existing and in full force and effect. The Licenses (i)
were
granted on the grant date specified on Schedule
2(b)(i)
and (ii)
expire on the expiration date specified on Schedule
2(b)(i).
The
Licenses have been granted by Final Order, are in full force and effect, and
authorize, without further consent or authorization from the FCC, the
construction and operation in the areas identified on Schedule
2(b)(i);
(l) the
Contributing Entity has complied in all material respects with, and is not
in
material violation of, any requirement of law of a governmental authority to
which the Licenses are subject or which are applicable to the ownership,
operation or holding thereof, including, without limitation, Section
310(b)
of the
Communications Act, and all rules, regulations or orders of the FCC. To the
knowledge of Seller and the Contributing Entity and except as listed on
Schedule
8(l),
there
are no investigations, inquiries, proceedings or other administrative actions
pending that related to compliance with such rules, regulations or orders,
and
neither the Contributing Entity nor
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
13
|
|
|
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
Newco
have failed to obtain or to adhere to any requirements of any license, permit
or
authorization necessary to the ownership of the Licenses. Both the Contributing
Entity and Newco are qualified under the FCC’s rules and the Communications Act
to hold and convey the Licenses. To the knowledge of Seller, there are no facts
or circumstances relating to the FCC qualifications of Seller or any of its
Affiliates that would prevent or materially delay the FCC’s grant of any FCC
Form 603 (or other appropriate form) application under FCC rules and the
Communications Act;
(m) with
respect to the Licenses, neither Seller nor the Contributing Entity is a party
to any contract, agreement or understanding, oral or written, providing for
the
relocation of microwave service providers or the sharing of any costs associated
with any such relocation, and to the knowledge of Seller and the Contributing
Entity, no microwave relocation activities, actions or efforts are planned
or in
progress with respect to the Licenses;
(n) the
Seller and the Contributing Entity have complied in all material respects with,
and are not in a material violation of, any requirement of law to which the
Business or the Transferred Assets are subject, including, without limitation,
all laws relating to zoning, building codes, employees and employee benefit
plans, and the Governing Regulatory Documents;
(o) immediately
prior to the Closing, (i) Seller or its Affiliate will hold of record and own
beneficially all of the Newco Membership Interests, free and clear of all
Encumbrances, restrictions on transfer (other than restrictions under the
Securities Act and state securities laws), Taxes, options, warrants, purchase
rights, contracts or commitments; (ii) the assets of Newco will consist only
of
the Transferred Assets (excluding the Licenses) and the Additional Subscribers’
contracts; and (iii) the liabilities of Newco will consist of only the Assumed
Liabilities. Newco is and has always been an entity disregarded as an entity
separate from its owner under Treas. Reg. Section 301.7701-3. Newco has no
outstanding subscriptions, options, warrants, or other arrangements or
commitments obligating or which may obligate it (with or without notice or
passage of time or both) to issue any of its securities.
(p) Seller
has made available to Purchaser copies of the Governing Regulatory Documents.
Such copies are complete and accurate and include all amendments, supplements
and modifications thereto or waivers currently in effect thereunder;
(q) This
Agreement is in compliance with all applicable provisions of the Governing
Regulatory Documents and with respect to the Market, Seller has complied with
all applicable provisions of the Governing Regulatory Documents;
(r) (i)
no
Employee is represented by any labor union or other labor organization and
neither Seller, the Contributing Entity, Newco nor any of their respective
Affiliates are subject to any collective bargaining agreement covering any
Employee; (ii) there is no grievance pending or, to the knowledge of Seller
or
the Contributing Entity, threatened, regarding unfair labor practices or
collective bargaining relating to the Business or the Employees; (iii) no
private agreement expressly prohibits Seller or the Contributing Entity from
relocating, closing or terminating any of the operations of facilities of the
Business; and (iv) all Employees are employed at-will except as set forth in
Schedule 14;
(s) Except
(i) *** and (ii) as provided in Section
12(b),
the
Transferred Assets other than the Licenses are in good operating condition
and
repair, ordinary wear and tear and obsolescence excepted, and the Transferred
Assets taken together with the rights to be made available to the Purchaser
pursuant to the Transition Services Agreement and, if the consent of Cellular
One Properties, LLC is obtained, the Cellular One License Assignment constitute
all of the assets necessary to conduct the Business in substantially the same
manner as it is conducted as of the date hereof;
(t) There
are
no defects in the environmental, zoning, licensing or other permits pertaining
to the operation of the Business or Transferred Asset that will have a material
adverse effect on the Business, and following Closing, Seller and its Affiliates
will not undertake, directly or indirectly, any challenges to the
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
14
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
environmental,
zoning, licensing or other permits relating to the operation of the Business,
all in a manner as contemplated by the Governing Regulatory
Documents;
(u) Schedule
2(b)(ii)
contains
an accurate list of all owned and leased cell sites used or held for use in
the
operation of the Business;
(v) Schedule
2(b)(vi)
contains
an accurate list of all retail leases used or held for use in the operation
of
the Business;
(w) There
is
no fee owned real property included in the Transferred Assets. Schedule
8(w)
sets
forth a list of the vendors to whom payments in excess of $10,000 have been
made, and the aggregate amount of such payments, during the three month period
ending November 30, 2006, as reflected on the November 30, 2006 profit and
loss
statement.
(x) with
respect to each parcel of leased real property included in the Transferred
Assets, to the best of Seller’s knowledge but without investigation, (i) true,
correct and complete copies of each lease applicable thereto have been delivered
by Seller or the Contributing Entity to Purchaser, together with any subleases
granted with respect to the real property covered by the leases and (ii) each
such lease is valid, binding and enforceable and in full force and effect,
except to the extent enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability affecting the rights of creditors and general principals
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity). In addition, with respect to each parcel of
leased real property included in the Transferred Assets, none of Seller, the
Contributing Entity and, as of the Closing, Newco, or, to the knowledge of
Seller and the Contributing Entity, any other party to any such lease, is in
default of any material term thereunder or has received any written notice
of
default thereunder;
(y) (i)
Neither Seller nor any Affiliate has generated, used, transported, treated,
stored, released or disposed of, or knowingly permitted anyone else to generate,
use, transport, treat, store, release or dispose of any Hazardous Substance
at,
on or in connection with the ownership or occupancy of the Transferred Assets
in
material violation of any applicable Environmental Laws; (ii) there has not
been
any generation, use, transportation, treatment, storage, release or disposal
of
any Hazardous Substance in connection with Seller’s or an Affiliate’s ownership,
occupancy or use of the Transferred Assets in material violation of any
applicable Environmental Law; (iii) to the knowledge of Seller or the
Contributing Entity, there has not been any generation, use, transportation,
treatment, storage, release or disposal of any Hazardous Substance on, in or
under any property or facility owned or leased by Seller or any Affiliate and
included in the Transferred Assets which has created or might reasonably be
expected to create any material liability under any applicable Environmental
Law; (iv) any Hazardous Substance handled or dealt with by Seller or an
Affiliate at, on or in connection with the ownership or occupancy of the
Transferred Assets has been and is being handled or dealt with in material
compliance with all Environmental Laws; (v) the operation of the Business by
Seller and its Affiliates is in material compliance with all Environmental
Laws;
and (vi) there are no claims against Seller or any Affiliate by third parties,
including governmental authorities, pending or, to the knowledge of Seller,
threatened under Environmental Laws arising out of Seller’s or any Affiliate’s
ownership, construction or use of the Transferred Assets or the condition of
the
Transferred Assets;
(z) To
the
knowledge of Seller and the Contributing Entity and except as noted in
Section
8(s),
each
cell site tower (including the related communication equipment) owned by Seller
or its Affiliates and listed on Schedule
2(b)(ii)
has been
constructed in material compliance with the terms and conditions of the
applicable licenses, rules and regulations of any applicable governmental
authority, including, without limitation, any laws governing the construction,
marking and lighting of antenna structures. Seller and its Affiliates have
conducted their operations, in respect to each cell site tower owned, leased
or
licensed by Seller or its Affiliates and listed on Schedule
2(b)(ii),
in
material compliance with the terms and conditions of the applicable licenses,
rules and regulations of any applicable governmental authority, including,
without limitation, any laws governing the construction, marking and lighting
of
antenna structures. Seller or its Affiliates have made all filings, tower
registrations and reports required to be made by them relating to each such
cell
site except where the failure to make
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
15
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
such
filing, registration or report would not have a material adverse effect on
the
Business. There are no investigations, inquiries, enforcement proceedings,
orders or other actions pending (or to Seller’s knowledge threatened) by the
FCC, FAA and other governmental authority with respect to any cell site owned,
leased or licensed by Seller and listed on Schedule
2(b)(ii);
(aa) as
of
September 13, 2006, including reseller customers, the total number of
Subscribers in the Market relating to the segment of the Business comprised
by
the Divestiture Assets was *** and the number of Postpay Subscribers was ***;
(bb) as
relates to the Transferred Assets and/or the Business, Seller and its Affiliates
have timely filed all Tax returns and statements which they were required to
file and such returns and statements were true and correct in all material
respects. Seller and its Affiliates have paid all Taxes due prior to the date
hereof and will pay when due (or contest in good faith by appropriate
proceedings) all Taxes which may become due on or before the Closing Date
related to the Transferred Assets. Neither Seller nor any Affiliate has waived
any statute of limitations in respect of Taxes or agreed to an extension of
time
with respect to a Tax assessment or deficiency related to the Transferred
Assets. To the knowledge of Seller and the Contributing Entity, there are no
unresolved claims raised, or investigations pending, by any governmental
authority concerning the Tax liability of Seller or an Affiliate related to
the
Transferred Assets or the Business. All Taxes related to the Transferred Assets
or the Business which Seller or an Affiliate is required by law to withhold
or
to collect for payment have been duly withheld and collected, and have been
paid, and there are no Tax Encumbrances on the Transferred Assets except for
any
Tax Encumbrance arising from Taxes not yet due and owing or being contested
in
good faith; and
(cc) there
are
no Multi-line Business Customers in the Market.
(dd) attached
hereto as Schedule
8(dd)
are
unaudited balance sheets of the Business as of June 30, 2006 and October 31,
2006, and unaudited statements of income, and accompanying notes, for the six
and ten month periods then ended (collectively the “Financial
Statements”).
The
Financial Statements (i) were prepared by Seller in good faith and contain
no
information that Seller or any of its Affiliates has reason to believe is
incorrect, (ii) are derived from data maintained by the Seller or its Affiliates
in the ordinary course of business and from books and records maintained in
accordance with GAAP, (iii) fairly present the financial condition of the
Business as of such date and the results of operations of the Business for
the
periods referenced therein except as otherwise noted thereon, and (iv) have
been
prepared consistent with the methodologies and principles generally and
historically used by the Seller and its Affiliates in preparing corresponding
financial information for similar operations in corresponding markets in which
the Seller or its Affiliates operate.
(ee) The
Contributing Entity has obtained designation as an ETC within each designated
area (collectively the “Designated
Area”)
in
which the Contributing Entity is an ETC with respect to the Business as set
forth in Schedule
8(ee).
True,
complete and correct copies of all orders and compliance filings relating to
the
ETC designations listed on Schedule
8(ee)
have
been delivered to Purchaser. The ETC designations are currently in full force
and effect and the Contributing Entity is in full compliance with all applicable
legal requirements relating to its status as an ETC, including the terms and
conditions of the grant by the Minnesota Public Utilities Commission of ETC
Status, and shall remain in compliance through the Effective Time. The
Contributing Entity is not in default under any applicable legal requirements
relating to its status as an ETC. Other than proceedings generally applicable
to
the industry, there is no pending complaint, legal action, governmental
proceeding or investigation that is pending against the Contributing Entity,
and
to the knowledge of Seller and the Contributing Entity no such complaint,
action, proceeding or investigation is threatened, which may terminate, suspend
or modify any authorization of the Contributing Entity as an ETC. Schedule
8(ee)
sets
forth a complete listing of all commitments and obligations of the Contributing
Entity with respect to its status as an ETC in each Designated Area.
9. Purchaser
Representations and Warranties.
Purchaser
hereby represents and warrants to Seller that as of the date hereof and as
of
the Closing Date:
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
16
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(a)
Purchaser and any Affiliate it may designate to hold the Licenses are duly
organized, validly existing and in good standing under the laws of the state
of
its organization;
(b) Purchaser
has full power and authority to execute, deliver and perform its obligations
under this Agreement;
(c) the
execution, delivery and performance of this Agreement have been duly and validly
authorized and approved by all necessary action of Purchaser;
(d) this
Agreement is a legal, valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except to the extent enforcement may
be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability affecting
the rights of creditors and general principals of equity (regardless of whether
such enforceability is considered in a proceeding at law or in
equity);
(e) the
execution, delivery and performance of this Agreement by Purchaser and the
consummation by Purchaser and its Affiliates of the transactions contemplated
by
this Agreement will not result in a default under or breach of, or require
the
consent, authorization or approval of, or any registrations or filings with
or
notices to, any Person (i) in order to comply with the governing documents
of
Purchaser; or (ii) under any law or order to which Purchaser is subject, except
for (x) any notices required to be filed under the HSR Act with either the
DOJ
or the FTC, (y) any notice to, or any approvals of, the DOJ, in consultation
with any relevant plaintiff state, required under the DOJ Consent Decree or
otherwise, or (z) any transfer applications or other filings to be filed with,
or any approvals of, the FCC;
(f) there
is
no outstanding judgment, order, writ, injunction, decree or award of any
arbitrator, court or governmental authority against Purchaser or any of its
Affiliates which questions the validity of any action taken or to be taken
pursuant to this Agreement or in which it is sought to restrain or prohibit
such
transactions or to obtain damages or other relief in connection with this
Agreement;
(g) there
is
no litigation, arbitration, investigation or other proceeding of or before
any
arbitrator, court or governmental authority pending or, to the knowledge of
Purchaser, threatened against Purchaser or any of its respective Affiliates
which questions the validity of any action taken or to be taken pursuant to
this
Agreement or in which it is sought to restrain or prohibit such transactions
or
to obtain damages or other relief in connection with this
Agreement;
(h) neither
Purchaser nor its Affiliates or representatives has entered into any agreement
or understanding that will result in any obligation of or claim against Seller,
or any of its Affiliates to pay any finder’s fee, brokerage commission or
similar payment in connection with the transactions contemplated
hereby;
(i) Purchaser
and any Affiliate it may designate to hold the Licenses, are legally qualified
to (i) receive and hold the Licenses to be acquired hereby, and (ii) receive
any
authorization or approval from any governmental authority necessary for it
to
acquire any such License;
(j) Transferred
Assets will be used as part of a viable, ongoing business engaged in the
provision of mobile wireless services, as contemplated by the Governing
Regulatory Documents; and
(k) Purchaser
is acquiring the Newco Membership Interest for its own account and not with
a
view towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the Securities
Act.
(l) Purchaser
has sufficient financial resources to pay the Estimated Purchase Price at
Closing in the manner specified in Section
3(b).
Purchaser has sufficient financial resources to operate the Business after
the
Closing Date.
***Information
omitted
and filed separately with the Securities and Exchange Commission pursuant
to a
request for confidential treatment.
17
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
10. FCC
and
DOJ Filings.
From
and
after the date hereof, each party shall, and shall cause its respective
Affiliates to, cooperate and use all commercially reasonable efforts to take
the
following actions, with each party to pay its own filing fees in connection
with
any filings pursuant to this Section and with each party paying one-half of
the
filing fees relating to all FCC joint filings, notices and applications:
(a) prepare
and file with the FTC and the DOJ and other regulatory authorities as promptly
as possible, but in any event no later than ten (10) business days after the
execution date hereof, any notification required with respect to the
transactions provided in this Agreement pursuant to the HSR Act and any
supplemental information requested in connection therewith, which notification
shall specifically request early termination of the waiting period prescribed
by
the HSR Act (to the extent applicable to the transactions contemplated by this
Agreement);
(b) prepare
and file with the FCC, as promptly as practicable but in any event no later
than
five (5) business days after the execution hereof, all necessary applications
and notices in order to obtain the FCC Consent.
Within
two (2) business days of the execution of this Agreement, Seller shall notify
the DOJ of this Agreement and the transactions contemplated by this Agreement,
all as required under the DOJ Consent Decree. Seller or Purchaser, as
applicable, will provide any additional information requested by the DOJ as
provided in or required by the Governing Regulatory Documents.
11. Transition
Services Agreement; Dual Licensing Agreement and Deliverables List.
(a) Concurrent
with the execution of this Agreement, Seller and Purchaser will enter into
a
transition services agreement (the “Transition
Services Agreement”)
in the
form set forth on Exhibit
A
providing for transition services.
(b) Within
30
days of the Closing Date, the parties shall negotiate in good faith a dual
licensing agreement ***
.
(c) The
parties hereto shall negotiate in good faith and, no later than ten (10)
business days prior to Closing, Purchaser shall deliver to Seller a list of
reports or other information relating to the services to be provided pursuant
to
the Transition Services Agreement (the “Deliverables
List”).
In
accordance with the timing requirements specified in the Deliverables List,
Seller shall deliver the listed reports or information to Purchaser. For
purposes of clarification, Seller must consent to providing any such report
or
other information which Purchaser may seek to list on the Deliverables List,
such consent not to be unreasonably withheld or delayed.
12. License
to Excluded Shared Assets; Intellectual Property;***
(a) Seller
hereby grants, and shall cause the Contributing Entity to grant, to Newco and
Purchaser, effective upon the Closing, an option for Newco or Purchaser to
obtain a non-exclusive, transferable license for a period commencing on the
Closing Date and terminating upon expiration of the term of the Transition
Services Agreement, to use any of the Excluded Shared Assets in connection
with
the operation of the Business by Newco, Purchaser or its Affiliates, subject
to
the approval of any relevant federal or state governmental authority pursuant
the Governing Regulatory Documents.
(b) Anything
contained herein to the contrary notwithstanding, Purchaser hereby acknowledges
and agrees that following Closing Seller will not grant to Purchaser, Newco
or
their Affiliates and Purchaser, Newco and their Affiliates do not and shall
not
have any right, license, permit or privilege to use or access (i) any of the
Excluded Marks listed on Schedule
2(c)(iii)
except
to the limited extent provided in the Transition Services Agreement and (ii)
***
(c) ***
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
18
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
13.
Compliance with Governing Regulatory Documents.
Seller
shall, and shall cause each of its Affiliates to, comply with the provisions
of
the Governing Regulatory Documents that relate to the Business and the
transactions contemplated by this Agreement.
14. ***
(a) ***
(b) ***
(c) ***
(i) ***
(ii) ***
(d) ***
(i) ***
(ii) ***
(A) ***
(B) ***
15. Intellectual
Property Consents.
From
and
after the date hereof for a period not to exceed twelve (12) months from the
Closing, to the extent that the Transferred Assets include intellectual property
that cannot be transferred or assigned without the consent of the licensor
or
other third parties, Seller and its Affiliates shall, as contemplated by the
Governing Regulatory Documents, use best efforts to obtain those
consents.
16. Permits
and Deferred Assets.
From
and
after the date hereof and until Closing, each party shall, and shall cause
its
respective Affiliates to, use commercially reasonable efforts to obtain any
local permits and any consent, authorization, approval or similar item from
any
non-governmental third party that is required or appropriate as a result of
the
transactions contemplated by this Agreement. In the event that the transfer
of
any Transferred Asset remains subject to receipt of any such required local
permit or consent, authorization, approval or similar item from any
non-governmental authority and such local governmental authority (in the case
of
local permits) or third party (in the case of such consents, authorizations,
approvals or similar items) at Closing, Seller will not cause the Contributing
Entity to transfer such asset (each such asset, a “Deferred
Asset”)
to
Newco at or prior to Closing. With respect to any Deferred Asset (i) for a
period commencing as of the Closing and ending twelve (12) months following
the
Closing, Seller will continue to use its commercially reasonable efforts (except
as otherwise provided in Section
15)
to
obtain such permit, consent, authorization, approval or similar item and, to
the
extent possible, will provide Newco with the economic benefits and burdens
(which burdens Purchaser shall cause Newco to assume, and which Purchaser agrees
to guaranty) of such Deferred Asset, until such permit, consent, authorization,
approval or similar item is obtained, and (ii) at the conclusion of such twelve
(12) month period (or on such earlier date as the use of the Deferred Asset
cease to be made available to Newco), provide Newco with a reasonable
alternative (within the context contemplated by the first sentence of
Section
24
of this
Agreement) for any Deferred Asset for which any necessary permit, consent,
authorization, approval or similar item has not been obtained, including, at
Seller’s election, continuing to provide Newco with the economic benefits of
such Deferred Asset.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
19
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
17. No
Inconsistent Actions.
Seller
and its Affiliates will not take any action that will impede in any way the
permitting, licensing, operation or divestiture of the Transferred
Assets.
From
and
after the date hereof until the Closing Date, Seller shall not, nor will it
permit Newco or the Contributing Entity to, (i) take any action inconsistent
with the transactions contemplated by this Agreement; (ii) sell, assign, gift,
convey or otherwise transfer, or subject to any lien or security interest or
otherwise encumber the Transferred Assets or the Newco Membership Interest
except as contemplated hereunder; or (iii) operate the Business not in the
ordinary course consistent with past practices. The Seller will, unless
otherwise consented to in writing by Purchaser (which consent will not be
unreasonably withheld, conditioned or delayed):
(a) Proceed
with planned capital expenditures for the Business as provided in the
Preservation of Assets Order;
(b) Reasonably
consider taking any actions reasonably requested by Purchaser in preparation
for
post-closing operations of the Business and the Transferred Assets so long
as
such actions do not adversely interfere with the ongoing operations of the
Business or the Transferred Assets, do not conflict with or violate the
Governing Regulatory documents, and are not reasonably expected to expose the
Seller, Contributing Entity or Newco to significant liability or
expense;
(c) Promptly
deliver to the Purchaser copies of all reports, documents, requests, and other
information describing the results of the operation of the Market provided
to
or, to the extent reports and other information do not contain information
which
Seller deems to be confidential, by the Management Trustee or the Divestiture
Trustee pursuant to the Governing Regulatory Documents;
(d) Preserve
in full force and effect, as necessary and consistent with past practice, the
Licenses, including in each case the timely renewal thereof.
18. Disclosure
of Materially Inaccurate Representations.
From
and
after the date hereof until the Closing Date, each party shall, from time to
time prior to the Closing Date, promptly notify the other party of any matter
hereafter arising that, if existing or known as of the date of this Agreement
would have resulted in any representation or warranty of such party in this
Agreement being materially inaccurate or incorrect; provided, however, that
none
of such disclosures shall be deemed to modify, amend, or supplement the
representations and warranties of any party for purposes of this Agreement
unless the other party shall have consented thereto in writing. During the
same
period, each party also shall promptly notify the other parties of the
occurrence of any breach by such party of any covenant or agreement contained
in
this Agreement or of any event that may make the satisfaction of the closing
conditions set forth in Sections 6 or 7 impossible or unlikely. The foregoing
provisions to the contrary notwithstanding, the right to indemnification,
payment of Losses or any other remedy based on the accuracy, inaccuracy of
or
compliance with any such representations, warranties, covenants or obligations
will not be affected by any such disclosure nor by the election of the
disclosing party to elect to close the transactions contemplated hereby
following such disclosure.
19. Confidentiality
Agreement Remains in Effect.
The
terms
of that certain mutual confidentiality agreement dated as of August
18, 2006
by and
among Seller and Purchaser (the “Confidentiality
Agreement”)
shall
remain in full force and effect except to the extent expressly amended hereby.
No press release or public disclosure or disclosure to any third party of the
existence or terms of this Agreement or any Schedule or Exhibit hereto
(including the Transition Services Agreement) shall be made by any party hereto
without the consent of the other party, unless such disclosure is required
by
applicable law and made in accordance with the terms of the Confidentiality
Agreement, including the ability of the other party to seek a protective order
or other remedy (including the filing of a confidential treatment request).
For
a period of *** from and after the termination of the Transition Services
Agreement, neither Seller nor any of its Affiliates shall use
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
20
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
or
take
any action whatsoever which would result in disclosure to any third party of
any
confidential information about Newco, the Business or any Transferred Asset,
provided that none of such parties shall be required to maintain confidential
any information which (i) is or becomes generally available to the public other
than as a result of a disclosure by Seller or any of its Affiliates; (ii) is
obtained from a third party, provided that such third party is not bound by
a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to any other Person with respect to such
information, (iii) is required to be disclosed by Seller or any of its
Affiliates under any applicable law or (iv) is required to enforce any rights
Seller may have against, or to defend any claims made by, any third party (other
than Purchaser and its Affiliates). The parties hereto agree that confidential
information includes, but is not limited to, all information described in the
FCC definition of “Customer Proprietary Network Information” (CPNI) set forth
more particularly in 47 USC §222(h)(1) and corresponding Code of Federal
Regulations, if any, as amended from time to time, and Purchaser’s roaming rates
and other information provided by Purchaser to Seller pursuant to the Transition
Services Agreement to enable Seller to provide services thereunder.
20. Reasonable
Efforts to Consummate Agreement.
Subject
to the terms and conditions of this Agreement, each party agrees to use, and
to
cause its Affiliates to use, commercially reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things necessary,
proper, or advisable under applicable laws to consummate and make effective,
as
soon as reasonably practicable after the date of this Agreement, the
transactions contemplated by this Agreement, and to cause to be satisfied the
conditions referred to in Sections
6 and 7;
provided, that nothing herein shall preclude a party from exercising its rights
under this Agreement.
Each
of
Seller, Purchaser and their respective Affiliates shall take all necessary
actions, including filing all necessary regulatory notifications and seeking
all
necessary regulatory approvals, in order to consummate the transactions
contemplated by this Agreement and to diligently pursue the processing of any
such applications and filings before the FCC or DOJ and other applicable
governmental authorities, except that in no event shall Seller (other than
as
required by the DOJ Consent Decree) be required to divest any material asset
or
rights or agree to any material restriction not customarily associated with
any
regulatory approval. Further, each of Seller, Purchaser and their respective
Affiliates agree to use their commercially reasonable efforts to take all
actions necessary to obtain the consent of the DOJ to this Agreement and to
avoid the appointment of a Divestiture Trustee.
The
previous paragraph notwithstanding, if the DOJ pursuant to the Governing
Regulatory Documents provides written notice to Seller and/or Purchaser of
the
DOJ's objection to the proposed transactions contemplated by this Agreement,
the
parties agree, for a period of five (5) business days from the receipt of the
DOJ's objection, to negotiate with each other to attempt to make commercially
reasonable modifications to the terms and conditions of this Agreement as would
enable the parties to resolve the DOJ's objection. No party will have any
obligations under this Section
20
if (a)
the basis for the DOJ's objection is that Purchaser or its Affiliate is the
purchaser of the assets to be divested or (b) the resolution of the objection
by
the DOJ would require a material diminution of the rights or a material increase
of obligations of such party and notwithstanding the obligation to negotiate,
neither party shall be obligated to make any modifications unless such party
agrees to them in its sole discretion.
21. Access
to Transferred Assets, Financial Information and Officers.
Without
limiting the terms and conditions of this Agreement or the Transition Services
Agreement, from the date of this Agreement until Closing, Seller shall, and
shall cause each of its Affiliates to, (a) give Purchaser and its employees,
agents and representatives reasonable access during all reasonable times to
the
Transferred Assets, (b) provide such financial and operating data and other
information relating to the Business as Purchaser may reasonably request, and
(c) grant Purchaser and its employees, agents and representatives reasonable
access to the respective officers, employees, agents and representatives of
Seller and its Affiliates who can respond knowledgeably to questions related
to
the Transferred Assets and the Business, and transfer and transitional
matters.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
21
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
22. Allocation
of Consideration.
Purchaser
shall, as promptly as practicable following the Closing (but in all events,
within 45 days thereof), obtain a valuation of the Transferred Assets by a
qualified independent appraiser and, based upon this valuation report, shall
prepare and deliver to Seller a proposed allocation for review and comment
by
Seller. For purposes of delivering the initial valuation report, the parties
hereto agree to use the applicable balances set forth in the Estimated Net
Working Capital. Within 15 days after Seller’s receipt of such report, Purchaser
and Seller shall in good faith agree on a preliminary allocation of the
consideration paid for the Transferred Assets for tax purposes in accordance
with the respective fair market value of the Transferred Assets and as provided
for under Section 1060 of the Code. No later than five (5) business days after
determination of the Closing Net Working Capital, Purchaser and Seller shall
in
good faith agree on a final allocation of the consideration paid for the
Transferred Assets for tax purposes in accordance with the respective fair
market value of the Transferred Assets and as provided for under Section 1060
of
the Code. Purchaser and Seller each further agree to file their income tax
returns and all other tax returns in such a manner as to reflect the allocation
of the consideration as determined in accordance with this Section
22.
23. Damage
to Transferred Assets Prior to Closing.
Except
as
provided in Section
8(s)
with
respect to the MN 10 St. ▇▇▇▇▇ HT cell site, in the event that any of the
Transferred Assets have been damaged prior to the Closing Date by a casualty
(the “Damaged
Assets”),
Seller shall, at its option, either (i) repair, rebuild or replace the Damaged
Assets prior to Closing; or (ii) include an amount equal to the agreed upon
cost
of completing the replacement or repair of the Damaged Assets as a deduction
in
the Estimated Purchase Price payable by Purchaser at Closing, in which event
Seller shall be entitled to retain the insurance proceeds (if any) payable
with
respect thereto.
24. No
Interference.
No
terms
of this Agreement will be interpreted as giving Seller or its Affiliates the
ability unreasonably to raise Purchaser or its Affiliates’ costs, lower their
efficiency, or otherwise to interfere with their ability to use the Transferred
Assets to compete effectively. Without limiting the generality of the foregoing,
Seller agrees that, for a period ending twelve (12) months following the
Closing, Seller shall not, and shall cause its Affiliates not to, (i) solicit
any Employee hired by the Purchaser pursuant to Section 14(a) of this Agreement
or any exclusive sales agent of the Business as of the Closing Date to serve
in
a similar or related capacity for Seller or (ii) use its Subscriber list or
similar Subscriber information in its records to directly and specifically
target the Subscribers transferred hereunder for solicitation to become
customers or Subscribers of wireless services provided by Seller or its
Affiliates; provided, however, that the prohibition in clause (ii) shall not
preclude Seller or its Affiliates from soliciting customers or Subscribers
in
the Market using general advertisements or communications (such as newspapers,
radios, television, mailings, telemarketing) not specifically directed or
targeted to the Subscribers using information in Subscriber records.
25. Indemnification
of Purchaser Indemnitees.
From
and
after the Closing Date, Seller shall indemnify, net of taxes, defend and hold
harmless the Purchaser Indemnitees from and against and in respect of any Losses
sustained, incurred or paid by any Purchaser Indemnitee in connection with,
resulting from or arising out of: (a) any breach of a representation or warranty
on the part of Seller under this Agreement, (b) any breach or nonfulfillment
of
any covenant or agreement on the part of Seller under this Agreement, (c)
failure of Seller to convey or cause to be conveyed to Purchaser or its
Affiliate, by transfer to Newco or otherwise, the Transferred Assets, (d) any
Excluded Asset or (e) any liability or obligation arising out of or relating
to
the ownership or holding, as applicable, of the Transferred Assets or the
operation of the Business prior to the Closing Date, except an Assumed
Liability. All of the representations and warranties made by Seller in this
Agreement shall survive the Closing for a period of *** months, except for
those
contained in (i) Sections
8(a), (b), (c), (d), (e), (j), and (o),
which
shall survive indefinitely and (ii) Sections
8(f), (y) and (bb),
which
shall survive until the expiration of the applicable statute of limitations.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
22
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
If
an
indemnification claim made by any Purchaser Indemnitee under this Section
25
involves
a third party claim, such Purchaser Indemnitee shall (i) promptly notify Seller
in writing of all relevant information concerning the third party claim known
to
such Purchaser Indemnitee (provided that failure to so notify Seller will only
relieve the indemnification obligation if and to the extent such failure results
in material prejudice with respect to such third party claim) and (ii) give
Seller full opportunity to control the defense of such third party claim (using
counsel reasonably acceptable to such Purchaser Indemnitee); provided that
the
Purchaser Indemnitee can participate in any proceeding to defend such third
party claim, represented by counsel of its choosing, at its own cost and
expense. If, after notice thereof, Seller fails to promptly assume the defense
of a third party claim for which indemnification is claimed hereunder, or,
after
having assumed defense of such claim, fail to diligently conduct such defense,
the Purchaser Indemnitee can assume the defense thereof, and shall be
indemnified for the cost and expense of such defense (to the extent such
Purchaser Indemnitee is entitled to indemnification hereunder).
No
Purchaser Indemnitee may be bound by any compromise or settlement of a third
party claim without its consent (which shall not be unreasonably withheld,
delayed or conditioned), unless (i) the sole relief is monetary damages for
which the Purchaser Indemnitee shall be fully indemnified and (ii) there is
no
finding or admission of any violation of law or rights of any person or entity.
No Purchaser Indemnitee will be entitled to indemnification for a breach by
Seller of its representations or warranties unless and until the aggregate
amount of the Purchaser Indemnitee’s Losses exceed *** of the Base Purchase
Price (such amount begin referred to as the “Purchaser
Deductible”),
provided that once the Purchaser Deductible is exceeded, such Purchaser
Indemnitee shall be entitled to recover all such Losses in excess of the
Purchaser Deductible; and provided further, that the foregoing limitation will
not apply to any fraud or willful misconduct or the breach of the
representations and warranties contained at Section
8(a), (b), (c), (d), (e), (f), (g), (j), (o), (y) and (bb).
Seller
shall not have aggregate liability for indemnification pursuant to this Section
for a breach of its representations or warranties in excess of *** of the Base
Purchase Price, provided that the foregoing limitation will not apply to any
fraud or willful misconduct or the breach of the representations and warranties
contained at Section
8(a), (b), (c), (d), (e), (f), (g), (j), (o), (y) and (bb).
26. Indemnification
of Seller Indemnitees.
From
and
after the Closing Date, Purchaser, and any Affiliate, shall indemnify, net
of
taxes, defend and hold harmless the Seller Indemnitees from and against and
in
respect of any Losses sustained, incurred or paid by any Seller Indemnitee
in
connection with, resulting from or arising out of: (a) any breach of a
representation or warranty on the part of Purchaser or its Affiliates under
this
Agreement, (b) any breach or nonfulfillment of any covenant or agreement on
the
part of Purchaser or its Affiliates under this Agreement, or (c) any Assumed
Liabilities. All of the representations and warranties made by Purchaser in
this
Agreement shall survive the Closing for a period of *** months, except for
those
contained in Sections
9(a), (b), (c), (d), (e) and (h),
which
shall survive indefinitely.
If
an
indemnification claim made by any Seller Indemnitee under this Section
26
involves
a third party claim, such Seller Indemnitee shall (i) promptly notify Purchaser
in writing of all relevant information concerning the third party claim known
to
such Seller Indemnitee (provided that failure to so notify Purchaser will only
relieve the indemnification obligation if and to the extent such failure results
in material prejudice with respect to such third party claim) and (ii) give
Purchaser full opportunity to control the defense of such third party claim
(using counsel reasonably acceptable to such Seller Indemnitee); provided that
the Seller Indemnitee can participate in any proceeding to defend such third
party claim, represented by counsel of its choosing, at its own cost and
expense. If, after notice thereof, Purchaser fails to promptly assume the
defense of a third party claim for which indemnification is claimed hereunder,
or, after having assumed defense of such claim, fails to diligently conduct
such
defense, the Seller Indemnitee can assume the defense thereof, and shall be
indemnified for the cost and expense of such defense (to the extent such Seller
Indemnitee is entitled to indemnification hereunder).
No
Seller
Indemnitee may be bound by any compromise or settlement of a third party claim
without its consent (which shall not be unreasonably withheld, delayed or
conditioned), unless (i) the sole relief is monetary damages for which the
Seller Indemnitee shall be fully indemnified and (ii) there is no finding or
admission of any violation of law or rights of any person or entity.
No
Seller
Indemnitee will be entitled to indemnification for a breach by Purchaser of
its
representations or warranties unless and until the aggregate amount of the
Seller Indemnitee’s Losses exceed *** of the Base Purchase Price (such amount
being referred to as the “Seller
Deductible”),
provided that once the Seller Deductible is exceeded, such Seller Indemnitee
shall be entitled to recover all such Losses in excess of the Seller Deductible;
and provided further, that the foregoing limitation will not apply to any fraud
or willful misconduct or the breach of the representations contained in
Section
9(a), (b), (c), (d), (e) and (h).
Purchaser shall not have aggregate liability for indemnification pursuant to
this Section 26 for a breach of its representations or warranties in excess
of
*** of the Base Purchase Price, provided that the foregoing limitation will
not
apply to any fraud or willful misconduct or the breach of the representations
contained in Section
9(a), (b), (c), (d), (e) and (h).
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
23
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
27. Subrogation.
The
indemnifying party shall be subrogated to the rights of the indemnified party
in
respect of any insurance relating to Losses to the extent of any indemnification
payments made under Sections
25 and 26.
The
indemnified party shall be obligated to use commercially reasonable efforts
to
mitigate the amount of any Losses for which it is entitled to seek
indemnification hereunder, and the indemnifying party shall not be required
to
make any payment to the indemnified party in respect of such Losses to the
extent such failure to mitigate contributed to the Loss. Any liability for
indemnification under Sections
25 and 26
shall be
determined without duplication of recovery by reason of the state of facts
giving rise to such liability constituting a breach of more than one
representation, warranty, covenant or agreement.
28. Termination.
(a) This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:
(i) By
either
party, if the DOJ provides written notice to either party that the DOJ will
not
approve any or all of the transactions contemplated by this Agreement (including
the Transition Services Agreement) and such party seeking to terminate has
participated in the negotiations required by Section 20 (third paragraph) with
respect to such objection;
(ii) By
either
party if any court of competent jurisdiction or a governmental authority shall
have issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated
by
this Agreement (including the Transition Services Agreement) and such order,
decree, ruling or other action shall have become final and nonappealable;
(iii) By
either
party (provided that such party has not committed a material breach of its
covenants, agreements, representations or warranties that has caused any
condition to Closing to not be satisfied) if the Closing shall not have occurred
by 11:59:59 p.m. five (5) days after the later of the date the DOJ Consent
has
been obtained or the FCC Final Order has been obtained; or
(iv) By
mutual
written agreement.
(b) In
the
event of termination of this Agreement prior to Closing by any party, except
as
otherwise provided in the following sentence of this Section
28,
all
rights and obligations of the parties under this Agreement shall terminate
without any liability of any party to any other party (except for any liability
of any party then in breach of its covenants, agreements, representations or
warranties hereunder). The provisions of this Section
28
and
Sections
1, 29, 30, 32 and 33
shall
expressly survive the termination of this Agreement.
29. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without giving effect to any of the conflict of law rules
thereof.
30. Counterparts.
This
Agreement may be executed in any number of counterparts (including facsimile
counterparts), each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
24
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
31. Additional
Instruments.
From
time
to time after the Closing Date, each party shall, and shall cause its Affiliates
to, if reasonably requested by another party, make, execute and deliver such
additional assignments and other instruments, as may be reasonably necessary
or
proper to effectuate the intent of the transactions contemplated hereby. Such
efforts and assistance shall be at the cost of the requesting
party.
32. Notices.
All
notices required or permitted to be given under the provisions of this Agreement
shall be (a) in writing, (b) sent by facsimile, delivered by personal delivery,
or sent by commercial delivery service or certified mail, return receipt
requested, (c) deemed to have been given on the date sent via facsimile with
receipt confirmed, the date of personal delivery, or the date set forth in
the
records of the delivery service or on the return receipt, and (d) addressed
as
follows:
If
to
Seller:
Alltel
Communications, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: General
Counsel, Executive Vice President and Secretary
If
to
Purchaser:
▇▇▇
▇▇▇▇▇▇▇, EVP & COO
Rural
Cellular Corporation
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
With
a
Copy to:
Rural
Cellular Corporation
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President, Legal Services
Telephone:
(▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail
address: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with
a
copy to (which shall not constitute notice):
▇▇▇▇
& ▇▇▇▇▇▇▇, A Professional Association
4800
▇▇▇▇▇ Fargo Center
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇)
▇▇▇-▇▇▇▇
E-mail
address: ▇▇▇▇▇▇▇@▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇
33. ***
34. Miscellaneous.
***Information
omitted
and filed separately with the Securities and Exchange Commission pursuant
to a
request for confidential treatment.
25
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
(a) Compliance
with Governing Regulatory Documents.
Notwithstanding
anything contained herein to the contrary, neither Seller nor Purchaser shall
be
required to take any action (or omit to take any action) that would be in
contravention of the Governing Regulatory Documents, and no party shall be
liable for any action taken (or omission to take any action) that is necessary
in order to comply with the Governing Regulatory Documents. In the event that
the terms of this Agreement are in conflict with the Governing Regulatory
Documents, the parties agree to negotiate in good faith to amend the terms
hereof in order to effectuate the purposes of this Agreement in accordance
with
the terms of the Governing Regulatory Documents.
(b) Amendment.
This
Agreement may be amended by a writing signed by both parties. To the extent
that
any provision herein is deemed to be unenforceable or contrary to applicable
law
(including any order, decree or judgment imposed by any governmental authority
to which any party hereto is subject), the parties shall amend the terms hereof
to the extent required by such law (or order, decree or judgment).
(c) Expenses.
Except
as
set forth in Sections
10 and 34(f)
and
except as may otherwise be agreed in other writing by the parties, all legal
and
other costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs
and expenses.
(d) Third
Parties.
The
representations, warranties, covenants and agreements contained in this
Agreement are for the sole benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors and assigns
and, in the case of Sections 25 and 26, the Purchaser Indemnitees and the Seller
Indemnitees, and they shall not be construed as conferring any rights or
remedies on any other Persons.
(e) Specific
Performance.
The
parties acknowledge that their obligations hereunder are unique and that, prior
to Closing, remedies at law, including monetary damages, will be inadequate
in
the event either party should default in the performance of its obligations
under this Agreement. Accordingly, in the event of any such breach prior to
Closing, the non-defaulting party shall be entitled to a decree of specific
performance pursuant to which the defaulting party is ordered to affirmatively
carry out its pre-closing obligations under this Agreement. The foregoing shall
not be deemed to be or construed as a waiver or election of remedies by either
party, both of whom expressly reserve any and all rights and remedies available
to it at law or in equity in the event of any breach or default by the other
party under this Agreement prior to Closing.
(f) Transfer
Taxes.
Seller,
on the one hand, and Purchaser, on the other hand, shall bear equally the
expense of all use, sales, transfer and other similar transaction taxes, if
any,
imposed solely and directly by reason of the transactions contemplated by this
Agreement.
(g) Assignment.
Except
as
otherwise provided in this Agreement, neither party hereto may assign this
Agreement without the prior written consent of the other party hereto;
provided
that
the
Purchaser may, without the consent of the Seller, assign this Agreement, or
any
of its rights, interests and obligations, to any Affiliate of Purchaser prior
to
Closing; and provided
further that
each
of Seller and Purchaser may, without the consent of the other party, assign
this
Agreement, or any of their respective rights, interests and obligations
hereunder, to any Affiliate thereof after the Closing, but none of the
assignments described in this section shall relieve the assignor of its
obligations hereunder. Any such purported assignment in violation of the
provisions of this section shall be null, void and of no legal effect
whatsoever. This Agreement shall inure to the benefit of the parties hereto
and
their respective successors and permitted assigns.
(h) Dispute
Resolution.
***Information
omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential
treatment.
26
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
If
a
dispute arises between the parties with respect to the terms and conditions
of
this Agreement (other than pursuant to Section 3(d)), or a party’s performance
of its obligations hereunder (a “Dispute”),
the
parties agree to use and follow this dispute resolution procedure prior to
initiating any judicial action:
(i) Claims
Procedure
If
a
party shall have a Dispute, such party shall provide written notice to the
other
party in accordance with the provisions of Section
32
of this
Agreement, in the form of a claim identifying the nature of the Dispute in
sufficient detail to describe the basis for the claim (a “Dispute
Notice”).
Upon
receipt of the Dispute Notice, the other party shall have five (5) business
days
to provide a written response to the Dispute Notice (the “Response”).
The
party providing the Dispute Notice shall have an additional five (5) business
days following its receipt of the Response, to accept the proposed resolution
or
to request implementation of the procedure set forth in subsection (ii) below
(the “Escalation
Procedure”).
Failure to comply with the time limitations set forth in this subsection may
result in the implementation of the Escalation Procedures.
(ii) Escalation
Procedure
At
the
written request of a party involved in the Dispute and in compliance with the
above paragraph, each party shall appoint a knowledgeable, responsible
representative to negotiate in good faith to resolve such Dispute. The parties
intend that these negotiations be conducted by experienced representatives
of
senior management empowered to decide the issues and who are knowledgeable
regarding matters pertaining to the business segment (e.g., operations, finance,
etc.) impacted by the Dispute. The business representatives will attempt to
resolve the Dispute within five (5) business days of receiving the written
request. If the Dispute cannot be resolved within that time period, then the
parties may resort to judicial action or other remedies.
[Remainder
of Page Intentionally Left Blank]
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
27
|
CONFIDENTIAL
TREATMENT REQUESTED
|
Exhibit
2.1 Redacted
|
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
ALLTEL
COMMUNICATIONS, INC.
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Executive
Vice President
RURAL
CELLULAR CORPORATION
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: President
/ CEO
***Information
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
28