Exhibit 99(a)
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
among
SPECIALTY TELECONSTRUCTORS, INC.
OAI ACQUISITION CORP.
and
OMNIAMERICA, INC.
OMNIAMERICA HOLDINGS CORPORATION
OMNI/HSW ACQUISITION, INC.
HMTF/OMNI PARTNERS, L.P.
Dated April 22, 1998
AN APPENDIX OF DEFINED TERMS BEGINS ON PAGE (vi)
TABLE OF CONTENTS
Page
ARTICLE I THE MERGER..................................................2
1.1 Definitions..........................................2
1.2 The Merger...........................................2
1.3 Effective Time of the Merger.........................2
1.4 Certificate of Incorporation.........................2
1.5 Effects of the Merger................................2
ARTICLE II DIRECTORS AND OFFICERS.....................................3
2.1 Directors of STI, the Surviving Corporation and
OmniAmericaSub......................................3
2.2 Officers of the Surviving Corporation................3
2.3 Officers of STI......................................3
ARTICLE III CONVERSION OF SECURITIES...................................3
3.1 Consideration for Merger.............................3
3.2 Surrender of Certificates............................4
3.3 Conversion of the Sub's Securities...................4
3.4 OmniPartners to Have No Further Rights as to
OmniAmerica.........................................4
3.5 Written Consent of Sole Stockholder of the Sub.......5
3.6 Written Consent of Sole Stockholder of OmniAmerica...5
3.7 Closing..............................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................5
4.1 Representations and Warranties of OmniAmerica........5
4.1.1 Corporate and Partnership Existence and
Authority.....................................5
4.1.2 Capitalization of OmniAmerica and
OmniAmericaSub................................6
4.1.3 Validity and Authorization; Corporate Power
and Authority.................................8
4.1.4 Execution; No Violations.......................9
4.1.5 Governmental and Other Consents...............10
4.1.6 OmniAmerica Financial Statements..............10
4.1.7 Absence of Certain Liabilities................11
4.1.8 Absence of Changes............................11
4.1.9 Taxes.........................................15
4.1.10 Disputes and Litigation......................16
4.1.11 Compliance with Laws.........................17
4.1.12 Insurance....................................18
4.1.13 Title to Properties..........................18
4.1.14 Real Property and Real Property Leases.......18
4.1.15 Intangible Personal Property.................19
4.1.16 Agreements...................................20
i
4.1.17 Indebtedness and Guaranties..................20
4.1.18 Debts to and from Related Parties............21
4.1.19 Certificate of Incorporation and Bylaws......21
4.1.20 Books and Records............................21
4.1.21 Employee Benefits............................22
4.1.22 Employees....................................22
4.1.23 No Conflicts of Interest.....................23
4.1.24 Environmental Matters........................23
4.1.25 Licenses.....................................24
4.1.26 No Solicitation or Negotiation...............25
4.1.27 Tower Space Leases...........................25
4.1.28 KISCO Shares.................................26
4.2 Representations and Warranties of OmniPartners......26
4.2.1 Existence and Authority.......................26
4.2.2 Validity and Authorization; Partnership
Power and Authority..........................27
4.2.3 Execution; No Violations......................28
4.2.4 Governmental and Other Consents...............29
4.2.5 Investment Intent; Compliance with Securities
Laws.........................................30
4.3 Representations and Warranties of STI...............31
4.3.1 Corporate Existence and Authority.............31
4.3.2 Capitalization of STI.........................32
4.3.3 Validity and Authorization; Corporate Power
and Authority................................32
4.3.4 Execution; No Violations......................33
4.3.5 Governmental and Other Consents...............33
4.3.6 STI Financial Statements......................34
4.3.7 Absence of Certain Liabilities................34
4.3.8 Absence of Changes............................34
4.3.9 Taxes.........................................37
4.3.10 Disputes and Litigation......................38
4.3.11 Compliance with Laws.........................39
4.3.12 Insurance....................................39
4.3.13 Title to Properties..........................40
4.3.14 Real Property and Real Property Leases.......40
4.3.15 Intangible Personal Property.................41
4.3.16 Agreements...................................41
4.3.17 Indebtedness and Guaranties..................42
4.3.18 Debts to and from Related Parties............42
4.3.19 Articles of Incorporation and Bylaws.........42
4.3.20 Books and Records............................43
4.3.21 Employee Benefits............................43
4.3.22 Employees....................................43
4.3.23 No Conflicts of Interest.....................44
4.3.24 Environmental Matters........................44
4.3.25 Licenses.....................................45
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4.3.26 No Solicitation or Negotiation...............46
4.3.27 Fairness Opinion.............................46
4.3.28 Investment Intent; Compliance with
Securities Laws.............................46
4.3.29 Disclosure...................................46
4.4 Representations and Warranties of the Sub...........47
4.4.1 Corporate Existence and Authority.............47
4.4.2 Capitalization of the Sub. ..................48
4.4.3 Validity and Authorization; Corporate Power
and Authority................................48
4.4.4 Execution; No Violations......................49
4.4.5 Governmental and Other Consents...............49
4.5 Disclosure Schedules................................49
ARTICLE V COVENANTS..................................................49
5.1 Mutual Covenants....................................49
5.1.1 Access and Information........................50
5.1.2 Notices and Approvals.........................50
5.1.3 No Solicitation or Negotiation................51
5.1.4 Proceedings...................................52
5.1.5 Reports and Returns...........................52
5.1.6 Assist in Obtaining Licenses, Etc.............52
5.1.7 Consents......................................52
5.1.8 Insurance.....................................53
5.1.9 Preservation of Business......................53
5.1.10 Tax Treatment................................53
5.1.11 Updating of Disclosure Schedules.............53
5.1.12 Other Covenants..............................53
5.2 OmniAmerica and OmniAmericaSub Covenants............54
5.2.1 Financial Statements..........................54
5.2.2 Restriction on Transfers......................54
5.2.3 Termination of Certain Affiliate Contracts....54
5.2.4 Zoning Compliance Letters.....................55
5.2.5 Conduct of Business...........................55
5.2.6 Preservation of Vote..........................56
5.2.7 Limitation on Short-Term Liabilities..........56
5.3 OmniPartners Covenants..............................56
5.4 Omni/HSW Acquisition Covenants......................56
5.4.1 Preservation of Vote..........................56
5.4.2 Conduct of Business...........................56
5.5 STI Covenants.......................................57
5.5.1 Restriction on Transfers............................57
5.5.2 Preservation of Vote..........................57
5.5.3 SEC Confirmation..............................57
5.5.4 Interim Financial Statements..................58
5.5.5 Conduct of Business...........................58
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5.5.6 Compliance with Nevada Corporation Law........59
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING...........................60
6.1 Conditions Precedent to Obligations of STI and
the Sub............................................60
6.1.1 Representations and Warranties................60
6.1.2 Performance by OmniAmerica, OmniAmericaSub
and OmniPartners.............................60
6.1.3 Regulatory Approvals and Consents.............60
6.1.4 No Court Orders...............................60
6.1.5 No Material Adverse Change....................61
6.1.6 Certificates of OmniAmerica, OmniAmericaSub
and OmniPartners.............................61
6.1.7 Opinion of OmniAmerica's Counsel..............61
6.1.8 Audited Financial Statements and Auditors'
Consents.....................................61
6.1.9 Good Standing.................................61
6.1.10 Related Agreements...........................61
6.1.11 Termination of Affiliate Contracts...........62
6.1.12 Fairness Opinion.............................62
6.1.13 HMTF Affiliate...............................62
6.1.14 No Foreseen Material Adverse Effect..........62
6.1.15 Receipt of SEC Confirmation..................62
6.1.16 Short-Term Liabilities.......................62
6.1.17 HSW Merger...................................62
6.2 Conditions Precedent to Obligations of OmniAmerica,
OmniAmericaSub and OmniPartners...................62
6.2.1 Representations and Warranties................62
6.2.2 Performance by STI and the Sub................63
6.2.3 Regulatory Approvals and Consents.............63
6.2.4 No Court Orders...............................63
6.2.5 No Material Adverse Change....................63
6.2.6 Certificates of STI and the Sub...............63
6.2.7 Opinions of STI's Counsel.....................63
6.2.8 Good Standing.................................64
6.2.9 Related Agreements............................64
6.2.10 Tax Opinion..................................64
ARTICLE VII CLOSING AND DELIVERY OF DOCUMENTS.........................64
7.1 Deliveries by OmniAmerica, OmniAmericaSub and
OmniPartners.......................................64
7.2 Delivery by STI.....................................65
7.3 Related Agreements..................................65
ARTICLE VIII TERMINATION.............................................66
8.1 Reasons for Termination.............................66
iv
8.1.1 By Mutual Consent.............................66
8.1.2 By STI........................................66
8.1.3 By OmniAmerica................................66
8.1.4 Drop-Dead Date................................67
8.2 Notice of Problems..................................67
8.3 STI Termination Procedure...........................67
8.4 OmniAmerica's Termination Procedure.................68
8.5 Effect of Termination...............................68
8.6 Termination Fee.....................................68
ARTICLE IX MISCELLANEOUS.............................................69
9.2 Survival............................................69
9.3 Expenses............................................69
9.4 Notices.............................................69
9.5 Entire Agreement....................................71
9.6 Headings............................................72
9.7 Incorporated by Reference...........................72
9.8 Number and Gender of Words..........................72
9.9 Execution of Additional Documents...................72
9.10 Finders' and Related Fees...........................72
9.11 Interpretation......................................72
9.12 No Third Party Beneficiary, Etc.....................72
9.13 Reformation; Severability...........................72
9.14 Binding Effect and Assignment.......................73
9.15 Public Announcements................................73
9.16 Confidentiality.....................................73
9.17 No Other Representation.............................74
9.18 Time of the Essence.................................75
9.19 Counterparts........................................75
9.20 Governing Law.......................................75
v
APPENDIX OF
DEFINED TERMS
"Acquired Businesses" means the assets and businesses acquired by
OmniAmericaSub pursuant to: (i) that Purchase and Sale Agreement by and between
Radio Seaway, Incorporated and OmniAmericaSub dated December 19, 1997; (ii) that
Purchase and Sale Agreement by and between Ardman Broadcasting Corporation of
Florida and OmniAmericaSub dated November 22, 1997; (iii) that Purchase and Sale
Agreement by and among Dein ▇. ▇▇▇▇▇▇▇, Trustee of the Dein ▇. ▇▇▇▇▇▇▇ Profit
Sharing Trust and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Pension Trust and OmniAmericaSub dated October 23, 1997; (iv) that Purchase
Agreement by and among OmniAmericaSub and certain of the partners of OmniTower
Ltd. and South Atlantic Venture Fund III, Limited Partnership dated December 23,
1997; and (v) that Purchase and Sale Agreement by and among ▇▇▇▇▇▇ Transmission
Tower Company Ltd, Cowboy Tower Company LLC and OmniAmericaSub dated January 16,
1998.
"Acquisition" shall have the meaning ascribed to it in Section 5.1.3.
"Acquisition Proposal" shall have the meaning ascribed to it in Section
5.1.3.
"Affiliate" shall mean, with respect to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified. For the
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall have the meaning ascribed to it in the preamble to this
Agreement.
"Applicable Date" shall have the meaning ascribed to it in Section 8.6.
"Audited Financial Statements" shall mean the DS&S Audited Financial
Statements, the E&Y Audited Financial Statements, the KPMG Audited Financial
Statements and the WC&G Audited Financial Statements.
"Auditors' Consents" shall have the meaning ascribed to it in Section
5.2.1.
"Beneficial Ownership" shall have the meaning given to it in Rule 13d-3
under the Exchange Act.
vi
"Breach" shall mean, with respect to a party hereto, any representation or
warranty of such party under this Agreement being untrue when made by such party
or any breach of any of such party's covenants or agreements under this
Agreement.
"▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
"Business Day" shall mean a day other than a Saturday, a Sunday or other
day on which commercial banks located in New York are authorized or obligated to
close.
"▇▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
"Closing" shall mean the consummation of the Merger and the closing of the
transactions contemplated by this Agreement.
"Closing Date" shall have the meaning ascribed to it in Section 3.7.
"Code" shall have the meaning ascribed to it in the Recitals.
"Confidential Information" shall have the meaning ascribed to it in Section
9.16.
"Contracts" shall have the meaning ascribed to it in Section 4.1.16.
"DGCL" shall have the meaning ascribed to it in the Recitals.
"Disclosing Party" shall have the meaning ascribed to it in Section 9.16.
"Disclosure Schedule" shall mean (a) in the case of OmniAmerica,
OmniAmericaSub and OmniPartners, the Disclosure Schedule delivered by
OmniAmerica, OmniAmericaSub and OmniPartners to STI at or prior to the date of
this Agreement pursuant to Sections 4.1 and 4.2, including without limitation,
the Disclosure Schedule dated as of February 16, 1998 and the Disclosure
Schedule dated as of April 22, 1998 and related to Omni/HSW Acquisition and (b)
in the case of STI and the Sub, the Disclosure Schedule delivered by STI and the
Sub to OmniAmerica, OmniAmericaSub and OmniPartners pursuant to Sections 4.3 and
4.4, including without limitation, the Disclosure Schedule dated as of February
16, 1998 and the Disclosure Schedule dated as of April 22, 1998.
"DS&S" shall mean ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇.
"DS&S Audited Financial Statements" shall have the meaning ascribed to it
in Section 5.2.1.
"E&Y" shall mean Ernst & Young, LLP.
vii
"E&Y Audited Financial Statements" shall have the meaning ascribed to it in
Section 5.2.1.
"Effective Time" shall have the meaning ascribed to it in Section 1.3.
"Effective Time of the HSW Merger" shall mean the date and time when a
properly executed certificate of merger relating to the HSW Merger, in such form
as is required by and executed in accordance with the relevant provisions of the
DGCL, is duly filed with the Secretary of State of the State of Delaware.
"EIA" shall mean an environmental impact assessment.
"Environmental Claim" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, Liens,
Proceedings or notices of non-compliance or violation by any Person alleging
potential liability (including, without limitation, potential liability for
enforcement, investigatory costs, cleanup costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries, or penalties) arising out of, based on or resulting from (A)
the presence, or release or threatened release into the environment, of any
Hazardous Material at any location, whether owned, operated, leased or managed
by any of the OmniSubsidiaries or STI, as the case may be, with respect to its
business; (B) circumstances reasonably forming the basis of any violation, or
alleged violation, of any Environmental Law by any of the OmniSubsidiaries or
STI, as the case may be; or (C) any and all written claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence or release of any Hazardous
Materials.
"Environmental Laws" shall mean all applicable federal, state or local
laws, rules, regulations, orders or other legal requirements relating to the
regulation or protection of human health (other than OSHA and comparable state
laws and regulations relating to the protection of workers' health in the
workplace), safety, the environment or natural resources (including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata), including, without limitation, laws and regulations relating
to releases or threatened releases of Hazardous Materials, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, recycling or handling of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"FAA" shall mean the Federal Aviation Administration.
viii
"Fairness Opinion" shall mean the fairness opinion dated on or about
February 16, 1998 from ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to the effect that the
exchange ratio specified in Section 3.1(a) is fair to STI, from a financial
point of view.
"Family Member" shall mean, as to any natural Person, such Person's spouse,
grandparent or descendant of that grandparent, children (natural or adopted),
natural or adopted siblings, mothers and fathers-in-law, sons and
daughters-in-laws, and brothers and sisters-in-law.
"FCC" shall mean the Federal Communications Commission.
"GAAP" shall mean those generally accepted accounting principles and
practices which are used in the United States and recognized as such by the
American Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and which are consistently applied for
all periods so as to properly reflect the financial position, results of
operations and cash flows on a consolidated basis of the party, except that any
accounting principle or practice required to be changed by the Accounting
Principles Board or Financial Accounting Standards Board (or other appropriate
board or committee) in order to continue as a generally accepted accounting
principle or practice may be so changed.
"General Increase" shall have the meaning ascribed to it in Section
4.1.8(g).
"Governmental Entity" shall have the meaning ascribed to it in Section
4.1.5(a).
"Hazardous Materials" shall mean any waste, material or other substance
that is listed, defined, designated or classified as, or otherwise determined to
be, hazardous, radioactive, toxic or words of similar import or a pollutant or a
contaminant under or pursuant to any Environmental Law, including any mixture or
solution thereof, and specifically including petroleum and all derivatives
thereof or synthetic substitutes therefor and asbestos or asbestos-containing
materials.
"HM Partners" shall mean ▇▇▇▇▇, Muse & Co. Partners, L.P., a Texas limited
partnership.
"HMTF" shall mean Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated, a Texas
corporation.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"HSW Assets" shall mean the assets acquired by OmniAmericaSub pursuant to
that certain Purchase and Sale Agreement by and between H.S.W. Associates, Inc.
and OmniAmerica Wireless, L.P. dated October 13, 1997, as amended.
ix
"HSW Merger" shall mean the merger of Omni/HSW Acquisition with and into
OmniAmerica prior to the Closing in accordance with the terms of the HSW Merger
Agreement.
"HSW Merger Agreement" shall mean that certain agreement and plan of merger
to be entered into by and between Omni/HSW Acquisition and OmniAmerica prior to
the Closing, the form of which is attached hereto as Exhibit (ix) - HSW Merger
Agreement.
"KISCO" shall mean ▇▇▇▇▇ Iron & Steel Co., Inc., a South Carolina
corporation.
"KISCO Shares" shall mean the 11,000 voting common shares and the 60,000
non-voting common shares of KISCO owned by OmniAmericaSub.
"▇▇▇▇▇ Consulting Agreement" shall mean that certain Consulting Agreement
dated November 14, 1997 by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and OmniAmericaSub.
"▇▇▇▇▇ Option Agreement" shall mean that certain Stock Option Agreement
dated as of November 14, 1997 by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and OmniAmerica.
"▇▇▇▇▇ Shareholders Agreement" shall mean that certain Shareholders
Agreement dated as of November 14, 1997 by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, KISCO and
OmniAmericaSub.
"Knowledge of OmniAmerica" shall mean the actual (rather than imputed)
knowledge of any individual member of the OmniAmerica Management and the phrase
"Known to OmniAmerica" and similar phrases shall have a correlative meaning
thereto.
"Knowledge of STI" shall mean the actual (rather than imputed) knowledge of
any individual member of STI Management and the phrase "Known to STI" and
similar phrases shall have a correlative meaning thereto.
"KPMG" shall mean KPMG Peat Marwick LLP.
"KPMG Audited Financial Statements" shall have the meaning ascribed to it
in Section 5.2.1.
"Licenses" shall have the meaning ascribed to it in Section 4.1.25.
"Lien" shall mean any mortgage, deed of trust, lien, pledge, security
interest or encumbrance of any nature whatsoever but shall exclude those certain
title exceptions that are set forth in those certain Owner Policies of Title
Insurance that are referenced on Exhibit (x)--Liens attached hereto and made a
part hereof for all purposes.
"Material Adverse Effect" shall mean (i) with respect to each of
OmniPartners, OmniAmerica or OmniAmericaSub, a material adverse effect on (x)
the business, properties,
x
assets, condition (financial or otherwise), prospects or results of operations
of OmniAmerica, Omni/HSW Acquisition and the OmniSubsidiaries, taken as a whole
(other than changes in general economic conditions or in economic changes
generally affecting the tower industry), (y) its ability to consummate the
transactions contemplated in this Agreement and in the Related Agreements to
which it is a party without material delay or (z) the enforceability against it
of this Agreement or the Related Agreements identified in Section 7.3 to which
it is a party and (ii) with respect to each of STI and the Sub, a material
adverse effect on (x) the business, properties, assets, condition (financial or
otherwise), prospects or results of operations of STI, the Sub and their
respective Subsidiaries, taken as a whole (other than changes in general
economic conditions or in economic changes generally affecting the tower
construction industry), (y) its ability to consummate the transactions
contemplated in this Agreement and in the Related Agreements to which it is a
party without material delay or (z) the enforceability against it of this
Agreement or the Related Agreements identified in Section 7.3 to which it is a
party.
"Material Breach Termination" shall have the meaning ascribed to it in
Section 8.6.
"Merger" shall have the meaning ascribed to it in the Recitals.
"Merger Consideration" shall mean the 6,750,000 shares of STI Common Stock
issuable in the Merger, subject to adjustment as provided in Section 3.1(c).
"▇▇▇▇▇▇ Towers" shall mean the assets and the business acquired by
OmniAmericaSub pursuant to that Purchase and Sale Agreement by and among ▇▇▇▇▇▇
Transmission Tower Company Ltd, Cowboy Tower Company LLC and OmniAmericaSub
dated January 16, 1998.
"OmniAmerica" shall have the meaning ascribed to it in the preamble to this
Agreement.
"OmniAmerica Affiliate Contracts" shall have the meaning ascribed to it in
Section 5.2.3.
"OmniAmerica Common Stock" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmerica Consents" shall have the meaning ascribed to it in Section
4.1.5(b).
"OmniAmerica Certificate" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmerica ERISA Plans" shall have the meaning ascribed to it in Section
4.1.21(a).
"OmniAmerica Financial Statements" shall have the meaning ascribed to it in
Section 4.1.6.
xi
"OmniAmerica Management" shall mean ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"OmniAmerica Permitted Transactions" shall mean (a) all actions and
payments in connection with the construction of the MATC tower in Milwaukee, the
Tampa Tall Tower in Tampa, and the Cowboy tower in Dallas, (b) capital
expenditures made by OmniPartners or Omni/HSW Acquisition in connection with the
improvement of assets purchased from H.S.W. Associates, Inc., (c) capital
expenditures in connection with improvement of assets purchased from Dein ▇.
▇▇▇▇▇▇▇, Trustee of the Dein ▇. ▇▇▇▇▇▇▇ Profit Sharing Trust, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Pension Trust and Ardman the
Broadcasting Corporation of Florida, (d) any transactions agreed to in writing
by STI or the Sub, (e) any cancellation, renegotiation or amendment of any
OmniAmerica Affiliate Contracts; provided, that any such cancellation,
renegotiation or amendment does not materially increase the obligations of the
parties thereto, (f) any transactions entered into in accordance with the
provisions of Sections 5.2.5 (solely with respect to OmniAmerica or
OmniAmericaSub) and 5.4.2 (solely with respect to Omni/HSW Acquisition), (g) the
issuance of shares of Omni/HSW Acquisition to OmniPartners in connection with a
contribution of capital to Omni/HSW Acquisition by OmniPartners, (h) the
execution and delivery of the HSW Merger Agreement, (i) the consummation of the
HSW Merger and (j) any transactions between OmniAmerica, OmniAmericaSub,
OmniPartners, HM Partners or Omni/HSW Acquisition, on the one hand, and STI or
the Sub, on the other hand.
"OmniAmerica Plans" shall have the meaning ascribed to it in Section
4.1.21(a).
"OmniAmerica Related Persons" shall have the meaning ascribed to it in
Section 4.1.18.
"OmniAmerica Share" shall have the meaning ascribed to it in Section
3.1(a).
"OmniAmericaSub" shall have the meaning ascribed to it in the preamble of
this Agreement.
"OmniAmericaSub Common Stock" shall have the meaning ascribed to it in
Section 4.1.1(a).
"OmniAmericaSub Intellectual Property" shall have the meaning ascribed to
it in Section 4.1.15(a).
"OmniAmerica Termination Fee" shall have the meaning ascribed to it in
Section 8.6.
"Omni/HSW Acquisition" shall have the meaning ascribed to it in the
preamble of this Agreement.
xii
"OmniPartners" shall have the meaning ascribed to it in the preamble of
this Agreement.
"OmniPartners Consents" shall have the meaning ascribed to it in Section
4.2.4(b).
"OmniSubsidiaries" shall mean OmniAmericaSub, OmniTower Ltd. and SATC and
solely for the purposes of Section 4.1, shall include Omni/HSW Acquisition from
February 17, 1998 to the Effective Time of the HSW Merger and OmniAmerica solely
from the Effective Time of the HSW Merger.
"OmniTower Ltd." shall mean OmniTower Ltd., a Florida limited partnership
formerly known as TowerCom, Limited.
"OmniTower Ltd. Partnership Agreement" shall have the meaning ascribed to
it in Section 4.1.1(b).
"OSHA" shall mean the Occupational, Safety and Health Administration.
"Permitted Lien" shall mean (a) any Lien for Taxes not yet due and payable
or contested in good faith by appropriate Proceedings and for which adequate
reserves appear in the OmniAmerica Financial Statements with respect to
OmniAmerica, OmniAmericaSub and the Acquired Businesses and in the STI Financial
Statements with respect to STI and the Sub, (b) any Lien described as a
"Permitted Lien" in a Disclosure Schedule, (c) any Lien as would be shown by a
current survey of the property (in the case of real property), (d) any Lien of
mechanics, materialmen, laborers, warehousemen, carriers and other similar
common law or statutory liens which are not yet due and payable or are being
contested in good faith and for which adequate reserves appear in the
OmniAmerica Financial Statements with respect to OmniAmerica, OmniAmericaSub and
the Acquired Businesses and in the STI Financial Statements with respect to STI
and the Sub, (e) zoning, entitlement, land use, environmental and other
regulation by governmental agencies, (f) purchase money Liens that may arise or
be created after the date of this Agreement in the ordinary course of the
business, (g) any Lien granted to any lenders prior to the date hereof for
obligations set forth in the Disclosure Schedule or otherwise set forth in the
Financial Statements of a party (except to the extent previously discharged),
(h) any Lien arising under this Agreement or any Related Agreement or pursuant
to a Permitted Transaction and (i) other Liens and defects in title which do
not, individually or in the aggregate, materially interfere with the use of the
assets or materially detract from their value.
"Permitted Transactions" shall mean, collectively, the OmniAmerica
Permitted Transactions and the STI Permitted Transactions.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
xiii
"Post-Merger Stockholders Agreement" shall mean that certain Post-Merger
Stockholders Agreement, effective as of the Closing Date, among Budagher,
Carpenter, OmniPartners, STI and the other parties thereto, a form of which is
attached as Exhibit 7.3(a).
"Post-Termination Date Termination" shall have the meaning ascribed to it
in Section 8.6.
"Potential Acquiror" shall have the meaning ascribed to it in Section
5.1.3.
"Pre-Merger Stockholders Agreement" shall mean that certain Pre-Merger
Stockholders Agreement, effective as of the date hereof, among Budagher,
Carpenter, STI, OmniAmerica and OmniPartners.
"Pre-Termination Date Termination" shall have the meaning ascribed to it in
Section 8.6.
"Prior Merger Agreement" shall have the meaning ascribed to it in the
Recitals.
"Proceedings" shall have the meaning ascribed to it in Section 4.1.10(a).
"Related Agreements" shall have the meaning ascribed to it in Section 7.3.
"Representatives" shall have the meaning ascribed to it in Section 9.16.
"SATC" shall mean the South Atlantic Tower Corporation, a Delaware
corporation.
"SEC" shall mean the Securities and Exchange Commission as from time to
time constituted and created under the Exchange Act, or, if at any time after
the execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Exchange Act,
then the Person performing such duties at such time.
"SEC Confirmation" shall have the meaning ascribed to it in Section 5.5.3.
"SEC Documents" shall mean the documents STI has filed with the SEC
pursuant to the Securities Act and the Exchange Act since June 30, 1996.
"SEC Filings" shall have the meaning ascribed to it in Section 5.2.1.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Significant Acquired Businesses" shall mean the assets and businesses
acquired by OmniAmericaSub pursuant to: (i) that Purchase Agreement by and among
OmniAmericaSub
xiv
and certain of the partners of OmniTower Ltd. and South Atlantic Venture Fund
III, Limited Partnership dated December 23, 1997 and (ii) that Purchase and Sale
Agreement by and among ▇▇▇▇▇▇ Transmission Tower Company Ltd, Cowboy Tower
Company LLC, and OmniAmericaSub dated January 16, 1998.
"STI" shall have the meaning ascribed to it in the preamble to this
Agreement.
"STI Common Stock" shall have the meaning ascribed to it in Section 3.1(a).
"STI Consents" shall have the meaning ascribed to it in Section 4.3.5(b).
"STI ERISA Plans" shall have the meaning ascribed to it in Section
4.3.21(a).
"STI Financial Statements" shall have the meaning ascribed to it in Section
4.3.6.
"STI Intellectual Property" shall have the meaning ascribed to it in
Section 4.3.15.
"STI Management" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"STI Permitted Transactions" shall mean (a) any transactions agreed to in
writing by OmniAmerica, OmniAmericaSub or OmniPartners, (b) any transactions
entered into in accordance with the provisions of Section 5.5.5, (c) the
employment of Wasserstein, Perella & Co. and the payment of their fees, (d) the
discharge of indebtedness owed to ▇▇▇▇▇▇▇▇▇ as shown in the STI Financial
Statements and (e) any transactions between OmniAmerica, OmniAmericaSub,
OmniPartners, HM Partners or Omni/HSW Acquisition, on the one hand, and STI or
the Sub, on the other hand.
"STI Plans" shall have the meaning ascribed to it in Section 4.3.21(a).
"STI Related Persons" shall have the meaning ascribed to it in Section
4.3.18.
"STI Termination Fee" shall have the meaning ascribed to it in Section 8.6.
"Stockholders Agreements" shall mean the Pre-Merger Stockholders Agreement
and the Post-Merger Stockholders Agreement.
"Sub" shall have the meaning ascribed to it in the preamble to this
Agreement.
"Sub Common Stock" shall have the meaning ascribed to it in Section 3.3.
"Subsequent Disclosure Schedule" shall have the meaning ascribed to it in
Section 5.1.11.
xv
"Subsequent Event" shall have the meaning ascribed to it in Section 5.1.11.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting power,
under ordinary circumstances, to elect directors, is at the time, directly or
indirectly, owned by such Person, by one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person, and (ii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
"Superior Proposal" shall have the meaning ascribed to it in Section 5.1.3.
"Surviving Corporation" shall have the meaning ascribed to it in Section
1.2.
"Taxes" shall mean all federal, state, local, foreign and other
governmental or quasi-governmental net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service,
service use, withholding, payroll, employment, unemployment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees and assessments or charges of any kind whatever in the nature of
taxes, together with any interest and any penalties, additions to tax or
additional amounts with respect thereto.
"Tax Returns" shall have the meaning ascribed to it in Section 4.1.9(a).
"Termination Date" shall have the meaning ascribed to it in Section 8.6.
"Towers" shall mean the towers owned by OmniAmerica or OmniAmericaSub,
including those acquired from the Acquired Businesses or included within the HSW
Assets.
"Tower Space Leases" shall mean each current lease of space on the Towers.
For purposes of this Agreement, (i) references to a "lease" or "leases" shall
not be deemed to include the Tower Space Leases and (ii) Tower Space Leases
shall not be deemed to be "real property leases."
"WC&G" shall mean ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇.
"WC&G Audited Financial Statements" shall have meaning ascribed to it in
Section 5.2.1.
xvi
EXHIBITS
Exhibit (ix) --HSW Merger Agreement Form of HSW Merger Agreement
Exhibit (x)--Liens List of Owner Policies of Title Insurance
Exhibit 2.1 Directors of STI, OmniAmerica and
OmniAmericaSub
following the Merger
Exhibit 5.2.3 Retained Affiliate Contracts
Exhibit 6.1.7 Form of Opinion of Weil, Gotshal & ▇▇▇▇▇▇
LLP
Exhibit 6.2.7(a) Form of Opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
Exhibit 6.2.7(b) Form of Opinion of ▇▇▇▇▇, ▇▇▇▇▇▇
Exhibit 6.2.10(a) Form of Tax Opinion
Exhibit 6.2.10(b) Form of OmniAmerica Certificate
Exhibit 6.2.10(c) Form of OmniPartners Certificate
Exhibit 6.2.10(d) Form of STI Certificate
Exhibit 7.3(a) Form of Post-Merger Stockholders Agreement
Exhibit 7.3(b) Form of Monitoring and Oversight Agreement
Exhibit 7.3(c) Form of Financial Advisory Agreement
xvii
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement"),
dated as of April 22, 1998, is entered into by and among Specialty
Teleconstructors, Inc., a Nevada corporation ("STI"), OAI Acquisition Corp., a
Delaware corporation and a direct, wholly-owned subsidiary of STI (the "Sub"),
OmniAmerica, Inc., a Delaware corporation ("OmniAmericaSub"), OmniAmerica
Holdings Corporation, a Delaware corporation ("OmniAmerica"), HMTF/Omni
Partners, L.P., a Delaware limited partnership ("OmniPartners"), and Omni/HSW
Acquisition, Inc., a Delaware corporation ("Omni/HSW Acquisition").
RECITALS
The parties hereto entered into an Agreement and Plan of Merger (the
"Prior Merger Agreement") dated as of February 16, 1998 relating to the merger
of the Sub with and into OmniAmerica. The parties hereto desire to make certain
changes to the Prior Merger Agreement and to amend, restate and supersede the
Prior Merger Agreement in its entirety.
The parties hereto desire to effect the merger of the Sub with and into
OmniAmerica (the "Merger"), with the effect that OmniAmerica, as the surviving
corporation of the Merger, will become a wholly-owned subsidiary of STI.
The board of directors of OmniAmerica (a) has determined it advisable and
in the best interests of OmniAmerica and its sole stockholder to consummate the
Merger, upon the terms and subject to the conditions set forth herein and in
accordance with the applicable provisions of the Delaware General Corporation
Law ("DGCL"), (b) has adopted and approved this Agreement, the Merger and the
other transactions contemplated hereby and (c) has recommended approval of the
Merger and this Agreement to its sole stockholder.
The general partner of OmniPartners, HM3/OmniAmerica Partners LLC, has
determined it advisable and in the best interests of OmniPartners to adopt and
approve, and has adopted and approved, this Agreement, the Merger and the other
transactions contemplated hereby.
The board of directors of the Sub (a) has determined it advisable and in
the best interests of the Sub and its sole stockholder to consummate the Merger,
upon the terms and subject to the conditions set forth herein and in accordance
with the applicable provisions of the DGCL, (b) has adopted and approved this
Agreement, the Merger and the other transactions contemplated hereby and (c) has
recommended approval of the Merger and this Agreement to its sole stockholder.
1
The board of directors of STI has determined it advisable and in the best
interests of STI and its stockholders to adopt and approve, and has adopted and
approved, this Agreement, the Merger and the other transactions contemplated
hereby.
The parties intend that, for federal income tax purposes, the Merger shall
qualify as a reorganization under the provisions of Section 368(a)(1)(A) and
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the
"Code").
The parties are entering into this Agreement to make certain
representations, warranties and agreements as to the Merger, and to prescribe
various conditions as to the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Definitions. Capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed thereto in the Appendix of Defined Terms
attached hereto beginning on page (vi).
1.2 The Merger. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the DGCL, at the Effective Time, the Sub
shall be merged with and into OmniAmerica with OmniAmerica being the surviving
corporation of the Merger. Upon consummation of the Merger, the separate
corporate existence of the Sub shall thereupon cease, and OmniAmerica, as the
surviving corporation in the Merger (the "Surviving Corporation"), shall
continue its corporate existence in accordance with the DGCL.
1.3 Effective Time of the Merger. The Merger shall become effective at the
date and time (the "Effective Time") when a properly executed certificate of
merger, in such form as is required by and executed in accordance with the
relevant provisions of the DGCL, is duly filed with the Secretary of State of
the State of Delaware. The parties hereto shall cause such filings to occur as
soon as practicable on the Closing Date.
1.4 Certificate of Incorporation. At the Effective Time, the Certificate
of Incorporation and Bylaws of OmniAmerica, as they are in effect immediately
prior to the Effective Time, shall be the Certificate of Incorporation and
Bylaws of the Surviving Corporation resulting from the Merger until thereafter
amended as provided by applicable law.
1.5 Effects of the Merger. The effects of the Merger shall be as provided
in the applicable provisions of the DGCL. Without limiting the foregoing, and
subject thereto, the
2
corporate existence of OmniAmerica, with all its purposes, powers and objects,
shall continue unaffected and unimpaired by the Merger and, as the Surviving
Corporation of the Merger, OmniAmerica shall be governed by the laws of the
State of Delaware and, at the Effective Time, shall succeed to all rights,
assets, liabilities, properties, privileges, powers, franchises and obligations
of the Sub in accordance with the laws of the State of Delaware. As of the
Effective Time, the Surviving Corporation shall be a wholly-owned subsidiary of
STI.
ARTICLE II
DIRECTORS AND OFFICERS
2.1 Directors of STI, the Surviving Corporation and OmniAmericaSub. Prior
to the Effective Time, (a) STI shall increase the number of the members of the
board of directors of STI to eight (8) and (b) STI and OmniAmerica shall take
such action as may be necessary such that each of the boards of directors of
STI, the Surviving Corporation and OmniAmericaSub, immediately following the
Effective Time, is comprised of the persons, subject to availability, listed on
Exhibit 2.1. Each such director shall hold his or her directorship in accordance
with the applicable certificate or articles (as the case may be) of
incorporation and bylaws of STI, OmniAmerica or OmniAmericaSub.
2.2 Officers of the Surviving Corporation. The officers of OmniAmerica
immediately prior to the Effective Time shall remain the officers of the
Surviving Corporation until their respective successors shall be duly elected or
appointed, as the case may be, and qualified, or until their earlier death,
resignation or removal.
2.3 Officers of STI. STI shall take such action so that, upon the
Effective Time, the following persons, subject to availability, shall hold the
following offices with STI in accordance with the articles of incorporation and
bylaws of STI until their respective successors shall be duly elected or
appointed, as the case may be, and qualified, or until their earlier death,
resignation or removal:
▇▇▇▇ ▇. ▇▇▇▇▇▇ President and Chief Executive Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chief Operating Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chief Financial Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President -- Corporate Development
F. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President and General Counsel
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President -- Finance
ARTICLE III
CONVERSION OF SECURITIES
3.1 Consideration for Merger.
(a) At the Effective Time, by virtue of the Merger of the Sub with
and into OmniAmerica and without any action on the part of OmniAmerica or
the Sub, or their
3
respective stockholders (other than the filing of the certificate of
merger referred to in Section 1.3 hereof), (i) each share (an "OmniAmerica
Share") of the common stock of OmniAmerica, par value $0.01 per share
("OmniAmerica Common Stock"), issued and outstanding immediately prior to
the Effective Time (other than shares of OmniAmerica Common Stock held in
the treasury of OmniAmerica) shall be canceled and extinguished and be
converted automatically into the right to receive 0.09109398 shares of
common stock of STI, par value $0.01 per share ("STI Common Stock"),
subject to adjustment pursuant to Section 3.1(b), payable as provided in
Section 3.2 upon surrender of the certificate formerly representing such
OmniAmerica Share (the "OmniAmerica Certificate"), and (ii) each
OmniAmerica Share then held in the treasury of OmniAmerica shall be
canceled and retired without conversion thereof and without payment of any
consideration and shall cease to exist.
(b) The ▇▇▇▇▇ Option Agreement shall remain outstanding following
the Merger and shall not be entitled to receive any portion of the Merger
Consideration, but at the Effective Time, the ▇▇▇▇▇ Option Agreement shall
become exercisable for 36,363 shares of STI Common Stock at an initial
exercise price of $13.75 per share, pursuant to the terms of the ▇▇▇▇▇
Option Agreement.
(c) In the event that, subsequent to the date of this Agreement but
prior to the Effective Time, the outstanding shares of STI Common Stock or
OmniAmerica Common Stock shall have been increased, decreased, changed
into or exchanged for a different number or kind of shares or securities
through a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar change in
capitalization, or there shall have been proposed any such change with a
record date prior to the Effective Time, then an appropriate and
proportionate adjustment shall be made in the Merger Consideration.
3.2 Surrender of Certificates. At the Closing, OmniPartners shall
surrender all outstanding OmniAmerica Certificates to STI and STI shall pay and
deliver to OmniPartners the Merger Consideration payable as a result of the
Merger in exchange for all such outstanding OmniAmerica Certificates.
3.3 Conversion of the Sub's Securities. At the Effective Time, each share
of common stock of the Sub, par value $0.01 per share ("Sub Common Stock"), of
the Sub issued and outstanding immediately prior to the Effective Time shall be
converted, by virtue of the Merger and without any action on the part of the
holder thereof, into one fully paid and nonassessable share of common stock, par
value $0.01 per share, of the Surviving Corporation.
3.4 OmniPartners to Have No Further Rights as to OmniAmerica. At and after
the Effective Time, OmniPartners shall cease to have any rights as a stockholder
of OmniAmerica, other than indirectly as a stockholder of STI.
4
3.5 Written Consent of Sole Stockholder of the Sub. Concurrent with the
execution of this Agreement, STI, as the sole stockholder of the Sub, shall
deliver certified copies of its corporate resolutions duly adopting and
approving this Agreement, the Related Agreements, the Merger and the
transactions contemplated by this Agreement and the Related Agreements by
written consent. STI, as the sole stockholder of the Sub, shall not amend,
rescind or withdraw its adoption and approval of this Agreement and the Related
Agreements, the Merger and the transactions contemplated by this Agreement and
the Related Agreements.
3.6 Written Consent of Sole Stockholder of OmniAmerica. Concurrent with
the execution of this Agreement, OmniPartners, as the sole stockholder of
OmniAmerica, shall deliver certified copies of its partnership resolutions duly
adopting and approving this Agreement, the Related Agreements, the Merger and
the transactions contemplated by this Agreement and the Related Agreements by
written consent. OmniPartners, as the sole stockholder of OmniAmerica, shall not
amend, rescind or withdraw its adoption and approval of this Agreement and the
Related Agreements, the Merger and the transactions contemplated by this
Agreement and the Related Agreements.
3.7 Closing. Unless this Agreement is terminated and the transactions
contemplated herein abandoned pursuant to Article VIII and subject to the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VI, the Closing shall take place (a) at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP,
Dallas, Texas, at 10:00 A.M. local time on a date to be specified by STI and
OmniAmerica, but as soon as practicable (and in any event within two Business
Days) after the day on which the last of the conditions set forth in Article VI
is fulfilled (other than deliveries of instruments to be made at Closing) or, if
permissible, waived by the relevant party or (b) at such other date, time and
place as STI and OmniAmerica shall agree upon in writing. The date on which the
Closing occurs is referred to herein as the "Closing Date."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of OmniAmerica. To induce STI and the
Sub to enter into this Agreement and to consummate the transactions contemplated
hereby, OmniAmerica and OmniAmericaSub jointly and severally represent and
warrant to STI and the Sub as of the date hereof as follows (each such
representation and warranty being qualified in its entirety by the disclosures
set forth in the Disclosure Schedule, which such disclosures shall correspond to
the following sections and subsections):
4.1.1 Corporate and Partnership Existence and Authority.
(a) Each of OmniAmerica, OmniAmericaSub and SATC is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and authority
to own its properties and assets and to carry on its business as it has
been and is being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and
5
authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. Each of OmniAmerica, OmniAmericaSub and SATC is qualified
or licensed to do business as a foreign corporation and is in good
standing in each state, nation or other jurisdiction listed on the
Disclosure Schedule, being each state, nation or other jurisdiction
wherein the character of the properties owned or held under lease by it or
the nature of the business transacted by it makes such qualification or
licensing necessary, except for any state, nation or other jurisdiction
where the failure to be so qualified or licensed would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. Prior to the Effective Time of the HSW Merger,
OmniAmerica's sole asset was and will be 1,000 shares of the common stock,
par value $0.01 per share, of OmniAmericaSub (the "OmniAmericaSub Common
Stock").
(b) OmniTower Ltd. is a limited partnership organized pursuant to
and presently existing under the laws of the State of Florida under a
limited partnership agreement as amended to May 21, 1997 (the "OmniTower
Ltd. Partnership Agreement"), and has the necessary power to carry on its
business as it has been and is now being conducted, except where the
failure to be so organized, existing and in good standing or to have such
power and authority would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
OmniTower Ltd. is qualified or licensed to do business and is in good
standing in each state, nation or other jurisdiction listed on the
Disclosure Schedule, being each state, nation or other jurisdiction
wherein the character of the properties owned or held under lease by it or
the nature of the business transacted by it makes such qualification or
licensing necessary, except for any state, nation or other jurisdiction
where the failure to be so qualified or licensed would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. The OmniTower Ltd. Partnership Agreement has not been
amended, and remains in full force and effect. OmniAmerica has previously
provided a true and correct copy of the OmniTower Ltd.
Partnership Agreement to STI.
6
4.1.2 Capitalization of OmniAmerica and OmniAmericaSub.
(a) The authorized capital stock of OmniAmerica consists solely of
80,000,000 shares of OmniAmerica Common Stock of which 74,099,298 shares
are issued and outstanding. No other shares of capital stock of
OmniAmerica are issued and outstanding or reserved for issuance. All the
issued and outstanding shares of capital stock of OmniAmerica are held
solely by OmniPartners free and clear of any Lien and OmniPartners is the
record and Beneficial Owner of such shares. All of the issued and
outstanding shares of capital stock of OmniAmerica have been duly
authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and
nonassessable and were issued free of preemptive (or similar) rights.
Other than the ▇▇▇▇▇ Option Agreement, there are no securities, options,
warrants, rights, calls, commitments, plans, contracts or other agreements
of any character granted or issued by OmniAmerica, OmniPartners or any of
the OmniSubsidiaries which provide for the purchase, issuance or transfer
of any shares of the capital stock of OmniAmerica, nor are there any
outstanding securities granted or issued by OmniAmerica that are
convertible into or exchangeable for or exercisable for any shares of the
capital stock of OmniAmerica, and none are authorized. All presently
exercisable voting rights in OmniAmerica are vested exclusively in the
outstanding shares of OmniAmerica Common Stock, each share of which is
entitled to one vote on every matter to come before its sole stockholder,
OmniPartners. There are no stockholders' agreements, voting trusts or
other voting arrangements with respect to any of OmniAmerica's capital
stock. Other than pursuant to the terms of the HSW Merger Agreement, there
are no outstanding obligations of OmniAmerica or any of the
OmniSubsidiaries to repurchase, redeem or otherwise acquire any
OmniAmerica Common Stock or the capital stock of any of the
OmniSubsidiaries or to provide funds to or make any investment (in the
form of a loan, capital contribution, guarantee or otherwise) in any other
entity. OmniAmerica does not have any direct Subsidiaries, other than
OmniAmericaSub.
(b) The authorized capital stock of OmniAmericaSub consists solely
of 1,000 shares of OmniAmericaSub Common Stock of which 1,000 shares are
issued and outstanding. No other shares of capital stock of OmniAmericaSub
are issued and outstanding or reserved for issuance.
(c) The authorized capital stock of SATC consists solely of 1,000
shares of common stock, par value $0.01 per share, of which 100 shares are
issued and outstanding. No other shares of capital stock of SATC are
issued and outstanding or reserved for issuance.
(d) All the issued and outstanding shares of capital stock of
OmniAmericaSub are held solely by OmniAmerica free and clear of any Lien
and OmniAmerica is the record and Beneficial Owner of such shares. All the
issued and outstanding shares of capital stock of SATC are held solely by
OmniAmericaSub free
7
and clear of any Lien and OmniAmericaSub is the record and Beneficial
Owner of such shares. All of the issued and outstanding shares of capital
stock of OmniAmericaSub and SATC have been duly authorized and validly
issued in accordance and compliance with all applicable laws, rules and
regulations and are fully paid and nonassessable and were issued free of
preemptive (or similar) rights. There are no securities, options,
warrants, rights, calls, commitments, plans, contracts or other agreements
of any character granted or issued by OmniAmericaSub, OmniAmerica or any
of the OmniSubsidiaries that provide for the purchase, issuance or
transfer of any shares of the capital stock of OmniAmericaSub or SATC, nor
are there any outstanding securities granted or issued by OmniAmericaSub
or SATC that are convertible into or exchangeable for or exercisable for
any shares of the capital stock of OmniAmericaSub or SATC, and none are
authorized. All presently exercisable voting rights in OmniAmericaSub are
vested exclusively in the outstanding shares of OmniAmericaSub Common
Stock, each share of which is entitled to one vote on every matter to come
before its sole stockholder, OmniAmerica. All presently exercisable voting
rights in SATC are vested exclusively in the outstanding shares of common
stock of SATC, each share of which is entitled to one vote on every matter
to come before its sole stockholder, OmniAmericaSub. There are no voting
trusts, stockholders' agreements or other voting arrangements with respect
to any of OmniAmericaSub's or SATC's capital stock. OmniAmericaSub does
not have any direct Subsidiaries other than SATC. SATC does not have any
Subsidiaries other than OmniTower Ltd.
(e) The only general or limited partners of OmniTower Ltd. are
OmniAmericaSub and SATC. No other partnership interests are issued and
outstanding or reserved for issuance. All the issued and outstanding
partnership interests of OmniTower Ltd. are held by either SATC or
OmniAmericaSub free and clear of any Lien and either SATC or
OmniAmericaSub is the Beneficial Owner of such interests. All of the
outstanding partnership interests in OmniTower Ltd. have been duly
authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and
nonassessable. There are no securities, options, warrants, rights, calls,
commitments, plans, contracts or other agreements of any character granted
or issued by OmniTower Ltd. that provide for the purchase, issuance or
transfer of any partnership interests in OmniTower Ltd., nor are there any
outstanding securities granted or issued by OmniTower Ltd. that are
convertible into or exchangeable for or exercisable for any partnership
interests of OmniTower Ltd. Other than the OmniTower Ltd. Partnership
Agreement, all presently exercisable voting rights in OmniTower Ltd. are
vested exclusively in the outstanding partnership interests and there are
no voting trusts, partners' agreements or other voting arrangements with
respect to any of the partnership interests in OmniTower Ltd. OmniTower
Ltd. does not have any Subsidiaries.
8
4.1.3 Validity and Authorization; Corporate Power and Authority.
(a) OmniAmerica has all necessary corporate power and authority to
execute, deliver and perform this Agreement, the Related Agreements, the
HSW Merger Agreement and the other instruments called for by this
Agreement to which it is or is to be a party. The execution, delivery and
performance of this Agreement by OmniAmerica and the consummation by
OmniAmerica of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of
OmniAmerica (subject to the filing of appropriate merger documents as
required by the DGCL). This Agreement has been duly executed and delivered
by OmniAmerica and, assuming the valid authorization, execution and
delivery hereof by STI and the Sub, constitutes the legal, valid and
binding obligation of OmniAmerica, enforceable against OmniAmerica in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting or relating to the enforcement of creditors' rights generally
and by general principles of equity (whether applied in a proceeding at
law or in equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which OmniAmerica is a party are executed and
delivered at the Closing, such Related Agreements and other instruments
will have been duly authorized, executed and delivered by OmniAmerica, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (except OmniAmerica and its Affiliates),
enforceable against OmniAmerica in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(c) OmniAmericaSub has all necessary power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called for by this Agreement to which it is or is to be a
party. The execution, delivery and performance of this Agreement by
OmniAmericaSub and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on its part. This Agreement has been duly executed and delivered by
OmniAmericaSub and, assuming the valid authorization, execution and
delivery hereof by STI and the Sub, constitutes the legal, valid and
binding obligation of OmniAmericaSub, enforceable against it in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
or relating to the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
9
(d) When the Related Agreements and the other instruments called for
by this Agreement to which OmniAmericaSub is a party are executed and
delivered at the Closing, such Related Agreements and instruments will
have been duly authorized, executed and delivered by OmniAmericaSub, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (other than OmniAmerica and its Affiliates),
enforceable against it in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
4.1.4 Execution; No Violations. The execution and delivery of this
Agreement by each of OmniAmerica and OmniAmericaSub do not, and the execution
and delivery of the Related Agreements to which they are parties and solely with
respect to OmniAmerica, the execution and delivery of the HSW Merger Agreement,
the consummation of the transactions contemplated hereby and thereby and
compliance with the provisions hereof and thereof by each of OmniAmerica and
OmniAmericaSub will not: (a) violate, conflict with, modify, result in the
incurrence of any prepayment penalties or cause any default under or
acceleration, termination or cancellation of any obligation or the loss of a
benefit under (or give any party any right to declare any default or
acceleration upon notice or passage of time or both), in whole or in part, (i)
any provision of the certificate of incorporation or bylaws of OmniAmerica or
OmniAmericaSub, (ii) any Lien, indenture, lease, loan or credit agreement, note,
bond, mortgage or other agreement (other than, with respect to termination,
agreements terminable without material penalty either at will or upon 90 days'
or less notice by the terminating party), obligation, instrument, permit,
concession, franchise or license applicable to OmniAmerica or any of the
OmniSubsidiaries or (iii) assuming all the consents, filings and registrations
referred to in Section 4.1.5 are obtained or made, any order, injunction,
decree, or judgment to which OmniAmerica or any of the OmniSubsidiaries is a
party or by which either of OmniAmerica or any of the OmniSubsidiaries or any of
their respective properties is bound; (b) result in the creation of any Lien
upon or right of first refusal with respect to any property or asset (whether
real, personal, mixed, tangible or intangible) of OmniAmerica or any of the
OmniSubsidiaries, except as may be approved by STI, (c) assuming all the
consents, filings and registrations referred to in Section 4.1.5 are obtained or
made, violate any statute, ordinance, law, rule or regulation applicable to
OmniAmerica or any of the OmniSubsidiaries, or (d) permit any federal or state
regulatory agency to impose any restrictions or limitations of any nature on
OmniAmerica or any of the OmniSubsidiaries or any of their respective
activities, except in the case of clauses (a)(ii), (b), (c) and (d), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not reasonably be expected to have
a Material Adverse Effect on OmniAmerica or OmniAmericaSub.
10
4.1.5 Governmental and Other Consents.
(a) Except for filings under the HSR Act, the filing of the
certificate of merger contemplated by Section 1.3 and the filing of the
certificate of merger contemplated by the HSW Merger Agreement, no
consent, approval or authorization of, or designation, declaration,
registration or filing with, any domestic (federal or state) or foreign
court, commission, governmental body, regulatory agency, authority or
tribunal (a "Governmental Entity") is required on the part of OmniAmerica
or OmniAmericaSub in connection with the execution or delivery of this
Agreement, the Related Agreements to which it is a party, the HSW Merger
Agreement solely with respect to OmniAmerica or the consummation by it of
the transactions contemplated hereby and thereby, except as would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with OmniAmerica's
and OmniAmericaSub's valid execution, delivery or performance of this
Agreement, the Related Agreements to which each is a party and the HSW
Merger Agreement solely with respect to OmniAmerica or the consummation of
any of the transactions contemplated hereby or thereby on the part of
OmniAmerica or OmniAmericaSub (collectively, the "OmniAmerica Consents"),
including but not limited to the consents required under the Contracts,
except, in each case, as would not reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.1.6 OmniAmerica Financial Statements.
(a) (i) The Disclosure Schedule contains true and correct copies of
(A) the consolidated balance sheet for OmniAmerica at December 31, 1997,
and the related statements of profit and loss and cash flows since the
inception of OmniAmerica and (B) the balance sheets for each of the
Significant Acquired Businesses at December 31, 1997, 1996 and 1995 and
the related statements of profit and loss and cash flows for each of the
one-year periods then ended and (ii) when delivered pursuant to Section
5.2.1, similar financial statements to those described in clause (a)(i)(B)
for each additional month ending before the Closing for each of
OmniAmerica and the Significant Acquired Businesses (collectively, the
"OmniAmerica Financial Statements").
(b) The OmniAmerica Financial Statements have been prepared in
accordance with GAAP and present fairly in all material respects the
financial position of the Significant Acquired Businesses and OmniAmerica
as of the dates thereof and the results of Significant Acquired
Businesses' and OmniAmerica's operations and cash flows for the periods
then ended, except that in the case of the OmniAmerica Financial
Statements described in clause (a)(ii) above are also subject to recurring
year-end adjustments, if any, that are normal in nature and amount.
OmniAmerica and the
11
Significant Acquired Businesses maintain a system of accounting, including
without limitation a system of internal controls, which permits them to
prepare financial statements that present fairly their respective
financial positions and results of operations in all material respects.
4.1.7 Absence of Certain Liabilities. Except (a) for liabilities
incurred in the ordinary course of business consistent with past practice, (b)
for transaction expenses not to exceed $650,000 incurred in connection with this
Agreement, (c) for liabilities set forth on any balance sheet (including the
notes thereto) included in the OmniAmerica Financial Statements, (d) for
liabilities incurred in connection with the OmniAmerica Permitted Transactions
and (e) for liabilities assumed by OmniAmericaSub in connection with the
acquisition of the Acquired Businesses, as of December 31, 1997, neither the
Acquired Businesses, OmniAmerica nor any of the OmniSubsidiaries had incurred
any liabilities or obligations of any nature, whether or not accrued, contingent
or otherwise, and whether due or to become due, that would be required to be
reflected or reserved against in a consolidated balance sheet (assuming the
consummation prior to December 31, 1997 of the acquisition of each of the
Acquired Businesses) of the Acquired Businesses, OmniAmerica and the
OmniSubsidiaries (including the notes thereto) prepared in accordance with GAAP
applying the same practices and procedures as were applied in the preparation of
the OmniAmerica Financial Statements. Prior to the Effective Time of the HSW
Merger, OmniAmerica had not conducted and will not conduct any business, other
than holding the OmniAmericaSub Common Stock, had no and will incur no
liabilities (whether fixed or contingent) whatsoever (other than its obligations
hereunder) and had no and will not have any employees.
4.1.8 Absence of Changes. Except as expressly provided in this
Agreement or in connection with the OmniAmerica Permitted Transactions, since
December 31, 1997, OmniAmerica and OmniAmericaSub have conducted their
businesses only in the ordinary course and in a manner consistent with past
practice and, since such date, there has not been:
(a) Any change or aggregate of changes in the condition (financial
or otherwise), business, assets, or liabilities of any of the
OmniSubsidiaries that has had, or would reasonably be expected to result
in, a Material Adverse Effect on OmniAmerica;
(b) Any change in the capitalization of OmniAmerica or any of the
OmniSubsidiaries, including, without limitation, the issuance by
OmniAmerica or any of the OmniSubsidiaries of any shares of stock of any
class, any subscriptions, options, warrants, convertible securities,
rights, calls, agreements, commitments or rights affecting or relating in
any manner whatsoever to any equitable interests in OmniAmerica or any of
the OmniSubsidiaries;
(c) Any purchase, redemption or other acquisition by OmniAmerica or
any of the OmniSubsidiaries, or any commitment, plan or agreement by
OmniAmerica or
12
any of the OmniSubsidiaries to purchase, redeem or otherwise acquire any
shares of its capital stock or other equitable interests;
(d) Any merger or consolidation or agreement to merge or consolidate
by OmniAmerica or any of the OmniSubsidiaries with another Person, or any
purchase of or investment in or agreement to purchase or invest by
OmniAmerica or any of the OmniSubsidiaries in the business of another
Person;
(e) Any declaration, payment or setting aside by OmniAmerica or any
of the OmniSubsidiaries of any dividends or other distributions of any
assets of any kind whatsoever to its stockholders or other equitable
owners, except for ordinary salary payments for services actually rendered
and reasonable expense reimbursements in the ordinary course of business;
(f) Any amendment to the certificate of incorporation or bylaws or
other organizational documents of OmniAmerica or any of the
OmniSubsidiaries;
(g) Any increase in the compensation or rate of compensation or
commission payable or to become payable by any of the OmniSubsidiaries to
any of its directors, officers, salaried employees earning more than
$75,000 per annum, salesmen or agents, or any General Increase in the
compensation or rate of compensation payable or to become payable to any
of its hourly employees or salaried employees earning $75,000 per annum or
less ("General Increase" for purposes hereof shall mean any increase
(including by means of increased bonuses) applicable to a class or group
of employees and does not include increases granted to individual
employees for merit, length of service, change in position or
responsibility, regularly scheduled salary increase or bonus in accordance
with a general incentive plan or other reasons applicable to specific
employees and not generally to a class or group thereof), or any hiring of
any employee at a salary in excess of $75,000 per annum, or any
termination of any key employee or any employee whose compensation was in
excess of $75,000 per annum;
(h) Any material change in any existing, or adoption of or entering
into any new, benefit plan or arrangement (whether written or oral)
affecting any of the officers, directors, employees, salesmen or agents of
any of the OmniSubsidiaries, including, without limitation, any bonus,
profit-sharing, pension, deferred compensation, severance or termination
pay benefit, stock option, group life or health insurance or other similar
plans, agreements or arrangements;
(i) Any release, cancellation, modification or waiver of any
financial obligation, indebtedness, liability or Lien in favor of any of
the OmniSubsidiaries, unless such obligation, indebtedness, liability or
Lien has been paid in full at the time of release or such as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica;
13
(j) Any waivers, compromises or settlements by any of the
OmniSubsidiaries of any right or claim of any of the OmniSubsidiaries in
excess of $50,000 in the aggregate; or any institution or settlement of,
or agreement to settle, any litigation, action or proceeding before any
Governmental Entity relating to any of the OmniSubsidiaries or any of its
properties;
(k) Any mortgage, pledge or other subjection to any Lien or option
of any property, asset, right or business of OmniAmerica or any of the
OmniSubsidiaries, other than Permitted Liens and those incurred in the
ordinary course of business and consistent with past practice;
(l) Any assumptions or guarantees (except endorsements of negotiable
instruments in the ordinary course of business and consistent with past
practice) by OmniAmerica or any of the OmniSubsidiaries of the obligations
of any Person, except in the ordinary course of business and consistent
with past practice, but in no event in excess of $50,000 when all such
assumptions, guarantees and endorsements are aggregated;
(m) Any payment or satisfaction by OmniAmerica or any of the
OmniSubsidiaries of any material liability, obligation or indebtedness,
other than those reflected on the OmniAmerica Financial Statements and
those incurred in the ordinary course of business and consistent with past
practice;
(n) Any loan, advance, or capital contribution to, or investment in,
any Person in an aggregate amount in excess of $100,000 (excluding any
loan, advance or capital contribution to, or investment in, OmniAmerica or
any of the OmniSubsidiaries), any commitment to so loan, advance,
contribute capital or invest, or any renewal, refunding or extension of
any existing loan, advance or investment made by OmniAmerica or any of the
OmniSubsidiaries to any Person, except in the ordinary course of business
and consistent with past practice;
(o) Any actions taken or transactions entered into by any of the
OmniSubsidiaries involving more than $100,000 in the aggregate, other than
in the ordinary course of business and consistent with past practice, or
any capital expenditures or commitments therefor in excess of $100,000 in
the aggregate, other than in the ordinary course of business;
(p) Any creations, renewals, material changes or terminations, or
any notice of any proposed renewal, material change or termination of any
contract, agreement, commitment, obligation, lease or license involving
more than $5,000,000 in the aggregate or extending beyond six (6) months
from the date of this Agreement, to which any of the OmniSubsidiaries is a
party or by which any of the OmniSubsidiaries or its properties are bound;
14
(q) Any sale, assignment, lease, abandonment or other disposition by
any of the OmniSubsidiaries of any real property, or any sale, assignment,
transfer, license, lapse, or other disposition by any of the
OmniSubsidiaries of any material trademark, trade name, copyright (or
pending application for any material trademark or copyright), or other
intangible asset;
(r) Any sale, assignment or transfer of any contract, agreement,
lease, or asset by any of the OmniSubsidiaries, except in the ordinary
course of business and consistent with past practice, other than to an
OmniSubsidiary;
(s) Any general labor dispute, or threat of a general labor dispute,
or any attempt or threat of any attempt by a union to organize any
employees of any of the OmniSubsidiaries who are not now covered under an
existing union or collective bargaining agreement;
(t) Any lapse of any material insurance policy or coverage of any of
the OmniSubsidiaries, except for normal renewals and/or replacements;
(u) Any failure by any of the OmniSubsidiaries to replenish
inventories and supplies in a normal and customary manner consistent with
prior practice; any purchase commitment by any of the OmniSubsidiaries in
excess of the normal, ordinary and usual requirements of business or at
any price in excess of the then current market price;
(v) Any material damage, destruction or loss to the business or
properties of any of the OmniSubsidiaries, whether or not covered by
insurance, including, without limitation, any damage, destruction or loss
as a result of fire, explosion, accident, earthquake, lightning, aircraft,
vehicle, smoke, hail, flood, drought, storm, strike, work stoppage,
lockout, sabotage, embargo, condemnation, riot, civil disturbance,
vandalism or act of God or public enemy the result of which is a Material
Adverse Effect on OmniAmerica;
(w) Any granting of powers of attorney by any of the
OmniSubsidiaries; any material writing up or writing down of the carrying
value of any of its assets; any material change in the depreciation or
amortization policies or rates heretofore adopted; or
(x) Any other material action taken or transaction entered into by
any of the OmniSubsidiaries other than in the ordinary course of business.
For purposes hereof, the "ordinary course of business" for OmniAmerica and
the OmniSubsidiaries shall include the ordinary course of conduct of the
Acquired Businesses since January 1, 1997.
15
4.1.9 Taxes.
(a) Each of OmniAmerica and the OmniSubsidiaries has duly and timely
filed all required federal, state, local and other tax returns,
information returns, notices and reports (including, without limitation,
income, property, sales, use, franchise, capital stock, excise, value
added, employment, withholding, FICA, medicare and unemployment)
(collectively, "Tax Returns") related to OmniAmerica and any of the
OmniSubsidiaries heretofore due, and all such Tax Returns are correct,
accurate and complete in all material respects;
(b) All deposits of estimated income and withholding, FICA and
medicare Taxes required to be made by OmniAmerica and any of the
OmniSubsidiaries have been duly and timely made;
(c) There has not been during the past five (5) years any audits or
examinations of any tax returns filed by OmniAmerica or any of the
OmniSubsidiaries, no audits or judicial or administrative proceeding with
respect to any Taxes due from OmniAmerica or any of the OmniSubsidiaries
are in progress, and neither OmniAmerica nor any of the OmniSubsidiaries
have been notified by any tax authority that any such audits, examinations
or proceedings are contemplated or pending;
(d) All Taxes with respect to OmniAmerica or any of the
OmniSubsidiaries that have become due and payable on or before December
31, 1997 have been timely paid in full or adequately reserved against in
accordance with GAAP on the OmniAmerica Financial Statements, and all
Taxes which have become due and payable subsequent to December 31, 1997
have been paid in full or adequately reserved against on its books of
account and the amounts reflected on the OmniAmerica Financial Statements
and such books are sufficient for the payment of all unpaid Taxes with
respect to the periods then ended and for all periods prior thereto. There
are no Liens on any of the assets of OmniAmerica or any of the
OmniSubsidiaries that arose in connection with any failure (or alleged
failure) to pay any Tax, except those that are not yet due and payable or
are being contested in good faith by appropriate proceedings;
(e) There are no agreements, waivers or other arrangements providing
for an extension of time with respect to the assessment or collection of
any Tax against OmniAmerica or any of the OmniSubsidiaries, nor are there
any actions, suits, proceedings, investigations or claims now pending
against OmniAmerica or any of the OmniSubsidiaries in respect of any Tax,
or any matters under discussion with any federal, state, local or foreign
authority, or any claims for refund by OmniAmerica or any of the
OmniSubsidiaries for overpaid Taxes relating to any Taxes, or any claims
for additional Taxes asserted by any such authority, and there is no basis
for the assertion of any additional Taxes against OmniAmerica or any of
the OmniSubsidiaries;
16
(f) The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional Taxes on
OmniAmerica or any of the OmniSubsidiaries, except for Taxes relating to
the consummation of OmniAmerica Permitted Transactions;
(g) Each of the OmniSubsidiaries has withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or
owing to any employee, creditor, independent contractor or other third
party;
(h) None of the OmniSubsidiaries is a party to any "safe harbor
lease" that is subject to the provisions of Section 168(f)(8) of the Code
as in effect prior to the Tax Reform Act of 1986, or to any "long-term
contract" within the meaning of Section 460 of the Code;
(i) There are no accounting method changes in effect or being
requested with respect to OmniAmerica or any of the OmniSubsidiaries that
could give rise to an adjustment under Section 481 of the Code for periods
after the Closing Date;
(j) Each of OmniAmerica and the OmniSubsidiaries has disclosed (in
accordance with Section 6662(d)(2)(B)(ii) of the Code) on its federal
income tax returns all positions taken therein that could give rise to a
substantial understatement of federal income tax within the meaning of
Section 6662(d) of the Code; and
(k) For purposes of this Agreement, all references to sections of
the Code shall include any predecessor provisions to such sections and any
similar provisions of state, local or foreign law.
4.1.10 Disputes and Litigation. (a) There is no suit, arbitration,
action, litigation, proceeding, investigation, claim, complaint or accusation
pending (the "Proceedings") of which OmniAmerica or any of the OmniSubsidiaries
has received written notice or, to the Knowledge of OmniAmerica Management,
threatened against or affecting OmniAmerica or any of the OmniSubsidiaries or
any of their properties, assets or businesses or to which OmniAmerica or any of
the OmniSubsidiaries is a party, in any court or before any arbitrator of any
kind or before or by any Governmental Entity (including, without limitation, any
federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality), the result of which, individually or
in the aggregate, would reasonably be expected to result in a Material Adverse
Effect on OmniAmerica; (b) to the Knowledge of OmniAmerica Management, there is
no pending or threatened change in any Environmental Law or zoning or building
laws, regulations or ordinances the result of which would reasonably be expected
to result in a Material Adverse Effect on OmniAmerica; and (c) there is no
outstanding order, writ, injunction, decree, judgment, determination or award by
any court, arbitrator or Governmental Entity against or affecting OmniAmerica or
any of the OmniSubsidiaries or any of their properties, assets or businesses
which would reasonably be expected to have a Material Adverse Effect on
OmniAmerica. None of the items nor
17
aggregate of items listed in the Disclosure Schedule would, if adversely
determined, reasonably be expected to have a Material Adverse Effect on
OmniAmerica. To the Knowledge of OmniAmerica Management, there is no Proceeding,
formal or informal, pending or threatened which would give rise to any right of
indemnification on the part of any director or officer of OmniAmerica or any of
the OmniSubsidiaries.
4.1.11 Compliance with Laws. Each of the OmniSubsidiaries presently
is, and has at all times been, in compliance in all material respects with any
applicable federal, state, local, foreign and other laws, rules and regulations
(including, without limitation, EIA wind-loading and other EIA standards as
adopted in the local building code for towers, and FAA, FCC and OSHA
regulations), other than those where noncompliance would not reasonably be
expected to have a Material Adverse Effect on OmniAmerica, and none of the
OmniSubsidiaries has received any written or, to the Knowledge of OmniAmerica
Management, oral notice of any claimed violation of any such law, rule or
regulation which would reasonably be expected to have a Material Adverse Effect
on OmniAmerica. Except with respect to the matters addressed in Section 4.1.9,
each of the OmniSubsidiaries has filed all returns, reports and other documents
and furnished all information required or requested by any federal, state, local
or foreign governmental or quasi-governmental agency and all such returns,
reports, documents and information are true and complete in all respects except
where such failure to file or inaccuracies would not reasonably be expected to
result in a Material Adverse Effect on OmniAmerica. All permits, licenses,
orders, franchises and approvals of all federal, state, local and foreign
governmental or quasi-governmental or regulatory bodies required of each of the
OmniSubsidiaries for the conduct of its business have been obtained, other than
those where noncompliance would not reasonably be expected to have a Material
Adverse Effect on OmniAmerica, no violations are or have been recorded in
respect of any such permits, licenses, orders, franchises and approvals, and
there is no Proceeding, formal or informal, pending or, to the Knowledge of
OmniAmerica Management, threatened, which may revoke, limit, or question the
validity, sufficiency or continuance of any such permit, license, order,
franchise or approval, except in each case where the same would not reasonably
be expected to have a Material Adverse Effect on OmniAmerica. Such permits,
licenses, orders, franchises and approvals are valid and sufficient for all
activities presently carried on by each of the OmniSubsidiaries, except in each
case where the same would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica. None of the OmniSubsidiaries, nor any officer, director,
employee, stockholder or agent of the OmniSubsidiaries has made any offer,
payment, promise to pay, or authorization of the payment of any money, offer,
gift, promise to give, or authorization of anything of value to any Person named
or identified in Section 30A of the Exchange Act for any unlawful purpose
described in Section 30A of the Exchange Act. Notwithstanding anything in this
Section 4.1.11 to the contrary, no representation is made by OmniPartners,
OmniAmerica or any of the OmniSubsidiaries concerning its compliance with Rule
10b-5 as promulgated under the Exchange Act in connection with the sale of the
OmniAmerica Shares pursuant to this Agreement.
4.1.12 Insurance. The Disclosure Schedule sets forth a true and
complete list of all insurance policies (including the policy number, the name
of the insurer,
18
the amounts of coverage, the premium rate, the cash value, if any, the
expiration date and the risks and losses insured against) currently maintained
by each of the OmniSubsidiaries on its properties, assets, products, businesses
and personnel, and OmniAmerica shall deliver copies of all such policies,
agreements, studies and analyses to STI not later than seven (7) days after the
date of this Agreement. All of the foregoing insurance policies are in full
force and effect and are fully paid as to all premiums heretofore due. None of
the OmniSubsidiaries has failed to give any notice, if the failure thereof would
reasonably be expected to have a Material Adverse Effect on OmniAmerica, or
present any material claim under such insurance policies in timely fashion, nor
has any of the OmniSubsidiaries received any written notification of the
cancellation of any of such policies or that any of them will not be renewed,
except as to such cancellations as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
4.1.13 Title to Properties. The properties and assets of the
OmniSubsidiaries consist of (a) all of the properties and assets reflected on
the OmniAmerica Financial Statements as owned by them and (b) all other material
properties and assets presently carried on OmniSubsidiaries' books as owned by
them or used in their businesses, except, in each case, properties and assets
licensed or leased by any of the OmniSubsidiaries or as to which any of the
OmniSubsidiaries otherwise has the right to use and assets subsequently disposed
of in the ordinary course of business. Each of the OmniSubsidiaries has good and
indefeasible title to all of its respective properties and assets (whether real,
personal, mixed, tangible or intangible) owned by it free and clear of all
Liens, except Permitted Liens, if any. To the Knowledge of OmniAmerica
Management, the Towers and any improvements thereto are in good condition and
repair, ordinary wear and tear excepted, and do not have any structural or
material defects, except where the failure to be in such condition would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
4.1.14 Real Property and Real Property Leases. The Disclosure
Schedule contains a true and complete list of (a) all real property owned by the
OmniSubsidiaries, (b) all real estate leases to which any of the
OmniSubsidiaries is a party, and (c) all other material interests, if any, in
real property owned or claimed by any of the OmniSubsidiaries. To the Knowledge
of OmniAmerica Management, each of the OmniSubsidiaries has material easements
and rights, including parking rights and easements for power lines, water lines,
roadways and other access, necessary to conduct the businesses it now conducts
and enjoys peaceful and undisturbed possession of all properties occupied by it.
To the Knowledge of OmniAmerica Management, neither the whole nor any portion of
any real property owned, occupied or leased to or by any of the OmniSubsidiaries
has been adversely rezoned or condemned or otherwise taken by any public
authority and, to the Knowledge of OmniAmerica Management, no such rezoning,
condemnation or other taking is threatened or contemplated. To the Knowledge of
OmniAmerica Management, none of the real properties owned, occupied or leased to
or by any of the OmniSubsidiaries or the occupancy or operation thereof,
constitutes a nuisance or violation of any law or any building, zoning or other
ordinance, code or regulation or any private or public covenant or restriction,
19
and no written notice from any Governmental Entity or other Person has been
served upon any of the OmniSubsidiaries or any Person who had previously owned
the Acquired Businesses during the two-year period prior to the date of this
Agreement claiming any outstanding violation of any such law, ordinance, code,
regulation, covenant or restriction, or requiring or calling attention to the
need for any material amount of work, repairs, construction, alterations or
installations on or in connection with any of such properties which has not been
complied with, except as such that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on OmniAmerica. All
leases of real property to which any of the OmniSubsidiaries is a party are
valid, binding and in full force and effect, and, there exists no material
default thereunder by any of the OmniSubsidiaries or, to the Knowledge of
OmniAmerica Management, any other party thereto, nor any events which, with
notice or lapse of time, or both, would constitute a material default by any of
the OmniSubsidiaries thereunder, and all rents heretofore payable under such
leases have been paid in full. Each of the OmniSubsidiaries shall deliver to STI
not later than seven (7) days after the date of this Agreement, true, correct
and complete copies of all deeds, title commitments, title policies, and surveys
to the real property listed on the Disclosure Schedule and true, correct and
complete copies of all real estate leases listed on the Disclosure Schedule,
including all amendments, modifications, letter agreements and assignments
relating thereto.
4.1.15 Intangible Personal Property.
(a) The Disclosure Schedule contains a true and complete list of all
material trademarks, service marks, trade names (including the name
"OmniAmerica" and all derivations thereof used by OmniAmericaSub),
patents, copyrights and applications for the foregoing owned by
OmniAmericaSub (collectively, the "OmniAmericaSub Intellectual Property"),
all material licenses to which OmniAmericaSub is a licensor or licensee,
and all non-competition covenants of OmniAmericaSub. OmniAmericaSub is the
sole and exclusive owner of the OmniAmericaSub Intellectual Property
indicated on the Disclosure Schedule to be owned by it free and clear of
all Liens, except Permitted Liens, if any, and has the right to use the
OmniAmericaSub Intellectual Property, having not granted or entered into
any agreement, covenant, license or sublicense with respect thereto.
(b) No written claims or demands have been asserted against any of
the OmniSubsidiaries with respect to any of the OmniAmericaSub
Intellectual Property, and no Proceedings have been instituted, are
pending or, to the Knowledge of OmniAmerica Management, threatened against
OmniAmericaSub which challenge the rights of OmniAmericaSub with respect
to any of such assets. To the Knowledge of OmniAmerica Management, the
businesses and operations of OmniAmericaSub and the use or publication of
the OmniAmericaSub Intellectual Property does not involve infringement or
claimed infringement of any United States trademark, trade name, copyright
or patent.
20
(c) No director, officer or stockholder, or, to the Knowledge of
OmniAmerica Management, employee, consultant, distributor, representative,
advisor, salesman or agent of any of the OmniSubsidiaries owns, directly
or indirectly, in whole or in part, any trademarks, trade names, or
copyrights, or applications for the foregoing, or other material tangible
personal property which OmniAmericaSub is presently using or the use of
which is necessary for the business of any of the OmniSubsidiaries as now
conducted. None of the directors, officers or stockholders of any of the
OmniSubsidiaries has entered into any agreement regarding know-how, trade
secrets, or prohibition or restriction of competition, or solicitation of
customers or any other similar restrictive agreement or covenant, whether
written or oral, with any Persons other than the OmniSubsidiaries.
4.1.16 Agreements. The Disclosure Schedule contains a true and
complete list of all (i) oral contracts, leases, and licenses the breach of
which would result in a Material Adverse Effect on OmniAmerica and (ii) all
written contracts, leases, and licenses, (collectively, the "Contracts") in each
case to which any of the OmniSubsidiaries is a party or its properties may be
bound and which (a) involve obligations by any party thereto in excess of
$250,000; (b) require the consent of any party thereto to the consummation of
the transactions contemplated by this Agreement or the Related Agreements; (c)
contain covenants limiting the freedom of any of the OmniSubsidiaries to compete
in any line of business or with any Person or in any geographical area; (d)
contain any provision or option relating to the acquisition by any of the
OmniSubsidiaries of any business or relating to the sale by any of the
OmniSubsidiaries of any business, other than pursuant to the OmniAmerica
Permitted Transactions; (e) contain an agreement or commitment by any of the
OmniSubsidiaries for a material capital expenditure, other than OmniAmerica
Permitted Transactions; or (f) are contracts or agreements to which the United
States government is a party; provided, that notwithstanding the foregoing
provisions of this Section 4.1.16, the Disclosure Schedule need not list, and
the term "Contracts" shall not include, agreements for which the obligations of
the parties thereto have been fulfilled. All of the Contracts were entered into
by the OmniSubsidiary that is a party thereto in the ordinary course of
business, are valid and binding and in full force and effect against the
OmniSubsidiary that is a party thereto and, to the Knowledge of OmniAmerica
Management, each of the other parties thereto, and there exists no material
breach or default by the OmniSubsidiary that is a party thereto, or any event
which, with notice or lapse of time or both, would constitute a material breach
or default by the OmniSubsidiary that is a party thereto, or to the Knowledge of
OmniAmerica Management, by any other party thereto. OmniAmericaSub shall deliver
to STI not later than seven (7) days after the date of this Agreement, true and
complete copies, including all amendments, modifications and assignments
relating thereto, of all of the aforesaid written agreements and true and
correct summaries of all such oral agreements.
4.1.17 Indebtedness and Guaranties. The Disclosure Schedule sets
forth a true and complete list of all promissory notes, loan agreements,
security agreements and guarantees relating to indebtedness for borrowed money
or money loaned to others to which any of the OmniSubsidiaries is a party or
obligor. Neither OmniAmerica nor any of the
21
OmniSubsidiaries has an existing obligation to guarantee any dividend,
obligation or indebtedness of any Person (except for the endorsement of
negotiable instruments in the ordinary course of business and consistent with
past practice). All of the aforesaid items were entered into in the ordinary
course of business, are valid and binding and in full force and effect as
against the OmniSubsidiary that is a party thereto and there exists no material
breach or default by the OmniSubsidiary that is a party thereto, or any event
which with notice or lapse of time or both, would constitute a material breach
or default by the OmniSubsidiary that is a party thereto or, to the Knowledge of
OmniAmerica Management, any other parties thereto.
4.1.18 Debts to and from Related Parties. Except for the advancement
and reimbursement of business expenditures upon arms' length terms or pursuant
to valid employment agreements or employee health and benefit plans, there
presently is no indebtedness owing to any of the OmniSubsidiaries by, or any
contractual agreements between any of the OmniSubsidiaries, on the one hand, and
any stockholder, director, partner, or officer of any of the OmniSubsidiaries,
any Family Member of their respective families, or to the Knowledge of
OmniAmerica Management, any Affiliate or "associate" (as such term is defined in
Rule 405 of the Securities Act) of any of the foregoing individuals
(collectively, "OmniAmerica Related Persons"), on the other hand, and none of
the OmniAmerica Related Persons owns any material property or rights, tangible
or intangible (other than an equitable interest), used in any of the
OmniSubsidiaries' businesses. Except as set forth in the OmniAmerica Financial
Statements and the E&Y Audited Financial Statements, none of the
OmniSubsidiaries is indebted to any OmniAmerica Related Person, in any amount
whatsoever, other than, to the Knowledge of OmniAmerica Management, for payment
of salaries, normal fringe benefits, reimbursement of reasonable business
expenditures and compensation for services actually rendered to OmniAmericaSub
in the ordinary course of their businesses.
4.1.19 Certificate of Incorporation and Bylaws. Not later than three
(3) days after the date of this Agreement, OmniAmerica, OmniAmericaSub and SATC
shall deliver to STI true and complete copies of their respective certificates
of incorporation and bylaws as currently in effect. The certificates of
incorporation and bylaws were duly adopted and are in full force and effect, and
there are no amendments or modifications thereto except as included in said
certificates of incorporation and bylaws. None of OmniAmerica, OmniAmericaSub or
SATC is in violation of any of the provisions of its certificate of
incorporation or bylaws.
4.1.20 Books and Records. The minute books of OmniAmerica,
OmniAmericaSub and SATC contain accurate records of all material actions taken
by the stockholders and directors of OmniAmerica, OmniAmericaSub or SATC, as the
case may be. The books, records and accounts of OmniAmerica and the
OmniSubsidiaries, all of which have been made available to STI, have been
maintained in accordance with the requirements of Section 13(b)(2) of the
Exchange Act (regardless of the fact that neither OmniAmerica nor any of the
OmniSubsidiaries is currently subject to that Section), including the
maintenance of an adequate system of internal controls. The stock certificate
books and stock transfer ledgers
22
ofOmniAmerica, OmniAmericaSub and SATC are correct and complete and reflect
accurately the number of shares of stock held by their respective sole
stockholders.
4.1.21 Employee Benefits.
(a) Neither OmniAmerica nor any of the OmniSubsidiaries maintains,
administers, or contributes to or has maintained, administered, or
contributed to (or had an obligation to maintain, administer or contribute
to) or is a party to (i) any "employee benefit plan," as defined in
Section 3(3) of ERISA) (the "OmniAmerica ERISA Plans") or (ii) any
employment or consulting, bonus or other incentive compensation, deferred
compensation, salary continuation during any leave of absence, severance,
stock award, stock option, stock purchase or fringe benefit agreements,
policies or arrangements, whether written or oral (together with the
OmniAmerica ERISA Plans, the "OmniAmerica Plans").
(b) None of the OmniAmerica Plans is subject to Title IV of ERISA.
None of the OmniAmerica Plans provides retiree medical or life insurance
benefits to any Person. None of the OmniAmerica Plans provides for payment
of a benefit, the increase of a benefit amount, the payment of a
contingent benefit, or the acceleration of the payment or vesting of a
benefit by reason of the execution of this Agreement or the consummation
of the transactions contemplated by this Agreement. Neither OmniAmerica
nor OmniAmericaSub has an obligation to adopt, or is considering the
adoption of, any new OmniAmerica Plan or, except as required by law, the
amendment of any existing OmniAmerica Plan. Each OmniAmerica ERISA Plan
intended to be qualified under Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service that it
is so qualified and, to the Knowledge of OmniAmerica Management, nothing
has occurred since the date of such letter that could reasonably be
expected to affect the qualified status of such OmniAmerica ERISA Plan.
OmniAmerica Management is not aware of any claims relating to the
OmniAmerica Plans (other than routine claims for benefits). Each
OmniAmerica Plan has been operated in all respects in accordance with its
terms and the requirements of all applicable law, except to the extent as
would not reasonably be expected to have a Material Adverse Effect on
OmniAmerica.
Neither OmniAmerica nor any of the OmniSubsidiaries nor any member of their
"controlled group" has any withdrawal liability, under Title IV of ERISA, the
terms of the applicable plan, any collective bargaining agreement or any other
labor agreement or otherwise, with respect to any "multi-employer" plan (within
the meaning of Section 3(37) or 4001(a)(3) of ERISA) to which they contribute
(or had any obligation to contribute); nor has any event occurred or any
circumstance exist that presents a risk of the occurrence of any withdrawal
liability with respect to any such multi-employer plan.
23
4.1.22 Employees.
(a) The Disclosure Schedule sets forth a true and complete list of
all collective bargaining agreements to which any of the OmniSubsidiaries
is a party.
(b) To the Knowledge of OmniAmerica Management, OmniAmerica and each
of the OmniSubsidiaries are in full compliance with all federal, state and
local laws respecting employment, wages and hours in each case except to
the extent as would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica. To the Knowledge of OmniAmerica Management, each of
the OmniSubsidiaries is in compliance in all material respects with all
applicable federal and state laws and regulations respecting occupational
safety and health standards other than those where noncompliance would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica,
and none of the OmniSubsidiaries has received written complaints from any
federal or state agency or regulatory body alleging outstanding violations
of any such laws and regulations which violations would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on OmniAmerica.
(c) To the Knowledge of OmniAmerica Management, except pursuant to
applicable law, the employment of all persons and officers employed by
each of the OmniSubsidiaries is terminable at will, without any penalty or
severance obligation of any kind on the part of the employer. All material
sums due for employee compensation and benefits and all vacation time
owing to any employees have been duly and adequately accrued on the books
of each of the OmniSubsidiaries in accordance with GAAP. To the Knowledge
of OmniAmerica Management, all employees of the OmniSubsidiaries are
either United States citizens or are authorized to be employed in the
United States in accordance with all applicable laws.
(d) None of the OmniSubsidiaries has experienced since December 31,
1996, any general labor troubles or strife, work stoppages, slowdowns by
its employees. To the Knowledge of OmniAmerica Management, none of the
OmniSubsidiaries has experienced since December 31, 1996 any union or
collective bargaining organization efforts or negotiations, or requests
for negotiations, for any representation or any labor contract relating to
any employees of the OmniSubsidiaries not covered by a union or collective
bargaining agreement as of December 31, 1996.
(e) Each of the OmniSubsidiaries subscribes to, or is otherwise
insured under, the worker's compensation or similar statute in each of the
states in which it has employees with respect to such employees.
4.1.23 No Conflicts of Interest. The Disclosure Schedule sets forth
a list of all agreements which each of the OmniSubsidiaries has with its
directors, officers, employees, consultants, distributors, representatives,
advisors, salesmen and agents that prohibit or restrain such individuals from
competing with one or more of the OmniSubsidiaries
24
in their respective businesses. None of the OmniSubsidiaries owns, directly or
indirectly, a controlling interest in, any Person which is a customer, supplier,
competitor or potential competitor of one or more of the OmniSubsidiaries.
4.1.24 Environmental Matters.
(a) To the Knowledge of OmniAmerica Management, each of the
OmniSubsidiaries has been and is in material compliance with all
applicable Environmental Laws and possesses all licenses, permits or
similar authorizations required under Environmental Laws for the conduct
of its business as it is currently being conducted.
(b) None of the OmniSubsidiaries has received any written
communication from any Person that alleges that any of the
OmniSubsidiaries is not in compliance with, or is liable under applicable
Environmental Laws.
(c) There is no Environmental Claim pending or, to the Knowledge of
OmniAmerica Management, overtly threatened (i) against any of the
OmniSubsidiaries, (ii) against any Person whose liability for any
Environmental Claim any of the OmniSubsidiaries has retained or assumed
either contractually or, to the Knowledge of OmniAmerica Management, by
operation of law, or (iii) against any real or personal property or
operations which are now or, to the Knowledge of OmniAmerica Management,
have been previously owned, leased, operated or managed, in whole or in
part, based on activities conducted by any of the OmniSubsidiaries.
(d) None of the OmniSubsidiaries is subject to any material
liabilities under Environmental Laws and, to the Knowledge of OmniAmerica
Management, there are no facts, circumstances or conditions relating to
the operations of the OmniSubsidiaries that could reasonably be expected
to result in the OmniSubsidiaries incurring material liabilities under
Environmental Laws.
(e) There are no underground storage tanks, no aboveground storage
tanks, asbestos or asbestos-containing materials or polychlorinated
biphenyls located on, under or at any property owned, operated or leased
by any of the OmniSubsidiaries, except in material compliance with
Environmental Laws.
(f) OmniAmericaSub has made available to STI any environmental
reports, audits or assessments on any real property currently or formerly
owned or leased by any of the OmniSubsidiaries that are in the possession,
custody or control of OmniAmerica.
4.1.25 Licenses. Each of the OmniSubsidiaries has all licenses,
permits, approvals, authorizations, exemptions, classifications, registrations
and certificates (including, without limitation, all registrations or other
filings with respect to the Towers required by the
25
FAA and FCC), and all consents or agreements with Governmental Entities
(collectively "Licenses") necessary to conduct its business in the manner and to
the extent that it has been conducted, other than any Licenses the failure of
which to have would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on OmniAmerica. The Disclosure
Schedule contains a list of every material License. All Licenses are in full
force and effect and no Proceedings are pending or, to the Knowledge of
OmniAmerica Management, threatened which may result in the revocation,
modification, non-renewal or suspension of any of the Licenses, the denial of
any pending application for a License, the issuance of a cease and desist order
or the imposition of any administrative penalty or sanction, other than those
which would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on OmniAmerica. There does not exist under any
License any default or violation, or event which, with notice or lapse of time
or both, would constitute a default or violation or would result in the
withdrawal of such License, other than defaults or violations which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica, nor is there, to the Knowledge of OmniAmerica
Management, any basis for assertion of any default or violation.
4.1.26 No Solicitation or Negotiation. Neither OmniAmerica nor any
of the OmniSubsidiaries has made any agreement to sell the stock, business or
substantially all of the assets of OmniAmerica or any of the OmniSubsidiaries to
another Person, or to merge, consolidate or combine assets or business of
OmniAmerica or any of the OmniSubsidiaries with another Person (except for the
OmniAmerica Permitted Transactions) and is not currently engaged in negotiations
or discussions concerning any other sale of the stock, or the sale, merger or
combination of any material asset or business of OmniAmerica or any of the
OmniSubsidiaries to or with another Person (except for the OmniAmerica Permitted
Transactions).
4.1.27 Tower Space Leases. The Disclosure Schedule contains a true,
correct and complete summary of each material Tower Space Lease, including the
name of the lessee, the term of the lease and the monthly revenue derived
therefrom. OmniAmerica has made available to STI true, correct and complete
copies of all of the material Tower Space Leases. Other than the Tower Space
Leases, there are no leases, occupancies, tenancies or licenses in effect
pertaining to a Tower, and other than lessees or tenants under Tower Space
Leases, to the Knowledge of OmniAmerica Management, no persons, tenants,
licensees or entities occupy space on a Tower. There are no options or rights to
renew, extend or terminate the Tower Space Leases or expand any leased or
licensed premises, except as shown in the Tower Space Leases. The Tower Space
Leases and any guaranties thereof are in full force and effect. OmniAmericaSub
is the sole owner of the landlord's or licensor's interest in the Tower Space
Leases. As of the Closing Date and as contemplated herein, no rents due under,
or other interest in, any of the Tower Space Leases will have been sold,
assigned or transferred by any of the OmniSubsidiaries or otherwise pledged or
encumbered in any way. Neither the landlord nor, to the Knowledge of OmniAmerica
Management, any tenant or licensee is in material default under any Tower Space
Lease nor has OmniAmerica or any of the OmniSubsidiaries received any written
notice from any tenant or licensee of any default
26
under its current Tower Space Lease or of any tenant's or licensee's termination
of its current Tower Space Lease in advance of the scheduled expiration date of
its Tower Space Lease unless such defaults or terminations would not,
individually and in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica. All of the improvements to be constructed by
OmniAmerica or any of the OmniSubsidiaries, if any, contemplated under the Tower
Space Leases or as required therein or in any collateral agreement, plans or
specifications respecting the Tower Space Leases have been fully completed and
paid for, except for such of the foregoing the failure to pay for would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
4.1.28 KISCO Shares. OmniAmericaSub owns good and transferable title
to the KISCO Shares, free and clear of any Liens. The KISCO Shares are validly
issued, fully paid and nonassessable. The ▇▇▇▇▇ Shareholders Agreement is a
valid and binding obligation of KISCO and, to the Knowledge of OmniAmerica
Management, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, enforceable against KISCO in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
4.2 Representations and Warranties of OmniPartners. To induce STI and the
Sub to enter into this Agreement and to consummate the transactions contemplated
hereby, OmniPartners represents and warrants to STI and the Sub as of the date
hereof as follows (each such representation and warranty being qualified in its
entirety by the disclosures set forth in the Disclosure Schedule, which such
disclosures shall correspond to the following sections and subsections):
4.2.1 Existence and Authority.
(a) OmniPartners is a partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware. OmniPartners
has all requisite partnership power and authority to own its properties
and assets and to carry on its business as it has been and is being
conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect on OmniAmerica or OmniAmericaSub.
(b) HM Partners is a partnership duly organized, validly existing
and in good standing under the laws of the State of Texas. HM Partners has
all requisite partnership power and authority to own its properties and
assets and to carry on its business as it has been and is being conducted,
except where the failure to be so organized, existing and in good standing
or to have such power and authority would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
27
(c) On the date of this Agreement prior to the Effective Time of the
HSW Merger, Omni/HSW Acquisition is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. On
the date of this Agreement prior to the Effective Time of the HSW Merger,
Omni/HSW Acquisition has all requisite corporate power and authority to
own its properties and assets and to carry on its business as it has been
and is being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.2.2 Validity and Authorization; Partnership Power and Authority.
(a) OmniPartners has all necessary partnership power and authority
to execute, deliver and perform this Agreement, the Related Agreements and
the other instruments called for by this Agreement to which it is or is to
be a party. The execution, delivery and performance of this Agreement by
OmniPartners and the consummation by OmniPartners of the transactions
contemplated hereby have been duly and validly authorized by all necessary
partnership action on the part of OmniPartners (subject to the filing of
appropriate merger documents as required by the DGCL). This Agreement has
been duly executed and delivered by OmniPartners and, assuming the valid
authorization, execution and delivery hereof by STI and the Sub,
constitutes the legal, valid and binding obligation of OmniPartners,
enforceable against OmniPartners in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which OmniPartners is a party are executed and
delivered at the Closing, such Related Agreements and instruments will
have been duly authorized, executed and delivered by OmniPartners, and
will be, assuming the valid authorization, execution and delivery thereof
by each other party thereto (other than OmniAmerica and its Affiliates),
enforceable against OmniPartners in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting or relating to the
enforcement of creditors' rights generally and by general principles of
equity (whether applied in a proceeding at law or in equity).
(c) HM Partners has all necessary partnership power and authority to
execute, deliver and perform the Related Agreements to which it is to be a
party. The consummation by HM Partners of the transactions contemplated
thereby have been duly and validly authorized by all necessary partnership
action on the part of HM Partners. When the Related Agreements to which HM
Partners is a party are executed and delivered at the Closing, such
Related Agreements will have been duly authorized,
28
executed and delivered by HM Partners, and will be, assuming the valid
authorization, execution and delivery thereof by each other party thereto
(other than OmniAmerica and its Affiliates) enforceable against HM
Partners in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting or relating to the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
(d) Omni/HSW Acquisition has all necessary corporate power and
authority to execute, deliver and perform the HSW Merger Agreement. The
consummation by Omni/HSW Acquisition of the transactions contemplated
thereby have been duly and validly authorized by all necessary corporate
action on the part of Omni/HSW Acquisition.
4.2.3 Execution; No Violations.
(a) OmniPartners' execution and delivery of this Agreement do not,
and the execution and delivery of the Related Agreements to which it is a
party, the consummation of the transactions contemplated hereby and
thereby and compliance with the provisions hereof and thereof by
OmniPartners will not: (i) violate, conflict with or cause any default
under (or give any party any right to declare any default upon notice or
passage of time or both), in whole or in part, any limited partnership
agreement, indenture, lease, agreement, instrument, and assuming all the
consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, any order, injunction, decree, or judgment to which
OmniPartners is a party or by which OmniPartners or any of its properties
is bound, (ii) result in the creation of any Lien upon or right of first
refusal with respect to any property or asset (whether real, personal,
mixed, tangible or intangible) of OmniAmerica or any of the
OmniSubsidiaries except as may be approved by STI, (iii) assuming all the
consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, violate any statute, ordinance, law, rule or regulation
applicable to OmniPartners, OmniAmerica or any of the OmniSubsidiaries or
any of their respective properties or assets or (iv) permit any federal or
state regulatory agency to impose any restrictions or limitations of any
nature on OmniAmerica or any of the OmniSubsidiaries or any of its
activities, except in the case of clauses (ii), (iii) and (iv), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not, individually, or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(b) HM Partners' execution and delivery of each of the Related
Agreements to which it is a party, the consummation by HM Partners of the
transactions contemplated thereby and compliance with the provisions
thereof by HM Partners will not: (i) violate, conflict with or cause any
default under (or give any party any right to declare any default upon
notice or passage of time or both), in whole or in part, any
29
limited partnership agreement, indenture, lease, agreement, instrument,
and assuming all the consents, filings and registrations referred to in
Section 4.2.4 are obtained or made, any order, injunction, decree, or
judgment to which HM Partners is a party or by which HM Partners or any of
its properties is bound, (ii) result in the creation of any Lien upon or
right of first refusal with respect to any property or asset (whether
real, personal, mixed, tangible or intangible) of OmniAmerica or any of
the OmniSubsidiaries except as may be approved by STI, (iii) assuming all
the consents, filings and registrations referred to in Section 4.2.4 are
obtained or made, violate any statute, ordinance, law, rule or regulation
applicable to HM Partners, OmniAmerica or any of the OmniSubsidiaries or
any of their respective properties or assets or (iv) permit any federal or
state regulatory agency to impose any restrictions or limitations of any
nature on OmniAmerica or any of the OmniSubsidiaries or any of its
activities, except in the case of clauses (ii), (iii) and (iv), any such
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not, individually, or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(c) Omni/HSW Acquisition's execution and delivery of the HSW Merger
Agreement, the consummation by Omni/HSW Acquisition of the transactions
contemplated thereby and compliance with the provisions thereof by
Omni/HSW Acquisition will not: (i) violate, conflict with or cause any
default under (or give any party any right to declare any default upon
notice or passage of time or both), in whole or in part, any certificate
of incorporation, indenture, lease, agreement, instrument, any order,
injunction, decree, or judgment to which Omni/HSW Acquisition is a party
or by which Omni/HSW Acquisition or any of its properties is bound, (ii)
result in the creation of any Lien upon or right of first refusal with
respect to any property or asset (whether real, personal, mixed, tangible
or intangible) of OmniAmerica or any of the OmniSubsidiaries except as may
be approved by STI, (iii) violate any statute, ordinance, law, rule or
regulation applicable to Omni/HSW Acquisition, OmniAmerica or any of the
OmniSubsidiaries or any of their respective properties or assets or (iv)
permit any federal or state regulatory agency to impose any restrictions
or limitations of any nature on OmniAmerica or any of the OmniSubsidiaries
or any of its activities, except in the case of clauses (ii), (iii) and
(iv), any such violations, conflicts, modifications, defaults,
accelerations, rights, restrictions, limitations or Liens that as would
not, individually, or in the aggregate, reasonably be expected to have a
Material Adverse Effect on OmniAmerica or OmniAmericaSub.
4.2.4 Governmental and Other Consents.
(a) Except for filings under the HSR Act and the filing of the
certificate of merger contemplated by Section 1.3, no consent, approval or
authorization of, or designation, registration, declaration or filing
with, any Governmental Entity is required on the part of OmniPartners in
connection with the execution or delivery of this Agreement, the Related
Agreements to which it is a party or the consummation by it of
30
the transactions contemplated hereby and thereby, except as would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica or
OmniAmericaSub. No consent, approval or authorization of, or designation,
registration, declaration or filing with, any Governmental Entity is
required on the part of HM Partners in connection with its execution or
delivery of the Related Agreements to which it is a party or the
consummation by it of the transactions contemplated thereby, except as
would not reasonably be expected to have a Material Adverse Effect on
OmniAmerica or OmniAmericaSub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with (i)
OmniPartners' valid execution, delivery or performance of this Agreement
and the Related Agreements to which it is a party or the consummation of
any of the transactions contemplated hereby or thereby on the part of
OmniPartners and (ii) HM Partners' valid execution, delivery or
performance of the Related Agreements to which it is a party or the
consummation of any of the transactions contemplated thereby on the part
of HM Partners (collectively, the "OmniPartners Consents"), except, in
each case, as would not reasonably be expected to have a Material Adverse
Effect on OmniAmerica or OmniAmericaSub.
4.2.5 Investment Intent; Compliance with Securities Laws.
(a) OmniPartners is acquiring the Merger Consideration for
investment for its own account, not as a nominee or agent for any other
Person, and not with a view to the resale or distribution of any part
thereof in violation of the Securities Act. OmniPartners does not have any
present intention of selling, granting any participation in, or otherwise
distributing the Merger Consideration otherwise than pursuant to an
effective registration statement under the Securities Act or in a
transaction exempt from the registration requirements under the Securities
Act and applicable state securities laws. Except as set forth in the
Stockholders Agreements, OmniPartners does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or
grant participations to such Person or to any third Person, with respect
to any of the Merger Consideration.
(b) OmniPartners acknowledges that the issuance of the Merger
Consideration will not be registered under the Securities Act or any state
securities laws on the basis of a claimed exemption by STI that the
issuance of the Merger Consideration as provided for herein is exempt from
registration under the Securities Act and such state securities laws.
OmniPartners acknowledges that the availability of such exemptions is
predicated in part on OmniPartners' representations set forth in this
Section and that STI and the Sub are relying on such representations.
(c) OmniPartners has received all the information it considers
necessary or appropriate for deciding whether to accept the Merger
Consideration. OmniPartners has had an opportunity to ask questions and to
receive answers from STI regarding the
31
terms and conditions of the issuance of the Merger Consideration and the
business, properties, and financial condition of STI and to obtain
additional information (to the extent STI possessed such information or
could acquire it without unreasonable effort or expense) necessary to
verify the accuracy of any information furnished to OmniPartners
(including the representations and warranties of STI and the Sub herein)
or to which OmniPartners had access.
(d) OmniPartners acknowledges that it is able to bear the economic
risk of the investment in the Merger Consideration, and has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in the Merger
Consideration.
(e) OmniPartners is an Accredited Investor as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
(f) OmniPartners acknowledges that the Merger Consideration or any
portion thereof may not be sold, transferred or otherwise disposed of
without registration under the Securities Act or an applicable exemption
therefrom and that in the absence of an effective registration statement
covering the Merger Consideration or an available exemption from
registration under the Securities Act, the Merger Consideration must be
held indefinitely. OmniPartners further acknowledges that the Merger
Consideration may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that rule are met.
(g) OmniPartners acknowledges that each certificate representing any
of the Merger Consideration will be endorsed with a legend substantially
similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SO
REGISTERED OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
4.3 Representations and Warranties of STI. To induce OmniAmerica,
OmniAmericaSub and OmniPartners to enter into this Agreement and to consummate
the transactions contemplated hereby, STI represents and warrants to
OmniAmerica, OmniAmericaSub and OmniPartners as of the date hereof as follows
(each such representation and warranty being qualified in its entirety by the
disclosures set forth (a) in the Disclosure
32
Schedule of STI, which such disclosures shall correspond to the following
sections and subsections or (b) in the SEC Documents):
4.3.1 Corporate Existence and Authority. STI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has all requisite corporate power and authority to own its properties
and assets and to carry on its business as it has been and is being conducted,
except where the failure to be so organized, existing and in good standing or to
have such power and authority would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on STI. STI is
qualified or licensed to do business as a foreign corporation and is in good
standing in each state, nation or other jurisdiction listed on the Disclosure
Schedule, being each state, nation or other jurisdiction wherein the character
of the properties owned or held under lease by it or the nature of the business
transacted by it makes such qualification or licensing necessary, except for any
state, nation or other jurisdiction where the failure to be so qualified or
licensed would not reasonably be expected to have a Material Adverse Effect on
STI.
4.3.2 Capitalization of STI. The authorized capital stock of STI
consists solely of 20,000,000 shares of STI Common Stock of which 8,055,652
shares are issued and outstanding and 2,000,000 shares of preferred stock, of
which none are issued and outstanding. No other shares of capital stock of STI
are issued and outstanding or reserved for issuance. All of the issued and
outstanding shares of capital stock of STI have been duly authorized and validly
issued in accordance and compliance with all applicable laws, rules and
regulations and are fully paid and nonassessable and were issued free of
preemptive (or similar) rights. There are no securities, options, warrants,
rights, calls, commitments, plans, contracts or other agreements of any
character granted or issued by STI which provide for the purchase, issuance or
transfer of any shares of the capital stock of STI, nor are there any
outstanding securities granted or issued by STI that are convertible into or
exchangeable for or exercisable for any shares of the capital stock of STI, and
none are authorized. All presently exercisable voting rights in STI are vested
exclusively in the outstanding shares of STI Common Stock, each share of which
is entitled to one vote on every matter to come before its stockholders. Except
for the Stockholders Agreements, there are no stockholders agreements, voting
trusts or other voting arrangements with respect to any of STI's capital stock.
There are no outstanding obligations of STI to repurchase, redeem or otherwise
acquire any STI Common Stock or to provide funds to or make any investment (in
the form of a loan, capital contribution, guarantee or otherwise) in any other
entity. STI does not have any Subsidiaries, other than ▇▇▇▇▇ & ▇▇▇▇▇▇
Construction Co., Inc., Specialty Management, Inc., Microwave Tower Services,
Inc., Specialty Constructors, Inc., Specialty Constructors Coatings, Inc.,
Specialty Capital Services, Inc., Specialty Combined Resources, Inc., Specialty
Fortress, Inc., Specialty Training Centers, Inc. and the Sub.
4.3.3 Validity and Authorization; Corporate Power and Authority.
(a) STI has all necessary corporate power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called
33
for by this Agreement to which it is or is to be a party. The execution,
delivery and performance of this Agreement by STI and the consummation by
STI of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of STI (subject
to the filing of appropriate merger documents as required by the DGCL).
This Agreement has been duly executed and delivered by STI and, assuming
the valid authorization, execution and delivery hereof by OmniAmerica,
OmniAmericaSub and OmniPartners, constitutes the legal, valid and binding
obligation of STI, enforceable against STI in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting or relating
to the enforcement of creditors' rights generally and by general
principles of equity (whether applied in a proceeding at law or in
equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which STI is a party are executed and delivered at
the Closing, such Related Agreements and instruments will have been duly
authorized, executed and delivered by STI, and will be, assuming the valid
authorization, execution and delivery thereof by each other party thereto
(except STI and its Affiliates), enforceable against STI in accordance
with their terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
or relating to the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
4.3.4 Execution; No Violations. The execution and delivery of this
Agreement by STI does not, and the execution and delivery of the Related
Agreements to which it is a party, the consummation of the transactions
contemplated hereby and thereby and compliance with the provisions hereof and
thereof by STI will not: (a) violate, conflict with, modify, result in the
incurrence of any prepayment penalties or cause any default under or
acceleration, termination or cancellation of any obligation or the loss of a
benefit under (or give any party any right to declare any default or
acceleration upon notice or passage of time or both), in whole or in part, (i)
any provision of the articles of incorporation or bylaws of STI, (ii) any Lien,
indenture, lease, loan or credit agreement, note, bond, mortgage or other
agreement (other than, with respect to termination, agreements terminable
without material penalty either at will or upon 90 days' or less notice by the
terminating party), obligation, instrument, permit, concession, franchise or
license applicable to STI or (iii) assuming all the consents, filings and
registrations referred to in Section 4.3.5 are obtained or made, any order,
injunction, decree, or judgment to which STI is a party or by which STI or any
of its properties is bound; (b) result in the creation of any Lien upon or right
of first refusal with respect to any property or asset (whether real, personal,
mixed, tangible or intangible) of STI, except as may be approved by OmniAmerica,
OmniAmericaSub or OmniPartners, (c) assuming all the consents, filings and
registrations referred to in Section 4.3.5 are obtained or made, violate any
statute, ordinance, law, rule or regulation applicable to STI, or (d) permit any
federal or state regulatory agency to impose any restrictions or limitations of
any nature on STI or any of its activities, except in the case of clauses
(a)(ii), (b), (c) and (d), any such
34
violations, conflicts, modifications, defaults, accelerations, rights,
restrictions, limitations or Liens that would not reasonably be expected to have
a Material Adverse Effect on STI or the Sub.
4.3.5 Governmental and Other Consents.
(a) Except for filings under the HSR Act and the filing of the
certificate of merger contemplated by Section 1.3, no consent, approval or
authorization of, or designation, declaration, registration or filing
with, any Governmental Entity is required on the part of STI in connection
with the execution or delivery of this Agreement, the Related Agreements
to which it is a party or the consummation by it of the transactions
contemplated hereby and thereby, except as would not reasonably be
expected to have a Material Adverse Effect on STI or the Sub.
(b) The Disclosure Schedule lists all consents, approvals or
authorizations of third Persons required in connection with STI's or the
Sub's valid execution, delivery or performance of this Agreement and the
Related Agreements to which each is a party or the consummation of any of
the transactions contemplated hereby or thereby on the part of STI or the
Sub (collectively, the "STI Consents"), including but not limited to the
consents required under the Contracts, except, in each case, as would not
reasonably be expected to have a Material Adverse Effect on STI or the
Sub.
4.3.6 STI Financial Statements.
(a) (i) The Disclosure Schedule contains true and correct copies of
the consolidated balance sheet for STI at December 31, 1997 and the
related statements of profit and loss and cash flows and (ii) when
delivered pursuant to Section 5.5.4, similar financial statements to those
described in clause (a)(i) for each additional month ending before the
Closing (collectively, the "STI Financial Statements").
(b) The STI Financial Statements have been prepared in accordance
with GAAP and present fairly in all material respects the financial
position of STI as of the dates thereof and the results of STI's
operations and cash flows for the periods then ended, except that in the
case of the STI Financial Statements described in clause (a)(ii) above are
also subject to recurring year-end adjustments, if any, that are normal in
nature and amount. STI maintains a system of accounting, including without
limitation a system of internal controls, which permits it to prepare
financial statements that present fairly its financial positions and
results of operations in all material respects.
4.3.7 Absence of Certain Liabilities. Except (a) for liabilities
incurred in the ordinary course of business consistent with past practice, (b)
for transaction expenses not to exceed $1,700,000 incurred in connection with
this Agreement, (c) for liabilities set forth on any balance sheet (including
the notes thereto) included in the STI Financial Statements and
35
(d) for the STI Permitted Transactions, STI had not incurred any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, and
whether due or to become due, that would be required to be reflected or reserved
against in a consolidated balance sheet prepared in accordance with GAAP
applying the same practices and procedures as were applied in the preparation of
the STI Financial Statements.
4.3.8 Absence of Changes. Except as expressly provided in this
Agreement or in connection with the STI Permitted Transactions, since December
31, 1997, STI has conducted its business only in the ordinary course and in a
manner consistent with past practice and, since such date, there has not been:
(a) Any change or aggregate of changes in the condition (financial
or otherwise), business, assets, or liabilities that has had, or would
reasonably be expected to result in, a Material Adverse Effect on STI;
(b) Any change in the capitalization of STI, including, without
limitation, the issuance by STI of any shares of stock of any class, any
subscriptions, options, warrants, convertible securities, rights, calls,
agreements, commitments or rights affecting or relating in any manner
whatsoever to any equitable interests in STI;
(c) Any purchase, redemption or other acquisition by STI, or any
commitment, plan or agreement by STI to purchase, redeem or otherwise
acquire any shares of its capital stock or other equitable interests;
(d) Any merger or consolidation or agreement to merge or consolidate
by STI with another Person, or any purchase of or investment in or
agreement to purchase or invest by STI in the business of another Person;
(e) Any declaration, payment or setting aside by STI of any
dividends or other distributions of any assets of any kind whatsoever to
its stockholders or other equitable owners, except for ordinary salary
payments for services actually rendered and reasonable expense
reimbursements in the ordinary course of business;
(f) Any amendment to the certificate or articles, as the case may
be, of incorporation or bylaws of STI or the Sub;
(g) Any increase in the compensation or rate of compensation or
commission payable or to become payable by STI to any of its directors,
officers, salaried employees earning more than $75,000 per annum, salesmen
or agents, or any General Increase in the compensation or rate of
compensation payable or to become payable to any of its hourly employees
or salaried employees earning $75,000 per annum or less, or any hiring of
any employee at a salary in excess of $75,000 per annum, or any
termination of any key employee or any employee whose compensation was in
excess of $75,000 per annum;
36
(h) Any material change in any existing, or adoption of or entering
into any new, benefit plan or arrangement (whether written or oral)
affecting any of the officers, directors, employees, salesmen or agents of
STI, including, without limitation, any bonus, profit-sharing, pension,
deferred compensation, severance or termination pay benefit, stock option,
group life or health insurance or other similar plans, agreements or
arrangements;
(i) Any release, cancellation, modification or waiver of any
financial obligation, indebtedness, liability or Lien in favor of STI,
unless such obligation, indebtedness, liability or Lien has been paid in
full at the time of release or such as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
STI;
(j) Any waivers, compromises or settlements by STI of any right or
claim of STI in excess of $50,000 in the aggregate; or any institution or
settlement of, or agreement to settle, any litigation, action or
proceeding before any Governmental Entity relating to STI or any of its
properties;
(k) Any mortgage, pledge or other subjection to any Lien or option
of any property, asset, right or business of STI, other than Permitted
Liens and those incurred in the ordinary course of business and consistent
with past practice;
(l) Any assumptions or guarantees (except endorsements of negotiable
instruments in the ordinary course of business and consistent with past
practice) by STI of the obligations of any Person, except in the ordinary
course of business and consistent with past practice, but in no event in
excess of $50,000 when all such assumptions, guarantees and endorsements
are aggregated;
(m) Any payment or satisfaction by STI of any material liability,
obligation or indebtedness, other than those reflected on the STI
Financial Statements and those incurred in the ordinary course of business
and consistent with past practice;
(n) Any loan, advance, or capital contribution to, or investment in,
any Person in an aggregate amount in excess of $100,000 (excluding any
loan, advance or capital contribution to, or investment in, STI), any
commitment to so loan, advance, contribute capital or invest, or any
renewal, refunding or extension of any existing loan, advance or
investment made by STI to any Person, except in the ordinary course of
business and consistent with past practice;
(o) Any actions taken or transactions entered into by STI involving
more than $100,000 in the aggregate, other than in the ordinary course of
business and consistent with past practice, or any capital expenditures or
commitments therefor in excess of $100,000 in the aggregate, other than in
the ordinary course of business;
37
(p) Any creations, renewals, material changes or terminations, or
any notice of any proposed renewal, material change or termination of any
contract, agreement, commitment, obligation, lease or license involving
more than $5,000,000 in the aggregate or extending beyond six (6) months
from the date of this Agreement, to which STI is a party or by which STI
or its properties are bound;
(q) Any sale, assignment, lease, abandonment or other disposition by
STI of any real property, or any sale, assignment, transfer, license,
lapse, or other disposition by STI of any material trademark, trade name,
copyright (or pending application for any material trademark or
copyright), or other intangible asset;
(r) Any sale, assignment or transfer of any contract, agreement,
lease, or asset by STI, except in the ordinary course of business and
consistent with past practice;
(s) Any general labor dispute, or threat of a general labor dispute,
or any attempt or threat of any attempt by a union to organize any
employees of STI who are not now covered under an existing union or
collective bargaining agreement;
(t) Any lapse of any material insurance policy or coverage of STI,
except for normal renewals and/or replacements;
(u) Any failure by STI to replenish inventories and supplies in a
normal and customary manner consistent with prior practice; any purchase
commitment by STI in excess of the normal, ordinary and usual requirements
of business or at any price in excess of the then current market price;
(v) Any material damage, destruction or loss to the business or
properties of STI, whether or not covered by insurance, including, without
limitation, any damage, destruction or loss as a result of fire,
explosion, accident, earthquake, lightning, aircraft, vehicle, smoke,
hail, flood, drought, storm, strike, work stoppage, lockout, sabotage,
embargo, condemnation, riot, civil disturbance, vandalism or act of God or
public enemy the result of which is a Material Adverse Effect on STI;
(w) Any granting of powers of attorney by STI; any material writing
up or writing down of the carrying value of any of its assets; any
material change in the depreciation or amortization policies or rates
heretofore adopted; or
(x) Any other material action taken or transaction entered into by
STI other than in the ordinary course of business.
38
4.3.9 Taxes.
(a) STI has duly and timely filed all required Tax Returns related
to STI and the Sub heretofore due, and all such Tax Returns are correct,
accurate and complete in all material respects;
(b) All deposits of estimated income and withholding, FICA and
medicare Taxes required to be made by STI have been duly and timely made;
(c) There has not been during the past five (5) years any audits or
examinations of any tax returns filed by STI, no audits or judicial or
administrative proceedings with respect to any Taxes due from STI are in
progress, and STI has not been notified by any tax authority that any such
audits, examinations or proceedings are contemplated or pending;
(d) All Taxes with respect to STI that have become due and payable
on or before December 31, 1997 have been timely paid in full or adequately
reserved against on the STI Financial Statements, and all Taxes which have
become due and payable subsequent to December 31, 1997 have been paid in
full or adequately reserved against in accordance with GAAP on its books
of account and the amounts reflected on the STI Financial Statements and
such books are sufficient for the payment of all unpaid Taxes with respect
to the periods then ended and for all periods prior thereto. There are no
Liens on any of the assets of STI that arose in connection with any
failure (or alleged failure) to pay any Tax, except those that are not yet
due and payable or are being contested in good faith by appropriate
proceedings;
(e) There are no agreements, waivers or other arrangements providing
for an extension of time with respect to the assessment or collection of
any Tax against STI, nor are there any actions, suits, proceedings,
investigations or claims now pending against STI in respect of any Tax, or
any matters under discussion with any federal, state, local or foreign
authority, or any claims for refund by STI for overpaid Taxes relating to
any Taxes, or any claims for additional Taxes asserted by any such
authority, and there is no basis for the assertion of any additional Taxes
against STI;
(f) The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional Taxes on
STI, except for Taxes relating to the consummation of STI Permitted
Transactions;
(g) STI has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any
employee, creditor, independent contractor or other third party;
39
(h) STI is not a party to any "safe harbor lease" that is subject to
the provisions of Section 168(f)(8) of the Code as in effect prior to the
Tax Reform Act of 1986, or to any "long-term contract" within the meaning
of Section 460 of the Code;
(i) There are no accounting method changes in effect or being
requested with respect to STI that could give rise to an adjustment under
Section 481 of the Code for periods after the Closing Date;
(j) STI has disclosed (in accordance with Section 6662(d)(2)(B)(ii)
of the Code) on its federal income tax returns all positions taken therein
that could give rise to a substantial understatement of federal income tax
within the meaning of Section 6662(d) of the Code; and
(k) For purposes of this Agreement, all references to sections of
the Code shall include any predecessor provisions to such sections and any
similar provisions of state, local or foreign law.
4.3.10 Disputes and Litigation. (a) There is no Proceeding of which
STI has received written notice or, to the Knowledge of STI Management,
threatened against or affecting STI or any of its properties, assets or
businesses or to which STI is a party, in any court or before any arbitrator of
any kind or before or by any Governmental Entity (including, without limitation,
any federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality), the result of which, individually or
in the aggregate, would reasonably be expected to result in a Material Adverse
Effect on STI; (b) to the Knowledge of STI Management, there is no pending or
threatened change in any Environmental Law or zoning or building laws,
regulations or ordinances the result of which would reasonably be expected to
result in a Material Adverse Effect on STI; and (c) there is no outstanding
order, writ, injunction, decree, judgment, determination or award by any court,
arbitrator or Governmental Entity against or affecting STI or any of its
properties, assets or businesses which would reasonably be expected to have a
Material Adverse Effect on STI. None of the items nor aggregate of items listed
in the Disclosure Schedule would, if adversely determined, reasonably be
expected to have a Material Adverse Effect on STI. To the Knowledge of STI
Management, there is no Proceeding, formal or informal, pending or threatened
which would give rise to any right of indemnification on the part of any
director or officer of STI.
4.3.11 Compliance with Laws. STI presently is, and has at all times
been, in compliance in all material respects with any applicable federal, state,
local, foreign and other laws, rules and regulations (including, without
limitation, EIA wind-loading and other EIA standards as adopted in the local
building code for towers, and FAA, FCC and OSHA regulations), other than those
where noncompliance would not reasonably be expected to have a Material Adverse
Effect on STI, and STI has not received any written or, to the Knowledge of STI
Management, oral notice of any claimed violation of any such law, rule or
regulation which would reasonably be expected to have a Material Adverse Effect
on STI.
40
Except with respect to the matters addressed in Section 4.3.9, STI has filed all
returns, reports and other documents and furnished all information required or
requested by any federal, state, local or foreign governmental or
quasi-governmental agency and all such returns, reports, documents and
information are true and complete in all respects except where such failure to
file or inaccuracies would not reasonably be expected to result in a Material
Adverse Effect on STI. All permits, licenses, orders, franchises and approvals
of all federal, state, local and foreign governmental or quasi-governmental or
regulatory bodies required of STI for the conduct of its business have been
obtained, other than those where noncompliance would not reasonably be expected
to have a Material Adverse Effect on STI, no violations are or have been
recorded in respect of any such permits, licenses, orders, franchises and
approvals, and there is no Proceeding, formal or informal, pending or, to the
Knowledge of STI Management, threatened, which may revoke, limit, or question
the validity, sufficiency or continuance of any such permit, license, order,
franchise or approval, except in each case where the same would not reasonably
be expected to have a Material Adverse Effect on STI. Such permits, licenses,
orders, franchises and approvals are valid and sufficient for all activities
presently carried on by STI, except in each case where the same would not
reasonably be expected to have a Material Adverse Effect on STI. Neither STI,
nor any officer, director, employee, stockholder or agent of STI has made any
offer, payment, promise to pay, or authorization of the payment of any money,
offer, gift, promise to give, or authorization of anything of value to any
Person named or identified in Section 30A of the Exchange Act for any unlawful
purpose described in Section 30A of the Exchange Act. Notwithstanding anything
in this Section 4.3.11 to the contrary, no representation is made by STI
concerning its compliance with Rule 10b-5 as promulgated under the Exchange Act
in connection with the sale of STI Common Stock pursuant to this Agreement.
4.3.12 Insurance. The Disclosure Schedule sets forth a true and
complete list of all insurance policies (including the policy number, the name
of the insurer, the amounts of coverage, the premium rate, the cash value, if
any, the expiration date and the risks and losses insured against) currently
maintained by STI on its properties, assets, products, businesses and personnel,
and STI shall deliver copies of all such policies, agreements, studies and
analyses to OmniAmerica not later than seven (7) days after the date of this
Agreement. All of the foregoing insurance policies are in full force and effect
and are fully paid as to all premiums heretofore due. STI has not failed to give
any notice, if the failure thereof would reasonably be expected to have a
Material Adverse Effect on STI, or present any material claim under such
insurance policies in timely fashion, nor has STI received any written
notification of the cancellation of any of such policies or that any of them
will not be renewed, except as to such cancellations as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect on
STI.
4.3.13 Title to Properties. The properties and assets of STI consist
of (a) all of the properties and assets reflected on the STI Financial
Statements as owned by it and (b) all other material properties and assets
presently carried on STI's books as owned by it or used in its businesses,
except, in each case, properties and assets licensed or leased by STI or as to
which STI otherwise has the right to use and assets subsequently disposed of in
the ordinary
41
course of business. STI has good and indefeasible title to all of its respective
properties and assets (whether real, personal, mixed, tangible or intangible)
owned by it free and clear of all Liens, except Permitted Liens, if any.
4.3.14 Real Property and Real Property Leases. The Disclosure
Schedule contains a true and complete list of (a) all real property owned by
STI, (b) all real estate leases to which STI is a party, and (c) all other
material interests, if any, in real property owned or claimed by STI. To the
Knowledge of STI Management, STI has material easements and rights, including
parking rights and easements for power lines, water lines, roadways and other
access, necessary to conduct the businesses it now conducts and enjoys peaceful
and undisturbed possession of all properties occupied by it. To the Knowledge of
STI Management, neither the whole nor any portion of any real property owned,
occupied or leased to or by STI has been adversely rezoned or condemned or
otherwise taken by any public authority and, to the Knowledge of STI Management,
no such rezoning, condemnation or other taking is threatened or contemplated. To
the Knowledge of STI Management, none of the real properties owned, occupied or
leased to or by STI or the occupancy or operation thereof, constitutes a
nuisance or violation of any law or any building, zoning or other ordinance,
code or regulation or any private or public covenant or restriction, and no
written notice from any Governmental Entity or other Person has been served upon
STI during the two-year period prior to the date of this Agreement claiming any
outstanding violation of any such law, ordinance, code, regulation, covenant or
restriction, or requiring or calling attention to the need for any material
amount of work, repairs, construction, alterations or installations on or in
connection with any of such properties which has not been complied with, except
as such that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on STI. All leases of real property to which
STI is a party are valid, binding and in full force and effect, and, there
exists no material default thereunder by STI or, to the Knowledge of STI
Management, any other party thereto, nor any events which, with notice or lapse
of time, or both, would constitute a material default by STI thereunder, and all
rents heretofore payable under such leases have been paid in full. STI shall
deliver to OmniAmerica not later than seven (7) days after the date of this
Agreement, true, correct and complete copies of all deeds, title commitments,
title policies, and surveys to the real property listed on the Disclosure
Schedule and true, correct and complete copies of all real estate leases listed
on the Disclosure Schedule, including all amendments, modifications, letter
agreements and assignments relating thereto.
4.3.15 Intangible Personal Property.
(a) The Disclosure Schedule contains a true and complete list of all
material trademarks, service marks, trade names (including the name
"Speciality Teleconstructors" and all derivations thereof used by STI),
patents, copyrights and applications for the foregoing owned by STI
(collectively, the "STI Intellectual Property"), all material licenses to
which STI is a licensor or licensee, and all non-competition covenants of
STI. STI is the sole and exclusive owner of the STI Intellectual Property
indicated on the Disclosure Schedule to be owned by it free and
42
clear of all Liens, except Permitted Liens, if any, and has the right to
use the STI Intellectual Property, having not granted or entered into any
agreement, covenant, license or sublicense with respect thereto.
(b) No written claims or demands have been asserted against STI with
respect to any of the STI Intellectual Property, and no Proceedings have
been instituted, are pending or, to the Knowledge of STI Management,
threatened against STI which challenge the rights of STI with respect to
any of such assets. To the Knowledge of STI Management, the businesses and
operations of STI and the use or publication of the STI Intellectual
Property does not involve infringement or claimed infringement of any
United States trademark, trade name, copyright or patent.
(c) No director, officer or stockholder, or, to the Knowledge of STI
Management, employee, consultant, distributor, representative, advisor,
salesman or agent of STI owns, directly or indirectly, in whole or in
part, any trademarks, trade names, or copyrights, or applications for the
foregoing, or other material tangible personal property which STI is
presently using or the use of which is necessary for the business of STI
as now conducted. None of the directors, officers or stockholders of STI
has entered into any agreement regarding know-how, trade secrets, or
prohibition or restriction of competition, or solicitation of customers or
any other similar restrictive agreement or covenant, whether written or
oral, with any Persons other than STI.
4.3.16 Agreements. The Disclosure Schedule contains a true and
complete list of all (i) oral contracts, leases, and licenses the breach of
which would result in a Material Adverse Effect on STI and (ii) all Contracts in
each case to which STI is a party or its properties may be bound and which (a)
involve obligations by any party thereto in excess of $250,000; (b) require the
consent of any party thereto to the consummation of the transactions
contemplated by this Agreement or the Related Agreements; (c) contain covenants
limiting the freedom of STI to compete in any line of business or with any
Person or in any geographical area; (d) contain any provision or option relating
to the acquisition by STI of any business or relating to the sale by STI of any
business, other than pursuant to the STI Permitted Transactions; (e) contain an
agreement or commitment by STI for a material capital expenditure, other than
STI Permitted Transactions; or (f) are contracts or agreements to which the
United States government is a party; provided, that notwithstanding the
foregoing provisions of this Section 4.3.16, the Disclosure Schedule need not
list, and the term "Contracts" shall not include, agreements for which the
obligations of the parties thereto have been fulfilled. All of the Contracts
were entered into by STI in the ordinary course of business, are valid and
binding and in full force and effect against STI and, to the Knowledge of STI
Management, each of the other parties thereto, and there exists no material
breach or default by STI, or any event which, with notice or lapse of time or
both, would constitute a material breach or default by STI, or to the Knowledge
of STI Management, by any other party thereto. STI shall deliver to OmniAmerica
not later than seven (7) days after the date of this Agreement, true and
complete copies, including all amendments, modifications and
43
assignments relating thereto, of all of the aforesaid written agreements and
true and correct summaries of all such oral agreements.
4.3.17 Indebtedness and Guaranties. The Disclosure Schedule sets
forth a true and complete list of all promissory notes, loan agreements,
security agreements and guarantees relating to indebtedness for borrowed money
or money loaned to others to which STI is a party or obligor. STI has no
existing obligation to guarantee any dividend, obligation or indebtedness of any
Person (except for the endorsement of negotiable instruments in the ordinary
course of business and consistent with past practice). All of the aforesaid
items were entered into in the ordinary course of business, are valid and
binding and in full force and effect as against STI and there exists no material
breach or default by STI, or any event which with notice or lapse of time or
both, would constitute a material breach or default by STI or, to the Knowledge
of STI Management, any other parties thereto.
4.3.18 Debts to and from Related Parties. Except for the advancement
and reimbursement of business expenditures upon arms' length terms or pursuant
to valid employment agreements or employee health and benefit plans, there
presently is no indebtedness owing to STI by, or any contractual agreements
between STI, on the one hand, and any stockholder, director, partner, or officer
of STI, any Family Member of their respective families, or to the Knowledge of
STI Management, any Affiliate or "associate" (as such term is defined in Rule
405 of the Securities Act) of any of the foregoing individuals (collectively,
"STI Related Persons"), on the other hand, and none of the STI Related Persons
owns any material property or rights, tangible or intangible (other than an
equitable interest), used in STI's business. Except as set forth in the STI
Financial Statements, STI is not indebted to any STI Related Person, in any
amount whatsoever, other than, to the Knowledge of STI Management, for payment
of salaries, normal fringe benefits, reimbursement of reasonable business
expenditures and compensation for services actually rendered to STI in the
ordinary course of its business.
4.3.19 Articles of Incorporation and Bylaws. Not later than three
(3) days after the date of this Agreement, STI shall deliver to OmniAmerica true
and complete copies of its articles of incorporation and bylaws as currently in
effect. The articles of incorporation and bylaws were duly adopted and are in
full force and effect, and there are no amendments or modifications thereto
except as included in said articles of incorporation and bylaws. STI is not in
violation of any of the provisions of its articles of incorporation or bylaws.
4.3.20 Books and Records. The minute books of STI contain accurate
records of all material actions taken by the stockholders and directors of STI.
The books, records and accounts of STI, all of which have been made available to
OmniAmerica, have been maintained in accordance with the requirements of Section
13(b)(2) of the Exchange Act, including the maintenance of an adequate system of
internal controls.
44
4.3.21 Employee Benefits.
(a) Neither STI nor the Sub maintains, administers, or contributes
to or has maintained, administered, or contributed to (or had an
obligation to maintain, administer or contribute to) or is a party to (i)
any "employee benefit plan," as defined in Section 3(3) of ERISA (the "STI
ERISA Plans") or (ii) any employment or consulting, bonus or other
incentive compensation, deferred compensation, salary continuation during
any leave of absence, severance, stock award, stock option, stock purchase
or fringe benefit agreements, policies or arrangements, whether written or
oral (together with the STI ERISA Plans, the "STI Plans").
(b) None of the STI Plans is subject to Title IV of ERISA. None of
the STI Plans provides retiree medical or life insurance benefits to any
Person. None of the STI Plans provides for payment of a benefit, the
increase of a benefit amount, the payment of a contingent benefit, or the
acceleration of the payment or vesting of a benefit by reason of the
execution of this Agreement or the consummation of the transactions
contemplated by this Agreement. Neither STI nor the Sub has an obligation
to adopt, or is considering the adoption of, any new STI Plan or, except
as required by law, the amendment of any existing STI Plan. Each STI ERISA
Plan intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter from the Internal Revenue
Service that it is so qualified and, to the Knowledge of STI Management,
nothing has occurred since the date of such letter that could reasonably
be expected to affect the qualified status of such STI ERISA Plan. STI
Management is not aware of any claims relating to the STI Plans (other
than routine claims for benefits). Each STI Plan has been operated in all
respects in accordance with its terms and the requirements of all
applicable law, except to the extent as would not reasonably be expected
to have a Material Adverse Effect on STI.
(c) Neither STI nor any member of its "controlled group" has any
withdrawal liability, under Title IV of ERISA, the terms of the applicable
plan, any collective bargaining agreement or any other labor agreement or
otherwise, with respect to any "multi-employer" plan (within the meaning
of Section 3(37) or 4001(a)(3) of ERISA) to which it contributes (or had
any obligation to contribute); nor has any event occurred or any
circumstance exist that presents a risk of the occurrence of any
withdrawal liability with respect to any such multi-employer plan.
4.3.22 Employees.
(a) The Disclosure Schedule sets forth a true and complete list of
all collective bargaining agreements to which STI is a party.
(b) To the Knowledge of STI Management, STI is in full compliance
with all federal, state and local laws respecting employment, wages and
hours in each case except to the extent as would not reasonably be
expected to have a Material Adverse
45
Effect on STI. To the Knowledge of STI Management, STI is in compliance in
all material respects with all applicable federal and state laws and
regulations respecting occupational safety and health standards other than
those where noncompliance would not reasonably be expected to have a
Material Adverse Effect on STI, and STI has not received written
complaints from any federal or state agency or regulatory body alleging
outstanding violations of any such laws and regulations which violations
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on STI.
(c) To the Knowledge of STI Management, except pursuant to
applicable law, the employment of all persons and officers employed by STI
is terminable at will, without any penalty or severance obligation of any
kind on the part of the employer. All material sums due for employee
compensation and benefits and all vacation time owing to any employees
have been duly and adequately accrued on the books of STI in accordance
with GAAP. To the Knowledge of STI Management, all employees of STI are
either United States citizens or are authorized to be employed in the
United States in accordance with all applicable laws.
(d) STI has not experienced since December 31, 1996, any general
labor troubles or strife, work stoppages, slowdowns by its employees. To
the Knowledge of STI Management, STI has not experienced since December
31, 1996 any union or collective bargaining organization efforts or
negotiations, or requests for negotiations, for any representation or any
labor contract relating to any employees of STI not covered by a union or
collective bargaining agreement as of December 31, 1996.
(e) STI subscribes to, or is otherwise insured under, the worker's
compensation or similar statute in each of the states in which it has
employees with respect to such employees.
4.3.23 No Conflicts of Interest. The Disclosure Schedule sets forth
a list of all agreements which STI has with its directors, officers, employees,
consultants, distributors, representatives, advisors, salesmen and agents that
prohibit or restrain such individuals from competing with STI in its business.
STI does not own, directly or indirectly, a controlling interest in, any Person
which is a customer, supplier, competitor or potential competitor of STI.
4.3.24 Environmental Matters.
(a) To the Knowledge of STI Management, STI has been and is in
material compliance with all applicable Environmental Laws and possesses
all licenses, permits or similar authorizations required under
Environmental Laws for the conduct of its business as it is currently
being conducted.
46
(b) STI has not received any written communication from any Person
that alleges that STI is not in compliance with, or is liable under,
applicable Environmental Laws.
(c) There is no Environmental Claim pending or, to the Knowledge of
STI Management, overtly threatened (i) against STI, (ii) against any
Person whose liability for any Environmental Claim STI has retained or
assumed either contractually or, to the Knowledge of STI Management, by
operation of law, or (iii) against any real or personal property or
operations which are now or, to the Knowledge of STI Management, have been
previously owned, leased, operated or managed, in whole or in part, based
on activities conducted by STI.
(d) STI is not subject to any material liabilities under
Environmental Laws and, to the Knowledge of STI Management, there are no
facts, circumstances or conditions relating to the operations of STI that
could reasonably be expected to result in STI incurring material
liabilities under Environmental Laws.
(e) There are no underground storage tanks, no aboveground storage
tanks, asbestos or asbestos-containing materials or polychlorinated
biphenyls located on, under or at any property owned, operated or leased
by STI, except in material compliance with Environmental Laws.
(f) STI has made available to OmniAmerica any environmental reports,
audits or assessments on any real property currently or formerly owned or
leased by STI that are in the possession, custody or control of STI.
4.3.25 Licenses. STI has all Licenses necessary to conduct its
business in the manner and to the extent that it has been conducted, other than
any Licenses the failure of which to have would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on STI. The
Disclosure Schedule contains a list of every material License. All Licenses are
in full force and effect and no Proceedings are pending or, to the Knowledge of
STI Management, threatened which may result in the revocation, modification,
non-renewal or suspension of any of the Licenses, the denial of any pending
application for a License, the issuance of a cease and desist order or the
imposition of any administrative penalty or sanction, other than those which
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on STI. There does not exist under any License any
default or violation, or event which, with notice or lapse of time or both,
would constitute a default or violation or would result in the withdrawal of
such License, other than defaults or violations which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
STI, nor is there, to the Knowledge of STI Management, any basis for assertion
of any default or violation. STI has delivered to OmniAmerica true and complete
copies of all of the material Licenses.
47
4.3.26 No Solicitation or Negotiation. STI has not made any
agreement to sell the stock, business or substantially all of the assets of STI
to another Person, or to merge, consolidate or combine assets or business of STI
with another Person (except for the STI Permitted Transactions) and is not
currently engaged in negotiations or discussions concerning any other sale of
the stock, or the sale, merger or combination of any material asset or business
of STI to or with another Person (except for the STI Permitted Transactions).
4.3.27 Fairness Opinion. STI has received the Fairness Opinion.
4.3.28 Investment Intent; Compliance with Securities Laws.
(a) STI is acquiring the OmniAmerica Common Stock for investment for
its own account, not as a nominee or agent for any other Person, and not
with a view to the resale or distribution of any part thereof in violation
of the Securities Act. STI does not have any present intention of selling,
granting any participation in, or otherwise distributing the OmniAmerica
Common Stock otherwise than pursuant to an effective registration
statement under the Securities Act or in a transaction exempt from the
registration requirements under the Securities Act and applicable state
securities laws. Except as set forth in the Stockholders Agreements, STI
does not have any contract, undertaking, agreement or arrangement with any
Person to sell, transfer or grant participations to such Person or to any
third Person, with respect to any of the OmniAmerica Common Stock.
(b) STI acknowledges that the sale of the OmniAmerica Common Stock
will not be registered under the Securities Act or any state securities
laws on the basis of a claimed exemption by OmniPartners that the sale of
the OmniAmerica Common Stock as provided for herein is exempt from
registration under the Securities Act and such state securities laws. STI
acknowledges that the availability of such exemptions is predicated in
part on STI's representations set forth in this Section and that
OmniPartners and OmniAmerica are relying on such representations.
(c) STI has received all the information it considers necessary or
appropriate for deciding whether to accept the OmniAmerica Common Stock.
STI has had an opportunity to ask questions and to receive answers from
OmniPartners, OmniAmerica and the OmniSubsidiaries regarding the terms and
conditions of the sale of the OmniAmerica Common Stock and the business,
properties, and financial condition of OmniAmerica and the
OmniSubsidiaries and to obtain additional information (to the extent
OmniPartners, OmniAmerica or the OmniSubsidiaries possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to STI
(including the representations and warranties of OmniPartners, OmniAmerica
and OmniAmericaSub herein) or to which STI had access.
48
(d) STI acknowledges that it is able to bear the economic risk of
the investment in the OmniAmerica Common Stock, and has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in the OmniAmerica
Common Stock.
(e) STI is an Accredited Investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
(f) STI acknowledges that the OmniAmerica Common Stock or any
portion thereof may not be sold, transferred or otherwise disposed of
without registration under the Securities Act or an applicable exemption
therefrom and that in the absence of an effective registration statement
covering the OmniAmerica Common Stock or an available exemption from
registration under the Securities Act, the OmniAmerica Common Stock must
be held indefinitely. STI further acknowledges that the OmniAmerica Common
Stock may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that rule are met.
(g) STI acknowledges that each certificate representing any of the
OmniAmerica Common Stock will be endorsed with a legend substantially
similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SO
REGISTERED OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
4.3.29 Disclosure. No representation or warranty by STI or Sub
contained in this Agreement, and no statement contained in any document
(including without limitation the STI Financial Statements, the closing
documents delivered pursuant to Article VII and the Disclosure Schedules or
Subsequent Disclosure Schedules of STI hereto), list, certificate or other
instrument furnished or to be furnished prior to the Effective Time by or on
behalf of STI or any Affiliate thereof to OmniAmerica or any of its
representatives in connection with the transactions contemplated hereby,
contained or will contain when furnished any untrue statement of a material
fact, or omitted or will omit when furnished to state any material fact (i)
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading or (ii) necessary
in order fully and fairly to provide the information required to be provided in
any such document, list, certificate or other instrument, which untrue statement
or omission of a material fact in each case results in a Material Adverse Effect
on STI. STI has not failed to disclose to
49
OmniAmerica any fact which would reasonably be determined to have a Material
Adverse Effect on STI.
4.4 Representations and Warranties of the Sub. To induce OmniAmerica,
OmniAmericaSub and OmniPartners to enter into this Agreement and to consummate
the transactions contemplated hereby, the Sub represents and warrants to
OmniAmerica, OmniAmericaSub and OmniPartners as of the date hereof as follows
(each such representation and warranty being qualified in its entirety by the
disclosures set forth in the Disclosure Schedule, which such disclosures shall
correspond to the following sections and subsections):
4.4.1 Corporate Existence and Authority. The Sub was incorporated in
Delaware on February 13, 1998 for the sole purpose of consummating the Merger
and has not conducted any business since its incorporation, has no liabilities
(whether fixed or contingent) whatsoever (other than its obligations hereunder)
and neither has nor has had employees. The Sub is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Sub has all requisite corporate power and authority to own its properties
and assets and to carry on its business as it has been and is being conducted.
4.4.2 Capitalization of the Sub. The authorized capital stock of the
Sub consists solely of 2,000 shares of the Sub Common Stock, of which 1,000
shares are issued and outstanding, and 1,000 shares of preferred stock, par
value $1.00 per share, of which none are issued and outstanding. No other shares
of capital stock of the Sub are issued and outstanding or reserved for issuance.
All of the issued and outstanding shares of capital stock of the Sub have been
duly authorized and validly issued in accordance and compliance with all
applicable laws, rules and regulations and are fully paid and nonassessable and
were issued free of preemptive (or similar) rights. There are no securities,
options, warrants, rights, calls, commitments, plans, contracts or other
agreements of any character granted or issued by the Sub which provide for the
purchase, issuance or transfer of any shares of the capital stock of the Sub,
nor are there any outstanding securities granted or issued by the Sub that are
convertible into or exchangeable for or exercisable for any shares of the
capital stock of the Sub, and none are authorized. All presently exercisable
voting rights in the Sub are vested exclusively in the outstanding shares of the
Sub Common Stock, each share of which is entitled to one vote on every matter to
come before sole stockholder, STI. There are no stockholders' agreements, voting
trusts or other voting arrangements with respect to any of the Sub's capital
stock. There are no outstanding obligations of the Sub to repurchase, redeem or
otherwise acquire any of the Sub Common Stock or to provide funds to or make any
investment (in the form of a loan, capital contribution, guarantee or otherwise)
in any other entity. The Sub does not have any direct Subsidiaries.
4.4.3 Validity and Authorization; Corporate Power and Authority.
(a) The Sub has full corporate power and authority to execute,
deliver and perform this Agreement, the Related Agreements and the other
instruments called for by this Agreement to which it is or is to be a
party. The execution, delivery and
50
performance of this Agreement by the Sub and the consummation by the Sub
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the Sub
(subject to the filing of appropriate merger documents as required by the
DGCL). This Agreement has been duly executed and delivered by the Sub and,
assuming the valid authorization, execution and delivery hereof by
OmniPartners, OmniAmerica and OmniAmericaSub, constitutes the legal, valid
and binding obligation of the Sub, enforceable against the Sub in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting or relating to enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
(b) When the Related Agreements and the other instruments called for
by this Agreement to which the Sub is a party are executed and delivered
at the Closing, such Related Agreements and instruments will have been
duly authorized, executed and delivered by the Sub, and assuming the valid
authorization, execution and delivery thereof by each other party thereto
(other than STI and its Affiliates), will be enforceable against the Sub
in accordance with their terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting or relating to the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
4.4.4 Execution; No Violations. The execution and delivery of this
Agreement by the Sub do not, and the consummation by the Sub of the transactions
contemplated hereby, and compliance by the Sub with the provisions hereof, will
not: (a) violate, conflict with, modify, result in the incurrence of any
prepayment penalties or cause any default under or acceleration, termination or
cancellation of any obligation or the loss of a benefit under (or give any party
any right to declare any default or acceleration upon notice or passage of time
or both), in whole or in part, (i) any provision of the certificate of
incorporation or bylaws of the Sub, (ii) assuming all the consents, filings and
registrations referred to in Section 4.4.5 are obtained or made, any order,
injunction, decree, or judgment to which the Sub is a party or by which the Sub
or any of its properties is bound; (b) result in the creation of any Lien upon
or right of first refusal with respect to any property or asset (whether real,
personal, mixed, tangible or intangible) of the Sub, except as may be approved
by OmniAmerica, or (c) assuming all the consents, filings and registrations
referred to in Section 4.4.5 are obtained or made, violate any statute,
ordinance, law, rule or regulation applicable to the Sub, except in the case of
clauses (b) and (c), any such violations, conflicts, modifications, defaults,
accelerations, rights, restrictions, limitations or Liens that would not
reasonably be expected to have a Material Adverse Effect on the Sub.
4.4.5 Governmental and Other Consents. Except for filings under the
HSR Act and the filing of the certificate of merger contemplated by Section 1.3,
no consent, approval or authorization of, or designation, declaration,
registration or filing with, any Governmental Entity is required on the part of
the Sub in connection with the execution or delivery of this
51
Agreement or the consummation by it of the transactions contemplated hereby,
except as would not reasonably be expected to have a Material Adverse Effect on
the Sub.
4.5 Disclosure Schedules. Disclosure of any fact or item in any Disclosure
Schedule or Subsequent Disclosure Schedule referred by a particular Section
shall, should the existence of the fact or item or its contents be relevant to
any other Section, be deemed to be disclosed with respect to such other
Section(s) whether or not an explicit cross reference appears and whether or not
the Section(s) make reference to any Schedule. The disclosure of any particular
fact or item in any Disclosure Schedule or Subsequent Disclosure Schedule shall
not be deemed any admission as to whether the fact or item is "material" or
would constitute a Material Adverse Effect.
ARTICLE V
COVENANTS
5.1 Mutual Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, the parties agree that between the date of this Agreement and
the earlier of the Effective Time or the termination of this Agreement pursuant
to Article VIII, except as may be consented to in writing by the other parties
or as otherwise contemplated by this Agreement (including the Permitted
Transactions), as follows:
5.1.1 Access and Information. Each party (other than OmniPartners)
will, except to the extent limited as advised by antitrust counsel, and if so
limited, only to the extent of such advice, (a) provide the other parties and
their Representatives, during normal business hours, or otherwise if another
party reasonably requests, and upon reasonable advance notice, access to all of
the properties, assets, agreements, commitments, books, records, accounts, Tax
Returns, correspondence and documents of such party and permit them to make
copies thereof; (b) furnish the other parties and their Representatives with all
information concerning the business, properties and affairs of such party; (c)
use commercially reasonable efforts to cause its accountants to make available
to the other parties and their Representatives all financial information
relating to such party, including all working papers pertaining to audits and
reviews made by its auditors; (d) furnish the other parties true and complete
copies of all financial and operating statements of such party; (e) permit
access to customers and suppliers for consultation or verification of any
information; and (f) cause its employees, and use commercially reasonable
efforts to cause its accountants, to cooperate fully with any audit, review,
investigation or examination made by the other party and its Representatives,
including, without limitation, with respect to:
(i) The books and records of such party;
(ii) The reports of state and federal regulatory examinations;
52
(iii) Leases, contracts and commitments between such party, on
the one hand, and any other Person, on the other hand;
(iv) Physical examination of any real properties owned by, or
leased to or by such party; and
(v) Physical examination of any furniture, fixtures, equipment
or other personal property owned by or leased to or by such party.
Notwithstanding the foregoing, OmniPartners shall, except to the extent limited
as advised by antitrust counsel, and if so limited, only to the extent of such
advice, provide STI and its Representatives with or access to all information,
books, records, contracts and agreements related to the business and affairs of
OmniAmericaSub. OmniAmericaSub shall deliver to STI true and complete copies of
all of its material Licenses within seven days of the date hereof.
5.1.2 Notices and Approvals. Each party agrees: (a) to give all
notices to third parties which may be necessary in connection with this
Agreement, the Related Agreements to which it is a party and the consummation of
the transactions contemplated hereby and thereby; (b) to use such party's
commercially reasonable efforts to obtain all federal, state and foreign
governmental and quasi-governmental approvals, consents, permits, authorizations
and orders necessary in connection with this Agreement, the Related Agreements
to which it is a party and the consummation of the transactions contemplated
hereby and thereby; and (c) to use such party's commercially reasonable efforts
to obtain all consents and authorizations of any other Persons necessary in
connection with this Agreement, the Related Agreements to which it is a party
and the consummation of the transactions contemplated hereby and thereby.
5.1.3 No Solicitation or Negotiation. Other than the Permitted
Transactions or as agreed to in writing by the parties hereto, none of the
parties hereto nor their respective officers, directors, principal stockholders,
employees, Representatives or advisors will, formally or informally, directly or
indirectly, (i) initiate, solicit or encourage any inquiry or the submission of
any proposal by any Person that constitutes or is reasonably likely to lead to
an Acquisition Proposal (as defined below), or (ii) engage in negotiations or
discussions with, or furnish any information or data to, any Person relating to,
or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, an
Acquisition Proposal; provided, however, that STI may negotiate with a Person,
other than ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or an Affiliate of either of them (a "Potential
Acquiror"), if (i) the Potential Acquiror has, in circumstances not involving
any prior breach by STI of the foregoing provisions, made an Acquisition
Proposal, (ii) STI's Board of Directors believes (based in part upon advice of
its Representatives, and after having an opportunity to discuss any such
Acquisition Proposal with the Potential Acquiror, which contacts shall not be
deemed a violation of this Section 5.1.3) that such Potential Acquiror has the
financial wherewithal to consummate the Acquisition contemplated by such
Acquisition Proposal and the consummation of the Acquisition contemplated by
such Acquisition Proposal would be more favorable to STI's stockholders than
would the Merger from a financial point
53
of view (a "Superior Proposal") and (iii) based upon the advice of counsel to
STI's Board of Directors (notice of which advice shall have been communicated to
OmniAmerica), STI's Board of Directors determines in good faith that there is a
significant risk that the failure to negotiate with the Potential Acquiror could
constitute a breach of its fiduciary duty to STI's stockholders. Each party will
give prompt notice, both oral and written, to the other parties if such party,
any of its Subsidiaries or any of their respective officers, directors,
principal stockholders, employees, Representatives or advisors receives any
communication from a Person not a party to this Agreement that proposes any
discussion, negotiation or agreement prohibited under this Section 5.1.3. In
addition, STI will give prompt notice, both oral and written, to the other
parties of the identity of the Person making any communication from a Potential
Acquiror and whether STI has elected to negotiate with a Potential Acquiror in
accordance with this Section 5.1.3. STI shall use commercially reasonable
efforts to keep OmniAmerica fully informed of the status of any such Acquisition
Proposal or negotiation with respect thereto. STI may not enter into a
definitive agreement for an Acquisition Proposal with a Potential Acquiror with
which STI is permitted to negotiate pursuant to this Section 5.1.3 unless (i) at
least 10 Business Days prior to STI's execution thereof STI shall have furnished
OmniAmerica with a description of all of the material terms thereof and (ii) STI
shall terminate this Agreement in accordance with Section 8.1.2 hereof.
For purposes of this Agreement, (i) "Acquisition Proposal" shall mean any
bona fide proposal, whether in writing or otherwise, made by a third party to
effect an Acquisition and (ii) "Acquisition" shall mean the acquisition of
Beneficial Ownership of all or a material portion of the assets of, or any
material interest in, STI (including its Subsidiaries), OmniAmerica or
OmniAmericaSub, as applicable, pursuant to a merger, consolidation or other
business combination, sale of shares of capital stock of STI, OmniAmerica or
OmniAmericaSub, or any of their respective Subsidiaries, sale of assets, tender
offer, exchange offer, joint venture, sale/leaseback or other similar
transaction.
5.1.4 Proceedings. Each party (other than OmniPartners) shall
promptly notify the other party of any material Proceedings that are threatened
in writing or commenced against such party or its employees, consultants,
officers or directors which may relate to, or affect, the business, assets or
liabilities of such party. Such party shall not knowingly fail to comply in any
material respect with any laws, regulations, ordinances, orders, injunctions and
decrees applicable to it, its properties, and the conduct of its business.
OmniPartners shall promptly notify STI of any material Proceedings that are
threatened in writing or commenced against OmniPartners which may relate to, or
affect, the business, assets or liabilities of OmniAmerica or OmniAmericaSub.
5.1.5 Reports and Returns. Each party (other than OmniPartners)
shall duly and timely file all reports and returns required to be filed with
federal, state, local and other authorities prior to the Closing, including
without limitation any Tax Returns, which reports and returns shall be prepared
in accordance with all regulatory requirements in all material respects. Each
party (other than OmniPartners) shall promptly pay all material Taxes and other
quasi-governmental charges levied or assessed upon such party or its properties
prior to
54
the date on which penalties attach thereto (unless any such Taxes or charges are
being contested in good faith and for which adequate reserves appear in the
OmniAmerica Financial Statements with respect to OmniAmerica, OmniAmericaSub and
the Acquired Businesses and in the STI Financial Statements with respect to STI
and the Sub) and all lawful claims which, if unpaid when due and payable, might
become a Lien upon property of such party, except Permitted Liens. Each party
(other than OmniPartners) shall timely make all deposits required of such party,
with respect to any estimated income and withholding, FICA and medicare Taxes
(unless any such Taxes or deposits are being contested in good faith and for
which adequate reserves appear in the OmniAmerica Financial Statements with
respect to OmniAmerica, OmniAmericaSub and the Acquired Businesses and in the
STI Financial Statements with respect to STI and the Sub).
5.1.6 Assist in Obtaining Licenses, Etc. Each party (other than
OmniPartners) shall reasonably assist the other party in obtaining all permits,
licenses and authorizations necessary for the continued operation of
OmniAmericaSub at and after the Effective Time; provided that OmniAmerica shall
not be required to pay additional sums to secure such permits, licenses or
authorizations.
5.1.7 Consents. OmniAmericaSub shall use commercially reasonable
efforts to obtain the OmniAmerica Consents; OmniPartners shall use commercially
reasonable efforts to obtain the OmniPartners Consents and STI shall use
commercially reasonable efforts to obtain the STI Consents.
5.1.8 Insurance. OmniAmericaSub and STI shall continue in force all
existing insurance now carried by such party except to the extent such insurance
is replaced with a substantially equivalent policy.
5.1.9 Preservation of Business. Each party (other than OmniPartners)
shall use its commercially reasonable efforts to preserve and keep intact its
business, to retain its officers, and to preserve the goodwill of its key
employees, and material customers, suppliers and other Persons having business
relations with such party.
5.1.10 Tax Treatment. The Merger is intended to qualify as a
reorganization within the meaning of Section 368(a)(1)(A) and Section
368(a)(2)(E) of the Code. Each party shall file (and shall cause its Affiliates
to file) all Tax Returns in a manner which is consistent with the foregoing
intended treatment. Each party shall not (and shall not permit its Affiliates
to) take any action which is inconsistent with or contrary to or which adversely
affects the foregoing intended treatment, unless a court with proper
jurisdiction issues a final, non-appealable order that such treatment is
incorrect.
5.1.11 Updating of Disclosure Schedules. If, subsequent to the date
of this Agreement and prior to the Closing Date, an event occurs that renders
untrue any representation or warranty of a party made herein (a "Subsequent
Event"), such party shall promptly deliver to the other parties an amended or
supplemental disclosure schedule (a
55
"Subsequent Disclosure Schedule") which will contain a description of the
Subsequent Event. The existence of a Subsequent Event which is disclosed on a
Subsequent Disclosure Schedule shall not constitute a Breach by such party of
any of its representations or warranties hereunder or be taken into account in
determining whether the conditions precedent set forth in Section 6.1.1 or 6.2.1
has been satisfied or form a basis for any claim by the other parties hereunder;
provided, however, that this Section is not intended to permit a party to alter
or amend its representations and warranties as made herein as of the date of
this Agreement, including any Disclosure Schedule, and any Subsequent Disclosure
Schedule provided by any party pursuant to this Section shall not cure the
inaccuracy thereof as of the date of this Agreement for any purpose under this
Agreement.
5.1.12 Other Covenants. Each party shall use its commercially
reasonable efforts to satisfy the conditions to the obligations of the parties
hereunder within such party's reasonable control, and to consummate and make
effective as promptly as practicable the transactions provided for herein
including but not limited to the following:
(a) Defending the Agreement. Defending Proceedings challenging this
Agreement or any Related Agreement or the consummation of the transactions
provided for in this Agreement or any Related Agreement;
(b) Lifting Injunctions. Using commercially reasonable efforts to
lift or rescind any injunction, restraining order or other order adversely
affecting the ability of the parties to consummate the transactions
provided for in this Agreement or any Related Agreement; and
(c) Other Actions. Taking such other reasonable actions that are
necessary, appropriate or advisable.
5.2 OmniAmerica and OmniAmericaSub Covenants. To induce the other parties
to enter into this Agreement and to consummate the transactions contemplated
hereby, and without limiting any covenant, agreement, representation or warranty
made elsewhere in this Agreement, between the date of this Agreement and the
earlier of the Effective Time or termination of this Agreement pursuant to
Article VIII, OmniAmerica and OmniAmericaSub agree, except as may be consented
to by the other parties or as otherwise contemplated by this Agreement, as
follows:
5.2.1 Financial Statements. OmniAmerica and OmniAmericaSub will
exert all commercially reasonable efforts to obtain from E&Y, KPMG, WC&G and
DS&S and deliver to STI (a) reports from E&Y on such audited balance sheets,
statements of operations, stockholders' equity and cash flows of the business of
OmniAmericaSub (on a consolidated basis) and such audited statements of revenue
and direct expenses for the HSW Assets (collectively, the "E&Y Audited Financial
Statements"), (b) reports from KPMG on such audited balance sheets, statements
of income, statements of partners' capital, and statements of cash flows of the
business of OmniTower Ltd. (the "KPMG Audited Financial Statements"),
56
(c) reports from WC&G on such audited balance sheets, statements of income,
statements of shareholders' equity and statements of cash flows of the business
of ▇▇▇▇▇▇ Towers (the "WC&G Audited Financial Statements"), (d) reports from
DS&S on such audited balance sheets, statements of income, statements of
stockholders' equity and statements of cash flows of the business of KISCO (the
"DS&S Audited Financial Statements"), in each case for each of the last three
fiscal years and any required interim period as STI may be required to file with
the SEC in connection with STI's filings with the SEC under the Securities Act
and the Exchange Act (the "SEC Filings"), including specifically, under Item 7
of Form 8-K and (e) such consents of E&Y, KPMG, WC&G and DS&S to the use of the
opinions of E&Y, KPMG, WC&G and DS&S (collectively, the "Auditors' Consents")
accompanying such respective audited financial statements in the SEC Filings. In
addition, OmniAmericaSub shall deliver to STI not later than the 45th Business
Day after the end of each month, financial statements of the kind described in
Section 4.1.6 for the month ended January 1998 and each subsequent month before
the Closing.
5.2.2 Restriction on Transfers. OmniAmerica shall not enter into any
agreement to, sell, transfer, pledge, hypothecate, or dispose of any shares of
OmniAmericaSub Common Stock, except pursuant to this Agreement.
5.2.3 Termination of Certain Affiliate Contracts. OmniAmerica and
OmniAmericaSub will terminate all contracts and agreements, whether written or
oral, between OmniAmerica or OmniAmericaSub, on the one hand, and HMTF,
OmniPartners or their Affiliates (not including OmniAmerica or OmniAmericaSub),
on the other hand, other than the contracts and agreements listed on Exhibit
5.2.3 and contracts entered into in the ordinary course of business on
arms'-length terms (collectively, the "OmniAmerica Affiliate Contracts").
5.2.4 Zoning Compliance Letters. OmniAmerica and OmniAmericaSub will
exert commercially reasonable efforts to cause the local Governmental Entity in
charge of zoning to issue a zoning compliance letter for each parcel of real
property owned by OmniAmericaSub on which is located a Tower, in a form
reasonably acceptable to STI.
5.2.5 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the OmniAmerica Permitted Transactions) or approved in writing
by STI, OmniAmerica and the OmniAmericaSub agree that their businesses and
operations (including the businesses and operations of the OmniSubsidiaries)
shall be conducted only in, and they shall not take any material action except
in, the ordinary course of business and consistent with past practice,
including, without limitation, in material compliance with all applicable laws,
rules and regulations, including the rules and regulations of the FAA and FCC.
Without limitation, OmniAmerica and OmniSubsidiaries shall not take, nor enter
into any agreements to take, any of the following actions except in each such
case in connection with this Agreement (including the OmniAmerica Permitted
Transactions) or consented to in writing by STI (which consent may not be
unreasonably withheld) or, in the case of actions described in clauses (a) - (c)
of this Section 5.2.5, in the ordinary course of business consistent with past
practice:
57
(a) dispose of, or acquire, or agree to dispose of or acquire, any material
assets, other than the OmniAmerica Permitted Transactions, (b) incur any
indebtedness for borrowed money, except for aggregate borrowings of up to
$750,000, (c) pay any discretionary bonuses (other than bonuses already accrued
on the date hereof) to, or alter the compensation or benefit of, any director,
officer or employee, (d) enter into any transaction or agreement with any
Affiliate or associate (as defined in Rule 405 under the Securities Act), (e)
institute any material reduction in force, (f) close any office, base or
station, (g) take any action not in the ordinary course of business that will
knowingly cause any of such party's representations or warranties to be untrue
or incorrect in any material respect, (h) omit any commercially reasonable
action that such party would take in the ordinary course of business, which
omission will knowingly cause any of such party's representations or warranties
to be untrue or incorrect in any material respect, (i) declare, set aside or pay
any dividends on, or make any distribution or payment with respect to, or redeem
or repurchase, any shares of capital stock, options, warrants, debt securities,
or any securities convertible into or exchangeable for or exercisable for shares
of capital stock of any of such party or take any other actions which would have
a similar effect, (j) amend any of their certificates of incorporation or bylaws
or (k) issue any shares of capital stock or any securities, options, warrants,
rights, calls, commitments, plans, contracts or other agreements of any
character whatsoever which provide for the purchase, issuance or transfer of any
shares of capital stock, or any securities that are convertible into or
exchangeable for any shares of capital stock or increase or decrease, change
into or exchange any such shares for a different number or kind of shares or
securities through a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar change in
capitalization.
5.2.6 Preservation of Vote. OmniAmerica and OmniAmericaSub shall not
withdraw, rescind, change or modify their vote in favor of this Agreement, the
Merger and other transactions contemplated by this Agreement.
5.2.7 Limitation on Short-Term Liabilities. OmniAmericaSub shall
cause the aggregate accounts payable and other short-term liabilities (other
than liabilities for unearned revenues) that would be set forth on a balance
sheet of OmniAmerica dated the Closing Date not to exceed $500,000 as of the
Closing Date.
5.3 OmniPartners Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, between the date of this Agreement and the earlier of the
Effective Time or termination of this Agreement pursuant to Article VIII,
OmniPartners shall (a) not enter into any agreement to sell, transfer, pledge,
hypothecate, or dispose of any shares of OmniAmerica Common Stock or
OmniAmericaSub Common Stock, except pursuant to this Agreement, (b) not
withdraw, rescind, change or modify its vote in favor of this Agreement, the
Merger and other transactions contemplated by this Agreement, (c) not take, nor
enter into any agreements to take, any action not in the ordinary course of
business that will knowingly cause any of OmniPartners' representations or
warranties to be untrue or incorrect in any material respect,
58
(d) not omit to take any commercially reasonable action that OmniPartners would
take in the ordinary course of business, which omission will knowingly cause any
of OmniPartners' representations or warranties to be untrue or incorrect in any
material respect or (e) cause the HSW Merger to occur prior to the Effective
Time.
5.4 Omni/HSW Acquisition Covenants. To induce the other parties to enter
into this Agreement and to consummate the transactions contemplated hereby, and
without limiting any covenant, agreement, representation or warranty made
elsewhere in this Agreement, between the date of this Agreement and the earlier
of the Effective Time of the HSW Merger or termination of this Agreement
pursuant to Article VIII, Omni/HSW Acquisition agrees, except as may be
consented to by the other parties or as otherwise contemplated by this
Agreement, as follows:
5.4.1 Preservation of Vote. Omni/HSW Acquisition shall not withdraw,
rescind, change or modify its vote in favor of this Agreement and other
transactions contemplated by this Agreement.
5.4.2 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the OmniAmerica Permitted Transactions) or approved in writing
by STI, Omni/HSW Acquisition agrees that its businesses and operations shall be
conducted only in, and it shall not take any material action except in, the
ordinary course of business of the HSW Assets and consistent with past practice
of the HSW Assets, including, without limitation, in material compliance with
all applicable laws, rules and regulations, including the rules and regulations
of the FAA and FCC. Without limitation, Omni/HSW Acquisition shall not take, nor
enter into any agreements to take, any of the following actions except in each
such case in connection with this Agreement or consented to in writing by STI
(which consent may not be unreasonably withheld) or, in the case of actions
described in clauses (a) - (c) of this Section 5.4.2, in the ordinary course of
business consistent with past practice: (a) dispose of, or acquire, or agree to
dispose of or acquire, any material assets, (b) incur any indebtedness for
borrowed money, except for borrowings of up to $500,000, (c) pay any
discretionary bonuses (other than bonuses already accrued on the date hereof)
to, or alter the compensation or benefit of, any director, officer or employee,
(d) enter into any transaction or agreement with any Affiliate or associate (as
defined in Rule 405 under the Securities Act), (e) institute any material
reduction in force, (f) close any office, base or station, (g) take any action
not in the ordinary course of business of the HSW Assets that will knowingly
cause any of the representations or warranties of OmniPartners concerning
Omni/HSW Acquisition to be untrue or incorrect in any material respect, (h) omit
any commercially reasonable action that it would take in the ordinary course of
business of the HSW Assets, which omission will knowingly cause any of the
representations or warranties of OmniPartners concerning Omni/HSW Acquisition to
be untrue or incorrect in any material respect, (i) declare, set aside or pay
any dividends on, or make any distribution or payment with respect to, or redeem
or repurchase, any shares of capital stock, options, warrants, or any securities
convertible into or exchangeable for or exercisable for shares of capital stock
of any such party, (j) amend its certificate of incorporation or bylaws or (k)
issue any shares of capital stock of such party or
59
any securities, options, warrants, rights, calls, commitments, plans, contracts
or other agreements of any character whatsoever which provide for the purchase,
issuance or transfer of any shares of capital stock, or any securities that are
convertible into or exchangeable for any shares of capital stock of Omni/HSW
Acquisition, or increase or decrease, change into or exchange any such shares
for a different number or kind of shares or securities through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar change in capitalization.
5.5 STI Covenants. To induce the other parties to enter into this
Agreement and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made elsewhere in
this Agreement, between the date of this Agreement and the earlier of the
Effective Time or termination of this Agreement pursuant to Article VIII, STI
agrees, except as may be consented to by the other parties or as otherwise
contemplated by this Agreement, as follows:
5.5.1 Restriction on Transfers. STI shall not enter into any
agreement to sell, transfer, pledge, hypothecate, or dispose of any shares of
the Sub Common Stock, except pursuant to this Agreement.
5.5.2 Preservation of Vote. STI shall not withdraw, rescind, change
or modify its vote in favor of this Agreement, the Merger and other transactions
contemplated by this Agreement.
5.5.3 SEC Confirmation. STI shall use commercially reasonable
efforts to obtain written confirmation from the SEC that it may satisfy the
financial statement requirements of Item 7 of Form 8-K with respect to the HSW
Assets by filing audited and pro forma statements of assets acquired and
liabilities assumed and of revenues and direct expenses for each of the last
three fiscal years (the "SEC Confirmation").
5.5.4 Interim Financial Statements. STI shall deliver to OmniAmerica
not later than the 45th Business Day after the end of each month, financial
statements of the kind described in Section 4.3.6 for the month ended January
1998 and each subsequent month before Closing.
5.5.5 Conduct of Business. Unless otherwise expressly contemplated
hereby (including the STI Permitted Transactions) or approved in writing by
OmniAmerica, OmniAmericaSub or OmniPartners, STI agrees that the businesses and
operations of STI and the Sub shall be conducted only in, and STI and the Sub
shall not take any material action except in, the ordinary course of business
and consistent with past practice, including, without limitation, in material
compliance with all applicable laws, rules and regulations, including the rules
and regulations of the FAA and FCC. Without limitation, STI and the Sub shall
not take, nor enter into any agreements to take, any of the following actions
except in each such case in connection with this Agreement (including the STI
Permitted Transactions) or consented to in writing by OmniAmerica,
OmniAmericaSub or OmniPartners (which consent
60
may not be unreasonably withheld) or, in the case of actions described in
clauses (a) - (c) of this Section 5.5.5, in the ordinary course of business
consistent with past practice: (a) dispose of, or acquire, or agree to dispose
of or acquire, any material assets, other than the STI Permitted Transactions,
(b) incur any indebtedness for borrowed money, except in the ordinary course
pursuant to its existing lines of credit, (c) pay any discretionary bonuses
(other than bonuses already accrued on the date hereof) to, or alter the
compensation or benefit of, any director, officer or employee, (d) enter into
any transaction or agreement with any Affiliate or associate (as defined in Rule
405 under the Securities Act), (e) institute any material reduction in force,
(f) close any office, base or station, (g) take any action not in the ordinary
course of business that will knowingly cause any of such party's representations
or warranties to be untrue or incorrect in any material respect, (h) omit any
commercially reasonable action that such party would take in the ordinary course
of business, which omission will knowingly cause any of such party's
representations or warranties to be untrue or incorrect in any material respect,
(i) declare, set aside or pay any dividends on, or make any distribution or
payment with respect to, or redeem or repurchase, any shares of capital stock,
options, warrants, debt securities, or any securities convertible into or
exchangeable for or exercisable for shares of capital stock of any of such party
or take any other actions which would have a similar effect, (j) amend STI's
articles of incorporation or bylaws or the Sub's certificate of incorporation or
bylaws or (k) issue any shares of capital stock of such party or its
Subsidiaries or any securities, options, warrants, rights, calls, commitments,
plans, contracts or other agreements of any character whatsoever which provide
for the purchase, issuance or transfer of any shares of capital stock, or any
securities that are convertible into or exchangeable for any shares of capital
stock or increase or decrease, change into or exchange any such shares for a
different number or kind of shares or securities through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar change in capitalization. Notwithstanding the foregoing,
the parties hereto expressly agree that STI and the Sub shall be entitled to
enter into agreements to build towers for themselves or third parties, provided
that each such agreement would not be required to be disclosed in a filing with
the SEC pursuant to Item 601(b)(10) of Regulation S-K promulgated pursuant to
the Securities Act.
5.5.6 Compliance with Nevada Corporation Law. STI agrees to take all
necessary action to ensure that the Merger and the other transactions
contemplated by the Merger Agreement will be exempt from the provisions of
Sections 78.378 to 78.3793 of the Nevada Revised Statutes.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of STI and the Sub. The
obligations of STI and the Sub under this Agreement shall be subject to the
fulfillment of each and all of the following conditions at or before the Closing
(unless an earlier time is specified in this Agreement, in which case on or
before such earlier time), each of which is individually hereby deemed material,
and any one or more of which may be waived in writing by STI:
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6.1.1 Representations and Warranties. Each of the representations
and warranties made by OmniAmerica, OmniAmericaSub and OmniPartners contained in
this Agreement shall be true and correct as of the date when made and (except
for changes contemplated by this Agreement and except to the extent any such
representation or warranty speaks of an earlier date, in which case such
representation or warranty shall have been true and correct as of such date)
shall be true and correct on and as of the Closing Date to the same extent and
with the same effect as if made on and as of the Closing Date; provided, that
this condition shall be deemed to be satisfied notwithstanding that any
representation or warranty may not be true and correct so long as the same shall
not reasonably be expected to have a Material Adverse Effect on OmniAmerica.
6.1.2 Performance by OmniAmerica, OmniAmericaSub and OmniPartners.
OmniAmerica, OmniAmericaSub and OmniPartners each shall have fully performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date
(unless an earlier time is specified in this Agreement, in which case on or
before such earlier time), including, without limitation, the execution and
delivery by it of all documents and instruments required under the terms of
Article VII of this Agreement; provided, that this condition shall be deemed to
be satisfied notwithstanding that any such obligation (other than the delivery
of the documents under Article VII) shall not have been so performed or complied
with so long as the same shall not reasonably be expected to have a Material
Adverse Effect on OmniAmerica.
6.1.3 Regulatory Approvals and Consents. There shall have been duly
and validly obtained all consents, approvals, authorizations, permits and orders
of all federal, state, foreign and other governmental regulatory agencies
required in connection with this Agreement and the consummation of the
transactions contemplated hereby, including under the HSR Act, the OmniAmerica
Consents, the OmniPartners Consents, the STI Consents and all consents,
approvals, authorizations, permits and orders shall be in full force and effect
as of the Closing Date, except in each case for any consents, approvals,
authorizations, permits or orders the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect on OmniAmerica.
6.1.4 No Court Orders. On the Closing Date, there shall be no
effective injunction, writ, temporary restraining order or any order of any
nature issued by any Governmental Entity of competent jurisdiction (i) directing
that the transactions contemplated herein or any of them not be consummated as
herein provided or (ii) awarding damages or any other remedy to any Person with
respect to any of the transactions contemplated hereby, nor shall any Proceeding
by any Governmental Entity seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered or enforced which makes the consummation of the Merger illegal.
6.1.5 No Material Adverse Change. There shall not have occurred
since the date hereof any change, effect, event or occurrence in the business,
properties, assets, condition (financial or otherwise), prospects or results of
operations of OmniAmerica,
62
OmniAmericaSub or OmniPartners, except for such changes, effects, events or
occurrences that do not have, and cannot reasonably be expected to have, a
Material Adverse Effect on OmniAmerica.
6.1.6 Certificates of OmniAmerica, OmniAmericaSub and OmniPartners.
OmniAmerica shall have provided to STI a certificate, dated the Closing Date,
executed by OmniAmerica confirming that the conditions in Section 6.1.1 and
Section 6.1.2 as to OmniAmerica have been satisfied. OmniAmericaSub shall have
provided to STI a certificate, dated the Closing Date, executed by
OmniAmericaSub confirming that the conditions in Section 6.1.1 and Section 6.1.2
as to OmniAmericaSub have been satisfied. OmniPartners shall have provided to
STI a certificate, dated the Closing Date, executed by OmniPartners confirming
that the conditions in Section 6.1.1 and Section 6.1.2 as to OmniPartners have
been satisfied.
6.1.7 Opinion of OmniAmerica's Counsel. OmniAmerica shall have
delivered to STI at the Closing the opinion of OmniAmerica's counsel, Weil,
Gotshal & ▇▇▇▇▇▇ LLP, which opinion shall be dated the Closing Date and
addressed to STI, substantially in the form attached hereto as Exhibit 6.1.7.
6.1.8 Audited Financial Statements and Auditors' Consents.
OmniAmerica shall have delivered to STI the Audited Financial Statements and STI
shall have no reasonable reason to believe that it will not receive the
Auditors' Consents when necessary to make its SEC Filings.
6.1.9 Good Standing. OmniAmerica shall have furnished to STI at the
Closing certificates of the appropriate governmental officials, dated within
thirty (30) days of the Closing Date, confirming that OmniAmerica is in good
standing and is duly qualified to transact business in the State of Delaware and
in each jurisdiction listed as a foreign jurisdiction on the Disclosure Schedule
and that OmniAmericaSub is in good standing and is duly qualified to transact
business in the State of Delaware and in each jurisdiction listed as a foreign
jurisdiction on the Disclosure Schedule, unless the failure to be in good
standing or so qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on OmniAmerica.
6.1.10 Related Agreements. The parties to the Related Agreements
(other than STI and the Sub) shall have executed and delivered the Related
Agreements to which each is a party; provided, however, that only OmniPartners,
HMTF, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be required to
execute and deliver the Post-Merger Stockholders Agreement.
6.1.11 Termination of Affiliate Contracts. All OmniAmerica Affiliate
Contracts shall have been terminated.
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6.1.12 Fairness Opinion. The Fairness Opinion shall not have been
withdrawn or materially and adversely modified.
6.1.13 HMTF Affiliate. OmniPartners shall be an Affiliate of HMTF.
6.1.14 No Foreseen Material Adverse Effect. STI shall not have a
reasonable belief that the acquisition of the Acquired Businesses in accordance
with the terms and conditions of this Agreement and the Related Agreements will
or reasonably could result in STI becoming liable for any of the Acquired
Businesses' liabilities or obligations of any nature (whether or not accrued,
contingent or otherwise, and whether due or to become due) related to periods
prior to OmniAmerica's or OmniAmericaSub's acquisition of the related Acquired
Business (other than such liabilities and obligations as are included in the
OmniAmerica Financial Statements) which in the aggregate will or reasonably
could result in a Material Adverse Effect on STI.
6.1.15 Receipt of SEC Confirmation. STI shall have received the SEC
Confirmation.
6.1.16 Short-Term Liabilities. OmniAmericaSub's aggregate accounts
payable and other short-term liabilities (other than liabilities for unearned
revenue) that would be set forth on a balance sheet of OmniAmerica dated the
Closing Date shall not exceed $500,000 (not including expenses incurred in
connection with or related to the Merger), all of which shall have been incurred
in the ordinary course of business.
6.1.17 HSW Merger. The HSW Merger shall have been consummated prior
to the Effective Time.
6.2 Conditions Precedent to Obligations of OmniAmerica, OmniAmericaSub and
OmniPartners. The obligations of OmniAmerica, OmniAmericaSub and OmniPartners
under this Agreement shall be subject to the fulfillment of each and all of the
following conditions at or before the Closing (unless an earlier time is
specified in this Agreement, in which case on or before such specified time),
each of which is individually hereby deemed material, and any one or more of
which may be waived in writing by OmniAmerica, OmniAmericaSub or OmniPartners.
6.2.1 Representations and Warranties. Each of the representations
and warranties made by STI and the Sub contained in this Agreement shall be true
and correct as of the date when made and (except for changes contemplated by
this Agreement and except to the extent that any such representation or warranty
speaks of an earlier date, in which case such representation or warranty shall
have been true and correct as of such date) shall be true and correct on and as
of the Closing Date to the same extent and with the same effect as if made on
and as of the Closing Date; provided, that this condition shall be deemed to be
satisfied notwithstanding that any representation or warranty may not be true
and correct so long as the same shall not reasonably be expected to have a
Material Adverse Effect on STI.
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6.2.2 Performance by STI and the Sub. STI and the Sub each shall
have fully performed and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date (unless an earlier time is specified in this Agreement, in
which case on or before such earlier time), including without limitation, the
execution and delivery by it of all documents and instruments required under the
terms of Article VII of this Agreement; provided, that this condition shall be
deemed to be satisfied notwithstanding that any such obligation (other than the
delivery of the documents under Article VII) shall not have been so performed or
complied with so long as the same shall not reasonably be expected to have a
Material Adverse Effect on STI.
6.2.3 Regulatory Approvals and Consents. There shall have been duly
and validly obtained all consents, approvals, authorizations, permits and orders
of all federal, state, foreign and other governmental regulatory agencies
required in connection with this Agreement and the consummation of the
transactions contemplated hereby, including under the HSR Act, the OmniAmerica
Consents, the OmniPartners Consents, the STI Consents and all such consents,
approvals, authorizations, permits and orders shall be in full force and effect
as of the Closing Date, except in each case for any consent, approval,
authorization, permit or order the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect on STI.
6.2.4 No Court Orders. On the Closing Date, there shall be no
effective injunction, writ, temporary restraining order or any order of any
nature issued by any Governmental Entity of competent jurisdiction (i) directing
that the transactions contemplated herein or any of them not be consummated as
herein provided or (ii) awarding damages or any other remedy to any Person with
respect to any of the transactions contemplated hereby, nor shall any Proceeding
by any Governmental Entity seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered or enforced which makes the consummation of the Merger illegal.
6.2.5 No Material Adverse Change. There shall not have occurred
since the date hereof any change, effect, event or occurrence in the business,
properties, assets, condition (financial or otherwise), prospects or results of
operations of STI, except for such changes, effects, event or occurrences that
do not have, and cannot reasonably be expected to have, a Material Adverse
Effect on STI.
6.2.6 Certificates of STI and the Sub. STI and the Sub shall have
furnished to OmniAmerica certificates, dated the Closing Date, executed by STI
and the Sub, respectively, confirming that the conditions in Section 6.2.1 and
Section 6.2.2 have been satisfied.
6.2.7 Opinions of STI's Counsel. STI shall have delivered to
OmniPartners at the Closing the opinions of STI's counsel, ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
and Jones, Vargas, which opinions shall be dated the Closing Date and addressed
to OmniPartners, substantially in the forms attached hereto as Exhibit 6.2.7(a)
and Exhibit 6.2.7(b), respectively.
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6.2.8 Good Standing. STI shall have furnished to OmniAmerica at the
Closing certificates of the appropriate governmental officials, dated within
fifteen (15) days of the Closing Date, confirming (a) that STI is in good
standing and duly qualified to transact business in the State of Nevada, (b)
that the Sub is in good standing and duly qualified to transact business in the
State of Delaware and (c) that STI and the Sub are in good standing and are duly
qualified to transact business in each jurisdiction listed as a foreign
jurisdiction on the Disclosure Schedule, unless the failure to be in good
standing or so qualified would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on STI.
6.2.9 Related Agreements. The parties to the Related Agreements
(other than OmniAmerica, OmniAmericaSub, OmniPartners and HM Partners) shall
have executed and delivered the Related Agreements to which each is a party;
provided, however, that only ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ shall be required to execute
and deliver the Post-Merger Stockholders Agreement.
6.2.10 Tax Opinion. OmniAmerica shall have received an opinion of
Weil, Gotshal & ▇▇▇▇▇▇ LLP or other law or professional service firm reasonably
acceptable to OmniAmerica, substantially in the form of Exhibit 6.2.10(a), which
opinion shall be based upon certificates of OmniAmerica, OmniPartners and STI
substantially in the forms (respectively) of Exhibit 6.2.10(b), Exhibit
6.2.10(c) and Exhibit 6.2.10(d).
ARTICLE VII
CLOSING AND DELIVERY OF DOCUMENTS
At the Closing, the following shall occur as a single integrated
transaction:
7.1 Deliveries by OmniAmerica, OmniAmericaSub and OmniPartners. At the
Closing, OmniAmerica, OmniAmericaSub and OmniPartners shall use commercially
reasonable efforts to deliver or cause to be delivered to STI the following
items:
(a) The stock certificates representing the OmniAmerica Common Stock;
(b) The opinion of OmniAmerica's counsel described in Section 6.1.7;
(c) Copies of the OmniAmerica Consents and the OmniPartners Consents;
(d) The certificates identified in Section 6.1.6 hereof;
(e) The good standing certificates identified in Section 6.1.9 hereof;
and
(f) Copies, certified or otherwise identified to STI's satisfaction,
of all corporate documents that STI shall reasonably request, including
resolutions of the
66
board of directors (or a written consent in lieu thereof) of OmniAmerica
and resolutions of the sole stockholder (or a written consent in lieu
thereof) of OmniAmerica, dated on or before the date hereof to authorize
this Agreement, the Merger, the Related Agreements and the transactions and
other acts contemplated either by this Agreement or the Related Agreements.
7.2 Delivery by STI. At the Closing, STI shall deliver or cause to be
delivered to OmniPartners the following items:
(a) The Merger Consideration in accordance with Section 3.2;
(b) The opinions of STI's counsel described in Section 6.2.7;
(c) Copies of the STI Consents;
(d) The certificates identified in Section 6.2.6 hereof;
(e) Evidence of payment of the ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. fee;
(f) The good standing certificates identified in Section 6.2.8 hereof;
and
(g) Copies, certified or otherwise identified to OmniPartners'
satisfaction, of all corporate documents that OmniPartners shall reasonably
request, including resolutions of the boards of directors (or written
consents in lieu thereof) of STI and the Sub and a written consent of the
sole stockholder of the Sub, dated on or before the date hereof to
authorize this Agreement, the Merger, the Related Agreements and the
transactions and other acts contemplated either by this Agreement or the
Related Agreements.
7.3 Related Agreements. At the Closing, the parties, as appropriate, shall
execute and deliver the following documents (the "Related Agreements"):
(a) A Post-Merger Stockholders Agreement, effective as of the
Closing Date, among Budagher, Carpenter, OmniPartners, STI and the other
parties thereto, the form of which is attached as Exhibit 7.3(a).
(b) A Monitoring and Oversight Agreement, effective as of the
Closing Date, among STI, the Sub, OmniAmerica, OmniAmericaSub, HM Partners
and the other parties thereto, the form of which is attached as Exhibit
7.3(b).
(c) A Financial Advisory Agreement, effective as of the Closing
Date, among STI, the Sub, OmniAmerica, OmniAmericaSub, HM Partners and the
other parties thereto, the form of which is attached as Exhibit 7.3(c).
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ARTICLE VIII
TERMINATION
8.1 Reasons for Termination. This Agreement may be terminated and the
Merger abandoned before the Closing as follows:
8.1.1 By Mutual Consent. By the mutual written consent of the
parties.
8.1.2 By STI. So long as STI or the Sub is not then in material
breach of its obligations hereunder, by STI after compliance with the procedure
set forth in this Article, if (i) any of OmniAmerica's, OmniAmericaSub's or
OmniPartners' representations or warranties contained herein is untrue or
incorrect and the basis for such untruth or incorrectness has caused, or is
reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (ii) OmniAmerica, OmniAmericaSub or OmniPartners fails
to perform any of its covenants or agreements contained herein and such Breach
has caused, or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub
to suffer a Material Adverse Effect, (iii) any Governmental Entity shall have
issued an order, injunction, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise permanently prohibiting the
Merger and such order, injunction, decree, ruling or other action shall have
become final and nonappealable (other than an order arising as a result of
litigation between or in respect of STI and its stockholders); provided, that
such order, injunction, decree, ruling or other action does not result primarily
from acts or omissions not in the ordinary course of business following the date
hereof on the part of STI or its Affiliates in conducting STI's operations and
activities, or (iv) any of the conditions to the consummation by STI or the Sub
of the transactions provided for herein shall have become impossible to satisfy;
provided, that a willful material Breach of this Agreement by OmniAmerica,
OmniAmericaSub or OmniPartners that is reasonably likely to result in a Material
Adverse Effect on OmniAmerica, OmniAmericaSub or OmniPartners shall be deemed to
cause such conditions to be incapable of being satisfied for purposes of this
Section 8.1.2. In addition, STI may terminate this Agreement immediately without
complying with the provisions of Sections 8.2 or 8.3 if (i) STI's Board of
Directors reasonably believes that an Acquisition Proposal is a Superior
Proposal and (ii) the ten Business Day period referred to in Section 5.1.3 has
expired; provided, that notwithstanding the foregoing, the provisions of Section
8.6 shall expressly survive. Further, STI may terminate this Agreement
immediately without complying with the provisions of Sections 8.2 or 8.3 if the
condition contained in Section 6.2.10 is not satisfied and all other conditions
set forth in Section 6.2 are, or are able to be, satisfied.
8.1.3 By OmniAmerica. So long as OmniAmerica, OmniPartners or
OmniAmericaSub is not then in material breach of its obligations hereunder, by
OmniAmerica after compliance with the procedure set forth in this Article, if
(i) any of STI's or the Sub's representations or warranties contained herein is
untrue or incorrect and the basis for such untruth or incorrectness has caused,
or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (ii) STI or the Sub fails to perform any of its
covenants or agreements contained herein and such Breach has caused, or is
reasonably
68
likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a Material Adverse
Effect, (iii) any Governmental Entity shall have issued an order, injunction,
decree or ruling or taken any other action permanently enjoining, restraining or
otherwise permanently prohibiting the Merger and such order, injunction, decree,
ruling or other action shall have become final and nonappealable (other than an
order arising as a result of litigation between or in respect of OmniAmerica and
its Affiliates); provided that such order, injunction, decree, ruling or other
action does not result primarily from acts or omissions not in the ordinary
course of business following the date hereof on the part of OmniAmerica or its
Affiliates in conducting OmniAmerica's operations and activities, or (iv) any of
the conditions to the consummation by OmniAmerica, OmniAmericaSub or
OmniPartners of the transactions provided for herein shall become impossible to
satisfy; provided, that a Material Breach Termination by STI or the Sub that is
reasonably likely to result in a Material Adverse Effect on STI or the Sub shall
be deemed to cause such conditions to be incapable of being satisfied for
purposes of this Section 8.1.3.
8.1.4 Drop-Dead Date. By OmniAmerica or STI if the Closing shall not
have occurred by the Termination Date, provided, such date shall be extended by
the number of days, if any, to cure any matter that is the subject of a notice
under Section 8.3 (STI Termination Procedure) or Section 8.4 (OmniAmerica
Termination Procedure).
8.2 Notice of Problems. Each party will promptly give written notice to
the other parties when any of them becomes aware of the occurrence or failure to
occur, or the impending or threatened occurrence or failure to occur, of any
fact or event that would cause or constitute, or would be likely to cause or
constitute (a) any of its representations or warranties contained herein being
untrue or incorrect in any material respect, (b) its failure to perform in any
material respect any of its covenants or agreements contained herein or (c) any
of the conditions to Closing set forth in Article VI it must satisfy being or
becoming impossible to satisfy. No such notice shall affect the representations,
warranties, covenants, agreements or conditions of the parties hereunder or
their liability therefor, or prevent any party from relying on the
representations and warranties contained herein.
8.3 STI Termination Procedure. If STI discovers, by reason of a notice
given pursuant to this Agreement or otherwise, that (a) any of OmniAmerica's,
OmniAmericaSub's or OmniPartners' representations or warranties is untrue or
incorrect when made and the basis for such untruth or incorrectness has caused,
or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub to suffer a
Material Adverse Effect, (b) OmniAmerica, OmniAmericaSub or OmniPartners has
failed to perform any of its covenants or agreements contained herein in any
material respect, and such Breach has caused, or is reasonably likely to cause,
STI, OmniAmerica or OmniAmericaSub to suffer a Material Adverse Effect or (c)
any of the conditions to STI's or the Sub's obligations to consummate the
transactions provided for herein have become impossible to satisfy, then STI may
deliver a notice to OmniAmerica of such event, specifying the factual basis
therefor in reasonable detail. OmniAmerica, OmniAmericaSub and OmniPartners
shall have the right to cure any matter referred to in clause (a) or (b) of this
Section within fifteen (15) Business Days following the date of delivery
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of such notice. Upon such notice and, in the case of clause (a) or (b), upon
OmniAmerica's, OmniAmericaSub's and OmniPartners' failure to cure, STI may
terminate this Agreement by giving a notice of termination to OmniAmerica.
8.4 OmniAmerica's Termination Procedure. If OmniAmerica, OmniAmericaSub or
OmniPartners discovers, by reason of a notice given pursuant to this Agreement
or otherwise, that (a) any of STI's or the Sub's representations or warranties
is untrue or incorrect when made and the basis for such untruth or incorrectness
has caused, or is reasonably likely to cause, STI, OmniAmerica or OmniAmericaSub
to suffer a Material Adverse Effect, (b) STI or the Sub has failed to perform
any of its covenants or agreements contained herein in any material respect and
such Breach has caused, or is reasonably likely to cause, STI, OmniAmerica or
OmniAmericaSub to suffer a Material Adverse Effect or (c) any of the conditions
to OmniAmerica's, OmniAmericaSub's or OmniPartners' obligations to consummate
the transactions provided for herein has become impossible to satisfy, then
OmniAmerica may deliver a notice to STI of such event, specifying the factual
basis therefor in reasonable detail. STI and the Sub shall have the right to
cure any matter referred to in clause (a) or (b) of this Section within fifteen
(15) Business Days following the date of delivery of such notice. Upon such
notice and, in the case of clause (a) or (b), upon STI's and the Sub's failure
to cure, OmniAmerica may terminate this Agreement by giving a notice of
termination to STI.
8.5 Effect of Termination. Upon termination of this Agreement pursuant to
this Article, no party shall have any liability or continuing obligation to
another party arising out of this Agreement, or out of actions taken in
connection with this Agreement, except that Sections 8.5 and 8.6 and Article IX
shall survive termination of this Agreement. Notwithstanding the foregoing,
termination of this Agreement shall not relieve any party from its liability for
the Breach, prior to termination, of its covenants or agreements.
Termination Fee. In the event the Merger and the transactions contemplated by
this Agreement have not been consummated on or prior to June 30, 1998 or as
extended by mutual agreement of the parties hereto (the "Termination Date") and
(a) such failure is the result of STI's willful material Breach (a "Material
Breach Termination"), or, (b) in the alternative, STI (i) determines to accept
an Acquisition Proposal at any time prior to the Termination Date (a
"Pre-Termination Date Termination"), or (ii) enters into an Acquisition Proposal
within twelve (12) months from the Termination Date with any party with whom it
has had discussions regarding an Acquisition Proposal prior to the Termination
Date (or with any party that initiates an Acquisition Proposal subsequent to the
Termination Date to overbid an Acquisition Proposal initiated prior to the
Termination Date) (a "Post-Termination Date Termination"), STI will pay to
OmniAmerica on the Applicable Date (as defined below) in cash by wire transfer
of immediately available funds to an account designated by OmniAmerica a
termination fee in an amount equal to $4.5 million, plus reasonable documented
out-of-pocket expenses (the "STI Termination Fee") incurred by OmniAmerica in
connection with the transactions contemplated hereby. "Applicable Date" means
(i) in the case of a Material Breach Termination or a Pre-Termination Date
Termination, concurrently with such termination, or (ii) in the case of a
Post-Termination Date Termination, upon consummation of any such Acquisition
Proposal. In
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the event the Merger and the transactions contemplated by this Agreement have
not been consummated on or prior to the Termination Date and such failure is the
result of OmniAmerica's willful material Breach, OmniAmerica will pay to STI in
cash by wire transfer of immediately available funds to an account designated by
STI a termination fee in an amount equal to $4.5 million, plus reasonable
documented out-of-pocket expenses (the "OmniAmerica Termination Fee") incurred
by STI in connection with the transactions contemplated hereby concurrently with
such termination. STI's receipt of the OmniAmerica Termination Fee shall be
STI's, the Sub's and their Affiliates' sole and exclusive remedy for a willful
material breach of the representations or warranties of OmniAmerica,
OmniAmericaSub or OmniPartners. OmniAmerica's receipt of the STI Termination Fee
shall be OmniAmerica's, OmniAmericaSub's, OmniPartners' and their Affiliates'
sole and exclusive remedy for a willful material breach of the representations
or warranties of STI or the Sub. Except as provided in this Section 8.6, each
party's remedies for a Breach of this Agreement shall be cumulative rather than
mutually exclusive.
ARTICLE IX
MISCELLANEOUS
9.1 [Intentionally Deleted]
9.2 Survival. The representations and warranties required to be made by
STI, the Sub, OmniAmerica, OmniAmericaSub and OmniPartners, respectively, in
this Agreement, or in any certificate delivered by STI, the Sub, OmniAmerica,
OmniAmericaSub or OmniPartners, respectively, pursuant hereto will not survive
the Closing; provided, that the representation and warranty of STI contained in
Section 4.3.2 shall survive the Closing indefinitely; provided further, the
representations and warranties of STI set forth in Section 4.3.29 shall survive
the Closing until December 31, 1998 (the "Survival Period"). Notwithstanding any
provision to the contrary herein, no party hereto shall have any liability
following Closing for a Breach of this Agreement prior to Closing; provided,
that (i) STI shall be liable to OmniPartners, its successors and assigns,
following Closing for a Breach of Section 4.3.2, which shall survive
indefinitely, and (ii) STI shall be liable to OmniPartners, its successors and
assigns, following Closing for a Breach of Section 4.3.29 for the term of the
Survival Period.
9.3 Expenses. If the transactions contemplated hereby are not consummated,
each of the parties hereto shall bear all fees and expenses relating to or
arising from its compliance with the various provisions of this Agreement and
such party's covenants to be performed hereunder, and except as otherwise
specifically provided for herein, each of the parties hereto agrees to pay all
of its own expenses (including, without limitation, attorneys' and accountants'
fees) incurred in connection with this Agreement, the transactions contemplated
hereby, the negotiations leading to the same and the preparations made for
carrying the same into effect, and, to the extent practical, all such fees and
expenses of the parties hereto shall be paid prior
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to Closing. If the transactions contemplated hereby are consummated, STI and
OmniAmerica shall bear all the foregoing fees and expenses.
9.4 Notices. Any notice, request, instruction or other document required
by the terms of this Agreement, or deemed by any of the parties hereto to be
desirable, to be given to any other party hereto shall be in writing and shall
be given by prepaid telex or telecopy or delivered or mailed by certified mail,
postage prepaid, with return receipt requested, to the following addresses:
If to OmniAmerica OmniAmerica, Inc.
or OmniAmericaSub ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to OmniPartners or HMTF/Omni Partners, L.P.
Omni/HSW Acquisition: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
72
With copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to STI or the Sub: Specialty Teleconstructors, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The persons and addresses set forth above may be changed from time to time
by a notice sent as aforesaid. If notice is given by delivery in accordance with
the provisions of this Section, said notice shall be conclusively deemed given
at the time of such delivery. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed given upon
the second Business Day following deposit thereof in the United States mail. If
notice is given by telex or telecopy in accordance with the provisions of this
Section, such notice shall be conclusively deemed given upon receipt.
9.5 Entire Agreement. This Agreement (together with the Disclosure
Schedules, the Subsequent Disclosure Schedules and exhibits hereto), the Related
Agreements, and the other documents delivered pursuant hereto and referenced
herein set forth the entire agreement and understanding of the parties hereto
with respect to the transactions contemplated hereby, and
73
supersede all other prior agreements, arrangements and understandings related to
the subject matter hereof, including without limitation, (i) that certain letter
agreement dated January 13, 1998 by and between STI and OmniAmerica, (ii) the
Confidentiality Agreements between OmniAmericaSub and STI dated October 29, 1997
and October 31, 1997 and (iii) the Prior Merger Agreement. No understanding,
promise, inducement, statement of intention, representation, warranty, covenant
or condition, written or oral, express or implied, whether by statute or
otherwise, has been made by any party hereto with respect to the subject matter
hereof which is not embodied in this Agreement, and no party hereto shall be
bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth with
respect to the subject matter hereof.
9.6 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
9.7 Incorporated by Reference. The Disclosure Schedules and Subsequent
Disclosure Schedules are incorporated as a part of this Agreement by reference.
9.8 Number and Gender of Words. When the context so requires in this
Agreement, words of any gender shall include either or both of the other genders
and the singular number shall include the plural.
9.9 Execution of Additional Documents. Each party hereto shall make,
execute, acknowledge and deliver such other instruments and documents, and take
all such other actions as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
9.10 Finders' and Related Fees. Each of the parties hereto is responsible
for, and shall indemnify the other parties against, any claim by any third party
to a fee, commission, bonus or other remuneration arising by reason of any
services alleged to have been rendered to or at the instance of said party to
this Agreement with respect to this Agreement or to any of the transactions
contemplated hereby, including, without limitation, any fee payable by STI to
Wasserstein, Perella & Co.
9.11 Interpretation. References to "Sections" herein are references to
sections of this Agreement. The words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision.
9.12 No Third Party Beneficiary, Etc. Except as otherwise expressly
provided for herein, there shall be no third party beneficiary of this Agreement
and this Agreement shall not inure to the benefit of, be enforceable by, or
create any right or cause of action in any Person other than the parties hereto
and their heirs, executors, administrators, legal representatives, successors
and permitted assigns.
74
9.13 Reformation; Severability. In case any provision hereof shall be
invalid, illegal or unenforceable, such provision shall be reformed to best
effectuate the intent of the parties and permit enforcement thereof, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If such provision is not capable of
reformation, it shall be severed from this Agreement and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
9.14 Binding Effect and Assignment. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
executors, administrators, legal representatives and permitted assigns. This
Agreement, and the rights and obligations created hereunder, may not be
transferred or assigned by any party without the prior written consent of the
other parties.
9.15 Public Announcements. Any public announcement or similar publicity
with respect to this Agreement will be issued, if at all, at such time and in
such manner as STI determines; provided, that OmniAmerica will be given a copy
of such press release a reasonable time in advance of the issuance of such
proposed press release. Unless consented to by STI in advance or required by
legal requirements, prior to the Closing, OmniAmerica, OmniAmericaSub and
OmniPartners shall keep this Agreement strictly confidential and may not make
any disclosure of this Agreement to any Person.
9.16 Confidentiality. Between the date of this Agreement and for the two
(2) year period following (i) termination of this Agreement pursuant to Article
VIII or (ii) Closing, STI, the Sub, OmniAmerica, OmniAmericaSub and OmniPartners
will maintain in confidence, and will cause their respective directors,
officers, employees, agents, and advisors (the "Representatives") to maintain in
confidence, any written, oral, electronic, or other information of every kind
(including all analyses, compilations, forecasts, studies or other documents
prepared by a receiving party that contain or in any way reflect Confidential
Information) that has been or may be furnished by either party or its
Representatives obtained in confidence (the "Confidential Information") from
another party to this Agreement (the "Disclosing Party"), and will not use, and
will cause their respective Representatives not to use, any such information
except for the purpose of this Agreement or in connection with any Proceedings
between any of the parties, unless (a) such information is already known to such
party and such party is not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary in making any release, report, filing
(including filings with the SEC or, if required by applicable law, release
required by the NASDAQ Stock Market) or obtaining any consent or approval
required for the consummation of the transactions contemplated by this
Agreement, or (c) the furnishing or use of such information is required by
Proceedings. Each party shall only reveal Confidential Information of the
Disclosing Party to the receiving party's Representatives (a) who reasonably
need to have the Confidential Information for purposes of evaluating the
potential Merger and (b) who are aware of the confidential nature of the
Confidential Information and of this Section 9.16. Each party shall cause its
Representatives to observe the restrictions of this Section 9.16 and shall be
responsible for any Breach of this Section 9.16 by
75
its Representatives. If this Agreement is terminated for any reason, each party
must promptly return to the Disclosing Party all Confidential Information
obtained from the Disclosing Party that is by nature returnable, and each
receiving party will thereafter continue to comply with its obligations under
this Section 9.16.
9.17 No Other Representation.
(a) Notwithstanding anything to the contrary contained in this
Agreement, STI and the Sub acknowledge and agree that except for the
representations and warranties made by OmniAmerica and OmniAmericaSub in
Section 4.1 hereof and OmniPartners in Section 4.2, that none of
OmniAmerica, OmniAmericaSub or OmniPartners has made any other
representations or warranties of any kind (including any representation or
warranty with respect to any projections, forecasts or forward looking
statements relating to OmniAmerica and OmniAmericaSub, or any other
information that may have been provided to STI and the Sub in connection
with the transactions contemplated hereby and neither STI nor the Sub has
relied upon any projections, forecasts or other information).
(b) The limitations on STI's and the Sub's claims, rights and
remedies set forth in this Agreement are a material consideration for
OmniAmerica's, OmniAmericaSub's and OmniPartners' willingness to enter
into this Agreement and the Related Agreements and to consummate the
transactions contemplated hereby and thereby.
(c) Notwithstanding anything to the contrary contained in this
Agreement, OmniAmerica, OmniAmericaSub and OmniPartners acknowledge and
agree that except for the representations and warranties made by STI in
Section 4.3 and the Sub in Section 4.4 hereof, that neither STI nor the
Sub has made any other representations or warranties of any kind
(including any representation or warranty with respect to any projections,
forecasts or forward looking statements relating to STI or the Sub, or any
other information that may have been provided to OmniAmerica,
OmniAmericaSub and OmniPartners in connection with the transactions
contemplated hereby and none of OmniAmerica, OmniAmericaSub or
OmniPartners has relied upon any projections, forecasts or other
information).
(d) The limitations on OmniAmerica's, OmniAmericaSub's and
OmniPartners' claims, rights and remedies set forth in this Agreement are
a material consideration for STI's and the Sub's willingness to enter into
this Agreement and the Related Agreements and to consummate the
transactions contemplated hereby and thereby.
(e) Whether or not the Closing shall occur, no incorporator,
director, officer, employee of STI, the Sub, OmniAmerica, OmniAmericaSub
or OmniPartners (in each case solely in their capacities as such) shall
have any liability to any Person
76
under the terms of this Agreement or as a result of the transactions
contemplated hereby, and no recourse of any kind shall be had by the
parties hereto against any such incorporator, director, officer, employee
of STI, the Sub, OmniAmerica, OmniAmericaSub or OmniPartners (in each case
solely in their capacities as such) whether by virtue of any
constitutional provision or statute or rule of law, or by enforcement of
any assessment or penalty or in any other manner, all such liability being
expressly waived and released by the parties hereto to the fullest extent
permitted by law as part of the consideration of entering into this
Agreement.
9.18 Time of the Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
9.19 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.20 Governing Law. This Agreement and the Related Agreements shall be
governed by, construed, interpreted and applied in accordance with the laws of
the State of Texas, without giving effect to any conflict of laws rules that
would refer the matter to the laws of another jurisdiction.
Each party hereto hereby irrevocably submits to the jurisdiction of the
United States District Court for the Northern District of Texas and, if such
court does not have jurisdiction, of the courts of the State of Texas in Dallas
County, for the purposes of any action arising out of this Agreement or any of
the Related Agreements, or the subject matter hereof or thereof, brought by any
other party.
To the extent permitted by applicable law, each party hereby waives and
agrees not to assert, by way of motion, as a defense or otherwise in any such
action, any claim (i) that it is not subject to the jurisdiction of the
above-named courts, (ii) that the action is brought in an inconvenient forum,
(iii) that it is immune from any legal process with respect to itself or its
property, (iv) that the venue of the suit, action or proceeding is improper or
(v) that this Agreement or any of the Related Agreements or the subject matter
hereof or thereof may not be enforced in or by such courts.
* * * * *
77
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written hereinabove.
SPECIALTY TELECONSTRUCTORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief Financial Officer
OAI ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief Financial Officer
OMNIAMERICA HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Secretary
OMNIAMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Secretary and Treasurer
OMNI/HSW ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Secretary and Treasurer
78
HMTF/OMNI PARTNERS, L.P.
By: HM3/OMNIAMERICA PARTNERS, LLC, its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Secretary and Treasurer
79
EXHIBIT (ix)--HSW Merger Agreement
Form of HSW Merger Agreement
80
EXHIBIT (x)--Liens
List of Owner Policies of Title Insurance
Title Policies
Ardman Broadcasting Corporation
Beeline
TowerCom, Limited (Tampa)
H.S.W. Associates, Inc. (pro forma)
Title Commitments
Radio Seaway, Incorporated
▇▇▇▇▇▇ Transmission Tower Company Ltd.
TowerCom, Limited (Orange & Dade Counties)
81
EXHIBIT 2.1
Directors of STI, OmniAmerica and
OmniAmericaSub Following the Merger
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
One independent director appointed by HTMF to be
named within 10 days after the date of this
Agreement
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
82
EXHIBIT 5.2.3
Retained Affiliate Contracts
▇▇▇▇▇ Option Agreement
▇▇▇▇▇ Shareholders Agreement
▇▇▇▇▇ Consulting Agreement
83
EXHIBIT 6.1.7
Form of Opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP
[Weil, Gotshal & ▇▇▇▇▇▇ LLP letterhead]
, 1998
Specialty Teleconstructors, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to OmniAmerica Holdings Corporation, a
Delaware corporation (the "Company"), OmniAmerica, Inc., a Delaware corporation
that is a wholly-owned subsidiary of the Company ("OmniAmerica"), HMTF/Omni
Partners, L.P., a Delaware limited partnership that is the sole stockholder of
the Company ("OmniPartners"), Omni/HSW Acquisition, Inc., a Delaware corporation
and wholly-owned subsidiary of OmniPartners ("Omni/HSW"), and ▇▇▇▇▇, Muse & Co.
Partners, L.P., a Texas limited partnership ("HMC Partners"), in connection with
the preparation, authorization, execution and delivery of, and the consummation
of the transactions contemplated by, the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of February __, 1998, by and among the Company,
OmniAmerica, OmniPartners, Specialty Teleconstructors, Inc., a Nevada
corporation ("STI"), and OAI Acquisition Corp., a Delaware corporation that is a
wholly-owned subsidiary of STI ("Acquisition"). Capitalized terms defined in the
Merger Agreement and used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Merger Agreement, the related
Disclosure Schedule and Subsequent Disclosure Schedule, if any, to the Merger
Agreement, the Exhibits to the Merger Agreement, and the Related Agreements and
such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, OmniAmerica, OmniPartners, Omni/HSW and HMC
Partners and have made such inquiries of such officers and representatives, as
we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed
84
or photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Company, OmniAmerica,
OmniPartners, Omni/HSW and HMC Partners and upon the representations and
warranties of the Company, OmniAmerica, OmniPartners, Omni/HSW and HMC Partners
contained in the Merger Agreement. As used herein, "to our knowledge" and "of
which we are aware" mean the conscious awareness of facts or other information
by any lawyer in our firm actively involved in the transactions contemplated by
the Merger Agreement.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. Each of the Company, OmniAmerica and Omni/HSW is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. OmniPartners is a limited partnership duly organized and validly
existing under the laws of the State of Delaware and has all requisite
partnership power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. HMC Partners is a limited
partnership duly organized and validly existing under the laws of the State of
Texas and has all requisite partnership power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
2. The authorized capital stock of (i) the Company consists of
80,000,000 shares of common stock, par value $0.01 per share ("Company Common
Stock"), and (ii) OmniAmerica consists of 1,000 shares of common stock, par
value $0.01 per share ("OmniAmerica Common Stock"). As of the date hereof
(immediately prior to the consummation of the transactions contemplated by the
Merger Agreement), there are 74,099,298 shares of Company Common Stock and 1,000
shares of OmniAmerica Common Stock issued and outstanding. All of such
outstanding shares of Company Common Stock and OmniAmerica Common Stock are duly
authorized, validly issued, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof, and have not been issued in
violation of any preemptive rights pursuant to law or in the Company's or
OmniAmerica's Certificate of Incorporation or Bylaws or, to our knowledge,
pursuant to any contract or agreement to which the Company or OmniAmerica is a
party or by which either of them is bound.
3. Other than as disclosed in the Merger Agreement and related
Disclosure Schedule and Subsequent Disclosure Schedule, if any, all of the
outstanding shares of capital stock of (i) OmniAmerica are owned of record by
the Company and (ii) each other Subsidiary of the Company that is a corporation
are owned of record, directly or indirectly, by the Company.
85
4. Each of the Company, OmniAmerica and Omni/HSW has all requisite
corporate power and authority to execute and deliver the Merger Agreement and
the Related Agreements to which it is a party and to perform its obligations
thereunder. The execution, delivery and performance of the Merger Agreement and
the Related Agreements by each of the Company, OmniAmerica and Omni/HSW (to the
extent it is a party thereto) and the consummation by each of them of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of the Company, OmniAmerica and Omni/HSW. The
Merger Agreement and each of the Related Agreements have been duly and validly
executed and delivered by each of the Company, OmniAmerica and Omni/HSW (to the
extent it is a party thereto) and (assuming the due authorization, execution and
delivery thereof by the other parties thereto (other than OmniPartners and HMC
Partners)) constitutes the legal, valid and binding obligation of each of the
Company, OmniAmerica and Omni/HSW, enforceable against each of them in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that (a)
rights to indemnification and contribution thereunder may be limited by federal
law or state securities laws or public policy relating thereto and (b) no
opinion is expressed with respect to Section __ of [specify in final opinion any
non-competition covenants contained in any Related Agreement].
5. Each of OmniPartners and HMC Partners has all requisite
partnership power and authority to execute and deliver the Merger Agreement and
the Related Agreements to which it is a party and to perform its obligations
thereunder. The execution, delivery and performance of the Merger Agreement and
the Related Agreements by OmniPartners and HMC Partners (to the extent it is a
party thereto) and the consummation by each of them of the transactions
contemplated thereby have been duly authorized by all necessary partnership
action on the part of OmniPartners and HMC Partners. The Merger Agreement and
each of the Related Agreements have been duly and validly executed and delivered
by OmniPartners and HMC Partners (to the extent it is a party thereto) and
(assuming the due authorization, execution and delivery thereof by the other
parties thereto (other than the Company, OmniAmerica and Omni/HSW)) constitutes
the legal, valid and binding obligation of OmniPartners and HMC Partners,
enforceable against each of them in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except that (a) rights to indemnification and contribution
thereunder may be limited by federal law or state securities laws or public
policy relating thereto and (b) no opinion is expressed with respect to Section
__ of [specify in final opinion any non-competition covenants contained in any
Related Agreement].
86
6. The execution and delivery of the Merger Agreement and the
Related Agreements, the consummation of the transactions contemplated thereby
and compliance by the Company, OmniAmerica and Omni/HSW with the provisions
thereof will not constitute a default under or violate (i) any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of any of
the Company, OmniAmerica or Omni/HSW or (ii) except as disclosed in the Merger
Agreement and related Disclosure Schedule and Subsequent Disclosure Schedule, if
any, any Texas or Delaware corporate or federal law or regulation (other than
federal and state securities or blue sky laws, as to which we express no
opinion).
7. The execution and delivery of the Merger Agreement and the
Related Agreements, the consummation of the transactions contemplated thereby
and compliance by OmniPartners and HMC Partners with the provisions thereof will
not constitute a default under or violate (i) any of the terms, conditions or
provisions of the limited partnership agreement of OmniPartners or HMC Partners
or (ii) except as disclosed in the Merger Agreement and related Disclosure
Schedule and Subsequent Disclosure Schedule, if any, any Texas or Delaware
limited partnership or federal law or regulation (other than federal and state
securities or blue sky laws, as to which we express no opinion).
8. No consent, approval, waiver, license or authorization or other
action by or filing with any Texas, Delaware corporate or federal governmental
authority is required in connection with the execution and delivery by the
Company, OmniAmerica or Omni/HSW of the Merger Agreement or the Related
Agreements or the consummation by the Company, OmniAmerica or Omni/HSW of the
transactions contemplated thereby, except for (i) federal and state securities
or blue sky laws, as to which we express no opinion, (ii) the filing of the
certificate of merger contemplated by Section 1.3 of the Merger Agreement, (iii)
those the failure of which to obtain would not reasonably be expected to have a
Material Adverse Effect and (iv) those already obtained.
9. No consent, approval, waiver, license or authorization or other
action by or filing with any Texas, Delaware limited partnership or federal
governmental authority is required in connection with the execution and delivery
by OmniPartners or HMC Partners of the Merger Agreement or the consummation by
OmniPartners or HMC Partners of the transactions contemplated thereby, except
for (i) federal and state securities or blue sky laws, as to which we express no
opinion, (ii) the filing of the certificate of merger contemplated by Section
1.3 of the Merger Agreement, (iii) those the failure of which to obtain would
not reasonably be expected to have a Material Adverse Effect and (iv) those
already obtained.
The opinions expressed herein are limited to the laws of the State
of Texas, the corporate and limited partnership laws of the State of Delaware
and the federal laws of the United States, and we express no opinion as to the
effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Those opinions may not be
used or relied upon by any
87
other person, nor may this letter or any copies thereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent.
Very truly yours,
88
EXHIBIT 6.2.7(a)
Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
1. Sub is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. Sub has the requisite corporate power to execute, deliver and perform
its obligations under the Merger Agreement and the Related Agreements to which
it is a party. The execution and delivery of the Merger Agreement and the
Related Agreements by Sub and the performance of its obligations thereunder have
been duly authorized by all necessary corporate action on its part. The Merger
Agreement and the Related Agreements to which STI and Sub are a party have been
duly executed and delivered by each of STI and Sub, and (assuming the due
authorization, execution and delivery thereof by the other parties thereto
(other than STI and Sub)) each constitutes a legal, valid and binding obligation
of STI or Sub, as the case may be, enforceable against each of them in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization or similar laws affecting the rights of creditors from time to
time in effect and general principles of equity regardless of whether brought in
an action at law or in equity (it being understood such counsel need not express
any opinion as to the availability of equitable remedies) or the enforceability
of any provisions of the Merger Agreement insofar as they may be limited by
considerations of public policy.
3. Except for (i) filings under the HSR Act, (ii) as set forth on the
Disclosure Schedule to the Merger Agreement or any Subsequent Disclosure
Schedule, (iii) as contemplated by the Merger Agreement or (iv) those the
failure of which to obtain would not reasonably be expected to have a Material
Adverse Effect, no consent, approval or authorization of, or designation,
declaration or filing with, any Federal, State of Texas or Delaware corporate
governmental authority is required on the part of STI or Sub for the valid
execution or delivery of the Merger Agreement, the Related Agreements or the
performance of their respective obligations thereunder.
4. The execution and delivery by STI and Sub of the Merger Agreement and
the Related Agreements, to which each is a party, the consummation by STI and
Sub of the transactions contemplated thereby and compliance by STI and Sub with
the provisions thereof will not constitute a default under or violate (i) any of
the terms, conditions or provisions of the Certificate of Incorporation or
Bylaws of Sub or (ii) except as disclosed in the Merger
89
Agreement and related Disclosure Schedule or any Subsequent Disclosure Schedule,
any statute, rule or regulation of the federal government of the United States,
the State of Texas or the DGCL applicable to STI or Sub.
5. The authorized capital stock of the Sub is as set forth in the Merger
Agreement. All of the issued and outstanding shares of the Sub are owned of
record by STI.
------------------------
* All opinions are subject to normal and customary exceptions and assumptions
and qualifications.
90
EXHIBIT 6.2.7(b)
Form of Opinion of ▇▇▇▇▇, ▇▇▇▇▇▇
1. STI is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. STI has the requisite corporate power to execute, deliver and perform
its obligations under the Merger Agreement and the Related Agreements to which
it is a party. The execution and delivery of the Merger Agreement and the
Related Agreements by STI and the performance of its obligations thereunder have
been duly authorized by all necessary corporate action on its part.
3. Except (i) as set forth on the Disclosure Schedule to the Merger
Agreement or any Subsequent Disclosure Schedule, (ii) as contemplated by the
Merger Agreement or (iii) those the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect, no consent, approval
or authorization of, or designation, declaration or filing with, any State of
Nevada governmental authority is required on the part of STI for the valid
execution or delivery of the Merger Agreement, the Related Agreements or the
performance of its obligations thereunder.
4. The execution and delivery by STI of the Merger Agreement and the
Related Agreements, to which it is a party, the consummation by STI of the
transactions contemplated thereby and compliance by STI with the provisions
thereof will not constitute a default under or violate (i) any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of STI or
(ii) except as disclosed in the Merger Agreement and related Disclosure Schedule
or any Subsequent Disclosure Schedule, any statute, rule or regulation of the
State of Nevada applicable to STI.
5. The authorized capital stock of STI is as set forth in the Merger
Agreement.
6. The Merger Consideration has been duly authorized for issuance and,
when issued in accordance with the terms and conditions of the Merger Agreement,
the Merger Consideration will be validly issued, fully paid and nonassessable
and free of preemptive rights pursuant to the laws of the State of Nevada or in
STI's Articles of Incorporation or Bylaws.
------------------------
* All opinions are subject to normal and customary exceptions and assumptions
and qualifications.
91
EXHIBIT 6.2.10(a)
Form of Tax Opinion
, 1998
OmniAmerica, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Ladies & Gentlemen:
You have requested our opinion regarding certain federal income tax
consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub"), a
Delaware corporation and the wholly owned subsidiary of Specialty
Teleconstructors, Inc. ("Parent"), a Nevada corporation, with and into
OmniAmerica Holdings Corporation (the "Company"), a Delaware corporation.
In formulating our opinion, we examined such documents as we deemed
appropriate, including the Agreement and Plan of Merger among Parent, Sub and
the Company dated as of , 1998 (the "Merger Agreement") In addition, we have
obtained such additional information as we have deemed relevant and necessary
through consultation with various officers and representatives of Parent and the
Company.
Our opinion set forth below assumes (1) the accuracy of the
statements and facts concerning the Merger set forth in the Merger Agreement,
(2) the consummation of the Merger in the manner contemplated by, and in
accordance with the terms set forth in, the Merger Agreement and (3) the
accuracy of (i) the representations made by Parent, which are set forth in the
Officers' Certificate delivered to us by Parent, dated the date hereof, (ii) the
representations made by the Company, which are set forth in the Officers'
Certificate delivered to us by the Company, dated the date hereof, and (iii) the
representations made by HMTF/Omni Partners, LP ("HMFT") set forth in the
Certificate delivered to us by HMTF, dated the date hereof.
Based upon the facts and statements set forth above, our examination
and review of the documents referred to above and subject to the assumptions set
forth above, we are of the opinion that for federal income tax purposes:
92
1. The Merger will constitute a reorganization within the meaning of
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code").
2. No gain or loss will be recognized by the shareholders of the
Company upon their exchange of common stock of the Company ("Company Common")
for common stock of Parent ("Parent Common"), except for cash received in lieu
of a fractional share interest in Parent Common.
We express no opinion concerning any tax consequences of the Merger other
than those specifically set forth herein.
Our opinion is based on current provisions of the Code, the Treasury
Regulations promulgated thereunder, published pronouncements of the Internal
Revenue Service and case law, any of which may be changed at any time with
retroactive effect. Any change in applicable laws or facts and circumstances
surrounding the Merger, or any inaccuracy in the statements, facts, assumptions
and representations on which we have relied, may affect the continuing validity
of the opinions set forth herein. We assume no responsibility to inform you of
any such change or inaccuracy that may occur or come to our attention.
Very truly yours,
93
EXHIBIT 6.2.10(b)
Form of OmniAmerica Certificate
, 1998
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from the Company
as of the date of this letter (the "Closing Date") and thereafter. We understand
that you are relying upon this letter in rendering your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company;
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock; (iv) the term "Merger Agreement" shall mean the Agreement
and Plan of Merger dated as of , 1998 among Parent, Sub and the Company; and (v)
the term "Code" shall mean the Internal Revenue Code of 1986, as amended.
The Company hereby represents, warrants, and undertakes as follows:
1. The fair market value of the Parent Common to be received by each
holder of Company Common will be approximately equal to the fair market
value of the Company Common surrendered in exchange therefor.
2. Within the two year period ending on the Closing Date, no
outstanding stock of the Company has been (i) redeemed by the Company,
(ii) acquired by a person related to the Company (within the meaning of
Treasury Regulations Section 1.368- 1(e)(3) determined without regard to
Treasury Regulation Section 1.368-1(e)(3)(i)(A)) for consideration other
than Company Common or Parent Common, or (iii) the subject of any
distribution by the Company.
94
3. The Company is not aware of any plan, intention, obligation or
commitment on the part of any shareholder of the Company to sell, exchange
or otherwise dispose of the Parent Common to be received in the Merger by
such holder of Company Common directly or indirectly to Parent or to a
person related to Parent (within the meaning of Treasury Regulations
Section 1.368-1(e)(3)) for consideration other than Parent Common.
4. Following the Merger, the Company will hold at least 90 percent
of the fair market value of its net assets and at least 70 percent of the
fair market value of its gross assets held immediately prior to the
Merger. For purposes of this representation, amounts paid by the Company
to dissenters, amounts paid by the Company to shareholders who receive
cash or other property, amounts used by the Company to pay reorganization
expenses, and all redemptions and distributions (except for regular,
normal dividends) made by the Company within the preceding three years
will be included as assets of the Company immediately prior to the Merger.
5. The Company has no plan or intention to issue additional shares
of its stock that would result in Parent losing control of the Company
within the meaning of Section 368(c) of the Code.
6. As of the Closing Date, the Company has continued to actively
conduct the same trade or business it has conducted since .
[7. In accordance with the Merger Agreement, the Company and the
shareholders of the Company will pay their respective expenses, if any,
incurred in connection with the Merger.]
8. There is no intercorporate indebtedness existing between the
Company and Parent or between the Company and Sub that was issued,
acquired, or will be settled at a discount.
9. In the Merger, shares of Company Common representing control of
the Company, as defined in Section 368(c) of the Code, will be exchanged
solely for voting stock of Parent. For purposes of this representation,
shares of Company Common exchanged for cash or other property originating
with Parent will be treated as outstanding Company Common on the date of
the Merger.
10. At the time of the Merger, the Company will not have outstanding
any warrants, options, convertible securities, or any other type of right
pursuant to which any person could acquire stock in the Company that, if
exercised or converted, would affect Parent's acquisition or retention of
control of the Company, as defined in Section 368(c) of the Code.
95
11. The Company is not an investment company, as defined in Section
368(a)(2)(F)(iii) and (iv) of the Code.
12. On the date of the Merger, the fair market value of the assets
of the Company will exceed the sum of its liabilities, plus the amount of
liabilities, if any, to which the assets of the Company are subject.
13. The Company is not under the jurisdiction of a court in a title
11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
14. The payment of cash in lieu of fractional shares of Parent
Common in the Merger is solely for the purpose of avoiding the expense and
inconvenience to Parent of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to the holders of Company
Common instead of issuing fractional shares of Parent Common will not
exceed one percent of the total consideration to be issued in the Merger
to the holders of Parent Common in exchange for their shares of Parent
Common.
15. The business reasons for the Merger are .
16. There are no agreements, understandings, or arrangements
affecting any of the factual matters relevant to the Merger other than the
Merger Agreement.
17. None of the compensation to be received by any holder of Company
Common who is an employee of the Company will be separate consideration
for, or allocable to, any of their Company Common. None of the Parent
Common to be received by any holder of Company Common will be separate
consideration for, or allocable to, any employment agreement.
18. There are no dividends in arrears with respect to the Company
Common.
Very truly yours,
OMNIAMERICA HOLDINGS CORPORATION
By:
Its:
96
EXHIBIT 6.2.10(c)
Form of OmniPartners Certificate
, 1998
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from HMTF/Omni
Partners, LP (the "Stockholder") as of the date of this letter (the "Closing
Date") and thereafter. We understand that you are relying upon this letter in
rendering your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company; and
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock.
The Stockholder hereby represents, warrants, and undertakes as
follows:
1. Within the two year period ending on the Closing Date, no
outstanding stock of the Company has been (i) redeemed by the Company,
(ii) acquired by a person related to the Company (within the meaning of
Treasury Regulations Section 1.368- 1(e)(3) determined without regard to
Treasury Regulation Section 1.368-1(e)(3)(i)(A)) for consideration other
than Company Common or Parent Common, or (iii) the subject of any
distribution by the Company.
97
2. The Stockholder has no plan, intention, obligation or commitment
to sell, exchange or otherwise dispose of the Parent Common to be received
in the Merger by such holder of Company Common directly or indirectly to
Parent or to a person related to Parent (within the meaning of Treasury
Regulations Section 1.368-1(e)(3)) for consideration other than Parent
Common.
Very truly yours,
HMTF/OMNI PARTNERS, LP
By:
Its:
98
EXHIBIT 6.2.10(d)
Form of STI Certificate
, 1998
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
In connection with your opinion concerning certain federal income
tax consequences of the merger (the "Merger") of OAI Acquisition Corp. ("Sub")
with and into OmniAmerica Holdings Corporation (the "Company"), you have
requested certain representations, warranties and undertakings from Parent (as
hereinafter defined) as of the date of this letter (the "Closing Date") and
thereafter. We understand that you are relying upon this letter in rendering
your opinion.
Whenever used herein, (i) the term "Parent" shall mean the owner of
all of the issued and outstanding stock of Sub; (ii) the term "Company Common"
shall mean the issued and outstanding shares of common stock of the Company;
(iii) the term "Parent Common" shall mean the issued and outstanding shares of
Parent common stock; (iv) the term "Merger Agreement" shall mean the Agreement
and Plan of Merger dated as of , 1998 among Parent, Sub and the Company; and (v)
the term "Code" shall mean the Internal Revenue Code of 1986, as amended.
Parent hereby represents, warrants, and undertakes as follows:
1. The fair market value of the Parent Common to be received by each
holder of Company Common will be approximately equal to the fair market
value of the Company Common surrendered in exchange therefor.
2. Parent has no plan, intention, obligation or commitment and no
person related to Parent (within the meaning of Treasury Regulations
Section 1.368-1(e)(3)) has any plan, intention, obligation or commitment
to purchase, exchange, redeem or otherwise acquire (directly or
indirectly) any Parent Common to be received in the Merger by any holder
of Company Common in exchange for any consideration other than Parent
Common.
99
3. Following the Merger, Sub will hold at least 90 percent of the
fair market value of its net assets and at least 70 percent of the fair
market value of its gross assets held immediately prior to the Merger.
Parent anticipates that following the Merger, the Company, as the survivor
in the Merger, will hold all of the assets of the Company and Sub held
immediately prior to the Merger.
4. Sub was incorporated at the direction of Parent for the sole
purpose of entering into the Merger Agreement and effecting the Merger.
From the date of incorporation of Sub and at all times thereafter, Parent
has owned and will own all of the issued and outstanding stock of Sub.
5. Parent has no plan or intention to cause the Company to issue
additional shares of its stock that would result in Parent losing control
of the Company within the meaning of Section 368(c) of the Code.
6. Parent has no plan or intention to liquidate the Company; to
merge the Company with or into another corporation; to sell or otherwise
dispose of the stock of the Company except for transfers of stock to
corporations controlled by Parent (within the meaning of Section 368(c) of
the Code); or to cause the Company to sell or otherwise dispose of any of
its assets or any of the assets acquired from Sub, except for dispositions
made in the ordinary course of business or transfers of assets to a
corporation controlled by the Company (within the meaning of Section
368(c) of the Code).
7. Sub will have no liabilities assumed by the Company, and will not
transfer to the Company any assets subject to liabilities, in the Merger.
8. Following the Merger, Parent and members of its qualified group
(within the meaning of Treasury Regulation Section 1.368-1(d)(4)(ii)) will
continue the historic business of the Company and use a significant
portion of the Company's historic business assets in a business.
[9. As required under the Merger Agreement, Parent and Sub will pay
their respective expenses, if any, incurred in connection with the
Merger.]
10. There is no intercorporate indebtedness existing between the
Company and Parent or between the Company and Sub that was issued,
acquired, or will be settled at a discount.
11. Parent does not own and has not owned during the past five
years, any shares of the stock of the Company. No related party to Parent
(within the meaning of Treasury Regulations Section 1.368-1(e)(3)) owns
(or has owned within the past five years) any shares of stock of the
Company.
100
12. Neither Parent nor Sub is an investment company, as defined in
Section 368(a)(2)(F)(iii) and (iv) of the Code.
13. The payment of cash in lieu of fractional shares of Parent
Common in the Merger is solely for the purpose of avoiding the expense and
inconvenience to Parent of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to the holders of Company
Common instead of issuing fractional shares of Parent Common will not
exceed one percent of the total consideration to be issued in the Merger
to the holders of Parent Common in exchange for their shares of Parent
Common.
14. The business reasons for the Merger are .
15. There are no agreements, understandings, or arrangements
affecting any of the factual matters relevant to the Merger other than the
Merger Agreement.
16. None of the compensation to be received by any holder of Company
Common who is an employee of the Company will be separate consideration
for, or allocable to, any of their Company Common. None of the Parent
Common to be received by any holder of Company Common will be separate
consideration for, or allocable to, any employment agreement.
Very truly yours,
SPECIALTY TELECONSTRUCTORS, INC.
By:
Its:
101
EXHIBIT 7.3(a)
Form of Post-Merger Stockholders Agreement
102
EXHIBIT 7.3(b)
Form of Monitoring and Oversight Agreement
103
EXHIBIT 7.3(c)
Form of Financial Advisory Agreement
104