AGREEMENT AND PLAN OF MERGER
By and Among
AMERICAN TOWER CORPORATION,
ATI MERGER CORPORATION
and
UNISITE, INC.
Dated as of
June 28, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 THE MERGER......................................................................................2
2.1 The Merger.............................................................................2
2.2 Closing................................................................................2
2.3 Effective Time.........................................................................2
2.4 Effect of the Merger...................................................................2
2.5 Certificate of Incorporation...........................................................2
2.6 Bylaws.................................................................................2
2.7 Directors and Officers.................................................................2
ARTICLE 3 CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES..................................................3
3.1 Conversion of Capital Stock............................................................3
3.2 Surrender of Certificates..............................................................4
3.3 Stock Transfer Books...................................................................5
3.4 Option Securities and Convertible Securities; No Payment Rights........................5
3.5 Determination of Merger Consideration. ...............................................5
3.6 Appraisal Rights.......................................................................6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF UNISITE ......................................................6
4.1 Organization and Business; Power and Authority; Effect of Transaction..................6
4.2 Financial and Other Information. ......................................................8
4.3 Material Statements and Omissions; Absence of Events...................................8
4.4 Title to Properties; Leases............................................................8
4.5 Private Authorizations................................................................10
4.6 Governmental Authorizations and Applicable Law; Legal Actions.........................10
4.7 Intangible Assets.....................................................................11
4.8 Related Transactions..................................................................11
4.9 Insurance.............................................................................12
4.10 Tax Matters...........................................................................12
4.11 Employee Retirement Income Security Act of 1974.......................................13
4.12 Year 2000 Compliant...................................................................15
4.13 Bank Accounts, Etc....................................................................15
4.14 Employment and Consulting Arrangements................................................15
4.15 Material Agreements...................................................................16
4.16 Ordinary Course of Business...........................................................16
4.17 Material and Adverse Restrictions.....................................................17
4.18 Broker or Finder......................................................................17
4.19 Environmental Matters.................................................................17
4.20 Capital Stock.........................................................................19
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF ATC AND ATI..................................................19
5.1 Organization and Business; Power and Authority; Effect of Transaction.................19
5.2 ATC SEC Reports.......................................................................20
5.3 Material Statements and Omissions; Absence of Events..................................20
5.4 Broker or Finder......................................................................21
5.5 Legal Actions.........................................................................21
5.6 Absence of Change of Control..........................................................21
5.7 Adequate Financial Resources..........................................................21
ARTICLE 6 COVENANTS......................................................................................21
6.1 Access to Information; Confidentiality. .............................................21
6.2 Agreement to Cooperate; Certain Other Covenants. ....................................22
6.3 Public Announcements..................................................................23
6.4 Notification of Certain Matters.......................................................23
6.5 Other Offers; No Solicitation.........................................................23
6.6 Conduct of Business by UniSite Pending the Merger.....................................25
6.7 Preliminary Title Reports.............................................................27
6.8 Environmental Site Assessments........................................................27
6.9 Interim Financing for UniSite; ATC Commitment.........................................28
6.10 Solicitation of Employees.............................................................28
6.11 Director and Officer Liability and Indemnification....................................29
6.12 UniSite Software Expertise............................................................29
6.13 Stockholder Approval. ...............................................................31
6.14 UniSite Compensation Plan.............................................................31
6.15 Structural Reports....................................................................31
ARTICLE 7 CLOSING CONDITIONS.............................................................................31
7.1 Conditions to Obligations of Each Party...............................................31
7.2 Conditions to Obligations of ATC and ATI..............................................32
7.3 Conditions to Obligations of UniSite..................................................35
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER..............................................................36
8.1 Termination...........................................................................36
8.2 Effect of Termination.................................................................38
ARTICLE 9 SURVIVAL.......................................................................................39
ARTICLE 10 GENERAL PROVISIONS.............................................................................39
10.1 Waivers; Amendments...................................................................40
10.2 Fees, Expenses and Other Payments.....................................................40
10.3 Notices...............................................................................40
10.4 Specific Performance; Other Rights and Remedies.......................................41
10.5 Severability..........................................................................41
10.6 Counterparts..........................................................................42
10.7 Section Headings......................................................................42
10.8 Governing Law.........................................................................42
10.9 Further Acts..........................................................................42
10.10 Entire Agreement......................................................................42
10.11 Assignment............................................................................43
10.12 Parties in Interest...................................................................43
10.13 Mutual Drafting.......................................................................43
10.14 UniSite Stockholder Representatives...................................................43
10.15 UniSite Disclosure Schedule. ........................................................43
10.16 ATC Completion of Due Diligence. ....................................................44
APPENDIX A: Definitions
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EXHIBITS:
EXHIBIT A: Section 262 of the DCL (Section 3.6(a)).
EXHIBIT B: UniSite Note (Section 6.9).
EXHIBIT C: UniSite Security Agreement (Section 6.9).
EXHIBIT D: Opinion of UniSite Counsel (Section 7.2(b)).
EXHIBIT E: Non-Foreign Ownership Certificates (Section 7.2(i)).
EXHIBIT F-1: ATC [Employment] [Consulting] Agreement (Section 7.2(m)).
EXHIBIT F-2: ATC Noncompetition Agreement (Section 7.2(m)).
EXHIBIT G: Opinion of ATC and ATI Counsel (Section 7.3(b)).
EXHIBIT H: Omnipoint Amendment (Definition thereof in Appendix A).
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AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of June 28, 1999, by and among
American Tower Corporation, a Delaware corporation ("ATC"), ATI Merger
Corporation, a Delaware corporation ("ATI"), and UniSite, Inc., a Delaware
corporation ("UniSite").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of ATC, ATI and UniSite have
determined that the merger (the "Merger") of ATI into UniSite on the terms and
conditions set forth in this Agreement and Plan of Merger (this "Agreement") is
consistent with and in furtherance of the long-term business strategy of each,
and is fair to, and in the best interests of, ATI and UniSite and the
stockholders of each; and
WHEREAS, this Agreement provides that ATI shall be merged with and into
UniSite, and UniSite shall be the surviving corporation; and
WHEREAS, the Boards of Directors of ATI and UniSite have approved and
adopted this Agreement and have directed that this Agreement be submitted to the
stockholders of ATI and UniSite, respectively, for their adoption and approval;
and
WHEREAS, the Board of Directors of American Towers, Inc., a Delaware
corporation, has approved and adopted this Agreement and approved the Merger as
the sole stockholder of ATI;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and other
valuable consideration, the receipt and adequacy whereof are hereby
acknowledged, the parties hereto hereby, intending to be legally bound,
represent, warrant, covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A shall have the respective meanings set forth therein.
Terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa, and the reference to any gender shall be deemed to
include all genders. Unless otherwise defined or the context otherwise clearly
requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in the UniSite Disclosure Schedule, and each Collateral
Document executed or required to be executed pursuant hereto or thereto or
otherwise delivered, from time to time, pursuant hereto or thereto. References
to "hereof," "herein" or similar terms are intended to refer to the Agreement as
a whole and not a particular section, and references to "this Section" or "this
Article" are intended to refer to the entire section or article and not a
particular subsection thereof. The term "either party" shall, unless the context
otherwise requires, refer to ATC and ATI, on the one hand, and UniSite, on the
other hand.
ARTICLE 2
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the Delaware General Corporation Law
(the "DCL"), at the Effective Time, ATI shall be merged with and into UniSite.
As a result of the Merger, the separate corporate existence of ATI shall cease
and UniSite shall continue as the surviving corporation in the Merger (sometimes
referred to, as such, as the "Surviving Corporation").
2.2 Closing. Unless this Agreement shall have been terminated pursuant
to Section 8.1 and subject to the satisfaction or, to the extent permitted by
Applicable Law, waiver of the conditions set forth in Article 7, the closing of
the Merger (the "Closing") will take place, at 10:00 a.m., on the Closing Date,
at the offices of ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the earlier to occur of (a) January 31, 2000 or (b) the
fifth (5th) business day after UniSite shall have advised ATC in writing that it
has 600 Completed Towers, unless another date, time or place is agreed to in
writing by the parties. The date on which the Closing occurs is herein referred
to as the "Closing Date."
2.3 Effective Time. Subject to the provisions of this Agreement, as
promptly as practicable after the Closing, the parties hereto shall cause the
Merger to be consummated by filing a Certificate of Merger and any related
filings required under the DCL with the Secretary of State of the State of
Delaware. The Merger shall become effective at such time as such documents are
duly filed as aforesaid, or at such later time as is specified in such documents
(the "Effective Time").
2.4 Effect of the Merger. The Merger shall have the effects provided
for under the DCL.
2.5 Certificate of Incorporation. The Certificate of Incorporation of
UniSite, as amended, shall be amended and restated to read in its entirety as
the Certificate of Incorporation of ATI, as in effect at immediately prior to
the Effective Time, and, as so amended and restated shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as provided
therein and in accordance with Applicable Law.
2.6 Bylaws. The bylaws of UniSite in effect at the Effective Time shall
be amended and restated to read in their entirety as the bylaws of ATI, as in
effect immediately prior to the Effective Time, and, as so amended and restated
shall be the bylaws of the Surviving Corporation until amended in accordance
with Applicable Law and the Organic Documents of the Surviving Corporation.
2.7 Directors and Officers. From and after the Effective Time, until
successors are duly elected or appointed and qualified, or upon their earlier
resignation or removal, in accordance with Applicable Law and the Organic
Documents of the Surviving Corporation, (a) the directors of ATI immediately
prior to the Effective Time shall be the directors of the Surviving Corporation,
and (b) the officers of ATI immediately prior to the Effective Time shall be the
officers of the Surviving Corporation.
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ARTICLE 3
CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES
3.1 Conversion of Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of ATC, ATI or UniSite or their
respective stockholders:
(a) Each share of Common Stock, par value $.01 per share, of
ATI issued and outstanding immediately prior to the Effective Time
shall remain outstanding as stock of the Surviving Corporation;
(b) Each share of Preferred Stock, par value $.01 per share,
of UniSite ( the "UniSite Preferred Stock"), consisting of shares of
(i) Class A Preferred Stock, par value $1.00 per share (the "UniSite
Class A Preferred"), (ii) Class B Preferred Stock, par value $1.00 per
share (the "UniSite Class B Preferred"), and (iii) Class C Preferred
Stock, par value $1.00 per share (the "UniSite Class C Preferred"),
issued and outstanding immediately prior to the Effective Time (other
than Dissenting Shares and shares held in the treasury of UniSite or
any of its Subsidiaries) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into the right
to receive before payment with respect to any UniSite Common Stock or
UniSite Warrants, in cash, its share of the trust described below (the
"Merger Trust"); and
(c) Each share (collectively, the "UniSite Shares") of common
stock, par value $.01 per share, of UniSite (the "UniSite Common
Stock") issued and outstanding immediately prior to the Effective Time
(other than Dissenting Shares and shares held in the treasury of
UniSite or any of its Subsidiaries) and each UniSite Warrant issued and
outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into the right to receive in cash its share of the Merger
Trust.
The term "Merger Consideration" shall mean an amount equal to the sum of:
(i) $25.0 million;
(ii) the amount derived by multiplying the number of Completed
Towers of UniSite as of the Effective Time by $300,000;
(iii) increased or decreased, as the case may be, by an amount
equal to the positive or negative Working Capital of UniSite as of the
Effective Time; and
(iv) decreased by an amount equal to the excess of (A) the
principal amount of Indebtedness for Money Borrowed of UniSite and its
Subsidiaries as of the Effective Time over (B) the principal amount of
Indebtedness for Money Borrowed of UniSite and its Subsidiaries as of
the Effective Time that was borrowed subsequent to the date of this
Agreement and used to fund construction of towers (other than Completed
Towers) subsequent to the date of this Agreement.
Anything in this Section or elsewhere in this Agreement to the contrary
notwithstanding, the Merger Consideration shall be adjusted pursuant to the
provisions of paragraphs (f), (j) and (l) of Section 7.2
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The term "Merger Trust" means a trust to be established before the Effective
Time for the benefit of the holders of UniSite Preferred Stock, the UniSite
Common Stock, and the UniSite Warrants. The trustees of the Merger Trust shall
be the UniSite Stockholder Representatives or their successors. The parties
agree to promptly amend this Agreement before the Effective Time to reflect the
terms of the Merger Trust upon the written request of eiher party, based upon
advice of counsel, that such an amendment is advisable to effect the purposes of
this Agreement.
At the Effective Time, all shares of UniSite Preferred Stock, UniSite
Common Stock and the UniSite Warrants (collectively, the "UniSite Stock") shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and certificates and warrants previously evidencing any
shares of UniSite Stock (each, a "Certificate") shall thereafter represent the
right to receive, upon the surrender of such Certificate or Certificates in
accordance with the provisions of Section 3.2, the applicable portion of the
Merger Consideration to which the number of shares of UniSite Stock represented
by such Certificate or Certificates is entitled. The holders of such
Certificates previously evidencing shares of UniSite Stock outstanding
immediately prior to the Effective Time shall cease to have any rights with
respect to such UniSite Stock, except as otherwise provided herein or by
Applicable Law.
3.2 Surrender of Certificates.
(a) Promptly after the Effective Time, ATC shall send or cause to be
sent a notice and letter of transmittal form to each holder of a Certificate or
Certificates (other than those representing shares held in the treasury of
UniSite or any of its Subsidiaries and Dissenting Shares), advising such holder
of the effectiveness of the Merger and the procedure for surrendering of such
Certificate for exchange into the Merger Con sideration payable in respect of
the UniSite Stock represented thereby. Each securityholder of UniSite, upon
surrender of each of his Certificates, together with a duly executed copy of a
letter of transmittal, shall be entitled to receive cash representing the
applicable portion of the Merger Consideration with respect to the UniSite Stock
represented by such Certificate or Certificates in accordance with the
provisions of this Article, including without limitation Section 3.1.
(b) If the Merger Consideration (or any portion thereof) is to be paid
to a Person other than the Person in whose name the Certificate surrendered in
exchange therefor is registered, it shall be a condition to the payment of the
Merger Consideration that the Certificate so surrendered shall be properly
endorsed or accompanied by appropriate stock powers and otherwise be in proper
form for transfer, that such transfer otherwise be proper and that the Person
requesting such transfer pay to ATC (or its agent (which may be the trustees
under the Merger Trust) appointed as the disbursing agent (the "Disbursing
Agent")) any transfer or other taxes payable by reason of the foregoing or
establish to the satisfaction of ATC that such taxes have been paid or are not
required to be paid.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and subject to such other
conditions as the Board of Directors of the Surviving Corporation may impose,
ATC shall, or shall cause the Surviving Corporation, as appropriate, to issue in
exchange for such lost, stolen or destroyed Certificate, the Merger
Consideration deliverable in respect thereof as determined in accordance with
this Article. When authorizing such issue of the Merger Consideration in
exchange therefor, the Board of Directors of the Surviving Corporation may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificate to give the Surviving
Corporation a bond or other surety in such sum as it may reasonably direct as
indemnity against any Claim that may be made against the Surviving Corporation
with respect to the Certificate alleged to have been lost, stolen or destroyed.
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(d) No interest or dividends shall be paid or accrue on any portion of
the Merger Consideration.
(e) At and after the Effective Time, the holder of a Certificate or of
Dissenting Shares shall cease to have any rights as a UniSite securityholder,
except for, in the case of the holder of a Certificate or the holder of
Dissenting Shares to whom the proviso in Section 3.6(a) applies, the right to
surrender Certificates in the manner prescribed by Section 3.2(b) in exchange
for payment of the Merger Consideration, or, in the case of the holder of
Dissenting Shares, the right to perfect the right to receive payment for
Dissenting Shares pursuant to Section 262 of the DCL.
(f) Anything in this Section 3.2 or elsewhere in this Agreement to the
contrary notwithstanding, no UniSite securityholder shall be entitled to the
Merger Consideration deliverable in respect of the UniSite Stock purported to be
owned by him unless such UniSite securityholder shall have executed and
delivered the certificate required to be delivered to ATC pursuant to the
provisions of Section 7.2(i), which may be included in the letter of
transmittal, it being understood that, the failure to deliver such certificate
will result only in such UniSite securityholder being subject to applicable
federal and state income tax withholding.
(g) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, if, at the time that any Merger Consideration is to be
delivered to any UniSite securityholder, such UniSite securityholder has any
loans or advances outstanding from UniSite or any of its Subsidiaries, the
Disbursing Agent shall, upon being advised in writing by UniSite as to the
amount of such loans or advances, withhold from the Merger Consideration, and
deliver to the Surviving Corporation in satisfaction thereof, an amount of cash
equal to the then outstanding principal of and accrued interest (if any) on such
loans and advances.
3.3 Stock Transfer Books. At the Effective Time, the stock transfer
books of UniSite shall be closed, and there shall be no further transfer of
UniSite Stock thereafter on the records of UniSite. Any Certificates presented
after the Effective Time for transfer shall be canceled and exchanged for the
applicable portion of the Merger Consideration to which the UniSite Stock
represented thereby shall be entitled pursuant to this Article.
3.4 Option Securities and Convertible Securities; No Payment Rights. At
the Effective Time, except in the case of a UniSite Warrant or a Convertible
Security or an Option Security owned by a Subsidiary of UniSite, each
outstanding Option Security and each Convertible Security of UniSite, if any,
whether or not then exercisable for or convertible into shares of UniSite Common
Stock or other UniSite securities, outstanding immediately prior to the
Effective Time, shall be canceled and retired and shall cease to exist, and the
holder thereof shall not be entitled to receive any consideration therefor.
3.5 Determination of Merger Consideration. Not later than ten (10) days
prior to the Closing Date, UniSite shall submit to ATC its preliminary
determination of the amount of the Merger Consideration determined in accordance
with the provisions of Section 3.1. Within seven (7) days thereafter, ATC shall
submit to UniSite its reasonable, good faith objections, if any, to such
preliminary determination, specifying in reasonable detail the nature of such
objections. The parties shall use their best efforts to agree upon the amount of
the Merger Consideration, but in the event they are unable to do so, then (a)
the Merger shall be consummated (assuming that all other conditions thereto
shall have been satisfied), (b) the consideration payable at the Effective Time
(the "Preliminary Merger Consideration") shall be determined by ATC and paid in
cash, subject to a post-Effective Time adjusting payment (if any) payable by ATC
to the UniSite securityholders as provided in this Section. In the event the
parties are unable to agree as aforesaid, the UniSite Stockholder
Representatives and ATC shall, within ten (10) days following the Effective
Time, jointly
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designate a nationally known independent public accounting firm to be retained
to determine the amount of the Merger Consideration, which shall be no less than
the Preliminary Merger Consideration. The fees and other expenses of retaining
such independent public accounting firm shall be borne by ATC and the UniSite
securityholders in inverse proportion to its allocation of the contested amount
of the Merger Consideration to ATC and the UniSite securityholders,
respectively. Such firm shall report its conclusions pursuant to this Section,
and such report shall be conclusive on all parties to this Agreement and the
UniSite securityholders and not subject to dispute or review. Upon determination
by such independent accounting firm (or sooner agreement upon the Merger
Consideration by ATC and the UniSite Stockholder Representatives), ATC shall pay
to the UniSite securityholders, as their interests may appear, the cash, if any,
to which they are entitled, together with interest of five percent (5%) per
annum from the Closing Date to such payment.
3.6 Appraisal Rights.
(a) Notwithstanding any other provision of this Agreement to the
contrary, shares of UniSite Common Stock that are outstanding immediately prior
to the Effective Time and that are held by UniSite stockholders who shall have
not voted in favor of the Merger or consented thereto in writing and who shall
be entitled to and shall have demanded properly in writing appraisal rights for
such shares of UniSite Stock in accordance with Section 262 of the DCL (a true,
correct and complete copy of which is attached hereto as Exhibit A and made a
part hereof) and who shall not have withdrawn such demand or otherwise have
forfeited appraisal rights (collectively, the "Dissenting Shares") shall not be
converted into or represent the right to receive the Merger Consideration
payable in respect of each share of UniSite Stock represented thereby. Such
UniSite stockholders shall be entitled to receive payment of the appraised value
of such shares of UniSite Stock held by them in accordance with the provisions
of the DCL, except that all Dissenting Shares held by UniSite stockholders who
shall have failed to perfect or who effectively shall have withdrawn, forfeited
or lost their appraisal rights with respect to such shares of UniSite Common
Stock under the DCL shall thereupon be deemed to have been converted into and to
have become exchangeable for, as of the Effective Time, the right to receive,
without any interest thereon, the appropriate Merger Consideration upon
surrender, in the manner provided in Section 3.2, of the Certificate or
Certificates that formerly evidenced such shares of UniSite Stock.
(b) UniSite shall give ATC prompt notice of any demands for appraisal
rights received by it, withdrawals of such demands, and any other instruments
served pursuant to the DCL and received by UniSite and relating thereto. UniSite
and ATC shall jointly direct all negotiations and proceedings with respect to
demands for appraisal rights under the provisions of the DCL. UniSite shall not,
except with the prior written consent of ATC, make any payment with respect to
any demands for appraisal rights, or offer to settle, or settle, any such
demands.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UNISITE
UniSite hereby represents and warrants to ATC and ATI as follows:
4.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) UniSite is a corporation duly organized, validly existing and in
good standing under the DCL, has all requisite power and authority (corporate
and other) to own or hold under lease its properties and to conduct its business
as now conducted and is duly qualified and in good standing as a foreign
corporation in
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each other jurisdiction (as shown on Section 4.1(a) of the UniSite Disclosure
Schedule) in which the character of the property owned or leased by it or the
nature of its business or operations requires such qualification, except for
such qualifications the failure of which to obtain, individually or in the
aggregate, have not had and will not have a material adverse effect on UniSite.
(b) UniSite has all requisite power and authority (corporate and other)
necessary to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto and to consummate the Transactions;
and the execution, delivery and performance by UniSite of this Agreement and
each Collateral Document executed or required to be executed by it pursuant
hereto or thereto have been duly authorized by all requisite corporate or other
action on the part of UniSite, subject to the requisite approval of the
stockholders of UniSite. The affirmative vote of the holders of shares
representing a majority of the outstanding voting power of each of (i) the
UniSite Class A Preferred Stock and the Class B Preferred Stock, voting as a
single class, (ii) the UniSite Class C Preferred Stock, and (iii) the UniSite
Common Stock is the only vote necessary to approve and adopt this Agreement and
the transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by UniSite and constitutes, and each Collateral Document
executed or required to be executed by it pursuant hereto or thereto or to
consummate the Transactions when executed and delivered by UniSite will
constitute, legal, valid and binding obligations of UniSite, enforceable in
accordance with their respective terms, except as such enforceability may be
subject to bankruptcy, moratorium, insolvency, reorganization, arrangement,
voidable preference, fraudulent conveyance and other similar Laws relating to or
affecting the rights of creditors and except as the same may be subject to the
effect of general principles of equity.
(c) Except as set forth in Section 4.1(c) of the UniSite Disclosure
Schedule, neither the execution and delivery by UniSite of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation of the Transactions, nor compliance with the
terms, conditions and provisions hereof or thereof by UniSite:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of UniSite or any
Applicable Law, or will conflict with, or result in a breach or
violation of, or constitute a default under, or permit the acceleration
of any obligation or liability in, or but for any requirement of giving
of notice or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any such
acceleration in, any Contractual Obligation of UniSite; or
(ii) will require UniSite to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization, except (A)
filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, and (B) the filing of the
Certificate of Merger with the Delaware Secretary of State.
(d) Except as set forth in Section 4.1(d) of the UniSite Disclosure
Schedule, UniSite does not have any Subsidiaries. Each such disclosed Subsidiary
is (i) wholly-owned unless noted otherwise in Section 4.1(d) of the UniSite
Disclosure Schedule, (ii) a corporation which is duly organized, validly
existing and in good standing under the laws of the state of incorporation set
forth opposite its name on Section 4.1(d) of the UniSite Disclosure Schedule,
and (iii) duly qualified and in good standing as a foreign corporation in each
other jurisdiction (as shown on Section 4.1(d) of the UniSite Disclosure
Schedule) in which the character of the property owned or leased by it or the
nature of its business or operations requires such qualification, with full
power and authority (corporate and other) to carry on the business in which it
is engaged, except for such qualifications the failure of which to obtain,
individually or in the aggregate, would not have a material adverse effect on
UniSite. UniSite owns, directly or indirectly, all of the outstanding capital
stock and equity interests
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(as shown in Section 4.1(d) of the UniSite Disclosure Schedule) of each
Subsidiary, free and clear of all Liens (except as described in the notes to the
UniSite Financial Statements), and all such stock or other equity interests has
been duly authorized and validly issued and is fully paid and nonassessable.
Except as set forth in Section 4.1(d) of the UniSite Disclosure Schedule, there
are no outstanding Option Securities or Convertible Securities, or agreements or
understandings of any nature whatsoever, relating to the authorized and unissued
or outstanding capital stock or equity interests of any Subsidiary of UniSite.
No Subsidiary of UniSite owns any UniSite Preferred Stock, UniSite Common Stock
or Convertible Security or Option Security of UniSite. Except as the context
otherwise requires, the representations and warranties of UniSite set forth in
this Article shall apply to each of its Subsidiaries with the same force and
effect as though each of them were named in each Section hereof.
4.2 Financial and Other Information. UniSite has heretofore made
available to ATC the financial statements listed in Section 4.2 of the UniSite
Disclosure Schedule (the "UniSite Financial Statements"). The UniSite Financial
Statements, including in each case the notes thereto, have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, except as otherwise noted therein, and fairly present the
financial condition and the results of operations and cash flow of UniSite, on
the bases therein stated, as of the respective dates thereof, and for the
respective periods covered thereby subject, in the case of unaudited financial
statements, to normal nonmaterial year-end audit adjustments. UniSite has no
material obligations, liabilities or commitments of any nature (whether
absolute, accrued, contingent or otherwise and whether matured or unmatured),
including without limitation Tax liabilities due or to become due that should be
reflected or reserved against in financial statements prepared in conformity
with GAAP, except liabilities that are reflected and reserved against on the
UniSite Financial Statements. Neither UniSite nor any of the UniSite Assets is
the subject of any pending or, to UniSite's knowledge, threatened insolvency
proceedings of any kind or character. UniSite has not made an assignment for the
benefit of creditors or taken any action with a view to or that would constitute
a valid basis for the institution of any such insolvency proceedings. UniSite is
not insolvent and will not become insolvent as a result of entering into this
Agreement.
4.3 Material Statements and Omissions; Absence of Events. Neither any
representation or warranty made by UniSite contained in this Agreement or in any
certificate, document or other instrument furnished or to be furnished by
UniSite pursuant to the provisions hereof nor the UniSite Disclosure Schedule
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact required to make any statement contained
herein or therein, in light of the circumstances under which they were made, not
misleading. Since the date of the most recent financial statements constituting
a part of the UniSite Financial Statements there has been no change with respect
to, and there is no Event known to, UniSite that has had or will have a material
adverse effect on UniSite, except (a) to the extent specifically described in
Section 4.3 of the UniSite Disclosure Schedule, (b) for matters affecting the
tower communication sites industry generally, and (c) for any Event arising out
of the execution or public announcement of this Agreement. UniSite is not aware
of any impending or contemplated Event that would cause any of the
representations and warranties made by it in this Article not to be true,
correct and complete on the date of such Event as if made on that date.
4.4 Title to Properties; Leases.
(a) Section 4.4(a) of the UniSite Disclosure Schedule contains a true,
accurate and complete description of all real property owned by UniSite. Except
as set forth in Section 4.4(a) of the UniSite Disclosure Schedule, UniSite has
good indefeasible, marketable and insurable title to all real property (other
than easement and leasehold real property) and good indefeasible and marketable
title to all of its other property and assets, tangible and intangible
(collectively, the "UniSite Assets"); all of the UniSite Assets are
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so owned, in each case, free and clear of all Liens, except (i) Permitted Liens,
and (ii) Liens set forth on Section 4.4(a) of the UniSite Disclosure Schedule.
UniSite enjoys peaceful and undisturbed possession of all real property owned by
it. Except for financing statements evidencing Liens referred to in the
immediately preceding sentence (a true, accurate and complete list and
description of which is set forth in Section 4.4(a) of the UniSite Disclosure
Schedule), no financing statements under the Uniform Commercial Code and no
other filing which names UniSite as debtor or which covers or purports to cover
any of the UniSite Assets is on file in any state or other jurisdiction, and
UniSite has not signed or agreed to sign any such financing statement or filing
or any agreement authorizing any secured party thereunder to file any such
financing statement or filing. None of the fixed assets or equipment comprising
a part of the UniSite Assets is subject to contracts of sale, and none is held
by UniSite as lessee or as conditional sales vendee under any Lease or
conditional sales contract and none is subject to any title retention agreement,
except as set forth in Section 4.4(a) of the UniSite Disclosure Schedule. Except
as disclosed in Section 4.4(a) of the UniSite Disclosure Schedule, all
improvements on the real property owned or leased by UniSite are in compliance
with applicable zoning, wetlands and land use Laws and applicable title
covenants, conditions, restrictions and reservations in all respects necessary
to conduct the business of UniSite (the "UniSite Business") as presently
conducted or proposed to be conducted on or prior to the Closing Date, except
for any instances of non-compliance which do not and will not materially
adversely affect the use of such real property or, individually or in the
aggregate, have a material adverse effect on the owner or lessee, as the case
may be, of such real property. Except as disclosed in Section 4.4(a) of the
UniSite Disclosure Statement, all such improvements are structurally sound with
no material defects and comply in all material aspects with all Applicable Laws,
Governmental Authorizations and Private Authorizations. Except as disclosed in
Section 4.4(a) of the UniSite Disclosure Statement, to UniSite's knowledge, all
of the transmitting towers, microwave stations, ground radials, guy anchors,
transmitting buildings and related improvements, if any, located on the real
property owned or leased by UniSite are located entirely on such real property.
Except as set forth in Section 4.4(a) of the UniSite Disclosure Schedule, such
transmitting towers, microwave stations, ground radials, guy anchors,
transmitting buildings and related improvements and other material items of
personal property, including equipment, are in a state of good repair and
maintenance and sound operating condition, normal wear and tear excepted, have
been maintained in a manner consistent in all material respects with generally
accepted standards of sound engineering practice, and currently permit the
UniSite Business to be operated in all material respects in accordance with the
terms and conditions of all Applicable Laws, Governmental Authorizations and
Private Authorizations.
There is no pending or, to UniSite's knowledge, threatened or
contemplated action (i) to take by eminent domain or otherwise to condemn any
material part of any real property owned or leased by UniSite, or (ii) with
respect to any special Taxes or assessments or planned public improvements that
may result in a special Tax or assessment against any real property owned or
leased by UniSite, and no such special Taxes or assessments have been made
against any real property owned or leased by UniSite. All utilities necessary to
the operation of the UniSite Assets and the conduct of the UniSite Business are
installed and operating as part of the UniSite Assets. To UniSite's knowledge,
none of the real property constituting a part of the UniSite Assets is listed,
or eligible to be listed, in any national, state or local register of historic
places or areas.
(b) Section 4.4(b) of the UniSite Disclosure Schedule contains a true,
accurate and complete description or list of all Leases under which any real
property is leased to UniSite by any Person or by UniSite to any Person. Except
as otherwise set forth in Section 4.4(b) of the UniSite Disclosure Schedule,
each Lease under which UniSite holds real or personal property constituting a
part of the UniSite Assets is in full force and effect, has been duly
authorized, executed and delivered by UniSite and, to its knowledge, each of the
other parties thereto, and is a legal, valid and binding obligation of UniSite,
and, to its knowledge, each of the other parties thereto, enforceable in
accordance with its terms, except as such enforceability may be limited
-9-
by bankruptcy, moratorium, insolvency and similar Laws affecting the rights and
remedies of creditors and obligations of debtors generally and by general
principles of equity. UniSite has a valid leasehold interest in and enjoys
peaceful and undisturbed possession under all Leases pursuant to which it holds
any such real property or tangible personal property, subject to the terms of
each Lease and Applicable Law. True, accurate and complete copies of each of
such Leases have been made available by UniSite to ATC and UniSite has provided
ATC with photocopies of all such Leases requested by ATC (or true, accurate and
complete descriptions thereof have been set forth in Section 4.4(b) of the
UniSite Disclosure Schedule, with respect to those that are oral). Neither
UniSite nor, to UniSite's knowledge, any other party thereto has failed to duly
comply with all of the material terms and conditions of each such Lease or has
done or performed, or failed to do or perform (and no Claim is pending or, to
the knowledge of UniSite, threatened to the effect that UniSite has not so
complied, done and performed or failed to do and perform) any act which would
invalidate or provide grounds for the other party thereto to terminate (with or
without notice, passage of time or both) any of such Leases or in any material
respect impair the rights or benefits of, or materially increase the costs to,
UniSite under any of such Leases.
4.5 Private Authorizations. Section 4.5 of the UniSite Disclosure
Schedule sets forth a true, accurate and complete list and description of each
Private Authorization which individually is material to the UniSite Assets or
the UniSite Business. UniSite has obtained all Private Authorizations that are
necessary for the ownership or operation of the UniSite Assets or the conduct of
the UniSite Business, as currently conducted or proposed to be conducted on or
prior to the Closing Date, which, if not obtained and maintained, could,
individually or in the aggregate, have a material adverse effect on UniSite. All
of such Private Authorizations are valid and in good standing and are in full
force and effect. UniSite is not in material breach or violation of, or in
default in the performance, observance or fulfillment of, any such Private
Authorization, and, to UniSite's knowledge, no Event exists or has occurred
which constitutes, or but for any requirement of giving of notice or passage of
time or both would constitute, such a material breach, violation or default,
under any such Private Authorization. No such Private Authorization is the
subject of any pending or, to UniSite's knowledge, threatened attack, revocation
or termination.
4.6 Governmental Authorizations and Applicable Law; Legal Actions.
(a) Section 4.6(a) of the UniSite Disclosure Schedule contains a true,
complete and accurate description (including the term thereof) of each
Governmental Authorization required under Applicable Law (i) to own and operate
the UniSite Assets and conduct the UniSite Business, as currently conducted or
proposed to be conducted on or prior to the Closing Date, or (ii) that is
necessary to permit UniSite to execute and deliver this Agreement and to perform
its obligations hereunder. Except as set forth in Section 4.6(a) of the UniSite
Disclosure Schedule, UniSite has obtained all Governmental Authorizations that
are necessary for the ownership or operation of the UniSite Assets or the
conduct of the UniSite Business as now conducted and which, if not obtained and
maintained, could, individually or in the aggregate, have a material adverse
effect on UniSite. None of such Governmental Authorizations is subject to any
restriction or condition that could limit in any material respect the ownership
or operations of the UniSite Assets or the conduct of the UniSite Business as
currently conducted, except for restrictions and conditions generally applicable
to Governmental Authorizations of such type. The Governmental Authorizations
listed in Section 4.6(a) of the UniSite Disclosure Schedule are valid and in
good standing, are in full force and effect and are not impaired in any material
respect by any act or omission of UniSite or its officers, directors, employees
or agents, and the ownership and operation of the UniSite Assets and the conduct
of the UniSite Business are in accordance in all material respects with the
Governmental Authorizations. All material reports, forms and statements required
to be filed by UniSite with all Authorities with respect to the UniSite Business
have been filed and are true, complete and accurate in all material respects. No
such Governmental Authorization is the subject
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of any pending or, to UniSite's knowledge, threatened challenge, complaint or
proceeding, and no petitions to deny, objections or other challenges have been
filed with any Authority against any pending application of UniSite that would
have a material adverse effect on UniSite. UniSite has no reason to believe that
any such Governmental Authorization will not be renewed in the name of UniSite
by the granting Authority in the ordinary course.
(b) Except as otherwise specifically set forth in Section 4.6(b) of the
UniSite Disclosure Schedule, since January 1, 1996, UniSite has conducted and is
conducting its business and owned and has operated and is owning and operating
its property and assets in accordance with all Applicable Laws (excluding
Environmental Laws) and Governmental Authorizations, including without
limitation all tariff and reporting requirements, telecommunications relay
service funding obligations, universal service funding and reporting
requirements, and FAA antenna tower requirements, except for such breaches,
violations and defaults as, individually or in the aggregate, have not had and
will not have a material adverse effect on UniSite. Except as otherwise
specifically described in Section 4.6(b) of the UniSite Disclosure Schedule,
UniSite is not in and is not charged by any Authority with, and, to UniSite's
knowledge, is not threatened or under investigation by any Authority with
respect to, any breach or violation of, or default in the performance,
observance or fulfillment of, any Applicable Law relating to the ownership and
operation of the UniSite Assets or the conduct of the UniSite Business which,
individually or in the aggregate, has had or will have a material adverse effect
on UniSite. Except as otherwise specifically described in Section 4.6(b) of the
UniSite Disclosure Schedule, no Event exists or has occurred, which constitutes,
or but for any requirement of giving of notice or passage of time or both would
constitute, such a breach, violation or default, under any Governmental
Authorization or any Applicable Law, except for such breaches, violations or
defaults as, individually or in the aggregate, have not had and will not have a
material adverse effect on UniSite. With respect to matters, if any, of a nature
referred to in Section 4.6(b) of the UniSite Disclosure Schedule, except as
otherwise specifically described in Section 4.6(b) of the UniSite Disclosure
Schedule, all such information and matters set forth in the UniSite Disclosure
Schedule, if adversely determined against UniSite, individually or in the
aggregate, will not have a material adverse effect on UniSite.
(c) Except as set forth in Section 4.6(c) of the UniSite Disclosure
Schedule, there are no Legal Actions of any kind pending or, to the knowledge of
UniSite, threatened at Law, in equity or before any Authority against UniSite or
any of its officers or directors relating to the ownership or operation of the
UniSite Assets or the conduct of the UniSite Business. All such disclosed Legal
Actions, if determined adversely to UniSite, individually or in the aggregate,
will not have a material adverse effect on UniSite.
4.7 Intangible Assets. Section 4.7 of the UniSite Disclosure Schedule
sets forth a true, accurate and complete description of all material Intangible
Assets (other than Governmental Authorizations and Private Authorizations)
relating to the ownership and operation of the UniSite Assets or the conduct of
the UniSite Business held or used by UniSite, including without limitation the
nature of UniSite's interest in each and the extent to which the same have been
duly registered in the offices as indicated therein. Except as set forth in
Section 4.7 of the UniSite Disclosure Schedule, no Intangible Assets (except
Governmental Authorizations, Private Authorizations, and the Intangible Assets
so set forth) are required for the ownership or operation of the UniSite Assets
or the conduct of the UniSite Business as currently owned, operated and
conducted or proposed to be owned, operated and conducted on or prior to the
Closing Date. UniSite does not, to its knowledge, wrongfully infringe upon or
unlawfully use any Intangible Assets owned or claimed by another, and UniSite
has not received any notice of any claim or infringement relating to any such
Intangible Asset.
4.8 Related Transactions. UniSite is not a party or subject to any
Contractual Obligation relating to the ownership or operation of the UniSite
Assets or the conduct of the UniSite Business between UniSite
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and any of its officers or directors or, to the knowledge of UniSite, any member
of the Immediate Family of any thereof, or any Affiliate of any of the
foregoing, including without limitation any Contractual Obligation providing for
the furnishing of services to or by, providing for rental of property, real,
personal or mixed, to or from, or providing for the lending or borrowing of
money to or from or otherwise requiring payments to or from, any such Person,
other than (a) Employment Arrangements listed or described in Section 4.14 of
the UniSite Disclosure Schedule, (b) Contractual Obligations between UniSite and
any of the foregoing, that will be terminated, at no cost or expense to UniSite,
prior to the Closing, or (c) as specifically set forth in Section 4.8 of the
UniSite Disclosure Schedule.
4.9 Insurance. UniSite maintains policies of fire and extended coverage
and casualty, liability and other forms of insurance in such amounts and against
such risks and losses as are set forth in Section 4.9 of the UniSite Disclosure
Schedule.
4.10 Tax Matters. Except as set forth in Section 4.10 of the UniSite
Disclosure Schedule:
(a) UniSite has in accordance with all Applicable Laws filed
all Tax Returns which are required to be filed, and has paid, or made
adequate provision for the payment of, all Taxes which have or may
become due and payable pursuant to said Tax Returns and all other
governmental charges and assessments received to date other than those
Taxes being contested in good faith for which adequate provision has
been made on the most recent balance sheet forming part of the UniSite
Financial Statements;
(b) The Tax Returns of UniSite have been prepared in all
material respects in accordance with all Applicable Laws;
(c) All Taxes which UniSite is required by Law to withhold and
collect have been duly withheld and collected, and have been paid over,
in a timely manner, to the proper Authorities to the extent due and
payable, and UniSite is in compliance with, and its records contain all
information and documents necessary to comply with, all applicable
information, reporting and Tax withholding requirements;
(d) UniSite has not executed any waiver to extend, or
otherwise taken or failed to take any action that would have the effect
of extending, the applicable statute of limitations in respect of any
Tax liabilities of UniSite for the fiscal periods prior to and
including the most recent fiscal year. Adequate provision has been made
on the most recent balance sheet forming part of the UniSite Financial
Statements for all Taxes accrued through the date of such balance sheet
of any kind, including interest and penalties in respect thereof,
whether disputed or not, and whether past, current or deferred, accrued
or unaccrued, fixed, contingent, absolute or other, and there are no
past transactions or matters which could result in additional Taxes of
a material nature to UniSite for which an adequate reserve has not been
provided on such balance sheet;
(e) UniSite has at all times been taxable as a subchapter C
corporation under the Code, and has never been a member of any
consolidated group for Tax purposes;
(f) Immediately preceding the Merger, UniSite will not have
any material amount of deferred income or gain under Regulation Section
1.1502-13 or any material excess loss account under Regulation Section
1.1502-19;
-12-
(g) UniSite is not a party to any Tax sharing agreement or
arrangement;
(h) UniSite (i) has not made or entered into, and holds no
assets subject to, a consent filed pursuant to Section 341(f) of the
Code or a "safe harbor lease" subject to Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect prior to the
enactment of the Tax Equity and Fiscal Responsibility Act of 1982, (ii)
is not required to include in income any amount for an adjustment
pursuant to Section 481 of the Code or the regulations thereunder,
(iii) is not a party to, and is not obligated under, any agreement or
other arrangement providing for the payment of any amount that would be
an "excess parachute payment"under Section 280G of the Code;
(i) Section 4.10 of the UniSite Disclosure Schedule describes
all material federal income Tax elections, consents and agreements
affecting UniSite and lists all types of Taxes paid and Tax returns
filed by UniSite.
(j) All record and beneficial holders of UniSite Preferred
Stock and UniSite Common Stock are "United States persons" within the
meaning of Section 7701(a)(30) of the Code.
4.11 Employee Retirement Income Security Act of 1974. Except as set
forth in Section 4.11 of the UniSite Disclosure Schedule
(a) UniSite (which for purposes of this Section shall include any ERISA
Affiliate) has not within the preceding six years sponsored, maintained or
contributed to, and does not currently sponsor, maintain or contribute to, any
Plan or Benefit Arrangement, except as set forth in Section 4.11(a) of the
UniSite Disclosure Schedule. UniSite has delivered or made available to ATC
true, complete and correct copies of (i) each Plan and Benefit Arrangement (or,
in the case of any unwritten Plans or Benefit Arrangements, reasonable
descriptions thereof), (ii) the two most recent annual reports on Form 5500
(including all schedules and attachments thereto) filed with the Internal
Revenue Service with respect to each Plan or Benefit Arrangement (if any such
report was required by Applicable Law), (iii) the two most recent financial
statements and actuarial reports with respect to any Plan for which such
statements or reports exist, (iv) the most recent summary plan description (or
similar document) for each Plan for which such a summary plan description is
required by Applicable Law or was otherwise provided to plan participants or
beneficiaries, (v) the most recent Internal Revenue Service determination
letter, if any, and (vi) each trust agreement and insurance policy (including
any fiduciary liability policy or bond) or annuity contract or other funding or
financing arrangement relating to any Plan. To the knowledge of UniSite, each
such Form 5500 and summary plan description (or similar document) does not, as
of the date hereof, contain any material misstatements. UniSite does not
maintain and does not have any obligation or liability with respect to any Plan
or other arrangement that provides for post-retirement medical, dental, health,
hospitalization, disability, life insurance or other benefits, except as the
provisions of COBRA may apply to any former employees of UniSite. Except as set
forth in Section 4.11(a) of the UniSite Disclosure Schedule, as to all Plans and
Benefit Arrangements listed in Section 4.11(a) of the UniSite Disclosure
Schedule:
(i) all such Plans and Benefit Arrangements comply and have
been administered in form and in operation, in all material respects,
in accordance with their respective terms and with all Applicable Laws
and UniSite has not received any notice from any Authority disputing or
investigating such compliance;
(ii) none of the assets of any such Plan are invested in
employer securities or employer real property;
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(iii) there are no Claims (other than routine Claims for
benefits or actions seeking quali fied domestic relations orders)
pending or, to UniSite's knowledge, threatened involving such Plans or
the assets of such Plans, and, to UniSite's knowledge, no facts exist
which are reasonably likely to give rise to any such Claims (other than
routine Claims for benefits or actions seeking qualified domestic
relations orders);
(iv) all material contributions to, and material payments
from, the Plans and Benefit Arrangements that may have been required to
be made in accordance with the terms of the Plans and Benefit
Arrangements, and any applicable collective bargaining agreement, have
been made. All such contributions to, and payments from, the Plans and
Benefit Arrangements, except those payments to be made from a trust
qualified under Section 401(a) of the Code, for any period ending
before the Closing Date that are not yet, but will be, required to be
made, will be properly accrued and reflected on the financial books and
records of UniSite;
(v) to UniSite's knowledge, no Event has occurred which would
result in imposition on UniSite (or on any Person who UniSite has
agreed to indemnify) of (A) any breach of fiduciary duty liability
damages under Section 409 of ERISA, (B) a civil penalty assessed
pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or (C)
a tax imposed pursuant to Chapter 43 of Subtitle D of the Code;
(vi) Each Pension Plan which is intended to be qualified under
Section 401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service, and UniSite is not aware of
any circumstances reasonably likely to result in the revocation or
denial of any such favorable determination letter. There is no pending
or, to its knowledge, threatened litigation or governmental audit,
examination or investigation relating to any Plan. Each asset held
under any Plan may be liquidated or terminated without the imposition
of any redemption fee, surrender charge or comparable liability. No
partial termination (within the meaning of Section 411(d)(3) of the
Code) has occurred with respect to any Pension Plan;
(vii) UniSite has not maintained and does not maintain any
Pension Plan subject to Title IV of ERISA or any defined benefit Plan;
(viii) No Pension Plan has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code
or Section 302 of ERISA. UniSite has not provided, and is not required
to provide, security to any Pension Plan or to any single-employer
plan;
(ix) Each Plan may be amended, terminated, or otherwise
modified by UniSite to the greatest extent permitted by applicable law,
including the elimination of any and all future benefit accruals under
any Plan, and no employee communications or provision of any Plan
document has failed to effectively reserve the right of UniSite to so
amend, terminate or otherwise modify such Plan;
(x) UniSite has not incurred any material liability to a Plan
(other than for contributions not yet due) which liability has not been
fully paid or accrued for payment as of the date hereof`and set forth
in the UniSite Financial Statements;
(xi) except as otherwise set forth in Section 4.11(a) of the
UniSite Disclosure Schedule, no current or former employee of UniSite
will be entitled to any additional benefits or any acceleration
-14-
of the time of payment or vesting of any benefits under any Plan or
Benefit Arrangement as a result of the transactions contemplated by
this Agreement, and no such benefit or acceleration will constitute an
"excess parachute payment" (as such term is defined in Section
280G(b)(1) of the Code); and
(xii) no compensation payable by UniSite to any of its
employees under any existing Plan or Benefit Arrangement (including by
reason of the transactions contemplated hereby) will be subject to
disallowance under Section 162(m) of the Code.
(b) The execution, delivery and performance by UniSite of this
Agreement and the Collateral Documents executed or required to be executed by
UniSite pursuant hereto and thereto will not involve any prohibited transaction
within the meaning of ERISA or Section 4975 of the Code with respect to any
Plan.
4.12 Year 2000 Compliant. UniSite has reviewed the areas within its
business and operations which UniSite believes could be adversely affected by
the "Year 2000 Problem" (that is, the risk that computer applications used by
UniSite may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date on or after December 31, 1999),
and has made related inquiry of material suppliers, vendors and customers. Based
on such review, UniSite believes that the "Year 2000 Problem" will not have a
material adverse effect on UniSite. Except as set forth in Section 4.12 of the
UniSite Disclosure Schedule, each hardware, software and firmware product
(collectively "Software") used by UniSite in its business is Year 2000
compliant, except for such noncompliances that, individually or in the
aggregate, have not had and will not have a material adverse effect on UniSite.
The current status, projected cost and prognosis of any Year 2000 remedial
efforts with respect to non-compliant Software and with respect to any
identified Year 2000 issues with any material supplier, vendor or customer are
listed in Section 4.12 of the UniSite Disclosure Schedule.
4.13 Bank Accounts, Etc. Section 4.13 of the UniSite Disclosure
Schedule contains a true, accurate and complete list as of the date hereof of
all banks, trust companies, savings and loan associations and brokerage firms in
which UniSite has an account or a safe deposit box and the names of all Persons
authorized to draw thereon, to have access thereto, or to authorize transactions
therein, the names of all Persons, if any, holding valid and subsisting powers
of attorney from UniSite and a summary statement as to the terms thereof.
UniSite will not make or permit to be made any change affecting any account or
safe deposit box with any bank, trust company, savings and loan association,
brokerage firm or safe deposit box or in the names of the Persons authorized to
draw thereon, to have access thereto or to authorize transactions therein or in
such powers of attorney, or open any additional accounts or boxes or grant any
additional powers of attorney, without in each case first notifying ATC in
writing.
4.14 Employment and Consulting Arrangements. Section 4.14 of the
UniSite Disclosure Schedule contains a true, accurate and complete list of all
UniSite employees and consultants (the "UniSite Employees"), together with each
such Person's title or the capacity in which he or she is employed or retained
and each such Person's compensation. UniSite has no obligation or liability,
contingent or other, under any Employment Arrangement with any UniSite Employee,
other than (i) those listed or described in Section 4.14 of the UniSite
Disclosure Schedule, (ii) those incurred in the ordinary and usual course of
business, or (iii) such obligations or liabilities as, individually or in the
aggregate, have not had and will not have a material adverse effect on UniSite.
Except as described in Section 4.14 of the UniSite Disclosure Schedule, (a) none
of the UniSite Employees is now, or since UniSite's organization has been,
represented by any labor union or other employee collective bargaining
organization, and UniSite is not, and never has been, a party to any labor or
other collective bargaining agreement with respect to any of the UniSite
Employees, (b) there are no pending grievances, disputes or controversies with
any union or any other employee or collective bargaining
-15-
organization of such employees, or threats of strikes, work stoppages or
slowdowns or any pending demands for collective bargaining by any such union or
other organization, (c) neither UniSite nor any of such employees is now, or has
since its organization been, subject to or involved in or, to UniSite's
knowledge, threatened with, any union elections, petitions therefor or other
organizational or recruiting activities, in each case with respect to the
UniSite Employees, and (d) none of the UniSite Employees has notified UniSite
that he or she does not intend to continue employment with UniSite until or
following the Closing. UniSite has performed in all material respects all
obligations required to be performed under all Employment Arrangements and is
not in material breach or violation of or in material default or arrears under
any of the terms, provisions or conditions thereof.
4.15 Material Agreements. Listed on Section 4.15 of the UniSite
Disclosure Schedule are all Material Agreements (other than Leases) relating to
the ownership or operation of the UniSite Assets or the conduct of the UniSite
Business or to which UniSite is a party or to which it is bound or which any of
the UniSite Assets is subject. True, accurate and complete copies of each of
such Material Agreements have been made available by UniSite to ATC, and UniSite
has provided ATC with photocopies of all such Material Agreements requested by
ATC (or true, accurate and complete descriptions thereof have been set forth in
Section 4.15 of the UniSite Disclosure Schedule with respect to Material
Agreements that are oral). All of such Material Agreements are valid, binding
and legally enforceable obligations of UniSite and, to its knowledge, all other
parties thereto, except as such enforceability may be limited by bankruptcy,
moratorium, insolvency and similar Laws affecting the rights and remedies of
creditors and obligations of debtors generally and by general principles of
equity. Neither UniSite nor, to its knowledge, any other party thereto, has
failed to duly comply with all of the material terms and conditions of each such
Material Agreement or has done or performed, or failed to do or perform (and no
Claim is pending or, to the knowledge of UniSite, threatened in writing to the
effect that UniSite has not so complied, done and performed or failed to do and
perform) any act which would invalidate or provide grounds for the other party
thereto to terminate (with or without notice, passage of time or both) any of
such Material Agreements or impair in any material respect the rights or
benefits of, or materially increase the costs to, UniSite under any of such
Material Agreements.
4.16 Ordinary Course of Business. UniSite, from the date of the most
recent UniSite Financial Statements to the date hereof, except (i) as may be
described on Section 4.16 of the UniSite Disclosure Schedule, (ii) as may be
required by the terms of or described in this Agreement, or (iii) as may be
described in the UniSite Financial Statements:
(a) has operated its business in all material respects in the
normal, usual and customary manner in the ordinary and regular course
of business, consistent with prior practice;
(b) except in each case in the ordinary course of business,
consistent with prior practice:
(i) has not incurred any obligation or liability
(fixed, contingent or other) individually having a value in
excess of $200,000;
(ii) has not sold or otherwise disposed of or
contracted to sell or otherwise dispose of any of its
properties or assets having a value in excess of $50,000;
(iii) has not entered into any individual commitment
having a value in excess of $50,000; and
(iv) has not canceled any debts or claims having a
value in excess of $50,000;
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(c) has not created or permitted to be created any Lien on any
of the UniSite Assets, except for Permitted Liens;
(d) has not made or committed to make any additions to its
property or any purchases of equipment, except in the ordinary course
of business consistent with past practice or for normal maintenance and
replacements;
(e) has not increased the compensation payable or to become
payable to any of the UniSite Employees other than normal nonmaterial
increases in the ordinary course of business to other than officers of
UniSite, or otherwise materially altered, modified or changed the terms
of their employment;
(f) has not suffered any material damage, destruction or loss
(whether or not covered by insurance) or any acquisition or taking of
property by any Authority;
(g) has not waived any rights of material value without fair
and adequate consideration;
(h) except in the ordinary course of business not involving a
labor dispute, has not experienced any work stoppage;
(i) except in the ordinary course of business, has not entered
into, amended or terminated any Lease, Governmental Authorization,
Private Authorization, Material Agreement, Plan, Benefit Arrangement or
Employment Arrangement, or any transaction, agreement or arrangement
with any officer, director or Affiliate of UniSite;
(j) has not issued or sold, or agreed to issue or sell, any
shares of UniSite Common Stock, other shares of capital stock,
Convertible Securities or Option Securities;
(k) has not made, paid or declared any Distribution; and
(l) has not entered into any transactions or series of related
transactions which individually or in the aggregate is material to the
UniSite Assets or the UniSite Business.
4.17 Material and Adverse Restrictions. UniSite is not a party to or
subject to, nor is any of the UniSite Assets subject to, any Applicable Law,
Governmental Authorization, Contractual Obligation, Employment Arrangement,
Plan, Benefit Arrangement, Lease, Material Agreement or Private Authorization,
or any other obligation or restriction of any kind or character, which,
individually or in the aggregate, has had or will have a material adverse effect
on UniSite, except as set forth in Section 4.17 of the UniSite Disclosure
Schedule and except for matters affecting the tower communication sites industry
generally.
4.18 Broker or Finder. No agent, broker, investment banker, financial
advisor other firm or Person engaged by or on behalf of UniSite or any of its
Affiliates or any of the UniSite stockholders is or will be entitled to any fee
or commission in connection with the transactions contemplated by this
Agreement, except Credit Suisse First Boston Corporation ("CSFB") and Fleet
National Bank ("Fleet").
4.19 Environmental Matters. Except as set forth in Section 4.19 of the
UniSite Disclosure Schedule, UniSite:
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(a) has not been notified that it is potentially liable under,
has not received any request for information or other correspondence
concerning its potential liability with respect to any site or facility
under, and, to UniSite's knowledge, is not a "potentially responsible
party" under, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, the Resource Conservation
Recovery Act, as amended, or any similar state Law;
(b) has not entered into or received any consent decree,
compliance order or administrative order issued pursuant to any
Environmental Law;
(c) is not a party in interest or in default under any
judgment, order, writ, injunction or decree issued pursuant to any
Environmental Law;
(d) has, to its knowledge, obtained all Environmental Permits
required under Environmental Laws, and has filed all applications,
notices and other documents required to be filed to effect the timely
renewal or issuance of all Environmental Permits for the continued
ownership or operation of the UniSite Assets or conduct of the UniSite
Business in the manner currently owned, operated and conducted or
proposed to be owned, operated and conducted prior to the Closing Date;
(e) is in compliance in all material respects with all
Environmental Laws, and is not the subject of or, to UniSite's
knowledge, threatened with any Legal Action involving a demand for
damages or other potential liability, including any Lien, with respect
to violations or breaches of any Environmental Law;
(f) has not conducted or received any site assessment, audit
or other investigation as to material environmental matters at any
property currently owned, leased, operated or occupied by UniSite;
(g) has not manufactured, processed, distributed, used,
treated, stored, installed, disposed of, transported or handled any
Hazardous Material, and, to UniSite's knowledge, none of the real
property constituting a part of the UniSite Assets has been so used, in
a manner that, individually or in the aggregate, has had or could have
a material adverse effect on UniSite;
(h) is not aware of any ambient air, surface water,
groundwater or land contamination or contamination within building
structures within, under, originating from or relating to any real
property constituting a part of the UniSite Assets such that the
contamination impacts any other locations;
(i) has not installed or used any above ground or underground
storage tanks, friable asbestos, polychlorinated biphenyls or urea
formaldehyde foam insulation on any property currently owned, leased or
operated by UniSite and, to its knowledge, there are no above ground or
underground storage tanks, friable asbestos, polychlorinated biphenyls
or urea formaldehyde foam insulation on any property currently owned,
leased or operated by UniSite; and
(j) has no knowledge of any past or present Event related to
UniSite's properties, operations or business, which Event, individually
or in the aggregate, could reasonably be expected to interfere with or
prevent continued compliance in all material respects with all
Environmental Laws applicable to the ownership or operation of the
UniSite Assets or to the conduct of the UniSite
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Business substantially in the manner now conducted or proposed to be
conducted on or prior to the Closing Date, or which, individually or in
the aggregate, may form the basis of any material Claim for or arising
out of the release or threatened release into the environment of any
Hazardous Material.
Section 4.19 of the UniSite Disclosure Schedule sets forth a true, correct and
complete list of all existing Phase I environmental site assessment reports (an
"Environmental Report") on each parcel of real property owned or leased by
UniSite for which an Environmental Report has previously been prepared for
UniSite (true, correct and complete copies of which have heretofore been
delivered by UniSite to ATC).
4.20 Capital Stock. The authorized and outstanding capital stock of
UniSite is as set forth in Section 4.20 of the UniSite Disclosure Schedule. All
of such outstanding capital stock has been duly authorized and validly issued,
is fully paid and nonassessable and is not subject to any preemptive or similar
rights and is owned of record and, to UniSite's knowledge, beneficially as shown
in Section 4.20 of the UniSite Disclosure Schedule. Except as set forth in
Section 4.20 of the UniSite Disclosure Schedule, UniSite has not granted or
issued, nor has UniSite agreed to grant or issue, any shares of its capital
stock or any Option Security or Convertible Security, and UniSite is not a party
to or bound by any agreement, put or commitment pursuant to which it is
obligated to purchase, redeem or otherwise acquire any shares of capital stock
or any Option Security or Convertible Security.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ATC AND ATI
Each of ATC and ATI, jointly and severally, hereby represents and
warrants to UniSite and the UniSite stockholders as follows:
5.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) Each of ATC and ATI is a corporation duly organized, validly
existing and in good standing under the DCL, has all requisite power and
authority (corporate and other) to own or hold under lease its properties and to
conduct its business as now conducted and is duly qualified and in good standing
as a foreign corporation in each other jurisdiction in which the character of
the property owned or leased by it or the nature of its business or operations
requires such qualification, except for such qualifications the failure of which
to obtain, individually or in the aggregate, have not had and will not have a
material adverse effect on ATC.
(b) Each of ATC and ATI has all requisite power and authority
(corporate and other) and has in full force and effect all Governmental
Authorizations and Private Authorizations necessary to enable it to execute and
deliver, and to perform its obligations under, this Agreement and each
Collateral Document executed or required to be executed by it pursuant hereto or
thereto and to consummate the Transactions; and the execution, delivery and
performance by ATC and ATI of this Agreement and each Collateral Document
executed or required to be executed by it pursuant hereto or thereto have been
duly authorized by all requisite corporate or other action on the part of ATC
and ATI. This Agreement has been duly executed and delivered by ATC and ATI and
constitutes, and each Collateral Document executed or required to be executed by
each of them pursuant hereto or thereto or to consummate the Transactions when
executed and delivered by ATC and ATI will constitute, legal, valid and binding
obligations of each of ATC and ATI, enforceable in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
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moratorium, insolvency and similar Laws affecting the rights and remedies of
creditors and obligations of debtors generally and by general principles of
equity.
(c) Except to the extent necessary under their credit facilities,
neither the execution and delivery by ATC and ATI of this Agreement or any
Collateral Document executed or required to be executed by each of them pursuant
hereto or thereto, nor the consummation of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by ATC and ATI:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of ATC or ATI or
any Applicable Law, or will conflict with, or result in a breach or
violation of, or constitute a default under, or permit the acceleration
of any obligation or liability in, or but for any requirement of giving
of notice or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any such
acceleration in, any Contractual Obligation of ATC or ATI; or
(ii) will require ATC or ATI to make or obtain any
Governmental Authorization, Governmental Filing or Private
Authorization, except (A) filings contemplated by the Registration
Rights Agreement, (B) filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, (C) for
Federal Aviation Administration and the Federal Communications
Commission approvals, (D) the filing with the SEC of such reports under
Section 13(a) or 15(d) of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated
hereby, (E) the filing of the Certificate of Merger with the Delaware
Secretary of State, and appropriate documents with the relevant
authorities of other states in which ATI is qualified to do business,
and (F) such other Governmental Authorizations, Governmental Filings,
and Private Authorizations the failure of which to be made or obtained
would not, individually or in the aggregate, have a material adverse
effect on ATC.
5.2 ATC SEC Reports. ATC has heretofore made available to UniSite,
including for furnishing to the UniSite stockholders, (a) its Annual Report on
Form 10-K for the fiscal year ended December 31, 1998, (b) its prospectus, dated
February 3, 1999, (c) its Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999, and (d) all Current Reports on Form 8-K filed since
February 3, 1999 (collectively, the "ATC SEC Documents"). As of the respective
dates thereof, the ATC SEC Documents were prepared in all material respects in
accordance with the Securities Act or the Exchange Act, as applicable, and did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. ATC has timely filed all forms, reports and documents with the SEC
required to be filed by it pursuant to the Securities Act and the Exchange Act
which complied as to form, at the time such form, document or report was filed,
in all material respects with the applicable requirements of the Securities Act
and the Exchange Act. The consolidated financial statements of ATC included in
the ATC SEC Documents (the "ATC Financial Statements"), including in each case
the notes thereto, have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby, except as otherwise
noted therein, and fairly present the consolidated financial condition and the
consolidated results of operations and cash flow of ATC, on the bases therein
stated, as of the respective dates thereof, and for the respective periods
covered thereby subject, in the case of unaudited financial statements, to
normal nonmaterial year-end audit adjustments and accruals.
5.3 Material Statements and Omissions; Absence of Events. Neither any
representation or warranty made by ATC or ATI contained in this Agreement or in
any certificate, document or other instrument furnished or to be furnished by
ATC or ATI pursuant to the provisions hereof nor the ATC SEC Documents
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contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact required to make any statement contained
herein or therein, in light of the circumstances under which they were made, not
misleading. Since the date of the most recent financial statements constituting
a part of the ATC Financial Statements there has been no change with respect to,
and there is no Event known to, ATC that has had or will have a material adverse
effect on ATC, except (a) to the extent set forth in any of the ATC SEC
Documents, (b) for matters affecting the industry generally, and (c) for any
Event arising out of the execution or public announcement of this Agreement. ATC
is not aware of any impending or contemplated Event that would cause any of the
representations and warranties made by it in this Article not to be true,
correct and complete on the date of such Event as if made on that date.
5.4 Broker or Finder. No agent, broker, investment banker, financial
advisor, other firm or Person engaged by or on behalf of ATC or any of its
Affiliates is or will be entitled to any fee or commission in connection with
the transactions contemplated by this Agreement.
5.5 Legal Actions. There are no Legal Actions of any kind pending or,
to the knowledge of ATC, threatened at Law, in equity or before any Authority
against ATC or any of its Subsidiaries or any of its or any of their officers or
directors relating to the ownership or operation of their assets and properties
or the conduct of their businesses that, if determined adversely to ATC,
individually or in the aggregate, would have a material adverse effect on ATC
and its Subsidiaries taken as a whole.
5.6 Absence of Change of Control. ATC is not engaged in any
negotiations or discussions that, individually or in the aggregate, could result
in a Change of Control of ATC.
5.7 Adequate Financial Resources. ATC has available to it adequate
financial resources to consummate the Merger, including without limitation the
ability to make payment of the Cash Consideration.
ARTICLE 6
COVENANTS
6.1 Access to Information; Confidentiality.
(a) Each party shall afford to the other party and its accountants,
counsel, financial advisors and other representatives (the "Representatives")
full access during normal business hours throughout the period prior to the
Closing Date to all of its (and its Subsidiaries') properties, books, contracts,
insurance policies, studies and reports, environmental studies and reports,
commitments and records (including without limitation Tax Returns) and, during
such period, shall furnish promptly upon written request (i) a copy of each
report, schedule and other document filed or received by any party pursuant to
the requirements of any Applicable Law or filed by it with any Authority in
connection with the Merger or any other report, schedule or documents which may
have a material effect on the businesses, operations, properties, prospects,
personnel, condition (financial or other), or results of operations of their
respective businesses, (ii) to the extent not provided for pursuant to the
immediately preceding clause, in the case of UniSite, all financial records,
ledgers, work papers and other sources of financial information possessed or
controlled by it or any of its Subsidiaries or its or any of their accountants
deemed by ATC or its Representatives necessary or useful for the purpose of
performing an audit of the business and assets of UniSite, and (iii) such other
information concerning any of the foregoing as ATC or UniSite shall reasonably
request. All Confidential Information furnished pursuant to the provisions of
this Agreement, including without limitation this Section, will be kept
confidential and shall not, without
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the prior written consent of the party disclosing such Confidential Information,
be disclosed by the other party in any manner whatsoever, in whole or in part,
and, except as required by Applicable Law (including without limitation in
connection with any registration, proxy or information statement or similar
document filed pursuant to any federal or state securities Law) shall not be
used for any purposes, other than in connection with the Merger. Except as
otherwise herein provided, each party agrees to reveal such Confidential
Information only to those of its Representatives or other Persons whom it
believes need to know such Confidential Information for the purpose of
evaluating and consummating the Merger. For purposes of this Agreement,
"Confidential Information" shall mean any and all information related to the
business or businesses of ATC, ATI and their respective Affiliates or UniSite
and its Affiliates, including any of their respective successors and assigns,
other than information that (i) has been or is obtained from a source
independent of the disclosing party that, to the receiving party's knowledge, is
not subject to any confidentiality restriction, (ii) is or becomes generally
available to the public other than as a result of unauthorized disclosure by the
receiving party, or (iii) is independently developed by the receiving party
without reliance in any way on information provided by the disclosing party or
by a third party independent of the disclosing party that, to the receiving
party's knowledge, is not subject to any confidentiality restriction.
(b) Notwithstanding the provisions of Section 6.1(a), (i) each party
may disclose such information as it may reasonably determine to be necessary in
connection with seeking all Governmental and Private Authorizations or that is
required by Applicable Law to be disclosed, including without limitation in any
registration, proxy or information statement or other document required to be
filed under any federal or state securities Law, and (ii) ATC may, with the
prior written consent of UniSite, which consent shall not be unreasonably
withheld, delayed or conditioned, disclose the subject matter of this Agreement
to Persons with whom UniSite or any of its Subsidiaries has a business or
contractual relationship in connection with ATC's due diligence investigation of
UniSite and its Subsidiaries. In the event that this Agreement is terminated in
accordance with its terms, each party shall promptly redeliver all written
Confidential Information provided pursuant to this Section or any other
provision of this Agreement or otherwise in connection with the Merger and shall
not retain any copies, extracts or other reproductions in whole or in part of
such written material, other than one copy thereof which shall be delivered to
independent counsel for such party.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, either party may disclose information received or
retained by it in accordance with the provisions of this Agreement if it can
demonstrate (i) such information is generally available to or known by the
public from a source other than the party seeking to disclose such information
or (ii) was obtained by the party seeking to disclose such information from a
source other than the other party, provided that such source was not, to the
knowledge of the disclosing party, bound by a duty of confidentiality to the
other party or another party with respect to such information.
(d) No investigation pursuant to this Section or otherwise shall affect
any representation or warranty in this Agreement of any party or any condition
to the obligations of the parties hereto.
6.2 Agreement to Cooperate; Certain Other Covenants.
(a) Each of the parties hereto shall use reasonable business efforts
(x) to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary, proper or advisable under Applicable Law to consummate the
Merger and the other Transactions, and (y) to refrain from taking, or cause to
refrain from taking, any action and to refrain from doing or causing to be done,
anything which could impede or impair the consummation of the Merger or the
consummation of the other Transactions, including, in all cases, without
limitation using its reasonable business efforts (i) to prepare and file with
the applicable Authorities as
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promptly as practicable after the execution of this Agreement all requisite
applications and amendments thereto, together with related information, data and
exhibits, necessary to request issuance of orders approving the Merger by all
such applicable Authorities, (ii) to obtain all necessary or appropriate
waivers, consents and approvals, (iii) to effect all necessary registrations,
filings and submissions (including without limitation (A) filings within fifteen
(15) business days of the date of this Agreement under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act, and (B) all filings necessary for ATI to own and operate the UniSite Assets
and the UniSite Business, (iv) to lift any injunction or other legal bar to the
Merger (and, in such case, to proceed with the Merger as expeditiously as
possible), and (v) to obtain the satisfaction of the conditions specified in
Article 7, and (vi) to advise the other of, in the case of UniSite, any changes
that would be required in the UniSite Disclosure Schedule if the applicable
representations and warranties set forth in Article 4 did not refer to the date
of this Agreement. The provisions of this Section shall apply to all
Subsidiaries of ATC and UniSite.
(b) The parties shall cooperate with one another in the preparation of
all Tax Returns, questionnaires, applications or other documents regarding any
Taxes or transfer, recording, registration or other fees which become payable in
connection with the Merger that are required to be filed on or before the
Closing Date.
(c) UniSite shall cooperate and use its reasonable business efforts to
cause its independent accountants to reasonably cooperate with ATC in order to
enable ATC, at its sole discretion and expense, to have its independent
accountants prepare the audited financial statements for UniSite described in
Section 7.2(g). UniSite will use its reasonable business efforts to ensure that
such financial statements will have been prepared in accordance with GAAP
applied on a basis consistent with the UniSite Financial Statements and will
present fairly the financial condition, results of operation and cash flow of
UniSite. Without limiting the generality of the foregoing, UniSite agrees that
it will (i) consent to the use of such audited financial statements in any
registration, proxy or information statement or other document filed by ATC or
any of its Affiliates under the Securities Act or the Exchange Act and (ii)
execute and deliver, and cause its officers to execute and deliver, such
"representation" letters as are customarily delivered in connection with audits
and as ATC's independent accountants may reasonably request under the
circumstances.
6.3 Public Announcements. Until the Closing or the termination of this
Agreement, each party shall consult with the other before issuing any press
release or otherwise making any public statements with respect to this Agreement
or the Merger and shall not issue any such press release or make any such public
statement without the prior written approval of the other. Notwithstanding the
foregoing, the parties acknowledge and agree that they may, without each other's
prior consent, issue such press releases or make such public statements as may
be required by Applicable Law, in which case the issuing party shall use all
reasonable efforts to consult with the other party and agree upon the nature,
content and form of such press release or public statement.
6.4 Notification of Certain Matters. Each party shall give prompt
notice to the other of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be reasonably likely to cause (a)
any representation or warranty made by it contained in this Agreement to be
untrue or inaccurate in any material respect or (b) any failure by it to comply
with or satisfy, or be able to comply with or satisfy, in any material respect,
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement in any material respect, such that, in any such case, one
or more of the conditions of Closing would not be satisfied; provided, however,
that the delivery of any notice pursuant to this Section shall not limit or
otherwise affect the rights and remedies available hereunder to the party
receiving such notice or the obligations of the party delivering such notice and
shall not, in any event, affect the representations,
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warranties, covenants and agreements of the parties or the conditions to their
respective obligations under this Agreement.
6.5 Other Offers; No Solicitation.
(a) UniSite agrees that it and its Subsidiaries, officers, employees,
agents and representatives (including without limitation any investment bankers,
brokers, financial advisors, finders, attorneys or accountants) (i) shall not,
directly or indirectly, after the date hereof, (A) initiate or solicit any
inquiries or the making of any proposal or offer with respect to an Alternative
Transaction or that constitutes, or may reasonably be expected to lead to, an
Alternative Transaction, or (B) engage or participate in any negotiations or
otherwise cooperate or provide assistance (including by way of furnishing
non-public information) relating to or in contemplation of an Alternative
Transaction, (ii) have terminated any discussions or negotiations with, and the
provisions of information or data (whether or not of a non-public nature) to any
Person relating to or in contemplation of an Alternative Transaction, and (iii)
have, or within two (2) days of the date of this Agreement will have, requested
each Person that has heretofore executed a confidentiality agreement in
connection with its consideration of an Alternative Transaction to return all
confidential information heretofore furnished to such Person by or on behalf of
it or any of its Subsidiaries and will not waive any "standstill" provision of
any such, or any other agreement.
(b) Nothing contained in this Agreement shall, except as hereinafter
provided in this Section 6.5(b), prevent UniSite or its Board of Directors from
at any time prior to the UniSite Stockholder Approval, if the Board of Directors
of UniSite determines in good faith, after the advice of and consultation with
legal counsel, that a written Alternative Transaction (A) would, if consummated,
constitute a Superior Proposal, and (B) that (and only to the extent that) such
action is necessary in order for the directors to comply with their fiduciary
duties to UniSite's stockholders under Applicable Law, UniSite may (x) furnish
non-public information with respect to UniSite to the Person who made such
Alternative Transaction pursuant to a customary confidentiality agreement and
(y) participate in discussions and negotiations regarding such Alternative
Transaction, but only if (A) UniSite has not breached and is not then in breach
of its obligations under this Section, and (B) confidentiality arrangements on
terms no less favorable to UniSite as those set forth in this Agreement are
entered into with respect thereto; provided, however, that neither UniSite nor
its Board of Directors shall, except as permitted by Section 6.5(c), propose to
approve or recommend an Alternative Transaction.
(c) The Board of Directors of UniSite shall not (i) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to ATC, its approval or
recommendation of this Agreement or the Merger, (ii) approve or recommend, or
propose to approve or recommend, an Alternative Transaction, or (iii) cause
UniSite to enter into any letter of intent, agreement in principle, acquisition
agreement or merger or other similar agreement with respect to an Alternative
Transaction, unless (x) the UniSite Stockholder Approval has not been obtained,
(y) Board of Directors of UniSite shall have determined in good faith, after the
advice of and consultation with legal counsel and UniSite's independent
financial advisors, that (A) such action is necessary in order for the directors
to comply with their fiduciary duties to UniSite's stockholders under Applicable
Law, and (B) such Alternative Transaction is a Superior Proposal, and (z)
UniSite shall be permitted to terminate, and shall have terminated, this
Agreement pursuant to the provisions of paragraph (f) of Section 8.1.
(d) UniSite shall promptly (but in any event within three (3) days)
advise ATC orally and in writing of any Alternative Transaction or any inquiry
relating to or contemplating an Alternative Transaction including any request
for information, the material terms and conditions of such request, Alternative
Transaction or inquiry and the identity of the person making such request,
Alternative Transaction or inquiry.
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UniSite will, to the extent reasonably practicable, keep ATC fully informed of
the status and details (including amendments or proposed amendments) of any such
request, Alternative Transaction or inquiry. ATC shall have the right, but shall
not be obligated, within five (5) days after such notification (including of any
material amendment or proposed amendment), to revise its offer to consummate the
Merger and to communicate such revised offer in writing to UniSite. UniSite
shall be obligated to consider any such revised offer in connection with its
consideration of an Alternative Transaction.
(e) If, prior to the UniSite Stockholder Approval, UniSite shall
receive a firm, bona fide written proposal or proposals from any Person relating
to an Alternative Transaction, and UniSite's Board of Directors shall determine
in good faith, after the advice of and consultation with legal counsel and
UniSite's independent financial advisors, that such Alternative Transaction (i)
would, if consummated, constitute a Superior Proposal, and (ii) that termination
of this Agreement and acceptance of such Alternative Transaction is necessary in
order for the directors to comply with their fiduciary duties to UniSite's
stockholders under Applicable Law, then UniSite shall, upon compliance with the
provisions of Section 6.5(f) and if it has not breached, and is not then in
breach of, this Section, terminate this Agreement pursuant to the provisions of
Section 8.1(f).
6.6 Conduct of Business by UniSite Pending the Merger. Except as set
forth in Section 6.6 of the UniSite Disclosure Schedule or as otherwise
contemplated by this Agreement, after the date hereof and prior to the Closing
Date or earlier termination of this Agreement, unless ATC shall otherwise
consent in writing, UniSite shall, and, if applicable, shall cause each of its
Subsidiaries to:
(a) conduct its business in the ordinary and usual course of
business and consistent with past practice;
(b) not (i) amend or propose to amend its Organic Documents,
(ii) split, combine or reclassify (whether by stock dividend or
otherwise) its outstanding capital stock or issue or authorize the
issue of any other securities in respect of, in lieu of, or in
substitution for, shares of its capital stock, or (iii) declare, set
aside, pay or make, or agree to declare, set aside, pay or make, any
Distribution, whether in cash, stock, property or otherwise;
(c) not issue, sell, pledge or dispose of, or agree to issue,
sell, pledge or dispose of, any shares of UniSite Common Stock, other
shares of capital stock, Convertible Securities or Option Securities,
except pursuant to the conversion of outstanding Convertible Securities
or the exercise of outstanding Option Securities;
(d) not (i) incur or become contingently liable with respect
to any Indebtedness for Money Borrowed, other than Indebtedness for
Money Borrowed (A) outstanding as of the date of this Agreement and (B)
owed to ATC or one of its Subsidiaries pursuant to the UniSite Notes,
(ii) redeem, purchase, acquire or offer or agree to redeem, purchase or
acquire any shares of its capital stock, Convertible Securities or
Option Securities, (iii) sell, lease, license, pledge, dispose of or
encumber any properties or assets or sell any businesses other than (x)
non material assets in the ordinary course of business, (y) Permitted
Liens or other Liens arising in accordance with the provisions of
Indebtedness for Money Borrowed in effect on the date hereof and in
accordance with its present terms, and (z) leases of towers and shelter
space to third-party customers, or (iv) except in connection with the
Omnipoint Acquisition, make any loans, advances or capital
contributions to, or investments in, any other Person, except to
officers and employees for travel, business or relocation expenses in
the ordinary course of business;
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(e) not enter into or agree to enter into any Restricted
Transaction (or group of related Restricted Transactions), whether for
its own account or for any other Person, other than (i) the
construction of towers (x) pursuant to the Omnipoint Agreement, the
AT&T Agreement or other BTS Agreements that have received the prior
written approval of ATC, such approval not to be unreasonably withheld,
delayed or conditioned, or (y) if such towers meet the Construction
Guidelines or have otherwise been approved in writing by ATC, such
approval not to be unreasonably withheld, delayed or conditioned, (ii)
the acquisition of communication sites and towers and related
businesses, if such acquisition has received the prior written approval
of ATC, such approval not to be unreasonably withheld, delayed or
conditioned, except that it shall be conditioned upon the receipt of
Environmental Reports with respect to all such sites, and (iii) the
Omnipoint Acquisition;
(f) use reasonable business efforts to preserve intact its
business organization and goodwill, keep available the services of its
present officers and key employees, and preserve the goodwill and
business relationships with customers and others having business
relationships with them and not engage in any action, directly or
indirectly, with the intent to adversely impact the transactions
contemplated by this Agreement;
(g) confer on a regular and frequent basis with one or more
representatives of ATC to report material operational matters and the
general status of ongoing operations;
(h) not adopt, enter into, amend or terminate any employment,
severance, special pay arrangement with respect to termination of
employment or other similar arrangements or agreements with any
directors, officers or key employees, except as contemplated by the
terms of this Agreement;
(i) maintain with financially responsible insurance companies
insurance on the UniSite Assets and the UniSite Business in such
amounts and against such risks and losses as are consistent with past
practice;
(j) not make any Tax election that could reasonably be likely
to have a material adverse effect on UniSite or settle or compromise
any material Tax liability;
(k) cause Environmental Reports to be prepared with respect to
all communication sites upon which Completed Towers or towers under
construction at the Effective Time are located, except Completed Towers
that are (i) described in Section 4.4(a) of the UniSite Disclosure
Schedule, or (ii) that are acquired subsequent to the date of this
Agreement, subject, however, to the provisions of Section 6.6(e);
(l) except in the ordinary course of business or pursuant to
the Omnipoint Amendment, or except as would not be reasonably likely to
have, individually or in the aggregate, a material adverse effect on
UniSite, not modify, amend or terminate any agreement referred to in
the definition of Required Consents or any other Material Agreement to
which UniSite or any of its Subsidiaries is a party or by which any of
the UniSite Assets may be bound or to which any of them may be subject
or waive, release or assign any material rights or claims thereunder;
(m) not make any material change to its accounting methods,
principles or practices, except as may be required by GAAP;
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(n) except in the ordinary course of business and in
accordance with past procedures and policies, not enter into any Lease
or other agreement with respect to any antennae site on any of its
towers, whether presently owned or hereafter acquired by UniSite or any
of its Subsidiaries;
(o) except as set forth in Section 4.14 of the UniSite
Disclosure Schedules or the letter referred to in Section 6.14, (i) not
grant to any executive officer or other key employee of UniSite or any
of its Subsidiaries any increase in compensation, except for normal
increases in the ordinary course of business consistent with past
practice or as required under Benefit Arrangements set forth in Section
4.14 of the UniSite Disclosure Schedule, (ii) not grant to any such
executive officer any increase in severance or termination pay, except
as was required under any Benefit Arrangements set forth in Section
4.14 of the UniSite Disclosure Schedule, (iii) not adopt or amend any
Plan or Benefit Arrangement (including change any actuarial or other
assumption used to calculate funding obligations with respect to any
Plan, or change the manner in which contributions to any Plan are made
or the basis on which such contributions are determined) and (iv)
except in the ordinary course, not enter into, amend in any material
respect or terminate any Governmental Authorization, material Private
Authorization or Contract;
(p) not voluntarily take or permit to be taken any action
which if taken between the end of its most recent fiscal quarter and
prior to the date of this Agreement would have been required to be
noted as an exception on Section 4.16 of the UniSite Disclosure
Schedule, other than pursuant to the conduct of its business in the
ordinary and usual course of business and consistent with past
practice; and
(q) not authorize or enter into any agreement that would
violate any of the foregoing.
In the event that UniSite or any of its Subsidiaries desires to take any of the
actions prohibited by the provisions of this Section, it shall give prompt
written notice to ATC, referring to the provisions of this Section. In the event
that ATC does not object to the taking of such action within ten (10) business
days of receipt of such notice and all material information requested by ATC
with respect thereto, UniSite or any of its Subsidiaries shall have the right to
take such action. ATC's failure to object to the taking of any such action shall
not, in any event, relieve UniSite from the obligation to comply with the
provisions of this Agreement and shall not be deemed to be a waiver of any
condition of ATC's obligations to consummate the Merger set forth in Section
6.2. Anything in this Section or elsewhere in this Agreement to the contrary
notwithstanding, UniSite shall not amend, modify or terminate, or permit the
termination of, the GTE Management Agreement or the Omnipoint Agreement, without
the express prior written approval of ATC, in its sole and absolute discretion.
6.7 Preliminary Title Reports. As promptly as practicable after the
execution of this Agreement, UniSite shall, at its cost and expense, deliver or
cause to be delivered to ATC a standard preliminary title report (the "Title
Report") dated within one hundred and fifty (150) days of the date of this
Agreement issued by a nationally recognized title company or companies with
respect to each parcel of real property owned or leased by UniSite or, if
applicable, any of its Subsidiaries.
6.8 Environmental Site Assessments. As promptly as practicable after
the execution of this Agreement, ATC may, but shall not be obligated, at its own
cost and expense obtain, and deliver to UniSite full and complete copies of,
Environmental Reports on any or all of those certain parcels of real property
owned or leased by UniSite on which any tower presently exists. ATC understands
that UniSite will, pursuant to the provisions of Section 6.6(k), be obtaining,
and UniSite agrees to deliver to ATC full and complete copies
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of, Environmental Reports. Except to the extent that UniSite is obligated
pursuant to site acquisition agreements or commitments presently in effect, site
assessments for both such categories of Environmental Reports shall be conducted
by such consultants and professionals as ATC and UniSite shall mutually agree
and shall be arranged at times mutually convenient to the parties. To the extent
reasonably feasible, each of UniSite and ATC shall be entitled to have
representatives present at the time such site assessments are conducted, and to
have copies of all correspondence with the Persons conducting the site
assessments and preparing the Environmental Reports. ATC shall:
(a) prior to the later to occur of (i) the expiration of the
due diligence period referred to in Section 10.16, and (ii) five (5)
business days of the delivery of an Environmental Report required to be
obtained by UniSite pursuant to the provisions of Section 6.6(k),
advise UniSite in writing as to any objections to the matters revealed
in such Environmental Report; to the extent that ATC has failed to so
advise UniSite, ATC shall be deemed to have waived the condition set
forth in Section 7.2(f); and
(b) prior to the expiration of the due diligence period
referred to in Section 10.16, advise UniSite in writing as to any
objections to the matters revealed in any Environmental Report ordered
by it pursuant to the provisions of this Section; to the extent that
ATC has failed to (i) order an Environmental Report with respect to any
site presently owned by UniSite on which there is a Completed Tower, or
(ii) so advised UniSite as to any objections, ATC shall be deemed to
have waived the condition set forth in Section 7.2(f).
6.9 Interim Financing for UniSite; ATC Commitment.
(a) ATC agrees to provide interim debt financing to UniSite in an
aggregate principal amount not to exceed $50.0 million (or with the approval of
ATC, such approval not to be unreasonably withheld, delayed or conditioned, not
to exceed $60.0 million) as from time to time requested by UniSite on not less
than three (3) business days notice to ATC. Any such financing shall be advanced
against a secured note substantially in the form attached hereto as Exhibit B
and made a part hereof (the "UniSite Notes") and shall be secured by a security
agreement substantially in the form attached hereto as Exhibit C and made a part
hereof (the "UniSite Security Agreement"). UniSite shall use the proceeds of the
sale of the UniSite Notes to ATC hereunder solely (i) to repay the existing
Indebtedness for Money Borrowed to banks and other financial institutions, (ii)
to complete the development of new communication sites and capital improvements
to its existing communication sites, (iii) to finance the acquisition of new
communication sites and related assets that have been approved by ATC pursuant
to, or are permitted by, the provisions of Section 6.6, (iv) to guaranty
UniSite's performance of the Omnipoint Agreement and any agreement referred to
in the plan contemplated by Section 6.14, and (v) for other general corporate
purposes. The parties acknowledge that, simultaneously with the execution and
delivery of this Agreement, (x) UniSite has executed and delivered the UniSite
Note to ATC, (y) UniSite and ATC have executed and delivered the Security
Agreement, and (z) ATC has advanced funds to repay the existing Indebtedness for
Money Borrowed to banks and other financial institutions, plus $10.0 million for
the purpose described in clause (iii) and $15.0 million for the purposes
described in clauses (ii) and (v) of this Section.
(b) ATC agrees, at the written request of UniSite, and following the
expiration or earlier termination of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act filing period, to
complete or cause to be completed one or more towers pursuant to the Omnipoint
Agreement, in which event any such towers shall not be deemed to be Completed
Towers and shall be owned by ATC or one of its Subsidiaries.
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6.10 Solicitation of Employees. Each of ATC and UniSite agrees that
neither it nor any of its Affiliates will, for a period of twelve (12) months
from the date this Agreement is terminated, solicit or actively seek to hire any
individual who during such period is employed by ATC or any of its Affiliates or
UniSite or any of its Affiliates, as the case may be, whether or not such
individual would commit breach of such individual's employment agreement or
contract in leaving such employment; provided, however, that the foregoing shall
not prevent ATC or UniSite (or any of their respective Affiliates) from
soliciting or actively seeking to hire any such key employee who (i) initiates
employment discussions with it, (ii) is not employed by ATC or UniSite, or any
of their respective Affiliates, as the case may be, on the date UniSite or ATC
(or any of their respective Affiliates), as the case may be, first solicits such
key employee, or (iii) is solicited through general advertisement, including
without limitation on the Internet.
6.11 Director and Officer Liability and Indemnification. For a period
of six (6) years after the Closing, ATC shall not, and shall not permit ATI or
any of its Subsidiaries, including without limitation UniSite, to amend, repeal
or modify any provision in ATI's or any of its Subsidiaries certificate of
incorporation or bylaws relating to the exculpation or indemnification of former
officers and directors (unless required by Law), except that prior to the
Effective Time, ATI's certificate of incorporation shall be amended to provide
the maximum exculpation permitted by Section 102(b) of the DCL and to provide
for mandatory advancement of expenses, it being the intent of the parties that
the officers and directors of ATI and its Subsidiaries, including without
limitation UniSite, prior to the Closing shall continue to be entitled to such
exculpation and indemnification to the fullest extent permitted under Applicable
Law; provided, however, that notwithstanding the foregoing, ATI and its
Subsidiaries may be merged with one or more Entities so long as substantially
equivalent exculpation and indemnification provisions are maintained. ATC will
cause to be maintained for a period of not less than six (6) years from the
Effective Time UniSite's current directors' and officers' insurance and
indemnification policies to the extent that they provide coverage for events
occurring prior to the Effective Time (the "D&O Insurance") for all persons who
are directors and officers of UniSite on the date of this Agreement or at the
Effective Time, so long as the annual premium therefor would not be in excess of
one hundred fifty percent (150%) of the current premium. If any then existing
D&O Insurance expires, is terminated or canceled during such six-year period,
ATC will use its reasonable best efforts to cause to be obtained as much D&O
Insurance as can be obtained for the remainder of such period for an annualized
premium not in excess of one hundred fifty percent (150%), on terms and
conditions no less advantageous to the covered Persons than the then existing
D&O Insurance. Notwithstanding the foregoing, ATC or its Subsidiaries may, in
lieu of maintaining such existing D&O Insurance as provided above, cause
coverage to be provided under any policy maintained for the benefit of ATC and
its Subsidiaries, including without limitation UniSite, so long as the terms
thereof are, in the aggregate, not materially less favorable to the covered
individual than the UniSite policy terms.
6.12 UniSite Software Expertise.
(a) Promptly after the execution and delivery of this Agreement,
UniSite agrees that it will (a) make available, from time to time prior to the
Closing upon the request of ATC, officers and other employees involved in the
management information systems and computer software operations of UniSite
(including without limitation ▇▇▇▇▇▇ ▇▇▇▇▇▇) to consult with and assist ATC
personnel in installing and using any and all of UniSite's management
information systems and computer software (collectively, the "UniSite
Software"), and (b) grant to ATC a perpetual non-exclusive royalty-free (except
as hereinafter in this Section provided) license (which license shall, except as
otherwise provided in Section 6.12(b)) survive the termination of this
Agreement) to use (including the right to make copies of) the UniSite Software
in the ordinary course of ATC's tower business, to the extent that UniSite has
rights therein, UniSite covenanting and agreeing to use its reasonable best
efforts to secure any third party consents required to comply with the
provisions of this
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Section. Such perpetual non-exclusive royalty-free license shall include a right
to all updates, improvements and modifications of the UniSite Software made from
time to time by UniSite or any of its Affiliates, including without limitation
following the termination of this Agreement (except as otherwise provided in
Section 6.12(b)). Such officers and other employees shall be made available by
UniSite (i) at such location or locations as ATC shall, from time to time
(including subsequent to the termination of this Agreement, except as otherwise
provided in Section 6.12(b)), reasonably request, (ii) at no cost or expense to
ATC, other than the reimbursement by ATC of all of UniSite's reasonable direct
out-of-pocket costs and expenses (which shall not, in any event, include wages,
salaries, fringe benefits or similar expenses), and (iii) in a manner so as not
to interfere unreasonably with the performance by such officers and other
employees of their duties and responsibilities to UniSite. Unless and until the
Merger is consummated, ATC shall not alter, amend, modify, reverse engineer,
integrate (unless it is able to disintegrate it should ATC not become entitled
to retain rights with respect to the UniSite Software pursuant to the provisions
of Section 6.12(b)), decompile, disassemble or decode any of the UniSite
Software. ATC shall comply with the terms and conditions of any license granted
to UniSite by third parties pertaining to the UniSite Software of which UniSite
has advised ATC in writing. Nothing contained herein shall be construed as
obligating UniSite to maintain, update, improve, or modify the UniSite Software,
except as it may elect to do so in its sole discretion for its own benefit and
use in the ordinary course of its tower business, subject, however, to ATC's
rights to use such maintained, updated, improved or modified UniSite Software
pursuant to the provisions of this Section.
(b) In the event this Agreement is terminated, the following provisions
shall govern ATC's rights with respect to the UniSite Software:
(i) In the event this Agreement is terminated pursuant to the
provisions of paragraph (c) of Section 8.1, and such termination is the
result of a willful or intentional default or willful or intentional
breach by ATC, ATC shall have no further rights to the UniSite Software
and shall surrender all copies of the UniSite Software and the license
referred to in Section 6.12(a) shall terminate and be of no further
force and effect;
(ii) In the event this Agreement is terminated pursuant to the
provisions of (x) paragraph (d) of Section 8.1, and such termination is
the result of a willful or intentional default or willful or
intentional breach by UniSite, or (y) paragraph (e) or (f) of Section
8.1, ATC shall have the right to retain its rights to the UniSite
Software and the license set forth in Section 6.12(a) without the
requirement of its making any payment to UniSite; and
(iii) In the event this Agreement is terminated for any other
reason, including without limitation pursuant to the provisions of
paragraphs (a), (b), (c) (for other than a willful or intentional
default or willful or intentional breach) or (d) (for other than a
willful or intentional default or willful or intentional breach) of
Section 8.1, or Section 10.15 or 10.16, ATC shall have the right to
retain its rights to the UniSite Software set forth in Section 6.12(a)
without the requirement of its making any payment to UniSite; provided,
however, that if Omnipoint has not executed and delivered the Omnipoint
Amendment or an amendment to the Omnipoint Agreement on terms
substantially as least as favorable to UniSite in the aggregate as the
Omnipoint Amendment the following provisions shall apply:
(x) if no amendment to the Omnipoint Agreement has
been executed and delivered by Omnipoint, ATC shall have the
right to retain its rights to the UniSite Software set forth
in Section 6.12(a) by the payment to UniSite of the sum of
$15.0 million; and
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(y) if Omnipoint has executed and delivered an
amendment to the Omnipoint Agreement but it is not on terms
substantially at least as favorable in the aggregate to
UniSite as the Omnipoint Amendment (and including in any event
financing from ATC), ATC shall have the right to retain its
rights to the UniSite Software set forth in Section 6.12(a) by
the payment to UniSite of the excess of (I) $15.0 million
(which the parties agree is the value to UniSite of the
Omnipoint Amendment) and (II) the value of such amendment as
agreed to by the parties or, in the event they are unable to
agree upon its value within ten (10) business days of good
faith negotiation, as determined by CSFB whose determination
shall be binding and conclusive on the parties.
(c) UniSite agrees that it will, promptly upon the written request of
ATC, including prior to the Effective Time, execute and deliver to ATC an
assignment and license agreement, in form, scope and substance reasonably
satisfactory to ATC, setting forth the terms and conditions of this Section.
6.13 Stockholder Approval. UniSite will establish the date of this
Agreement as the record date for, and duly call, give notice of, convene and
hold a meeting of its stockholders (the "UniSite Stockholders Meeting") for the
purpose of obtaining the approval and adoption of this Agreement and the
approval of the Merger by the UniSite stockholders in accordance with the DCL
and other Applicable Law and the Organic Documents of UniSite (the "UniSite
Stockholder Approval"). In lieu of calling such a meeting, UniSite may solicit
written consents of the UniSite stockholders in accordance with the DCL and
other Applicable Law and the Organic Documents of UniSite. UniSite covenants and
agrees that the UniSite Stockholders Meeting will be held, or written consents
evidencing UniSite Stockholder Approval will be obtained, no later than July 12,
1999. UniSite will, through its Board of Directors, recommend to its
stockholders approval and adoption of this Agreement and approval of the Merger,
subject to the provisions of Section 6.5.
6.14 UniSite Compensation Plan. UniSite will, as soon as practicable
following the date hereof, establish a management incentive and retention plan
substantially on the terms and conditions set forth in the letter heretofore
delivered by UniSite to ATC.
6.15 Structural Reports. As promptly as practicable after the execution
of this Agreement, ATC may, but shall not be obligated, at its own cost and
expense, obtain a report (the "Structural Reports") with respect to each of the
components of the Completed Towers of such structural engineers as are
reasonably satisfactory to ATC with respect to (i) the structural soundness and
operating condition of the Completed Towers, (ii) compliance of the Completed
Towers with all Applicable Laws, Governmental Authorizations and Private
Authorizations, and (iii) any required structural or other material repairs. To
the extent ATC fails to initiate and diligently pursue such efforts (and with
respect to existing Completed Towers complete) within the due diligence day
period referred to in Section 10.16 (except for Towers not then owned or Towers
then under construction by UniSite), it shall be deemed to have waived the
condition set forth in Section 7.2(l). Prior to the expiration of the due
diligence period referred to in Section 10.16, ATC shall advise UniSite in
writing as to any objections to the matters revealed in any Structural Report
ordered by it pursuant to the provisions of this Section; to the extent that ATC
has failed to so advise UniSite as to any objections, ATC shall be deemed to
have waived the condition set forth in Section 7.2(l).
ARTICLE 7
CLOSING CONDITIONS
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7.1 Conditions to Obligations of Each Party. The respective obligations
of each party to consummate the Merger shall, except as hereinafter provided in
this Section, be subject to the satisfaction at or prior to the Closing Date of
the following conditions, any or all of which may be waived, in whole or in
part, to the extent permitted by Applicable Law:
(a) As of the Closing Date, no Legal Action shall be pending
before any Authority seeking to enjoin, restrain, prohibit or make
illegal or to impose any materially adverse condition in connection
with, the consummation of the Merger, it being understood and agreed
that a written request by any Authority for information with respect to
the Merger, which information could be used in connection with such
Legal Action, shall not in itself be deemed to be a Legal Action
pending before any such Authority;
(b) Any waiting period (and any extension thereof) applicable
to the consummation of the Merger under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall
have expired or been terminated;
(c) Except with respect to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (which is
addressed in Section 7.1(b)), all authorizations, consents, waivers,
orders or approvals required to be obtained from all Authorities, and
all filings (other than those referred to in Section 2.3), submissions,
registrations, notices or declarations required to be made by any of
the parties with any Authority, prior to the consummation of the
Merger, shall have been obtained from, and made with, all such
Authorities, except for such authorizations, consents, waivers, orders,
approvals, filings, submissions, registrations, notices or declarations
the failure to obtain or make would not have a material adverse effect
on UniSite; and
(d) The UniSite Stockholder Approval shall have been obtained.
7.2 Conditions to Obligations of ATC and ATI. Except as otherwise
specifically set forth in paragraphs (d), (f), (j) and (l) of this Section, the
obligation of ATC to cause ATI to, and of ATI to, consummate the Merger shall be
subject to the satisfaction of the following conditions, any or all of which may
be waived, in whole or in part, by ATC and ATI to the extent permitted by
Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to ATC
and its counsel, and ATC and its counsel shall have received all
information and copies of all documents, including records of corporate
proceedings, which they may reasonably request in connection therewith,
such documents where appropriate to be certified by proper Authorities
or corporate officers;
(b) UniSite shall have furnished ATC and, at ATC's request,
any bank or other financial institution providing credit to ATC, with a
favorable opinion, dated the Closing Date, of Holland & Knight LLP,
counsel for UniSite, substantially to the effect stated in Exhibit D
and made a part hereof, and with respect to such other matters arising
after the date of this Agreement as ATC or its counsel may reasonably
request;
(c) (i) The representations and warranties of UniSite
contained in this Agreement (other than those contained in Sections
4.20) or otherwise made in writing by or on behalf of it or any of them
pursuant hereto or otherwise made in connection with the Merger shall
be true and correct at and as of the Closing Date with the same force
and effect as though made on and as of such date, except
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(x) to the extent such representations and warranties expressly speak
as of an earlier date (in which case such representations and
warranties shall be true and correct as of such earlier date) and (y)
to the extent that the failure of such representations and warranties
to be true and correct, individually or in the aggregate, has not had
and will not have a material adverse effect on UniSite; provided,
however, that for the purpose of this clause (y) representations and
warranties that are qualified as to materiality (including by reference
to "material adverse effect") shall not be deemed to be so qualified;
(ii) the representations and warranties of UniSite set forth in Section
4.20 shall be true and correct at and as of the Closing Date with the
same force and effect as though made on and as of such date; provided,
however, any untruth shall be disregarded for purposes of this Section
6.2(c) if, by adjusting the Merger Consideration at Closing, the
untruth is rendered harmless and such adjustment either does not
require the approval of the UniSite stockholders, or such approval has
been obtained, in accordance with the DCL; (iii) each and all of the
agreements and covenants to be performed or satisfied by UniSite
hereunder at or prior to the Closing Date shall have been duly
performed or satisfied in all material respects; and (iv) UniSite shall
have furnished ATC with such certificates and other documents
evidencing the truth of such representations, warranties, covenants and
agreements and the performance of such agreements or conditions as ATC
or its counsel shall have reasonably requested;
(d) All (i) Required Consents shall have been obtained;
provided, however, that ATC's sole remedy in the event (i) UniSite
fails to obtain any Required Consent and (ii) ATC and UniSite are
unable to negotiate (which they agree to do in good faith for a period
of five (5) business days) a mutually agreeable reduction in the Merger
Consideration designed to "make ATC whole" for the failure of this
condition to be satisfied, is to reduce the Merger Consideration by an
amount equal to the decrease (but in no event more than $300,000 for
each affected tower) in value of the affected towers as determined by
CSFB whose determination shall be binding and conclusive on the
parties, and (ii) all other authorizations, consents, waivers, orders
or approvals required by the provisions of this Agreement to be
obtained from all Persons (other than Authorities) prior to the
consummation of the Merger, including without limitation those required
in order for ATI to continue to own all of the UniSite Assets and
continue to operate the UniSite Business as conducted immediately prior
to the Closing shall have been obtained, without the imposition,
individually or in the aggregate, of any condition or requirement that
has had or could have a material adverse effect on UniSite;
(e) Between the date of this Agreement and the Closing Date,
there shall not have been, and there shall not reasonably be expected
to be (including without limitation by reason of giving pro forma
effect to (a) any failure of the representations and warranties of
UniSite to be true and correct as provided in Section 7.2(c), (b) any
failure to obtain the authorizations, consents, waivers, orders,
approvals, filings, submissions, registrations, notices or declarations
provided for in Section 7.1(c) and 7.2(d), (c) any Legal Action of a
nature referred to in Section 7.2(h), or (d) any failures of a nature
referred to in Section 7.2(l)) a material adverse change in UniSite
from that reflected in the most recent UniSite Financial Statements;
(f) The Environmental Reports prepared pursuant to the
provisions of Section 6.8 shall not raise questions of potential
liability that were not set forth in Section 4.19 of the UniSite
Disclosure Schedule (including having been set forth in the
Environmental Reports listed therein) and that, when taken in
conjunction with any Event or Events that have occurred subsequent to
the date hereof, individually or in the aggregate, have had or could
have a material adverse effect on UniSite, or would cause the
representations and warranties of UniSite set forth in Section 4.19
(without regard to knowledge) to be inaccurate or incomplete in any
material respect; provided, however, that ATC's
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sole remedy in the event (i) UniSite fails to obtain satisfy this
condition and (ii) ATC and UniSite are unable to negotiate (which they
agree to do in good faith for a period of five (5) business days) a
mutually agreeable reduction in the Merger Consideration designed to
"make ATC whole" for the failure of this condition to be satisfied, is
to reduce the Merger Consideration by an amount equal to the decrease
in value of UniSite as determined by CSFB whose determination shall be
binding and conclusive on the parties; provided further, however, in
the event such decrease is more than $15.0 million UniSite shall have
the right not to proceed with the Closing unless ATC were willing to a
decrease of not more than $15.0 million;
(g) ATC shall have received from its independent accountants a
letter to the effect that they could issue an unqualified report (as to
scope, access to books and records, and management cooperation) on the
financial statements (consisting of a balance sheet for the fiscal year
ended December 31, 1999, and statements of operations and cash flow for
the three (3) years then ended) of UniSite which financial statements
shall have been prepared in conformity with GAAP and Regulation S-X
under the Securities Act;
(h) As of the Closing Date, except as otherwise set forth in
Section 4.6(a) of the UniSite Disclosure Schedule, no Legal Action
shall be pending before any Authority (i) that could, individually or
in the aggregate, in the reasonable business judgment of ATC based upon
the advice of counsel, have a material adverse effect on UniSite, or
(ii) insofar as it relates to the Merger, seeking the potential
divestiture by ATC of any material portion of the assets of ATC or
UniSite;
(i) Each of the UniSite stockholders shall have executed and
delivered to ATC a certificate of non-foreign status, substantially in
the form attached hereto as Exhibit E and made a part hereof (the
"Non-Foreign Ownership Certificates"), it being understood, however,
that ATC and ATI shall not have the right to refrain from consummating
the Merger in the event all of such certificates shall not have been
delivered but only to take the action contemplated by Section 3.2(f)
with respect to any UniSite stockholder who does not deliver a
Non-Foreign Ownership Certificate;
(j) ATC shall have received, at its expense, a commitment to
issue standard ALTA title insurance policies insuring UniSite's and, if
applicable, each of its Subsidiaries' fee and leasehold interest in the
parcels of land on which any Completed Tower or any tower under
construction is located and the improvements located thereon and the
Title Report shall not disclose any exception, other than Permitted
Liens and Liens, if any, set forth on Section 4.4(a) of the UniSite
Disclosure Schedule to which ATC shall not have objected pursuant to
the provisions of Section 10.15, and no Event or Events shall have
occurred subsequent to the date hereof, which, individually or in the
aggregate, would cause the representations and warranties of UniSite
set forth in Section 4.4(a) (without regard to knowledge) to be
inaccurate or incomplete in any material respect; provided, however,
that ATC's sole remedy in the event (i) UniSite fails to satisfy this
condition and (ii) ATC and UniSite are unable to negotiate (which they
agree to do in good faith for a period of not more than five days) a
mutually agreeable reduction in the Merger Consideration designed to
"make ATC whole" for the failure of this condition to be satisfied, is
to reduce the Merger Consideration by an amount equal to the decrease
(but in no event more than $300,000 for each affected tower) in value
of the affected towers as determined by CSFB whose determination shall
be binding and conclusive on the parties;
(k) Except as set forth in Section 3.1, all Convertible
Securities and Option Securities of UniSite, if any, outstanding
immediately prior to the Closing, other than those, if any, owned by
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any Subsidiary of UniSite, shall be canceled and, from and after the
Closing, shall no longer be of any force or effect;
(l) The Structural Reports, if any, shall indicate that each
of the Completed Towers (i) is structurally sound and in good operating
condition, (ii) is in compliance with all Applicable Laws, Governmental
Authorizations and Private Authorizations, and (iii) does not require
any structural or other material repairs, except where the failure of
the Completed Towers to meet the preceding standards would not,
individually or in the aggregate, have a material adverse effect on
UniSite; provided, however, that ATC's sole remedy in the event (i)
UniSite fails to satisfy this condition and (ii) ATC and UniSite are
unable to negotiate (which they agree to do in good faith for a period
of not more than five days) a mutually agreeable reduction in the
Merger Consideration designed to "make ATC whole" for the failure of
this condition to be satisfied, is to reduce the Merger Consideration
by an amount equal to the decrease (but in no event more than $300,000
for each affected tower) in value of the affected towers as determined
by CSFB whose determination shall be binding and conclusive on the
parties;
(m) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have executed and delivered to
ATC an agreement substantially in the form attached hereto as (i)
Exhibit F-1 and made a part hereof (the "ATC [Employment][Consulting]
Agreement") and (ii) Exhibit F-2 and made a part hereof (the "ATC
Noncompetition Agreement"); and
(n) Each of the employment agreements listed in Section 4.14
of the UniSite Disclosure Schedule and each of the related
transactions, if any, listed or described in Section 4.8 of the UniSite
Disclosure Schedule shall have been terminated by UniSite, except that
any noncompetition provisions, whether contained in those agreements or
in separate agreements, shall remain in effect, or amended on the terms
and conditions reasonably satisfactory to ATC, in each case, at no cost
or expense to ATC, except as provided in the definition of Working
Capital.
7.3 Conditions to Obligations of UniSite. The obligation of UniSite to
consummate the Merger shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, by UniSite
to the extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to
UniSite and its counsel, and UniSite and its counsel shall have
received all information and copies of all documents, including records
of corporate proceedings, which they may reasonably request in
connection therewith, such documents where appropriate to be certified
by proper Authorities or corporate officers;
(b) ATC shall have furnished UniSite, with a favorable
opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel
for ATC, substantially in the form attached hereto as Exhibit I and
made a part hereof, and with respect to such other matters arising
after the date of this Agreement as UniSite or its counsel may
reasonably request;
(c) The representations and warranties of ATC and ATI
contained in this Agreement (other than those contained in Section 5.5)
or otherwise made in writing by them or on their behalf pursuant hereto
or otherwise made in connection with the Merger shall be true and
correct in all material respects at and as of the Closing Date with the
same force and effect as though made on and
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as of such date, except (x) to the extent such representations and
warranties expressly speak as of an earlier date (in which case such
representations and warranties shall be true and correct as of such
earlier date) and (y) to the extent that the failure of such
representations and warranties to be true and correct, individually or
in the aggregate, would not have a material adverse effect on ATC;
provided, however, that for the purpose of this clause (y)
representations and warranties that are qualified as to the materiality
(including by reference to "material adverse effect") shall not be
deemed to be so qualified; (ii) the representations and warranties of
ATC set forth in Section 5.5 shall be true and correct at and as of the
Closing Date with the same force and effect as though made on and as of
such date; provided, however, any untruth shall be disregarded for
purposes of this Section 6.3(c) if, by adjusting the Merger
Consideration at Closing, the untruth is rendered harmless; (iii) each
and all of the agreements and covenants to be performed or satisfied by
ATC or ATI hereunder at or prior to the Closing Date shall have been
duly performed or satisfied in all material respects; and (iv) ATI
shall have furnished UniSite with such certificates and other documents
evidencing the truth of such representations, warranties, covenants and
agreements and the performance of such agreements or conditions as
UniSite or its counsel shall have reasonably requested;
(d) Between the date of this Agreement and the Closing Date,
there shall not have occurred and be continuing any material adverse
change in ATC from that reflected in the most recent ATC Financial
Statements;
(e) As of the Closing Date, no Legal Action shall be pending
before any Authority which could, individually or in the aggregate, in
the reasonable business judgment of UniSite based upon the advice of
counsel, be reasonably expected to have a material adverse effect on
ATC;
(f) ATC shall have executed and delivered the ATC
Noncompetition Agreements;
(g) ATI's certificate of incorporation and bylaws shall have
been amended as provided in Section 6.11; and
(h) UniSite shall have received an opinion, addressed to it
and dated the date of this Agreement, of CSFB to the effect that, as of
such date, the Merger Consideration is fair to the UniSite stockholders
from a financial point of view.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time only pursuant to the following provisions:
(a) by mutual consent of UniSite and ATC; or
(b) by ATC or UniSite if any permanent injunction, decree or
judgment of any Authority preventing consummation of the Merger shall
have become final and nonappealable; or
(c) by UniSite in the event (i) UniSite is not in material
breach of this Agreement and none of its or any of their
representations or warranties shall have become and continue to be
untrue
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in any manner that would cause the condition set forth in Section
7.2(c) not to be satisfied, and (ii) either (A) the Termination Date
has occurred without the consummation of the Merger, or (B) ATC or ATI
is in material breach of this Agreement or any of their representations
or warranties shall have been or become and continue to be untrue in
any manner that would cause the conditions set forth in Section 7.3(c)
not to be satisfied, and such a breach or untruth exists and is not
capable of being cured by and will prevent or delay consummation of the
Merger by or beyond the Termination Date; or
(d) by ATC in the event (i) neither ATC nor ATI is in material
breach of this Agreement and none of their representations or
warranties shall have become and continue to be untrue in any manner
that would cause the condition set forth in Section 7.3(c) not to be
satisfied, and (ii) either (A) the Termination Date has occurred
without the consummation of the Merger, or (B) UniSite or any UniSite
stockholder is in material breach of this Agreement or any of UniSite's
or any UniSite stockholder's representations or warranties shall have
been or become and continue to be untrue in any manner that would cause
the conditions set forth in Section 7.2(c) not to be satisfied, and
such a breach or untruth exists and is not capable of being cured by
and will prevent or delay consummation of the Merger by or beyond the
Termination; or
(e) by ATC if (i) (A) the Board of Directors of UniSite shall
have withdrawn, or adversely modified, or failed (upon ATC's request)
to reconfirm its recommendation of the Merger or this Agreement (or
determined to do so); (B) the Board of Directors of UniSite shall have
determined to recommend to the UniSite stockholders that they approve
an Alternative Transaction other than that contemplated by this
Agreement or shall have determined to accept a Superior Proposal; (C) a
tender or exchange offer that, if successful, would result in a Change
of Control of UniSite and the Board of Directors of UniSite fails to
recommend that the UniSite stockholders not tender their shares in such
tender or exchange offer; (D) UniSite, for any reason, fails to call or
hold the UniSite Stockholder Meeting (unless the UniSite Stockholder
Approval has otherwise been obtained) prior to the Termination Date; or
(E) UniSite shall have breached the provisions of Section 6.5, and (ii)
UniSite enters into an agreement relating to an Alternative Transaction
within one hundred eighty (180) days of the termination of this
Agreement pursuant to the provisions of this paragraph (e) and
subsequently consummates such Alternative Transaction or another
Alternative Transaction with the Person (or any of its Affiliates) that
is a party to such Alternative Transaction; or
(f) by UniSite pursuant to and in compliance with the
provisions of Section 6.5(e); provided, however, that UniSite's right
to terminate this Agreement under this paragraph (f) shall not be
available if UniSite has breached or is then in breach of Section 6.5.
The term "Termination Date" shall mean March 31, 2000 or such other
date as the parties may, from time to time, mutually agree, or as otherwise
extended pursuant to the provisions of this Section.
The right of ATC or UniSite to terminate this Agreement pursuant to
this Section shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party, any Person controlling any
such party or any of their respective Representatives whether prior to or after
the execution of this Agreement.
In the event (i) UniSite desires to terminate this Agreement pursuant
to the provisions of Section 8.1(c)(ii)(B), or ATC desires to terminate this
Agreement pursuant to the provisions of Section 8.1(d)(ii)(B), it (the
"Terminating Party") shall give written notice (the "Termination Notice") to the
other party (the
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"Alleged Breaching Party"), specifying (i) whether it believes the alleged
breach, misrepresentation or default (the "Alleged Breach") constituting the
basis of such termination is the result of a willful or intentional default or a
willful or intentional breach by the Alleged Breaching Party, and (ii) in any
event, specifying in reasonable detail the nature of the Alleged Breach. If the
Alleged Breach is curable, the Alleged Breaching Party shall have a reasonable
period, not exceeding thirty (30) days, to cure the Alleged Breach, whether or
not such period extends beyond the Termination Date (which shall be deemed to be
extended during such period). During such period, or in the event such Alleged
Breach is not curable during the thirty (30) days following the delivery of the
Termination Notice, whether or not such period extends beyond the Termination
Date (which shall be deemed to be extended during such period), the parties
shall negotiate in good faith in an attempt to amend the terms of this
Agreement, including without limitation the amount of the Merger Consideration,
to compensate the Terminating Party for the Alleged Breach. In the event (x) the
Alleged Breach is not cured within such period or curable, and (y) the parties
are unable to agree upon an amendment to this Agreement, this Agreement shall be
deemed to have been terminated pursuant to the Termination Notice as of its date
and the provisions of Section 8.2(b) shall apply.
8.2 Effect of Termination. Except as provided in Sections 6.1 (with
respect to confidentiality), 6.3 and 10.2 and this Section, in the event of the
termination of this Agreement pursuant to Section 8.1, this Agreement shall
forthwith become void, there shall be no liability on the part of any party, or
any of their respective stockholders, officers or directors, to the other and
all rights and obligations of any party shall cease; provided, however, that
such termination shall not relieve any party from liability for any willful or
intentional misrepresentation or breach of any of its warranties, covenants or
agreements set forth in this Agreement. In the event this Agreement is
terminated by:
(a) UniSite pursuant to the provisions of Section
8.1(c)(ii)(B), and such termination is the result of a willful or
intentional default or a willful or intentional breach by ATC, UniSite
shall be entitled to liquidated damages in the amount of $25,000,000,
together with UniSite's reasonable fees and expenses, including without
limitation, fees and expenses of its investment bankers, financial
advisers, counsel, accountants, banks and other lenders and other
consultants and agents;
(b) ATC pursuant to the provisions of Section 8.1(d)(ii)(B),
and such termination is the result of a willful or intentional default
or a willful or intentional breach by UniSite, ATC shall be entitled to
liquidated damages in an amount equal to the sum of (i) $10,000,000 and
(ii) the value of the Omnipoint Amendment which the parties agree is
$15,000,000, together with ATC's reasonable fees and expenses,
including without limitation, fees and expenses of its investment
bankers, financial advisers, counsel, accountants, banks and other
lenders and other consultants and agents;
(c) UniSite pursuant to the provisions of Section
8.1(c)(ii)(B), and such termination is not the result of a willful or
intentional default or a willful or intentional breach by ATC, UniSite
shall be entitled to liquidated damages in the amount of $1,000,000,
representing the agreed upon amount of UniSite's reasonable fees and
expenses, including without limitation, fees and expenses of its
investment bankers, financial advisers, counsel, accountants, banks and
other lenders and other consultants and agents;
(d) ATC pursuant to the provisions of Section 8.1(d)(ii)(B),
and such termination is not the result of a willful or intentional
default or a willful or intentional breach by UniSite, ATC shall be
entitled to liquidated damages in an amount equal to the sum of
$1,000,000, representing the agreed upon amount of ATC's reasonable
fees and expenses, including without limitation, fees and
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expenses of its investment bankers, financial advisers, counsel,
accountants, banks and other lenders and other consultants and agents;
and
(e) ATC pursuant to the provisions of paragraph (e) of Section
8.1 or UniSite pursuant to the provisions of paragraph (f) of Section
8.1, ATC shall be entitled to liquidated damages in an amount equal to
the sum of (i) $7,500,000 and (ii) the value of the Omnipoint Amendment
which the parties agree is $15,000,000, together with ATC's reasonable
fees and expenses, including without limitation, fees and expenses of
its investment bankers, financial advisers, counsel, accountants, banks
and other lenders and other consultants and agents.
Notwithstanding the provisions of paragraphs (b) and (e) above, if Omnipoint has
not executed and delivered the Omnipoint Amendment or an amendment to the
Omnipoint Agreement on terms substantially at least as favorable in the
aggregate to UniSite as the Omnipoint Amendment, the following provisions shall
apply:
(i) if no amendment to the Omnipoint Agreement has been
executed and delivered by Omnipoint, ATC shall not be entitled to, and
there shall be excluded from liquidated damages the sum of $15.0
million specified in clause (ii) of paragraphs (b) or (e) above, as
applicable; and
(ii) if Omnipoint has executed and delivered an amendment to
the Omnipoint Agreement but it is not on terms substantially at least
as favorable in the aggregate to UniSite as the Omnipoint Amendment
(and including in any event financing from ATC), ATC shall be entitled
to, and there shall be included in the liquidated damages specified in
clause (ii) of paragraphs (b) or (e) above, as applicable, an amount
equal to the value of such amendment as agreed to by the parties or, in
the event they are unable to agree upon its value within ten (10)
business days of good faith negotiation, as determined by CSFB whose
determination shall be binding and conclusive on the parties.
The parties agree that the amounts specified above shall constitute
full payment for any and all damages suffered by the terminating party by reason
of other party's failure to consummate the Merger for the reasons referred to
therein. ATC and UniSite agree in advance that actual damages would be difficult
to ascertain and that the rights of ATC and UniSite set forth in this Section
are a fair and equitable amount to reimburse UniSite or ATC, as the case may be,
for damages sustained due to ATC's or UniSite's failure to consummate the Merger
for the reasons specified in this Section. Notwithstanding the foregoing, each
party shall have the right to seek specific performance of this Agreement
pursuant to the provisions of Section 10.4, and, if such breach relates to the
provisions of Section 6.5, to the extent applicable, ATC shall have the rights
set forth in that Section.
Anything in this Section to the contrary notwithstanding, the parties
agree that the provisions of Section 6.12 shall govern ATC's rights, if any, to
the UniSite Software in the event of any termination of this Agreement.
ARTICLE 9
SURVIVAL
The covenants and agreements of the parties contained in or made
pursuant to this Agreement or any Collateral Document shall survive the Closing
(unless any such covenant or agreement by its express terms in this Agreement
does not so survive) and shall remain operative and in full force and effect for
the statute
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of limitations applicable to contractual obligations. The representations and
warranties of the parties contained in or made pursuant to this Agreement or any
Collateral Document shall not survive the Closing.
ARTICLE 10
GENERAL PROVISIONS
10.1 Waivers; Amendments. Changes in or additions to this Agreement may
be made, or compli ance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the consent in writing of the parties hereto. No delay on the part of
either party at any time or times in the exercise of any right or remedy shall
operate as a waiver thereof. Any consent may be given subject to satisfaction of
conditions stated therein. The failure to insist upon the strict provisions of
any covenant, term, condition or other provision of this Agreement or to
exercise any right or remedy hereunder shall not constitute a waiver of any such
covenant, term, condition or other provision thereof or default in connection
therewith. The waiver of any covenant, term, condition or other provision hereof
or default hereunder shall not affect or alter this Agreement in any other
respect, and each and every covenant, term, condition or other provision of this
Agreement shall, in such event, continue in full force and effect, except as so
waived, and shall be operative with respect to any other then existing or
subsequent default in connection herewith.
10.2 Fees, Expenses and Other Payments. All costs and expenses incurred
in connection with any transfer taxes, sales taxes, recording or documentary
taxes, stamps or other charges levied by any Authority in connection with this
Agreement and the consummation of the Merger and all costs of the Environmental
Reports referred to in Section 6.6(k) shall be borne by UniSite and reflected in
Working Capital, all costs of Environmental Reports, Structural Reports and
Title Policies ordered by ATC pursuant to the provisions of Sections 6.8, 6.15
and 7.2(j), respectively, shall be borne by ATC, all ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ filing
fees and expenses, if any, shall be borne by the party making such filing, and
all other costs and expenses incurred in connection with this Agreement and the
consummation of the Merger, including without limitation fees and disbursements
of counsel, financial advisors and accountants incurred by the parties hereto,
shall, unless otherwise provided herein, be borne solely and entirely by the
party that has incurred such costs and expenses. ATC acknowledges and agrees
that it shall pay (a) the reasonable fees and expenses of CSFB and Fleet in
connection with their acting as financial advisor to UniSite in connection with
the Merger and a sale of high-yield debt securities, respectively, and (b) the
costs of any Employment Arrangements described in Section 4.14 incurred by
UniSite as a result of the consummation of the Merger, except to the extent such
costs aggregate more than $2,000,000, and the costs associated with the
compensation plan referred to in Section 6.14.
10.3 Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be deemed to have been delivered (a) five (5) business days
after being mailed by first-class or express mail, postage prepaid, (b) the next
day when sent overnight by recognized courier service, (c) upon confirmation
when sent by telex, telegram, telecopy or other form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid, or by
recognized courier service) written confirmation at substantially the same time
as such rapid transmission, or (d) upon delivery when personally delivered to
the receiving party (which if other than an individual shall be an officer or
other responsible party of the receiving party). All such notices and
communications shall be mailed, sent or delivered as set forth below or to such
other person(s), telex or facsimile number(s) or
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address(es) as the party to receive any such communication or notice may have
designated by written notice to the other party.
(a) If to ATC or ATI:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice to ATC or
ATI):
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to UniSite:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice to UniSite):
Holland & Knight LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
10.4 Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement or any Collateral Document, the
remedy at law would be inadequate and agrees that for breach of such provisions,
each party shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in Article 8, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by Applicable Law. Each party hereby waives any requirement for
security or the post ing of any bond or other surety in connection with any
temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting any party from
pursuing any other remedies available to it pursuant to the provisions of this
Agreement or Applicable Law for such breach or threatened breach, including
without limitation the recovery of damages; provided, however, that none of the
parties shall pursue, and each party hereby waives, any punitive, incidental and
consequential damages arising
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out of this Agreement (including without limitation damages for diminution in
value and loss of anticipated profits).
10.5 Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely any party, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by Applicable Law in an acceptable
manner to the end that the Transactions are fulfilled and consummated to the
maximum extent possible.
10.6 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of the
parties. In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one set of such counterparts.
10.7 Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.8 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable Laws of the United States of America and the Laws of State
of New York applicable to contracts made and performed in such State and, in any
event, without giving effect to any choice or conflict of Laws provision or rule
that would cause the application of domestic substantive Laws of any other
jurisdiction, except to the extent the DCL applies to the Merger. Anything in
this Agreement to the contrary notwithstanding, in the event of any dispute
between the parties which results in a Legal Action, the prevailing party shall
be entitled to receive from the non-prevailing party reimbursement for
reasonable legal fees and expenses incurred by such prevailing party in such
Legal Action.
10.9 Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
Collateral Documents and other assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to
facilitate the enjoyment of any of the rights created hereby or to be created
hereunder.
10.10 Entire Agreement. This Agreement (together with the UniSite
Disclosure Schedule, the exhibits hereto, and the other documents delivered or
to be delivered in connection herewith) constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements, arrangements, covenants, promises, conditions, undertakings,
inducements, representations, warranties and
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negotiations, expressed or implied, oral or written, between the parties, with
respect to the subject matter hereof, including without limitation any
previously executed confidentiality agreement, letter of intent or term sheet.
Each of the parties is a sophisticated Person that was advised by experienced
counsel and, to the extent it deemed necessary, other advisors in connection
with this Agreement. Each of the parties hereby acknowledges that (a) none of
the parties has relied or will rely in respect of this Agreement or the
transactions contemplated hereby upon any document or written or oral
information previously furnished to or discovered by it or its representatives,
other than this Agreement (or such of the foregoing as are delivered at the
Closing), (b) there are no covenants or agreements by or on behalf of any party
or any of its respective Affiliates or representatives other than those
expressly set forth in this Agreement and the Collateral Documents, and (c) the
parties' respective rights and obligations with respect to this Agreement and
the events giving rise thereto will be solely as set forth in this Agreement and
the Collateral Documents. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH
PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS AGREEMENT AND ANY COLLATERAL DOCUMENT, NONE OF THE PARTIES
MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS ANY
OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE
TO THE OTHER OR THE OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
10.11 Assignment. This Agreement shall not be assignable by any party
and any such assignment shall be null and void, except that it shall inure to
the benefit of and be binding upon any successor to any party by operation of
Law, including by way of merger, consolidation or sale of all or substantially
all of its assets, and ATC and ATI may assign its rights and remedies hereunder
to any bank or other financial institution that has loaned funds or otherwise
extended credit to it.
10.12 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided in Section 10.11.
10.13 Mutual Drafting. This Agreement is the result of the joint
efforts of UniSite, on the one hand, and ATC and ATI, on the other hand, and
each provision hereof has been subject to the mutual consultation, negotiation
and agreement of the parties and there shall be no construction against any
party based on any presumption of that party's involvement in the drafting
thereof.
10.14 UniSite Stockholder Representatives. The UniSite stockholders are
hereby deemed to appoint ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, as their
representatives (each individually a "UniSite Stockholder Representatives" and
all collectively, the "UniSite Stockholder Representatives") to act for them by
way of majority vote of the UniSite Stockholder Representatives with respect to
all matters relating to this Agreement, including without limitation (a) all
determinations contemplated by Section 3.5, and (b)the amendment or modification
of this Agreement or any of the Collateral Documents. A majority in interest of
the UniSite stockholders may, from time to time, remove one or more of the
UniSite Stockholder Representatives, and/or appoint additional UniSite
Stockholder Representatives. The appointment of the UniSite Stockholder
Representatives is coupled with an interest, is irrevocable (except as otherwise
herein set forth), and shall not be revoked by the death, incompetency,
liquidation, dissolution or bankruptcy of any
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UniSite stockholder. No UniSite Stockholder Representative or any agent employed
by any UniSite Stockholder Representative shall incur any liability to any
UniSite stockholder by virtue of the failure or refusal of any UniSite
Stockholder Representative for any reason to consummate the transac tions
contemplated hereby or relating to the performance of his other duties
hereunder, except for his own actions or omissions constituting fraud or bad
faith.
10.15 UniSite Disclosure Schedule.
(a) UniSite will deliver to ATC, within fifteen (15) business days of
the execution and delivery of this Agreement, the UniSite Disclosure Schedule
and all other documents required to be delivered by UniSite pursuant to Article
4 of this Agreement. ATC shall have the right, for a period commencing upon its
receipt of the UniSite Disclosure Schedule and each other document together with
a letter from UniSite indicating that such delivery constitutes a "final and
complete" delivery pursuant to this Section and terminating at 11:59 p.m.,
Eastern time, on the later of the forty-third (43rd) day following the date of
this Agreement and the tenth (10th) business day following such receipt, (i)
either to (x) terminate this Agreement, subject to the cure provisions set forth
in Section 10.15(b), or (y) propose amendments to this Agreement, including
without limitation an adjustment in the Merger Consideration, designed to "make
it whole", if the UniSite Disclosure Schedule reveals any Event of which ATC was
unaware as of the date of this Agreement, which unknown Events, individually or
in the aggregate, would, in ATC's reasonable business judgment, make
consummation of the Merger on the terms and conditions set forth in this
Agreement not in the best interests of ATC and its stockholders, (ii) to object
to Liens shown in Section 4.4(a) of the Disclosure Schedule that UniSite
proposes to remain in effect at the Effective Time pursuant to the provisions of
Section 7.2(j).
(b) In the event ATC desires to terminate this Agreement pursuant to
the provisions of Section 10.15(a), it shall in its notice to UniSite specify in
reasonable detail the reasons for such termination. If the reasons so specified
relate to matters that are curable, UniSite shall have a reasonable period, not
exceeding thirty (30) days, to effect such cure. In the event such cure is
effected to the reasonable satisfaction of ATC within such period, ATC's
termination of this Agreement shall be deemed to have been rescinded and of no
further force and effect. In the event (i) the reasons so specified are not
curable or (ii) UniSite is unwilling or unable to effect the cure in a timely
manner, UniSite shall also have the right to propose amendments to this
Agreement, including without limitation an adjustment in the Merger
Consideration, designed to "make ATC whole". If ATC rejects any amendments
proposed to this Agreement by UniSite pursuant to this Section or Sections
10.16(a) or 10.16(b), the parties shall promptly submit the matter to CSFB and
request its recommendation of an appropriate resolution. ATC agrees to consider
any CSFB recommendation in good faith and to rescind its termination if it
considers such recession appropriate.
(c) In the event (i) the reasons for termination by ATC were not
curable or UniSite was unwilling or unable to effect the cure in a timely
manner, or (ii) UniSite does not agree to the terms and conditions, if any,
proposed by ATC pursuant to clause (ii) of Section 10.15(a), UniSite and ATC
shall be obligated to negotiate in good faith with respect to resolving such
matters. In the event ATC and UniSite do not agree in writing on the resolution
of matters raised by any proposal made by ATC pursuant to clauses (i)(y) or (ii)
of Section 10.15(a) or by UniSite pursuant to the provisions of Section 10.16(b)
prior to the later of (x) the expiration of any cure period provided for in
Section 10.16(b) or (y) ten (10) business days after receipt by UniSite of any
such proposal of ATC or, in the event ATC has not made any such proposal,
receipt by ATC of any such proposal of UniSite, either party may, on or prior to
five (5) business days following such later date, terminate this Agreement. In
the event neither party shall have so terminated this Agreement, or, in the
event ATC makes no proposal pursuant to the provisions of clauses (i)(y) or (ii)
of Section 10.15(a), this Agreement shall continue in full force and effect.
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10.16 ATC Completion of Due Diligence.
(a) On or prior to the forty-third (43rd) day following the date of
this Agreement, ATC shall have completed its due diligence investigation
(including, except as otherwise provided in Section 6.7, 6.8 or 6.15, Title
Reports, Environmental Reports and Structural Reports) of UniSite and the
UniSite Assets and the UniSite Business. In the event its due diligence reveals
any Event of which ATC was unaware as of the date of this Agreement, which
unknown Events, individually or in the aggregate, would, in ATC's reasonable
business judgment, make consummation of the Merger on the terms and conditions
set forth in this Agreement not in the best interests of ATC and its
stockholders ATC shall have the right, at any time prior to 11:59 p.m.,Eastern
time, on the forty-third (43rd) day following the date of this Agreement either
to (i) terminate this Agreement, subject to the cure provisions set forth in
Section 10.16(b), or (ii) propose amendments to this Agreement, including
without limitation an adjustment in the Merger Consideration, designed to "make
it whole".
(b) In the event ATC desires to terminate this Agreement pursuant to
the provisions of Section 10.16(a), it shall in its notice to UniSite specify in
reasonable detail the reasons for such termination. If the reasons so specified
relate to matters that are curable, UniSite shall have a reasonable period, not
exceeding thirty (30) days, to effect such cure. In the event such cure is
effected to the reasonable satisfaction of ATC within such period, ATC's
termination of this Agreement shall be deemed to have been rescinded and of no
further force and effect. In the event (i) the reasons so specified are not
curable or (ii) UniSite is unwilling or unable to effect the cure in a timely
manner, UniSite shall also have the right to propose amendments to this
Agreement, including without limitation an adjustment in the Merger
Consideration, designed to "make ATC whole".
(c) In the event (i) the reasons for termination by ATC were not
curable or UniSite was unwilling or unable to effect the cure in a timely
manner, or (ii) UniSite does not agree to the terms and conditions, if any,
proposed by ATC pursuant to clause (ii) of Section 10.16(a), UniSite and ATC
shall be obligated to negotiate in good faith with respect to resolving such
matters. In the event ATC and UniSite do not agree in writing on the resolution
of matters raised by any proposal made by ATC pursuant to clause (ii) of Section
10.16(a) or by UniSite pursuant to the provisions of Section 10.16(b) prior to
the later of (x) the expiration of any cure period provided for in Section
10.16(b) or (y) ten (10) business days after receipt by UniSite of any such
proposal of ATC or, in the event ATC has not made any such proposal, receipt by
ATC of any such proposal of UniSite, either party may, on or prior to five (5)
business days following such later date, terminate this Agreement. In the event
neither party shall have so terminated this Agreement, or, in the event ATC does
not terminate this Agreement, and makes no proposal, pursuant to the provisions
of clause (ii) of Section 10.16(a), this Agreement shall continue in full force
and effect.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
American Tower Corporation
By:____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Corporate Development Officer
ATI Merger Corporation
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Corporate Development Officer
UniSite, Inc.
By:______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
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APPENDIX A
DEFINITIONS
adverse, adversely, when used alone or in conjunction with other terms
(including without limitation "affect," "change" and "effect") shall mean any
Event which is reasonably likely, in the reasonable business judgment of the
relevant party, to be expected to (a) adversely affect the validity or
enforceability of this Agreement or the likelihood of consummation of the
Merger, or (b) adversely affect the business, operations, management, properties
or prospects, or the condition, financial or other, or results of operation of
UniSite and its Subsidiaries, if any, taken as a whole or ATC and its
Subsidiaries, taken as a whole, as applicable, or (c) impair such party's
ability to fulfill its obligations under the terms of this Agreement, or (d)
adversely affect the aggregate rights and remedies of such party under this
Agreement. Notwithstanding the foregoing, and anything in this Agreement to the
contrary notwithstanding, any Event generally affecting the economy or the tower
communication sites business, shall not be deemed to constitute such a change,
affect or effect.
Affiliate, Affiliated shall mean, with respect to any Person, (a) any
other Person at the time directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person, (b) any other Person
of which such Person at the time owns, or has the right to acquire, directly or
indirectly, ten percent (10%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, five percent (5%) or more of any class
of the capital stock or beneficial interest of such Person, (d) any executive
officer or director of such Person, (e) with respect to any partnership, joint
venture or similar Entity, any general partner thereof, and (f) when used with
respect to an individual, shall include any member of such individual's
Immediate Family or a family trust.
Agreement shall mean this Agreement as originally in effect, including,
unless the context otherwise specifically requires, this Appendix A, the UniSite
Disclosure Schedule, and all exhibits hereto, and as any of the same may from
time to time be supplemented, amended, modified or restated in the manner herein
or therein provided.
Alleged Breach shall have the meaning given to it in Section 8.1(a).
Alleged Breaching Party shall have the meaning given to it in Section
8.1(a).
Alternative Transaction shall mean any proposal or offer relating to a
merger, consolidation, reorganization, tender offer, share exchange, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving, or any purchase of all or any substantial portion of the assets of,
or any issue, purchase or sale of equity securities of, or any transaction that
would involve the Change of Control or potential Change of Control of, UniSite
or any of its Subsidiaries, or any series of related transactions of the
foregoing nature.
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation those regulating the safety and structure
of towers, the licensing and regulation of telecommunications transmissions and
all federal and state securities and Environmental Laws, to which a Person is
subject or by which it or any of its business or operations is subject or any of
its property or assets is bound.
ATC shall have the meaning given to it in the Preamble.
ATC [Employment][Consulting] Agreement shall have the meaning given to
it in Section 7.2(m).
A-1
ATC Financial Statements shall have the meaning given to it in Section
5.2.
ATC Indemnified Parties shall have the meaning given to it in Section
9.2(a).
ATC Noncompetition Agreement shall have the meaning given to it in
Section 7.2(m).
ATC SEC Documents shall have the meaning given to it in Section 5.2.
ATC's knowledge (or words of similar import) shall mean the actual
knowledge of any director or executive officer of ATC or ATI, as such knowledge
exists on the date of this Agreement, after reasonable review of appropriate ATC
and ATI records and after reasonable inquiry of appropriate ATC and ATI
employees.
ATI shall have the meaning given to it in the Preamble.
AT&T Agreement shall mean the Site Acquisition Services Agreement,
dated September 21, 1998, by and between UniSite and AT&T Wireless Services,
Inc.
Authority shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, authority, board, body, branch, bureau,
or comparable agency or Entity, commission, corporation, court, department,
instrumentality, mediator, panel, system or other political unit or subdivision
or other Entity of any of the foregoing, whether domestic or foreign.
Benefit Arrangement shall mean any material benefit arrangement that is
not a Plan, including (a) any employment or consulting agreement, (b) any
arrangement providing for insurance coverage or workers' compensation benefits,
(c) any incentive bonus or deferred bonus arrangement, (d) any arrangement
providing termination allowance, severance or similar benefits, (e) any equity
compensation plan, (f) any deferred compensation plan, (g) any compensation
policy and practice, and (h) any retirement benefit, including without
limitation medical, dental, health, disability, hospitalization or life
insurance or reimbursement agreement.
Broadband wireless service provider shall mean any Entity providing
wireless communications services generally to consumers, including PCS, SMR,
ESMR and cellular services.
BTS Agreement shall mean an agreement, other than the AT&T Agreement
and the Omnipoint Agreement, pursuant to which UniSite would construct
communication tower(s) that (a) have at least one broadband wireless service
provider as a tenant pursuant to lease terms no less favorable to UniSite than
those that UniSite currently enjoys in the region in which the towers are to be
constructed, and (b) have the capacity to accommodate not less than four
broadband wireless service providers.
Certificate shall have the meaning given to it in Section 3.1.
Change of Control shall mean the acquisition, directly or indirectly,
by any Person or group (as such term is used in Section 13(d)(3) of the Exchange
Act), other than any existing UniSite stockholder, of twenty percent (20%) or
more of the UniSite voting stock.
A-2
Claims shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, together with all Legal
Actions, pending or threatened, claims and judgments of whatever kind and nature
relating thereto, and all fees, costs, expenses and disbursements (including
without limitation reasonable attorneys' and other legal fees, costs and
expenses) relating to any of the foregoing.
Closing shall have the meaning given to it in Section 2.2.
Closing Date shall have the meaning given to it in Section 2.2.
COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, as set forth in Section 4980B of the Code and Part 6 of
Subtitle B of Title I of ERISA and the rules and regulations thereunder, all as
from time to time in effect, or any successor law, rules or regulations, and any
reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
Code shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
Law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
Collateral Documents shall mean the ATC Noncompetition Agreement, the
Non-Foreign Ownership Certificates, the UniSite Notes, the UniSite Security
Agreement, the Certificate of Merger, and any other agreement, certificate,
contract, instrument, notice, opinion or other document delivered or required to
be delivered pursuant to the provisions of this Agreement or any Collateral
Document.
Completed Towers shall mean each tower owned, or subject to a capital
lease with a nominal purchase price held, directly or indirectly by UniSite or
any of its Subsidiaries that is fully operational and (a) whose acquisition is
permitted or was approved by ATC pursuant to the provisions of Section 6.6, (b)
was constructed by UniSite pursuant to the Construction Guidelines, (c) is owned
by UniSite or any of its Subsidiaries on the date of this Agreement and listed
in Section 4.4(a) of the UniSite Disclosure Schedule, or (d) was constructed by
UniSite pursuant to the Omnipoint Agreement, the AT&T Agreement or a BTS
Agreement approved by ATC pursuant to the provisions of Section 6.6.
Confidential Information shall have the meaning given to it in Section
6.1(a).
Construction Guidelines shall mean, with respect to any tower proposed
to be constructed by UniSite, other than pursuant to the Omnipoint Agreement,
the AT&T Agreement or a BTS Agreement approved by ATC pursuant to the provisions
of Section 6.6, that such tower meets the following requirements: (a) such tower
will be not less than 150 feet in height; (b) there is no competing tower
existing, under construction or, to UniSite's or ATC's knowledge (as set forth
in ATC's database and made available to UniSite by ATC), proposed to be
constructed within one (1) mile of such tower; (c) based on UniSite's informed
knowledge of the market in which such tower is proposed to be built and the
prospective Broadband wireless activity in such market, it is reasonably certain
that there is a reasonable demand then existing for Broadband wireless service
provider leases in such market and that any lease of antennae space on such
tower will provide for (i) minimum monthly rental of not less than $1,300 and
preferably $1,500, (ii) annual rent escalators of not less than 3% and
preferably 4%, (iii) a minimum term of not less than five (5) and preferably ten
(10) years, and (iv) other terms no less favorable to UniSite than those that
UniSite currently enjoys in the region in which such tower is proposed to be
built, and (d) such tower will have the capacity to accommodate not less than
four Broadband wireless service providers.
A-3
Contract, Contractual Obligation shall mean any agreement, arrangement,
commitment, contract, covenant, indemnity, undertaking or other obligation or
liability to which UniSite or any of its Subsidiaries is a party or to which
UniSite or any of its Subsidiaries or any of the UniSite Assets is subject.
Control (including the terms "controlled," "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, or the disposition of such Person's assets or properties,
whether through the ownership of stock, equity or other ownership, by contract,
arrangement or understanding, or as trustee or executor, by contract or credit
arrangement or otherwise.
Convertible Securities shall mean any evidences of indebtedness, shares
of capital stock (other than common stock) or other securities directly or
indirectly convertible into or exchangeable for shares of common stock, whether
or not the right to convert or exchange thereunder is immediately exercisable or
is conditioned upon the passage of time, the occurrence or non-occurrence or
existence or non-existence of some other Event, or both.
CSFB shall have the meaning given to it in Section 4.18.
DCL shall have the meaning given to it in Section 2.1.
Disbursing Agent shall have the meaning given to it in Section 3.2(b).
Dissenting Shares shall have the meaning given to it in Section 3.6(a).
Distribution shall mean, with respect to any Person, (a) the
declaration or payment of any dividend (except dividends payable in common stock
of such Person) on or in respect of any shares of any class of capital stock of
such Person or any shares of capital stock of any Subsidiary owned by a Person
other than such Person or a Subsidiary of such Person, (b) the purchase,
redemption or other retirement of any shares of any class of capital stock of
such Person or any shares of capital stock of any Subsidiary of such Person
owned by a Person other than such Person or a Subsidiary of such Person, and (c)
any other distribution on or in respect of any shares of any class of capital
stock of such Person or any shares of capital stock of any Subsidiary of such
Person owned by a Person other than such Person or a Subsidiary of such Person.
Effective Time shall have the meaning given to it in Section 2.3.
Employment Arrangement shall mean, with respect to UniSite, any
employment, consulting, retainer, severance or similar contract, agreement,
plan, arrangement or policy (exclusive of any which is terminable within thirty
(30) days without liability, penalty or payment of any kind by UniSite or any of
its Affiliates), or providing for severance, termination payments, insurance
coverage (including any self-insured arrangements), workers compensation,
disability benefits, life, health, medical, dental or hospitalization benefits,
supplemental unemployment benefits, vacation or sick leave benefits, pension or
retirement benefits or for deferred compensation, profit-sharing, bonuses, stock
options, stock purchase or appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or benefits, or any
collective bargaining or other labor agreement, whether or not any of the
foregoing is subject to the provisions of ERISA, but only to the extent that it
covers or relates to any officer, employee or other Person involved in the
ownership or operation of the UniSite Assets or the conduct of the UniSite
Business.
Encumber shall mean to suffer, accept, agree to or permit the
imposition of a Lien.
A-4
Entity shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other capacity, or any
Authority.
Environmental Law shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment, including without limitation Laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemicals or industrial pollutants, substances, materials or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, mining or reclamation or mined land, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances, materials
or wastes. Environmental Laws shall include without limitation the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 6901
et seq.) ("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 9601 et seq.) ("RCRA"), the Federal Water Pollution Control Act (33
U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.), the Federal
Insecticide Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), and
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. Section 1201
et seq.), and any analogous federal, state, local or foreign Laws, and the rules
and regulations promulgated thereunder all as from time to time in effect, and
any reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
Environmental Permit shall mean any Governmental Authorization required
by or pursuant to any Environmental Law.
Environmental Report shall have the meaning given to it in Section
4.19.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
and the rules and regulations thereunder, all as from time to time in effect, or
any successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
ERISA Affiliate shall mean any Person that is treated as a single
employer with UniSite under Sections 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA.
Event shall mean the existence or occurrence of any act, action,
activity, circumstance, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
Exchange Act shall mean the Securities Exchange Act of 1934, and the
rules and regulations thereunder, all as from time to time in effect, or any
successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
Excluded Liabilities shall mean any obligation or liability of UniSite
or any of its Subsidiaries with respect to (a) unfunded pension costs as of the
Effective time, (b) any Employment Arrangement (including without limitation any
obligation to any UniSite Employee for severance benefits or vacation time or
sick leave) with any UniSite Employee who is terminated by UniSite prior to the
Effective Time or who does not become an employee of ATI or one of its
Subsidiaries or who, having become such an employee, terminates
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his employment without cause within ninety (90) days of the Effective Time, and
(c) any of the agreements listed in the UniSite Disclosure Schedule under the
heading "Nonassumed Contracts" .
Fleet shall have the meaning given to it in Section 4.18.
GAAP shall mean generally accepted accounting principles applied on a
consistent basis, (i) as set forth in Opinions of the Accounting Principles
Board of the American Institute of Certified Public Accountants ("AICPA") and/or
in statements of the Financial Accounting Standards Board that are applicable in
the circumstances as of the date in question, (ii) when not inconsistent with
such opinions and statements, as set forth in other AICPA publications and
guidelines and/or (iii) that otherwise arise by custom for the particular
industry, all as the same shall exist on the date of this Agreement.
Governmental Authorizations shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities, including without limitation the United
States Forest Service and the Federal Aviation Administration and the Federal
Communications Commission, in connection with the ownership or operation of the
UniSite Assets or the conduct of the UniSite Business.
Governmental Filings shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
GTE Management Agreement shall mean the Wireless Communications Site
Services Agreement between GTE Mobilnet Incorporated, GTE Mobile Communications
Incorporated and Contel Cellular Inc., on the one hand, and UniSite, on the
other hand, dated July 31, 1996.
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Improvement Act
of 1976, as from time to time in effect, or any successor law, and any reference
to any statutory provision shall be deemed to be a reference to any successor
statutory provision.
Hazardous Materials shall mean and include any substance, material,
waste, constituent, compound, chemical, natural or man-made element or force (in
whatever state of matter): (a) the presence of which requires investigation or
remediation under any Environmental Law; or (b) that is defined as a "hazardous
waste", "hazardous substance", "hazardous chemical", "pollutant or contaminant"
or "solid waste" under any Environmental Law; or (c) gasoline, diesel fuel or
other petroleum hydrocarbons, or any by-products or fractions thereof, or
natural gas; or (d) asbestos-containing materials ("ACM"), urea formaldehyde
foam insulation polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
or isomer of dioxin, or any material or thing containing or composed of such
substance or substances; or (e) radon or other radioactive elements, ionizing
radiation, electromagnetic field radiation and other non-ionizing radiation,
sonic forces and other natural forces; or (f) any infectious organism or
biological or medical waste; or (g) that is subject to any Environmental Law.
Immediate Family shall mean, with respect to any individual, his or her
spouses, past or present, children, parents and siblings, and any of the spouses
of the foregoing, past or present, in all cases whether related by blood, by
adoption or by marriage
Indebtedness for Money Borrowed shall mean, with respect to UniSite,
(i) money borrowed, (ii) indebtedness represented by notes payable and drafts
accepted representing extensions of credit, (iii) obligations evidenced by
bonds, debentures, notes or other similar instruments, (iv) the maximum amount
currently or at any time thereafter available to be drawn under all outstanding
letters of credit issued for the account of such Person, (v) indebtedness upon
which interest charges are customarily paid by such Person, and (vi)
indebtedness (including capitalized lease obligations) issued or assumed as full
or partial payment for
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property or services, in each case whether or not any such notes, drafts,
obligations or indebtedness represents indebtedness for money borrowed, but
shall not include (a) trade payables, (b) expenses accrued in the ordinary
course of business, (c) customer advance payments and customer deposits received
in the ordinary course of business, or (d) conditional sales agreements not
prohibited by the terms of this Agreement.
Intangible Assets shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means, and shall include, without limitation, concessions, copyrights,
franchises, licenses, permits, and applications with respect to any of the
foregoing, technology and know-how and other Intellectual Property.
Intellectual Property shall mean any and all research, information,
inventions, designs, procedures, developments, discoveries, improvements,
patents and applications therefor, trademarks and applications therefor, service
marks, trade names, copyrights and applications therefor, logos, trade secrets,
drawing, plans, systems, methods, specifications, computer software programs,
tapes, discs and related data processing software (including without limitation
object and source codes) owned by such Person or in which it has an ownership
interest and all other manufacturing, engineering, technical, research and
development data and know-how made, conceived, developed and/or acquired by such
Person, which relate to the manufacture, production or processing of any
products developed or sold by such Person or which are within the scope of or
usable in connection with such Person's business as it may, from time to time,
hereafter be conducted or proposed to be conducted.
Law shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, law, injunction, interpretation, judgment, order, ordinance, policy
statement, proclamation, promulgation, regulation, requirement, rule, rule of
law, rule of public policy, settlement agreement, statute, or writ of any
Authority, domestic or foreign; (b) the common law, or other legal precedent; or
(c) arbitrator's, mediator's or referee's award, decision, finding or
recommendation.
Lease shall mean any lease of property, whether real, personal or
mixed, and all amendments thereto, and shall include without limitation all use
or occupancy agreements.
Legal Action shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
Lien shall mean any of the following: mortgage; lien (statutory or
other); or other security agreement, arrangement or interest; hypothecation,
pledge or other deposit arrangement; assignment; charge; levy; executory
seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional
sale, title retention or other similar agreement, arrangement, device or
restriction; preemptive or similar right; any financing lease involving
substantially the same economic effect as any of the foregoing; the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction; restriction on sale, transfer, assignment, disposition or
other alienation; or any option, equity, claim or right of or obligation to, any
other Person, of whatever kind and character.
material, materially or materiality for the purposes of this Agreement,
shall, unless specifically stated to the contrary, be determined without regard
to the fact that various provisions of this Agreement set forth specific dollar
amounts.
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Material Agreement shall mean, with respect to UniSite, any Contractual
Obligation that (a) was not entered into in the ordinary course of business, (b)
was entered into in the ordinary course of business which (i) involved the
purchase, sale or lease of goods or materials, or purchase of services,
aggregating more than $200,000 during any of the last three fiscal years, (ii)
is not terminable on thirty (30) days or less notice without penalty or other
payment of less than $50,000, or (iii) involves the leasing of space on any
tower of UniSite, (c) involves a capitalized lease obligation or Indebtedness
for Money Borrowed, (d) is or otherwise constitutes a written agency, broker,
dealer, license, distributorship, sales representative or similar written
agreement, (e) accounted for more than three percent (3%) of the revenues of
UniSite in any of the last three fiscal years or is likely to account for more
than three percent (3%) of revenues of UniSite during the current fiscal year,
or (f) is with any Authority.
MCI Agreement shall mean the Amended and Restated Site Sharing and
Master License Agreement between MCI Telecommunications Corporation and UniSite,
dated August 29, 1996.
Merger shall have the meaning given to it in the first Whereas
paragraph.
Merger Consideration shall have the meaning given to it in Section 3.1.
Merger Trust shall have the meaning given to it in Section 3.1.
Multiemployer Plan shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)(3) of ERISA.
Non-Foreign Ownership Certificate shall have the meaning given to it in
Section 7.2(i).
Omnipoint shall mean Omnipoint Communications, Inc., a Delaware
corporation.
Omnipoint Acquisition shall mean the acquisition by UniSite of
ninety-five percent (95%) of the ownership interests in up to four Delaware
limited liability companies described in Section 4.16 of the UniSite Disclosure
Schedule.
Omnipoint Agreement shall mean the Build Out Agreement, dated December
12, 1997, between UniSite and Omnipoint and certain Affiliated corporations, as
heretofore amended (a true, correct and complete copy of which has heretofore
been delivered by UniSite to ATC), relating to the construction by UniSite of
not less than 300 towers on which Omnipoint and certain Affiliated corporations
are obligated to lease antennae space.
Omnipoint Amendment shall mean the amendment to the Omnipoint Agreement
presently being negotiated among ATC, UniSite and Omnipoint, containing
substantially the terms and conditions set forth in Exhibit H attached hereto
and made a part hereof.
Option Securities shall mean all stock appreciation rights, rights,
options and warrants, and calls or commitments evidencing the right, to
subscribe for, purchase or otherwise acquire shares of capital stock or
Convertible Securities, whether or not the right to subscribe for, purchase or
otherwise acquire is immediately exercisable or is conditioned upon the passage
of time, the occurrence or non-occurrence or the existence or non-existence of
some other Event.
Organic Document shall mean, with respect to a Person which is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital stock and, with
respect to a Person which is an Entity other than a corporation, its agreement
and certificate of
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partnership, any agreements among partners, operating agreement, management or
similar agreements or other document governing formation, governance,
distributions or sharing of profits and losses, including those among its
owners.
PBGC shall mean the Pension Benefit Guaranty Corporation and any Entity
succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a Plan that is an employee pension benefit plan
as defined in Section 3(2) of ERISA.
Permitted Liens shall mean (a) Liens for current Taxes not yet due and
payable, and (b) such imperfections of title, easements, encumbrances and
mortgages or other Liens, if any, as are not, individually or in the aggregate,
substantial in character, amount or extent and do not materially detract from
the value, or materially interfere with the present use, of the property subject
thereto or affected thereby, or otherwise materially impair the conduct of the
UniSite Business.
Person shall mean any natural individual or any Entity.
personal property shall mean all of the machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts and other tangible personal property which are owned or leased by
UniSite and used or useful as of the date hereof in the conduct of the business
or operations of the UniSite Business, plus such additions thereto and deletions
therefrom arising in the ordinary course of business between the date hereof and
the Closing Date.
Plan shall mean, with respect to any Person and at a particular time,
any employee benefit plan as defined in Section 3(3) of ERISA and in respect of
which such Person or an ERISA Affiliate is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
Preliminary Merger Consideration shall have the meaning given to it in
Section 3.5.
Private Authorizations shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to
intellectual property.
real property shall mean all of the fee estates and buildings and other
fixtures and improvements thereon, leasehold interest, easements, licenses,
rights to access, rights-of-way, and other real property interest which are
owned or used by UniSite as of the date hereof, in the operations of the UniSite
Business, plus such additions thereto and deletions therefrom arising in the
ordinary course of business between the date hereof and the Closing Date.
Regulations shall mean the federal income Tax regulations promulgated
under the Code, as such Regulations may be amended from time to time. All
references herein to specific sections of the Regulations shall be deemed also
to refer to any corresponding provisions of succeeding Regulations, and all
references to temporary Regulations shall be deemed also to refer to any
corresponding provisions of final Regulations.
Representatives shall have the meaning given to it in Section 6.1(a).
Required Consents shall mean the obtaining by UniSite, on an
unconditional basis, of all consents, approvals or other authorizations required
to consummate the Merger and for the Surviving Corporation to
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continue to enjoy the benefits of all of the following agreements and leases,
including that such Merger will not conflict with, and result in a breach or
violation of, or constitute a default under, or permit the renegotiation of any
term or provision of or the acceleration of any obligation or liability in, or
permit the termination of, or but for any requirement of giving of notice or
passage of time or both would constitute such a conflict with, breach or
violation of, or default under, or permit any such acceleration in or
termination of, any of the following agreements or leases: (a) the Omnipoint
Agreement, (b) the MCI Management Agreement, (c) the USPS Management Agreement,
(d) the GTE Management Agreement, (e) the AT&T Agreement, (g) any other material
management or site service agreements, and (h) any ground lease pursuant to
which UniSite leases land on which a Completed Tower or a tower under
construction or proposed to be constructed is or will be located.
Restricted Transaction shall mean any (i) acquisition or agreement to
acquire, other than the Omnipoint Acquisition, (x) by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by any other
manner, any business or any Person or other business organization or division
thereof or (y) any assets (other than in the ordinary course of business which
for purposes of this definition does not include the acquisition or construction
of towers or other communications sites and related assets and other business
involved in the communications sites industry), or (ii) undertaking or agreement
to undertake the construction of one or more communications towers.
SEC shall mean the Securities and Exchange Commission and shall include
any successor Authority.
Securities Act shall mean the Securities Act of 1933, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
Software shall have the meaning given to it in Section 4.21.
Structural Reports shall have the meaning given to it in Section 6.15.
Subsidiary shall mean, with respect to a Person, any corporation a
majority of the capital stock ordinarily entitled to vote for the election of
directors of which, or if any Entity other than a corporation, a majority of the
equity interests of which, is owned directly or indirectly, legally or
beneficially, by such Person or any other Person controlled by such Person.
Superior Proposal shall mean an Alternative Transaction that the Board
of Directors of UniSite determines in good faith, after the advice of and
consultation with legal counsel and UniSite's independent financial advisors,
contains terms and conditions, including the likelihood of consummation, that
are materially more favorable from a financial point of view to the UniSite
stockholders than those set forth in this Agreement (as ATC may have proposed to
amend it pursuant to the provisions of Section 6.5(d)).
Surviving Corporation shall have the meaning given to it in Section
2.1.
Tax (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to any Person, (a) all taxes (domestic or foreign), including without
limitation any income (net, gross or other including recapture of any Tax items
such as investment Tax credits), alternative or add-on minimum Tax, gross
income, gross receipts, gains, sales, use, leasing, lease, user, ad valorem,
transfer, recording, franchise, profits, property (real or personal, tangible or
intangible), fuel, license, withholding on amounts paid to or by such Person,
payroll, employment, unemployment, social security, excise, severance, stamp,
occupation, premium, environmental or windfall profit Tax, custom, duty or other
Tax, or other like assessment or charge of any kind whatsoever, together with
any interest, levies, assessments, charges, penalties, additions to Tax or
additional amount
A-10
imposed by any Taxing Authority, (b) any joint or several liability of such
Person with any other Person for the payment of any amounts of the type
described in (a), and (c) any liability of such Person for the payment of any
amounts of the type described in (a) as a result of any express or implied
obligation to indemnify any other Person.
Tax Return or Returns shall mean all returns, consolidated or otherwise
(including without limitation information returns), required to be filed with
any Authority with respect to Taxes.
Taxing Authority shall mean any Authority responsible for the
imposition or collection of any Tax.
Title Report shall have the meaning given to it in Section 6.7.
Terminating Party shall have the meaning given to it in Section 8.1(a).
Termination Date shall have the meaning given to it in Section 8.1(a).
Termination Notice shall have the meaning given to it in Section
8.1(a).
Tower Construction Costs shall mean in respect of any tower, without
duplication and to the extent not specifically recouped from or reimbursed by
the tenant, the aggregate amount (including transportation costs) required to
construct such tower at a site on which such tower is to be located, including
all payments to general contractors, costs of zoning, building and other
required permits, all site acquisition and development costs and expenses
(including for a lighting system meeting the minimum specifications of the
Federal Aviation Administration and any other applicable Authorities and the
obtaining of Environmental Reports and Structural Reports to the extent actually
paid by UniSite) and other indirect costs typically allocable to tower
construction costs under GAAP; provided, however that Tower construction costs
shall not include any financing costs, expenses and charges, including without
limitation all capitalized interest, or any capitalized labor costs.
Towers Under Construction shall mean any tower that UniSite is, as of
the Effective Time, in the process of constructing (including without limitation
those with respect to which it is in the process of doing site acquisition work)
and that will, upon completion, be owned by it and leased to wireless service
providers.
Transactions shall mean the transactions contemplated to be consummated
on or prior to the Closing Date, including without limitation the Merger and the
execution, delivery and performance of the Collateral Documents.
UniSite shall have the meaning given to it in the Preamble.
UniSite Assets shall have the meaning given to it in Section 4.4(a) and
shall, if applicable, include without limitation, those of all of UniSite's
Subsidiaries.
UniSite Business shall have the meaning given to it in Section 4.4(a)
and shall, if applicable, include without limitation, those of all of UniSite's
Subsidiaries.
UniSite Class A Preferred Stock shall have the meaning given to it in
Section 3.1.
UniSite Class B Preferred Stock shall have the meaning given to it in
Section 3.1.
UniSite Class C Preferred Stock shall have the meaning given to it in
Section 3.1.
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UniSite Common Stock shall have the meaning given to it in Section 3.1.
UniSite Disclosure Schedule shall mean the UniSite Disclosure Schedule
to be delivered by UniSite to ATC pursuant to the provisions of Section 10.15.
UniSite Employees shall have the meaning given to it in Section 4.14.
UniSite Financial Statements shall have the meaning given to it in
Section 4.2.
UniSite Notes shall have the meaning given to it in Section 6.9.
UniSite Preferred Stock shall have the meaning given to it in Section
3.1.
UniSite Security Agreement shall have the meaning given to it in
Section 6.9.
UniSite Shares shall have the meaning given to it in Section 3.1.
UniSite Software shall have the meaning given to it in Section 6.12.
UniSite Stock shall have the meaning given to it in Section 3.1.
UniSite Stockholder Approval shall have the meaning given it in Section
6.13.
UniSite Stockholder Meeting shall have the meaning given it in Section
6.13.
UniSite Stockholder Representatives shall have the meaning given to it
in Section 10.14.
UniSite Warrants shall mean the warrants to purchase UniSite Common
Stock issued in connection with the sale of UniSite's 13% Subordinated Accrual
Notes due December 15, 2004.
UniSite's knowledge (or words of similar import) shall mean the actual
knowledge of any UniSite stockholder or any UniSite director or officer, as such
knowledge exists on the date of this Agreement, after reasonable review of
appropriate UniSite records and after reasonable inquiry of appropriate UniSite
Employees.
USPS Agreement shall mean the Amended and Restated Site Management
Agreement between the United States Postal Service and UniSite, effective as of
January 4, 1999.
Working Capital shall mean, with respect to UniSite, the amount by
which the current assets of UniSite and its Subsidiaries exceed (or are less
than) the current liabilities (other than the principal amount of Indebtedness
for Money Borrowed) of UniSite and its Subsidiaries, as determined in accordance
with GAAP, consistently applied with the UniSite Financial Statements, except as
hereinafter specifically set forth; provided, however, that notwithstanding the
foregoing:
(a) current assets shall be increased by an amount equal to the sum of:
(i) Tower Construction Costs actually paid by UniSite with
respect to Towers Under Construction;
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(ii) funds actually paid to (x) CSFB for acting as financial
adviser to UniSite with respect to the subject matter of this
Agreement, (y) Fleet, for acting as financial adviser to UniSite in
connection with its sale of high-yield debt securities in an amount not
in excess of $500,000 together with reimbursement of reasonable costs
and expenses;
(iii) funds actually paid with respect to all severance,
accrued vacation or other benefits payable to terminated UniSite
Employees as a result of the Merger (other than those paid pursuant to
the plan referred to in Section 6.14) to the extent they do not,
together with the amounts accrued under clause (b)(i)(z) following,
exceed $2,000,000; and
(iv) funds actually paid by UniSite subsequent to the date of
this Agreement and prior to the Effective Time for Environmental
Reports and Structural Reports on Completed Towers.
(b) There shall be:
(i) excluded from current liabilities any accounts payable or
accrued expenses incurred:
(v) by UniSite subsequent to the date of this
Agreement and prior to the Effective Time for Environmental
Reports and Structural Reports on Completed Towers.
(w) in respect of Tower Construction Costs with
respect to Towers Under Construction;
(x) subsequent to the date of this Agreement in
respect of acquisitions of towers (so long as such
acquisitions were approved by ATC in accordance with the
provisions of Section 6.6);
(y) in respect of (I) CSFB for acting as financial
adviser as described above, and (II) Fleet, for acting as
financial adviser as described above in an amount not in
excess of $500,000 (less any amount theretofore actually paid
and reflected in clause (a)(iii)(y) immediately preceding),
together with, without duplication, reimbursement of
reasonable costs and expenses; and
(z) in respect of all severance, accrued vacation or
other benefits payable to terminated UniSite Employees (other
than those paid pursuant to the plan referred to in Section
6.14) to the extent they do not, together with amounts paid
under clause (a)(iv) above, exceed $2,000,000; and
(ii) included in current liabilities an accrual with respect
to the full amount of all costs and expenses required to be borne by
UniSite pursuant to the provisions of this Agreement, including without
limitation (x) those referred to in Section 10.2 (except amount paid
under clause (a)(v) or excluded under clause (b)(i)(u) above), (y) all
severance, accrued vacation or other benefits paid or payable (other
than with respect to the plan referred to in Section 6.14) to all
terminated UniSite Employees in excess of $2,000,000, whether or not
required by GAAP (it being understood that reserves will be established
for any such obligation not accounted for as a liability), and (z) all
benefits payable pursuant to the plan referred to in Section 6.14 (it
being understood that reserves will be established for any such
obligation not accounted for as a liability); provided, however, that
it is understood, and ATC hereby agrees, that the Surviving Corporation
shall be responsible for (A) amounts payable to (I) CSFB for acting as
financial adviser as described above, and (II) Fleet, for acting as
financial adviser as described above in an amount not in excess of
$500,000 together with
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reimbursement of reasonable costs and expenses, and (B) all severance
benefits, accrued vacation or other benefits payable to terminated
UniSite Employees (other than those paid pursuant to the plan referred
to in Section 6.14) to the extent they do not, together with amounts
paid under clause (a)(iv) above or excluded under clause (b)(i)(z)
above, exceed $2,000,000.
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