EXHIBIT 10.2
LOCK UP, VOTING AND CONSENT AGREEMENT
This Lock Up, Voting and Consent Agreement (the "Agreement"), dated as
of June 4, 2002, is entered into and made by and among Stations Holding Company,
Inc., a Delaware corporation ("Debtor" or the "Company"), ▇▇▇▇ Communications
Systems, Inc., a Georgia corporation ("▇▇▇▇") and each of the undersigned
holders (each, a "Consenting Holder" and, together, the "Consenting Holders") of
the Senior Preferred Stock (as defined below). All capitalized terms not
otherwise defined herein have the meanings given to said terms in the Plan (as
hereinafter defined).
WHEREAS, Debtor has issued 100,000 shares of 11.5% Senior Exchangeable
Preferred Stock due May 15, 2008 (the "Senior Preferred Stock");
WHEREAS, Debtor and the Consenting Holders have engaged in good faith
negotiations with the objective of reaching an agreement with regard to
satisfying the Debtor's obligations under the Senior Preferred Stock;
WHEREAS, Debtor and ▇▇▇▇ are, concurrently with the execution of this
Agreement, entering into a Merger Agreement of even date herewith (the "Merger
Agreement") pursuant to which, subject to the terms and conditions set forth in
the Merger Agreement, a wholly-owned subsidiary of ▇▇▇▇ will be merged into and
with Debtor;
WHEREAS, Debtor and each of the Consenting Holders now desire to
implement a financial restructuring that gives effect to the Merger Agreement
(the "Financial Restructuring"), and in order to implement the Financial
Restructuring, the Debtor intends to prepare and file a disclosure statement
(the "Disclosure Statement") and plan of reorganization (the "Plan") consistent
in all material respects with the terms set forth in this Agreement and the
summary of the Plan attached hereto as Exhibit A (the "Plan Summary") which, if
confirmed, will implement the terms of the Financial Restructuring in the
Debtor's bankruptcy case number 02-10882 (MFW) (the "Chapter 11 Case") filed
under the United States Bankruptcy Code, 11 U.S.C. ss. 101 et seq. (the
"Bankruptcy Code"), and the Debtor intends to use its best efforts to have the
Disclosure Statement approved and such Plan confirmed by the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") in the
Chapter 11 Case as expeditiously as possible under the Bankruptcy Code and the
Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules");
WHEREAS, each Consenting Holder is the legal owner, beneficial owner
and/or the investment advisor or manager for the beneficial owner (with the
power to vote and dispose of such claims on behalf of such beneficial owner) of
the number of shares of Senior Preferred Stock (for each such party, the
"Relevant Claim"), in each case as set forth below each such Consenting Holder's
signature attached hereto;
WHEREAS, each Consenting Holder has reviewed, or has had the
opportunity to review, with the assistance of professional financial and legal
advisors of its choosing, the Plan Summary and the Merger Agreement; and
WHEREAS, each Consenting Holder desires to support and vote for
confirmation of the Plan, and the Debtor desires to obtain the commitment of the
Consenting Holders to support and vote for the Plan, in each case subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Debtor, ▇▇▇▇ and the Consenting Holders, intending to be legally bound, agree as
follows:
Section 1. Voting. Each Consenting Holder represents and warrants,
severally and not jointly, that, as of the date hereof, it is the legal owner,
beneficial owner and/or the investment adviser or manager for the beneficial
owner (with the power to vote and dispose of such claims on behalf of such
beneficial owner) of such legal or beneficial owner's Relevant Claim and that
there is no Senior Preferred Stock of which it is the legal owner, beneficial
owner and/or investment advisor or manager for such legal or beneficial owner
which are not part of its Relevant Claim. Each Consenting Holder agrees for
itself that (i) it shall timely vote (or cause to be voted) its Relevant Claim
and any other claims or interests that it holds (and not revoke or withdraw such
vote) to accept the Plan; provided that the terms of the Plan and Disclosure
Statement are consistent in all material respects with the Plan attached hereto
and (ii) to the extent such election is available, it shall not elect on its
ballot to preserve any claims, if any, such Consenting Holder may have that may
be affected by the releases provided for under the Plan.
Section 2. Support of the Plan.
(1) Each Consenting Holder agrees that it will (i) from and
after the date hereof not agree to, consent to, provide any support to,
participate in the formulation of, or vote for any plan of reorganization or
liquidation, other than the Plan; (ii) execute and deliver a customary letter,
in form and substance reasonably satisfactory to the Company and such Consenting
Holder, from the Consenting Holder for distribution to the holders of any
impaired claims against or interests in the Company, stating that such
Consenting Holder supports and has committed to vote to approve the Plan; and
(iii) agree to permit disclosure in the Disclosure Statement and any filings by
the Company with the Securities and Exchange Commission of the contents of this
Agreement, including, but not limited to, the commitments given in clause (i) of
this Section 2(a) and the aggregate Relevant Claims held by all Consenting
Holders; provided that the Company shall not disclose the number of shares of
Senior Preferred Stock comprising the Relevant Claim of any individual
Consenting Holder, except as otherwise required by applicable law.
(2) Each Consenting Holder further agrees that it shall not
object to or otherwise commence any proceeding, or take any other action, to
oppose or alter any of the terms of the Plan or any other document filed in
connection with the confirmation of the Plan (hereinafter a "Reorganization
Document") and shall not take any action which is inconsistent with, or that
would delay approval or confirmation of any of the Disclosure Statement, the
Plan or any of the Reorganization Documents; provided that the terms of all such
Reorganization Documents are customary and otherwise consistent with the
material terms of the Plan. Without limiting the generality of the foregoing, no
Consenting Holder may directly or indirectly seek,
2
solicit, support or encourage any other plan, sale, proposal or offer of
dissolution, winding up, liquidation, reorganization, merger or restructuring of
the Company or any of its subsidiaries that could reasonably be expected to
prevent, delay or impede the restructuring of the Company as contemplated by the
Plan or any Reorganization Document.
(3) If notwithstanding the foregoing terms of this Section 2,
the Company receives a Superior Proposal and such Superior Proposal is approved
by the Bankruptcy Court, then the Consenting Holders shall pay to ▇▇▇▇,
contemporaneous with the transaction contemplated by such Superior Proposal, a
termination fee in the amount of $15,000,000 (the "Termination Fee"). The
liability of each Consenting Holder (which shall be several and not joint) shall
be determined by multiplying the Termination Fee by a fraction the numerator of
which is the number of shares of Senior Preferred Stock owned by such Consenting
Holder and the denominator of which is the number of shares of Senior Preferred
Stock owned by all Consenting Holders. For purposes hereof, "Superior Proposal"
shall mean an unsolicited, bona fide written offer made by a third party to
purchase (by means of a merger, consolidation, amalgamation, share exchange,
business combination, issuance of securities, acquisition of securities, tender
offer, exchange offer or other similar transaction) more than 50% of the
outstanding Senior Preferred Stock, which the board of directors of the Company
determines, in good faith, based on the written advice of its financial
advisors, has terms more favorable to the Consenting Holders than the terms of
the Merger Agreement; provided, however, that any such offer shall not be deemed
to be a "Superior Offer" unless any financing required to consummate the
transaction contemplated by such offer is either (i) in the possession of such
third party at the time such offer is made, or (ii) is committed and, as
determined by the board of directors of the Company, in good faith based on the
written advice of its financial advisors, likely to be obtained by such third
party such that the closing of the Superior Proposal is reasonably expected to
occur no later than the closing of the Financial Restructuring pursuant to the
Merger Agreement.
Section 3. Forbearance. So long as this Agreement shall remain in
effect, each Consenting Holder hereby agrees to forbear from exercising any
rights or remedies it may have under the Senior Preferred Stock and all related
documents, applicable law, or otherwise, with respect to any existing default
under the Senior Preferred Stock and all related documents.
Section 4. Restrictions on Transfer. Each of the Consenting Holders
hereby agrees that, for so long as this Agreement shall remain in effect, it
shall not sell, transfer or assign all or any of its Relevant Claims or any
option thereon or any right, interest (voting or otherwise) therein, unless the
transferee agrees in writing to be bound by the terms of this Agreement by
executing a counterpart signature page to this Agreement and the transferor
promptly provides the Company with a copy thereof, in which event the Company
shall be deemed to have acknowledged that its obligations to the Consenting
Holders hereunder shall be deemed to constitute obligations in favor of such
transferee, and the Company shall confirm such acknowledgment in writing.
Section 5. Further Acquisition of Senior Preferred Stock. This
Agreement shall in no way be construed to preclude the Consenting Holders or any
of their respective subsidiaries or affiliates from acquiring additional shares
of Senior Preferred Stock. However, any such additional Senior Preferred Stock
acquired by a Consenting Holder shall automatically be
3
deemed to be Relevant Claims and to be subject to the terms of this Agreement.
The Consenting Holder agrees that it shall not create any subsidiary or
affiliate for the sole purpose of acquiring any Senior Preferred Stock. Upon the
request of the Company, each Consenting Holder shall provide an accurate and
current list of the Relevant Claims held by such Consenting Holder.
Section 6. Company Agreement. The Company hereby agrees to use its
commercially reasonable efforts to have the Disclosure Statement approved by the
Bankruptcy Court, and thereafter or in conjunction therewith to use its
commercially reasonable efforts to obtain an order of the Bankruptcy Court
confirming the Plan, in each case as expeditiously as commercially reasonable
under the Bankruptcy Code and Bankruptcy Rules, and consistent in all material
respects (including with respect to the treatment of claims and interests) with
the terms and conditions of the Plan.
Section 7. Acknowledgment. This Agreement is not and shall not be
deemed to be a solicitation for consents to the Plan. The acceptance of the
Consenting Holders will not be solicited until the Consenting Holders have
received the Disclosure Statement and related ballot, as approved by the
Bankruptcy Court.
Section 8. Termination. The obligations of the Consenting Holders
hereunder shall remain effective and binding and shall terminate only upon the
earlier to occur of the time at which (i) the Plan provides or is modified to
provide for treatment of such Holder which is materially adverse to the
treatment described in the Plan Summary; and (ii) the Plan provides or is
modified without the consent of the Consenting Holders to provide for treatment
of the holders of the Debtor's outstanding Junior Preferred Stock or Common
Stock that increases the aggregate recoveries for such Junior Preferred Stock or
Common Stock as a whole versus that contemplated by the Plan Summary, or the
Plan is modified in a manner which substantially decreases the likelihood that
the Plan will be confirmed.
Section 9. Good Faith Negotiation of Documents. Each party hereby
further covenants and agrees to negotiate the Reorganization Documents and any
definitive documents relating thereto, in good faith and, in any event, in all
material respects consistent with the Plan Summary.
Section 10. Representations and Warranties. Each of the Consenting
Holders, severally and not jointly, represents and warrants to Debtor and ▇▇▇▇,
and ▇▇▇▇ and the Debtor each represents and warrants, only as to itself and not
as to the other, to each Consenting Holder that the following statements, as
applicable, are true, correct and complete as of the date hereof:
(1) Power and Authority. It has all requisite corporate,
partnership, or limited liability company power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby, and to perform
its obligations hereunder.
(2) Due Organization. It is duly organized, validly existing
and in good standing under the laws of its state of organization and it has the
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
4
(3) Authorization. The execution and delivery of this
Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate, partnership or limited liability company
action on its part (other than the approval of the Bankruptcy Court in the case
of the Debtor).
(4) No Conflicts. The execution, delivery and performance of
this Agreement does not and shall not: (i) violate any provision of law, rule or
regulation applicable to it or any of its subsidiaries, (ii) violate its
certificate of incorporation, bylaws or other organizational documents or those
of any of its subsidiaries; or (iii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligation to which it or any of its subsidiaries is a
party.
(5) Governmental Consents. The execution, delivery and
performance by it of this Agreement do not and shall not require any
registration or filing with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body (other than the approval of the Bankruptcy Court in the case of
the Debtor).
(6) Binding Obligation. Subject to the provision of sections
1125 and 1126 of the Bankruptcy Code, this Agreement is a legally valid and
binding obligation, enforceable in accordance with its terms.
Section 11. Complete Agreement, Modification of Agreement. This
Agreement and the other agreements referenced herein constitute the complete
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be modified, altered, amended or supplemented except by an
agreement in writing signed by the Company, ▇▇▇▇ and the Consenting Holders that
hold not less than two-thirds of the outstanding shares of Senior Preferred
Stock.
Section 12. Specific Performance. It is understood and agreed by the
parties that money damages would not be a sufficient remedy for any breach of
this Agreement by any party and each non-breaching party shall be entitled to
the sole and exclusive remedy of specific performance and injunctive or other
equitable relief, including attorneys' fees and costs, as a remedy of any such
breach, and each party agrees to waive any requirement for the securing or
posting of a bond in connection with such remedy.
Section 13. Assignment. Except as set forth in Section 4, no rights or
obligations of any party under this Agreement may be assigned or transferred to
any other person or entity.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE. By its execution and delivery
of this Agreement, each of the parties hereto hereby irrevocably and
unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the Bankruptcy Court.
By execution and delivery of this Agreement, each of the
5
Parties hereto hereby irrevocably accepts and submits itself to the exclusive
jurisdiction of each such court, generally and unconditionally, with respect to
any such action, suit or proceeding.
Section 15. Modification of Plan. No modification or change to the Plan
shall release the Consenting Holder from obligations under this Agreement if the
Plan remains substantially similar in all economic and other respects to the
Plan Summary, and if such modification or change does not negatively impact or
lessen the economic recovery or other rights that such Consenting Holder will
receive under the Plan.
Section 16. Independent Due Diligence and Decision-Making. Each of the
Consenting Holders hereby confirms that its decision to execute this Agreement
has been based upon its independent investigation of the operations, businesses,
financial and other conditions and prospects of Debtor. To the extent any
materials or information have been furnished to it by Debtor, the undersigned
hereby acknowledges that they have been provided for informational purposes
only, without any representation or warranty.
Section 17. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
Section 18. Prior Negotiations. This Agreement, the Plan Summary and
the Reorganization Documents supersede all prior negotiations with respect to
the subject matter hereof.
Section 19. Consideration. It is hereby acknowledged by the Company,
▇▇▇▇ and each of the Consenting Holders that no consideration shall be due or
paid to the Consenting Holders for their agreement to vote to accept the Plan in
accordance with the terms and conditions of this Agreement, other than the
Company's agreement to use its reasonable best efforts to obtain approval of the
Disclosure Statement and to confirm the Plan in accordance with the terms and
conditions of this Agreement.
Section 20. No Third Party Beneficiaries. This Agreement shall be
solely for the benefit of the parties hereto, including their permitted assigns,
and no other person or entity shall be a third party beneficiary hereof. Nothing
in this Agreement, express or implied, shall give to any party or entity other
than the parties any benefit or any legal or equitable right, remedy or claim
under this Agreement.
Section 21. Several Obligations. The obligations of the Consenting
Holders hereunder are several and not joint.
Section 22. Notices. All notices hereunder to be served to the Company
or ▇▇▇▇, as applicable, shall be deemed given if in writing and delivered or
sent by telecopy, courier or by registered or certified mail (return receipt
requested) to the following addresses or telecopier numbers (or at such other
addresses or telecopier numbers as shall be specified by like notice):
6
To the Company: Stations Holding Company, Inc.
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shack ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
To ▇▇▇▇: ▇▇▇▇ Communications Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with copies to:
▇▇▇▇▇▇ & Bird LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Section 23. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall, collectively and separately, constitute
one and the same agreement.
* * * * *
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
STATIONS HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Its: President and Chief Operating Officer
▇▇▇▇ COMMUNICATIONS
SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Its: Vice President and Chief Financial
Officer
HOLDER OF RELEVANT CLAIM:
Name of Holder:
-----------------------------
Number of Shares
of Senior Preferred
Stock:
-----------------------------------
HOLDER OF RELEVANT CLAIM:
Name of Holder:
-----------------------------
Number of Shares
of Senior Preferred
Stock:
-------------------------------------
HOLDER OF RELEVANT CLAIM:
Name of Holder:
By:
------------------------
Name:
Title:
Number of Shares
of Senior Preferred
Stock:
----------------------------------
HOLDER OF RELEVANT CLAIM:
Name of Holder:
By:
-------------------------
Name:
Title:
Number of Shares
of Senior Preferred
Stock:
-------------------------------------