EXHIBIT 10.6
STOCK PURCHASE AGREEMENT
By and Among
AMERICAN TOWER SYSTEMS, INC.,
OPM - USA - INC.
and
THE STOCKHOLDERS
of
OPM - USA - INC.
Dated as of
September 30, 1997
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 SALE AND PURCHASE OF STOCK......................................................................1
2.1 Agreement to Sell and Buy the Subject Stock............................................2
2.2 Closing Purchase Price; Tax Allocation Schedule........................................4
2.3 OPM Disclosure Schedule................................................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS .............................................4
3.1 Organization and Business; Power and Authority; Effect of Transaction..................5
3.2 Financial and Other Information. .....................................................5
3.3 Changes in Condition...................................................................5
3.4 Materiality............................................................................5
3.5 Title to Properties; Leases............................................................7
3.6 Compliance with Private Authorizations.................................................7
3.7 Compliance with Governmental Authorizations and Applicable Law.........................8
3.8 Intangible Assets......................................................................8
3.9 Related Transactions...................................................................8
3.10 Insurance..............................................................................8
3.11 Tax Matters. .........................................................................9
3.12 Employee Retirement Income Security Act of 1974.......................................11
3.13 Absence of Sensitive Payments.........................................................11
3.14 Inapplicability of Specified Statutes.................................................11
3.15 Employment Arrangements...............................................................11
3.16 Material Agreements...................................................................12
3.17 Ordinary Course of Business...........................................................13
3.18 Material and Adverse Restrictions.....................................................13
3.19 Broker or Finder......................................................................13
3.20 Solvency..............................................................................13
3.21 Environmental Matters.................................................................14
3.22 Capital Stock.........................................................................14
3.23 Bank Accounts, Etc....................................................................15
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
RELATING TO THE SUBJECT STOCK..................................................................15
4.1 Enforceability........................................................................15
4.2 Title to Shares.......................................................................15
4.3 No Conflict; Required Filings and Consents............................................15
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF ATS..........................................................16
5.1 Organization and Business; Power and Authority; Effect of Transaction.................16
5.2 Broker or Finder......................................................................16
5.3 ATS Financing.........................................................................16
5.4 Financial Information. ...............................................................17
5.5 Changes in Condition..................................................................17
5.6 No Legal Action.......................................................................17
ARTICLE 6 COVENANTS......................................................................................17
6.1 Access to Information; Confidentiality................................................18
6.2 Agreement to Cooperate. .............................................................19
6.3 Public Announcements..................................................................19
6.4 Notification of Certain Matters.......................................................19
6.5 No Solicitation.......................................................................20
6.6 Conduct of Business by OPM Pending the Closing........................................20
6.7 Preliminary Title Reports.............................................................21
6.8 Environmental Site Assessments........................................................21
6.9 Certain Tax Matters...................................................................22
6.10 ATS Post-Closing Covenants. .........................................................23
ARTICLE 7 CLOSING CONDITIONS.............................................................................23
7.1 Conditions to Obligations of Each Party...............................................24
7.2 Conditions to Obligations of ATS......................................................26
7.3 Conditions to Obligations of the Stockholders.........................................27
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER..............................................................27
8.1 Termination...........................................................................28
8.2 Effect of Termination.................................................................28
ARTICLE 9 INDEMNIFICATION................................................................................28
9.1 Survival..............................................................................28
9.2 Indemnification.......................................................................29
9.3 Limitation of Liability...............................................................29
9.4 Notice of Claims......................................................................30
9.5 Defense of Third Party Claims.........................................................30
9.6 Exclusive Remedy......................................................................30
ARTICLE 10 GENERAL PROVISIONS.............................................................................30
10.1 Waivers; Amendments...................................................................31
10.2 Fees, Expenses and Other Payments.....................................................31
10.3 Notices...............................................................................32
10.4 Specific Performance; Other Rights and Remedies.......................................32
10.5 Severability..........................................................................33
10.6 Counterparts..........................................................................33
10.7 Section Headings......................................................................33
10.8 Governing Law.........................................................................33
10.9 Further Acts..........................................................................33
10.10 Entire Agreement......................................................................33
10.11 Assignment............................................................................33
10.12 Parties in Interest...................................................................33
10.13 Appointment of Representative. .......................................................33
APPENDIX A: Definitions
SCHEDULES:
OPM Disclosure Schedule
ii
EXHIBITS:
EXHIBIT A Form of Noncompetition Agreement (Section 7.2(i)) (to be
agreed upon)
EXHIBIT B Form of Indemnity scrow Agreement (Section 9.3(b)) (to be
agreed upon)
EXHIBIT C OPM Master Plan (Section 6.10)
EXHIBIT D Form of Employment Agreement (Section 7.2(p)) (to be agreed
upon)
EXHIBIT E: Executive summary of financial Terms (Section 2.2(b).
iii
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is dated as of
September 30, 1997 by and among American Tower Systems, Inc., a Delaware
corporation ("ATS"), OPM - USA - INC., a Florida corporation ("OPM"), and the
undersigned stockholders (individually, a "Stockholder" and collectively, the
"Stockholders") of OPM.
WHEREAS, the Stockholders hold in the aggregate ninety (90) shares (the
"Subject Stock") of common stock of OPM, which constitute all of the issued and
outstanding capital stock of OPM;
WHEREAS, the Buyer desires to purchase, and the Sellers desire to sell,
the Subject Stock upon the terms and subject to the conditions set forth herein;
and
WHEREAS, OPM owns and leases and operates communication towers and is
engaged in the business of managing communication sites for third parties (the
"OPM Business");
NOW, THEREFORE, in consideration of the above premises and the
covenants and agreements contained herein, the parties, intending to be legally
bound, do hereby 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 OPM 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" are
intended to refer to the entire Section and not a particular subsection thereof.
The term "any party" shall, unless the context otherwise requires, refer to OPM,
the Stockholders and ATS.
ARTICLE 2
SALE AND PURCHASE OF STOCK
2.1 Agreement to Sell and Buy the Subject Stock. Upon the terms and
subject to the conditions set forth in this Agreement, each of the Stockholders
agrees to sell, assign, and transfer and deliver to ATS, and ATS agrees to
purchase and accept the assignment, transfer and delivery of, the Subject Stock,
in consideration of the payment to the Stockholders of the Purchase Price
specified in Section 2.2.
2.2 Closing Purchase Price; Tax Allocation Schedule.
(a) The closing of the transaction (the "Closing") shall take place at
▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
at 10:00 a.m., local time, on January 6, 1998 or such other date, prior to the
Termination Date, as the parties may agree (the "Closing Date"). At the Closing,
(A) the Stockholders will deliver original certificates representing all of the
Subject Stock, duly endorsed (or accompanied by duly executed stock powers), for
transfer to ATS, and (B) ATS will make or cause to be made the initial
installment of the purchase price (the "Initial Installment") in the amount of
eleven (11) times the forward looking twelve (12) months Cash Flow of OPM
Communication Towers beginning December 31, 1997 as reflected in the Master
Plan. The purchase Price for the Subject Stock (the "Purchase Price") shall be
an amount equal to (i) $105,000,000, less (ii) the amount of liabilities and
obligations with respect to all Indebtedness of Money Borrowed or Purchase Money
Indebtedness (other than Indebtedness owed to ATS or incurred subsequent of
October 6, 1997 with the prior written consent of ATS) and all Liens (other than
Permitted Liens) on any of the OPM Assets or the OPM Business (the "Debt
Reduction"), all but the Initial Installment being payable in accordance with
the provisions of, and subject to satisfaction of the conditions set forth in,
Section 2.2(b). The Purchase Price shall be payable by wire transfer of
immediately available funds to the Stockholders, in accordance with their
respective holdings of the Subject Stock for the Initial Installment to such
account (or accounts) as the Stockholders shall designate (including accounts of
individuals other than the Stockholders in order to satisfy obligations of OPM
pursuant to employment agreements with such individuals) in written instructions
to ATS delivered not less than two (2) business days prior to the Closing.
Anything in this agreement to the contrary notwithstanding, ATS will
make quarterly installment payments to the Stockholders for the balance of the
Purchase Price to in accordance with the following schedule:
Payment Date Date of Record Amount Due
April 30,1998 March 31, 1998 See "Formula" below
July 30, 1998 June 30, 1998 "
October 30, 1998 September 30, 1998 "
January 31, 1998 December 31, 1998 "
April 30, 1999 March 31, 1999 "
August 31, 1999 June 30, 1999 "
For the purposes of the above calculations the "Formula" is the following:
"Amount Due" is equal to:
The Cash Flow as of the "Date of Record" divided by
$9,600,000. This percentage is then averaged with the
percentage of permits of the total number of permits required,
the denominator of this percentage calculation is 250 and the
percentage of towers completed, the denominator of this
percentage calculation is 200. The resultant amount is the
amount from which the previous payments are subtracted. The
balance after deducting an amount equal to the Debt Reduction
(in the case of the April 30, 1998 Payment Date) and the Debt
Reduction not previously deducted (in the case of all
subsequent Payment Dates) is the "Amount Due".
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For example:
Assume as of March 31, 1998:
"Cash Flow" is $8,000,000
125 towers are permitted
133 towers are completed
$8,000,000 / $9,600,000 = 83%
125 permits / 250 permits = 50%
133 towers / 200 towers = 66.5%
The average of the completions are 66.5%
The "Purchase Price" is x $105,000,000
------------
The amount earned is $69,825,000
Less previous payments $30,000,000
------------
The amount due April 30, 1998 = $39,825,000
(b) For the purposes of determining the Initial Installment and the
quarterly amount due, "Cash Flow" shall be determined for the twelve (12) months
beginning immediately subsequent to the determination thereof, and shall mean,
the gross lease revenues attributable to the OPM Communications Towers, minus
the annual taxes on the site, the utility expense on the site, repairs and
maintenance to the site, insurance on the site and the lease payments on the
site. Sales taxes collected by OPM are not included in the revenue.
Cash Flow shall be determined jointly by ATS with the Stockholders
Representative based on the above formula. In the event of disagreement, ATS and
the Stockholders Representative shall negotiate to resolve the disagreement and,
in the event they are unable to resolve their disagreement within thirty (30)
days, the matter shall be referred to a recognized national accounting firm
which does not serve as such for ATS, reasonably acceptable to ATS and the
Stockholders Representative, whose determination of cash flow in accordance with
the above formula shall be final, determinative, nonappealable and binding on
ATS and the Stockholders, and whose fees and expenses shall be borne equally by
ATS, on the one hand, and the Stockholders, on the other. ATS shall cause any
payment required to be made pursuant to the provisions of this Section to be
made promptly to the Stockholders after agreement of ATS and the Stockholders
Representative or the determination of the accounting firm, as the case may be.
(c) The parties hereto have heretofore agreed that (i) the aggregate
value of all Real Property of OPM (including without limitation the OPM
Communication Towers constructed as of the date hereof or between the date
hereof and the Closing Date) does not exceed 150% of the original cost thereof,
and (ii) on the basis thereof, BIA Consulting, Inc. shall promptly conduct an
appraisal of the OPM Assets which shall be the basis for an allocation schedule
(the "Tax Allocation Schedule") pursuant to which the Purchase Price and the
liabilities of OPM shall be allocated among the OPM Assets as follows: initially
to the Real Property and tangible Personal Property and the balance to
intangible Personal Property (including without limitation Governmental
Authorizations, Private Authorizations, Leases (pursuant to which OPM acts as
lessor) and other Contracts, collectively Section 197 assets of the Code). Each
of OPM, the Stockholders and ATS shall report the purchase and sale of the
Subject Stock and the other Transactions in accordance with the Tax Allocation
Schedule for purposes of all federal, state and local Tax Returns (including
amended returns and claims for refund) and information reports and shall not
take, and shall cause their respective Affiliates, representatives, successors
and assigns not to take, any position on any federal, state or local Tax Return
or
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report, inconsistent with such reporting position. Each of the Stockholders and
ATS shall promptly give the other notice of any disallowance of or challenge to
such reporting by any Taxing Authority.
2.3 OPM Disclosure Schedule. The Stockholders will deliver to ATS, on
or before thirty (30) days from the execution and delivery of this Agreement,
the OPM Disclosure Schedule and all related documents required to be delivered
by OPM or the Stockholders pursuant to the provisions of Article 3 of this
Agreement. ATS shall be permitted, for a period of ten (10) business days
commencing upon its receipt of the completed OPM Disclosure Schedule and related
documents to terminate this Agreement, if (a) the OPM Disclosure Schedule
reveals any condition of which ATS is unaware as of the date of this Agreement
and/or any breaches of the Stockholders' representations, warranties, covenants
and agreements hereunder (without regard to matters set forth in the OPM
Disclosure Schedule), which unknown conditions and/or breaches in the aggregate
would have a material adverse effect on OPM or on ability of OPM to continue to
operate or ATS to operate the OPM Business as it is currently being operated, or
(b) the parties are unable to agree upon which Private Authorizations, Material
Agreements and Leases with respect to which a third-party consent to the
consummation of the Transactions or modifications thereof will be a condition to
Closing. In the event ATS terminates this Agreement pursuant to the provisions
of this Section, none of the parties shall have any further rights or remedies,
except as provided in Sections 6.1 (with respect to confidentiality), 6.3 and
10.3.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders, jointly and severally, hereby represents,
warrants and covenants to, and agrees with, ATS as follows:
3.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) OPM is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, 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.
(b) OPM 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 or to consummate the
Transactions; and the execution, delivery and performance 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 OPM. This Agreement has been duly executed and delivered
by OPM 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 OPM will constitute, legal, valid and binding
obligations of OPM, enforceable in accordance with their respective terms,
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.
(c) Except as set forth in Section 3.1(c) of the OPM Disclosure
Schedule, neither the execution and delivery by OPM 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 OPM:
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(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of OPM 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 OPM; or
(ii) will require OPM to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA.
(d) OPM does not have any Subsidiaries.
3.2 Financial and Other Information. OPM has heretofore furnished to
ATS copies of the financial statements of OPM listed in Section 3.2 of the OPM
Disclosure Schedule (the "OPM Financial Statements"). The OPM 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 or as set forth in Section
3.2 of the OPM Disclosure Schedule, are true, accurate and complete in all
material respects, do not contain any untrue statement of a material fact or
omit to state a material fact required by GAAP to be stated therein or necessary
in order to make the statements contained therein not misleading, and fairly
present the financial condition and the results of operations and cash flow of
OPM, 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. Without limiting the generality of the foregoing, all accounts and
notes receivable reflected on the OPM Financial Statements and all accounts and
notes receivable arising subsequent to the issuance of the OPM Financial
Statements have or will have arisen in the ordinary course of business,
represent or will represent valid obligations to OPM, and will be collected in
the aggregate amounts thereof recorded on the books of OPM, net of the reserve
for bad debts reflected on the most recent OPM Financial Statements.
3.3 Changes in Condition. Since the date of the most recent financial
statements constituting a part of the OPM Financial Statements, except to the
extent specifically described in Section 3.3 of the OPM Disclosure Schedule,
there has been no material adverse change in OPM. There is no Event known to OPM
which materially adversely affects, or (so far as OPM can now reasonably
foresee) is likely to materially adversely affect, OPM, except to the extent
specifically described in Section 3.3 of the OPM Disclosure Schedule.
3.4 Materiality. The representations and warranties set forth in this
Article would in the aggregate be true and correct even without the materiality
exceptions or qualifications contained therein or set forth in the OPM
Disclosure Schedule, except for such exceptions and qualifications including
without limitation those set forth in the OPM Disclosure Schedule which, in the
aggregate for all such representations and warranties, are not and could not
reasonably be expected to be materially adverse to OPM.
3.5 Title to Properties; Leases.
(a) Section 3.5(a) of the OPM Disclosure Schedule contains a true,
accurate and complete description of all real property owned by OPM that is part
of the OPM Assets. OPM has, to the Stockholders' knowledge, good indefeasible,
marketable and insurable title to all real property (other than leasehold real
property) and good indefeasible and merchantable title to all other assets
(other than real property), tangible and intangible, constituting a part of the
OPM Assets; all of such real property and other assets is so owned,
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in each case, free and clear of all Liens, except (i) Permitted Liens, (ii)
Liens set forth on Section 3.5(a) of the OPM Disclosure Schedule and (iii)
Approved Title Conditions. Except for financing statements evidencing Liens
referred to in the preceding sentence (a true, accurate and complete list and
description of which is set forth in Section 3.5(a) of the OPM Disclosure
Schedule), no financing statements under the Uniform Commercial Code and no
other filing which names OPM as debtor or which covers or purports to cover any
of the OPM Assets is on file in any state or other jurisdiction, and OPM 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. Except as disclosed in Section 3.5(a) of the OPM Disclosure Schedule,
all improvements on the real property owned or leased by OPM are, to the
Stockholders' knowledge, in compliance with applicable zoning, wetlands and land
use laws, ordinances and regulations and applicable title covenants, conditions,
restrictions and reservations in all respects necessary to conduct the
operations as presently conducted, except for any instances of non-compliance
which do not and will not 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 3.5(a) of the OPM Disclosure Statement, all such improvements comply
in all material aspects with all Applicable Laws, Governmental Authorizations
and Private Authorizations. Except as disclosed in Section 3.5(a) of the OPM
Disclosure Statement, all of the transmitting towers, ground radials, guy
anchors, transmitting buildings and related improvements located on the real
property owned or leased by OPM are located entirely on such real property.
There is no pending and, to Stockholders' knowledge, threatened or contemplated
action to take by eminent domain or otherwise to condemn any part of any real
property owned or leased by OPM. Except as set forth in Section 3.5(a) of the
OPM Disclosure Schedule, such real property (other than land), fixtures, fixed
assets and other material items of personal property, including equipment, have,
in OPM's reasonable business judgment, been maintained in a manner consistent
with generally accepted standards of sound engineering practice and currently
permit the OPM Business to be operated in all material respects in accordance
with the terms and conditions of all Applicable Laws, Governmental
Authorizations and Private Authorizations.
(b) Section 3.5(b) of the OPM Disclosure Schedule contains a true,
accurate and complete description of all Leases under which any real property
used in the OPM Business is leased. Except as otherwise set forth in Schedule
3.5(b) of the OPM Disclosure Schedule, each Lease or other occupancy or other
agreement under which OPM holds real or personal property constituting a part of
the OPM Assets has been duly authorized, executed and delivered by OPM and, to
Stockholders' knowledge, each of the other parties thereto, and is a legal,
valid and binding obligation of OPM, and, to Stockholders' knowledge, each of
the other parties thereto, enforceable in accordance with its terms, 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. OPM 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.
All of such Leases are valid and subsisting and in full force and effect;
neither OPM nor, to Stockholders' knowledge, any other party thereto, is in
material default in the performance, observance or fulfillment of any
obligation, covenant or condition contained in any such Lease. None of the fixed
assets or equipment comprising a part of the OPM Assets is subject to contracts
of sale, and none is held by OPM 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 3.5(b) of the OPM Disclosure
Schedule.
(c) Section 3.5(c) of the OPM Disclosure Schedule contains a true,
accurate and complete description of all material items of OPM Personal
Property. OPM owns and has good and merchantable title to all of the OPM
Personal Property (the "OPM Personal Property"), in each case, free and clear of
all Liens, except (i) Permitted Liens and (ii) Liens set forth on Section 3.5(c)
of the OPM Disclosure Schedule (which Liens shall be released prior to Closing).
Except as set forth in Section 3.5(c) of the OPM Disclosure Schedule, all of the
OPM Personal Property is in a state of good repair and maintenance and is in
good
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operating condition, normal wear and tear excepted, has been maintained in a
manner consistent with generally accepted standards of good engineering practice
and currently permits the OPM Business to be operated in accordance with the
terms and conditions of all Applicable Laws.
3.6 Compliance with Private Authorizations. Section 3.6 of the OPM
Disclosure Schedule sets forth a true, accurate and complete list and
description of each Private Authorization which individually is material to the
OPM Assets or the OPM Business. OPM has obtained all Private Authorizations
which are necessary for the ownership or operation of the OPM Assets or the
conduct of the OPM Business which, if not obtained and maintained, could,
individually or in the aggregate, materially adversely affect OPM. All of such
Private Authorizations are valid and in good standing and are in full force and
effect. OPM is not in breach or violation of, or in default in the performance,
observance or fulfillment of, any such Private Authorization, and 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 such Private Authorization, except for such defaults,
breaches or violations as do not and will not have in the aggregate any material
adverse effect on OPM. No such Private Authorization is the subject of any
pending or, to Stockholders' knowledge, threatened attack, revocation or
termination.
3.7 Compliance with Governmental Authorizations and Applicable Law.
(a) Section 3.7(a) of the OPM Disclosure Schedule contains a true,
complete and accurate description of each Governmental Authorization required
under Applicable Laws (i) to own and operate the OPM Business, as currently
conducted or proposed to be conducted on or prior to the Closing Date, all of
which are in full force and effect or (ii) that is necessary to permit OPM to
execute and deliver this Agreement and to perform its obligations hereunder. OPM
has obtained all Governmental Authorizations which are necessary for the
ownership or operation of the OPM Assets or the conduct of the OPM Business as
now conducted and which, if not obtained and maintained, would, individually or
in the aggregate, have any material adverse effect on OPM. None of the
Governmental Authorizations listed in Section 3.7(a) of the OPM Disclosure
Schedule is subject to any restriction or condition which would limit in any
material respect the ownership or operations of the OPM Assets or the conduct of
the OPM Business as currently conducted, except for restrictions and conditions
generally applicable to Governmental Authorizations of such type. The
Governmental Authorizations listed in Section 3.7(a) of the OPM 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 OPM or its
officers, directors, employees or agents, and the ownership or operation of the
OPM Assets or the conduct of the OPM Business are in accordance in all material
respects with the Governmental Authorizations. All material reports, forms and
statements required to be filed by OPM with all Authorities with respect to the
OPM Business have been filed and are true, complete and accurate in all material
respects. No such Governmental Authorization is the subject of any pending or,
to Stockholders' knowledge, threatened challenge or proceeding to revoke or
terminate any such Governmental Authorization. OPM has no reason to believe that
any such Governmental Authorization would not be renewed in the name of OPM by
the granting Authority in the ordinary course.
(b) Except as otherwise specifically described in Section 3.7(b) of the
OPM Disclosure Schedule, neither OPM nor any director or officer thereof (in
connection with ownership or operation of the OPM Assets or the conduct of the
OPM Business) is in or is charged by any Authority with or, to Stockholders'
knowledge, at any time since May 1, 1995 has been in or has been charged by any
Authority with, or, to Stockholders' knowledge, is threatened or under
investigation by any Authority with respect to, breach or violation of, or
default in the performance, observance or fulfillment of, any Governmental
Authorization or any Applicable Law relating to the ownership and operation of
the OPM Assets or the conduct of the OPM Business. In particular, but without
limiting the generality of the foregoing, there are no applications, complaints
or Legal Actions pending or, to Stockholders' knowledge, threatened before or by
any Authority
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(x) relating to the ownership or operation of the OPM Assets or the conduct of
the OPM Business which, individually or in the aggregate, are reasonably likely
to result in the revocation or termination of any Governmental Authorization or
the imposition of any restriction of such a nature as would adversely affect the
ownership or operation of the OPM Assets or the conduct of the OPM Business; (y)
involving charges of illegal discrimination by OPM under any federal or state
employment Laws, or (z) involving Environmental Laws or zoning laws, except as
otherwise specifically described in Section 3.7(b) of the OPM Disclosure
Schedule.
(c) Except as otherwise specifically described in Section 3.7(c) of the
OPM Disclosure Schedule, no Event exists or has occurred, which, to
Stockholders' knowledge, 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 (i) any Governmental Authorization or any Applicable Law, except
for such breaches, violations or defaults as do not and will not have,
individually or in the aggregate, any material adverse effect on OPM or (ii) any
material requirement of any insurance carrier, applicable to the ownership or
operations of the OPM Assets or the conduct of the OPM Business.
(d) With respect to matters, if any, of a nature referred to in Section
3.7(a), 3.7(b) or 3.7(c) of the OPM Disclosure Schedule, except as otherwise
specifically described in Section 3.7(d) of the OPM Disclosure Schedule, all
such information and matters set forth in the OPM Disclosure Schedule, if
adversely determined against OPM, will not, individually or in the aggregate,
have a materially adversely effect on OPM.
3.8 Intangible Assets. Section 3.8 of the OPM Disclosure Schedule sets
forth a true, accurate and complete description of all Intangible Assets (other
than Governmental Authorizations and Private Authorizations) relating to the
ownership and operation of the OPM Assets or the conduct of the OPM Business
held or used by OPM, including without limitation the nature of OPM'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 3.8 of the OPM
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 OPM Assets or the conduct of the OPM Business
as currently owned, operated and conducted or proposed to be owned, operated and
conducted on or prior to the Closing Date. OPM does not, to its knowledge,
wrongfully infringe upon or unlawfully use any Intangible Assets owned or
claimed by another, and OPM has not received any notice of any claim or
infringement relating to any such Intangible Asset.
3.9 Related Transactions. OPM is not a party or subject to any
Contractual Obligation relating to the ownership or operation of the OPM Assets
or the conduct of the OPM Business between OPM and any of its officers,
directors, stockholders, employees or, to the knowledge of OPM, any Affiliate of
any thereof, 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 (i) Employment Arrangements listed or described in Section 3.15 of
the OPM Disclosure Schedule, (ii) Contractual Obligations between OPM and any of
its directors, stockholders, officers, employees or Affiliates of OPM or any of
the foregoing, which will be terminated, at no cost or expense to OPM, prior to
the Closing, or (iii) as specifically set forth in Section 3.9 of the OPM
Disclosure Schedule.
3.10 Insurance. OPM maintains, with respect to the OPM Assets and the
OPM Business, 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 3.10 of the OPM Disclosure Schedule.
3.11 Tax Matters.
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(a) OPM 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 OPM
Financial Statements. The Tax Returns of OPM have been prepared in all material
respects in accordance with all Applicable Laws and generally accepted
principles applicable to taxation consistently applied. All Taxes which OPM 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. OPM 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 OPM for
the fiscal years prior to and including the most recent fiscal year. Adequate
provision has been made on the most recent balance sheet forming part of OPM
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, to Stockholders' knowledge,
no past transactions or matters which could result in additional Taxes of a
material nature to OPM for which an adequate reserve has not been provided on
such balance sheet. OPM is not a "consenting corporation" within the meaning of
Section 341(f) of the Code. OPM has at all times been taxable as a Subchapter S
corporation under the Code, and has never been a member of any consolidated
group for Tax purposes, except as otherwise set forth in Section 3.11(a) of the
OPM Disclosure Schedule.
(b) The information shown on the federal income Tax Returns of OPM for
each of the most recent two tax years (true and complete copies of which have,
to the extent requested by ATS, been furnished by OPM to ATS) is true, accurate
and complete in all material respects and fairly and accurately reflects the
information purported to be shown. Federal and state income Tax Returns of OPM
have not been examined by the IRS or applicable state Authority, and OPM has not
been notified of any proposed examination, except as shown in Section 3.11(b) of
the OPM Disclosure Schedule.
(c) OPM is not a party to any tax sharing agreement or arrangement.
3.12 Employee Retirement Income Security Act of 1974.
(a) OPM (which for purposes of this Section shall include any ERISA
Affiliate) is not making any contribution to or sponsoring, and has not at any
time since its organization made any contribution to or sponsored, any Plan or
Benefit Arrangement, except as set forth in Section 3.12(a) of the OPM
Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section
3.12(a) of the OPM Disclosure Schedule:
(i) all such Plans and Benefit Arrangements comply and have
been administered in form and in operation with all Applicable Laws in
all material respects, and OPM has not received any notice from any
Authority questioning or challenging such compliance;
(ii) all such Plans maintained or previously maintained by OPM
that are or were intended to comply with Sections 401 and 501 of the
Code comply and complied in form and in operation with all applicable
requirements of such sections, and no event has occurred which will or
could give rise to disqualification of any such Plan under such
sections or to a tax under Section 511 of the Code;
(iii) none of the assets of any such Plan are invested in
employer securities or employer real property;
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(iv) there have been no "prohibited transactions" (as
described in Section 406 of ERISA or Section 4975 of the Code) with
respect to any such Plan and OPM has not otherwise engaged in any
prohibited transaction;
(v) there have been no acts or omissions by OPM which have
given rise to or may give rise to any material fines, penalties, taxes
or related charges under Sections 502(c), 502(i) or 4071 or ERISA or
Chapter 43 of the Code for which OPM may be liable;
(vi) there are no Claims (other than routine claims for
benefits or actions seeking qualified domestic relations orders)
pending or threatened involving such Plans or the assets of such Plans,
and, to Stockholders' knowledge, no facts exist which could give rise
to any such Claims (other than routine claims for benefits or actions
seeking qualified domestic relations orders);
(vii) no such Plan is subject to Title IV of ERISA, or, if
subject, there have been no "report able events" (as described in
Section 4043 of ERISA), and no steps have been taken to terminate any
such Plan;
(viii) all group health Plans of OPM have been operated in
compliance in all material respects with the group health plan
continuation coverage requirements of COBRA;
(ix) actuarially adequate accruals for all obligations under
the Plans are reflected in the most recent balance sheet forming part
of the OPM Financial Statements and such obligations include a pro rata
amount of the contributions which would otherwise have been made in
accordance with past practices for the Plan years which include the
Closing Date;
(x) neither OPM nor any of its respective directors, officers,
employees or any other fiduciary has committed any breach of fiduciary
responsibility imposed by ERISA or any similar Applicable Law that
would subject OPM or any of its respective directors, officers or
employees to material liability under ERISA or any similar Applicable
Law;
(xi) no such Plan which is subject to Part 3 of Subtitle B of
Title I of ERISA or Section 412 of the Code had an accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, as of the last day of the most recent
fiscal year of such Plan to which Part 3 of Subtitle B of Title I of
ERISA or Section 412 of the Code applied, nor would have had an
accumulated funding deficiency on such date if such year were the first
year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or
Section 412 of the Code applied;
(xii) no material liability to the PBGC has been or is
expected by OPM to be incurred by OPM with respect to any Plan, and
there has been no event or condition which presents a material risk of
termination of any Plan by the PBGC;
(xiii) OPM is not and never has been a party to any
Multiemployer Plan or made contributions to any such Plan;
(xiv) except as set forth in Section 3.12(a)(xiv) of the OPM
Disclosure Schedule (which entry, if applicable, shall indicate the
present value of accumulated plan liabilities calculated in a manner
consistent with FAS 106 and actual annual expense for such benefits for
each of the last two (2) years) and pursuant to the provisions of
COBRA, OPM does not maintain any Plan that provides
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benefits described in Section 3(1) of ERISA, except as the provisions
of COBRA may apply, to any former employees or retirees of OPM; and
(xv) OPM has made available to ATS a copy of the two most
recently filed Federal Form 5500 series and accountant's opinion, if
applicable, for each Plan (and the two most recent actuarial valuation
reports for each Plan, if any, that is subject to Title IV of ERISA),
and all information provided by OPM to any actuary in connection with
the preparation of any such actuarial valuation report was true,
accurate and complete in all material respects.
(b) The execution, delivery and performance by OPM of this Agreement
and the Collateral Documents executed or required to be executed pursuant hereto
and thereto will not involve any prohibited transaction within the meaning of
ERISA or Section 4975 of the Code.
3.13 Absence of Sensitive Payments. Neither OPM nor, to Stockholders'
knowledge, any of its officers, directors, employees, agents or other
representatives, has with respect to the OPM Assets or the OPM Business (a) made
any contributions, payments or gifts to or for the private use of any
governmental official, employee or agent where either the payment or the purpose
of such contribution, payment or gift is illegal under the laws of the United
States or the jurisdiction in which made or (b) established or maintained any
unrecorded fund or asset for any purpose or made any false or artificial entries
on its books.
3.14 Inapplicability of Specified Statutes. OPM is not a "holding
company", or a "subsidiary company" or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935, as
amended, or an "investment company" or a company "controlled" by or acting on
behalf of an "investment company", as defined in the Investment Company Act of
1940, as amended, or a "carrier" or a person which is in control of a "carrier",
as defined in section 11301 of Title 49, U.S.C.
3.15 Employment Arrangements. Section 3.15 of the OPM Disclosure
Schedule contains a true, accurate and complete list of all OPM employees (the
"OPM Employees"), together with each such employee's title or the capacity in
which he or she is employed and the basis for each such employee's compensation.
OPM has no obligation or liability, contingent or other, under any Employment
Arrangement with any OPM Employee, other than those listed or described in
Section 3.15 of the OPM Disclosure Schedule. Except as described in Section 3.15
of the OPM Disclosure Schedule, (a) none of the OPM Employees is now, or since
May 1, 1995 has been, represented by any labor union or other employee
collective bargaining organization, and OPM is not, and never has been, a party
to any labor or other collective bargaining agreement with respect to any of the
OPM Employees, (b) there are no pending grievances, disputes or controversies
with any union or any other employee or collective bargaining 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 OPM nor any of such employees is now, or has since May
1, 1995 been, subject to or involved in or, to Stockholders' knowledge,
threatened with, any union elections, petitions therefore or other
organizational or recruiting activities, in each case with respect to the OPM
Employees, and (d) none of the OPM Employees has notified OPM that he or she
does not intend to continue employment with OPM until the Closing or with ATS
following the Closing. OPM 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.
3.16 Material Agreements. Listed on Section 3.16 of the OPM Disclosure
Schedule are all Material Agreements relating to the ownership or operation of
the OPM Assets or the conduct of the business of the OPM Business or to which
OPM is a party or to which it is bound or which any of the OPM Assets is
subject. True, accurate and complete copies of each of such Material Agreements
have been made available
-11-
by OPM to ATS and OPM has provided ATS with photocopies of all such Material
Agreements requested by ATS (or true, accurate and complete descriptions thereof
have been set forth in Section 3.16 of the OPM Disclosure Schedule, with respect
to Material Agreements comprised of site leases and site licenses granted by OPM
to third parties and with respect to Material Agreements that are oral). All of
such Material Agreements are valid, binding and legally enforceable obligations
of OPM and, to Stockholders' 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. OPM has duly complied
with all of the material terms and conditions of each such Material Agreement
and has not done or performed, or failed to do or perform (and there is no
pending or, to the knowledge of OPM, Claim threatened in writing that OPM 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) such Material Agreement or
impair the rights or benefits, or increase the costs, of OPM under any of such
Material Agreements in any material respect.
3.17 Ordinary Course of Business. OPM, from the end of its most recent
fiscal quarter to the date hereof, except (i) as may be described on Section
3.17 of the OPM Disclosure Schedule, or (ii) as may be required or expressly
contemplated by the terms of this Agreement, with respect to the OPM Assets and
the OPM Business:
(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 $20,000;
(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 $20,000;
(iii) has not entered into any individual commitment
having a value in excess of $20,000; and
(iv) has not canceled any debts or claims;
(c) has not created or permitted to be created any Lien on any
of its property;
(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 OPM Employees other than nonmaterial increases in
the ordinary course of business, 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;
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(h) 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 or Employment Arrangement, or
any transaction, agreement or arrangement with any Affiliate of OPM,
except for OPM Nonassumed Obligations; and
(j) has not made, paid or declared any Distribution; and
(k) has not entered into any other transaction or series of
related transactions which individually or in the aggregate is material
to the OPM Assets or the OPM Business.
3.18 Material and Adverse Restrictions. OPM is not a party to or
subject to, nor is any of the OPM Assets subject to, any Applicable Law,
Governmental Authorization, Contractual Obligation, Employment Arrangement,
Material Agreement or Private Authorization, or any other obligation or
restriction of any kind or character, which now has or, as far as OPM can now
reasonably foresee, at any time in the future, individually or in the aggregate,
is likely to have, any material adverse effect on OPM, except as set forth in
Section 3.18 of the OPM Disclosure Schedule.
3.19 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of OPM.
3.20 Solvency. As of the execution and delivery of this Agreement, OPM
is, and immediately prior to and after giving effect to the consummation of the
Transactions will be, solvent.
3.21 Environmental Matters. Except as set forth in Section 3.21 of the
OPM Disclosure Schedule, with respect to the OPM Assets and the OPM Assets, OPM:
(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 Stockholders' 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 of any Final Order issued
pursuant to any Environmental Law;
(d) has obtained all Environmental Permits required under
Environmental Laws, and has filed all applications, notices and other
documents required to be filed prior to the date of this Agreement to
effect the timely renewal or issuance of all Environmental Permits for
the continued conduct of its business in the manner now conducted;
(e) is in compliance in all material respects with all
Environmental Laws, and is not the subject of or, to the Stockholders'
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;
-13-
(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 OPM;
(g) 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 OPM and, to the Stockholders' knowledge, there are no above
ground or underground storage tanks, friable asbestos, polychlorinated
biphenyls or urea formaldehyde foam insulation or any property
currently owned, leased or operated by OPM;
(h) there has been no disposal, release, spill or burial of
any Hazardous Materials by OPM (or any Person acting on its behalf) in
violation of Environmental Laws on any property or facility owned,
leased, operated or occupied by OPM or to the Stockholders' knowledge
at any facility or site to which Hazardous Materials from or generated
by OPM may have been taken at any time in the past;
(i) to the Stockholders' knowledge, there has been no
disposal, release, spill or burial of any Hazardous Materials by OPM
(or any Person acting on its behalf) on any property which could
reasonably be expected to result or has resulted in contamination which
requires investigation, remediation or other response activity on or
beneath any properties or facilities currently owned, leased, operated
or occupied by OPM; and
(j) has no knowledge of any past or present Event related to
OPM's properties, operations or business, which Event, individually or
in the aggregate, may interfere with or prevent continued material
compliance with all Environmental Laws, 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 3.21 of the Disclosure Schedule lists all off-site locations, including,
without limitation, commercial waste disposal facilities and municipal
landfills, to which OPM has directed the transport of Hazardous Materials
originating from OPM or OPM's business during the three (3) years prior to the
date hereof.
3.22 Capital Stock. The authorized and outstanding capital stock of OPM
is as set forth in Section 3.22 of the OPM 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.
Except as described in Section 3.22 of the OPM Disclosure Schedule, OPM has not
granted or issued, nor has OPM agreed to grant or issue, any shares of its
capital stock or any Option Security or Convertible Security, and OPM 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.
3.23 Bank Accounts, Etc. Section 3.23 of the OPM Disclosure Schedule
contains a true, accurate and complete list of the date hereof of all banks,
trust companies, savings and loan associations and brokerage firms in which OPM
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 OPM and a summary statement as to the terms thereof. OPM agrees that prior
to the Closing Date it will not make or permit to be made any change affecting
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
-14-
attorney, or open any additional accounts or boxes or grant any additional
powers of attorney, without in each case first notifying ATS in writing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
RELATING TO THE SUBJECT STOCK
Each of the Stockholders, severally and not jointly, represents,
warrants and covenants to, and agrees with, ATS as follows:
4.1 Enforceability. This Agreement has been duly executed and delivered
by such Stockholder and constitutes, and each Collateral Document executed or
required to be executed by such Stockholder pursuant hereto or thereto when
executed and delivered by such Stockholder will constitute, legal, valid and
binding obligations of such Stockholder, 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.
4.2 Title to Shares. Such Stockholder owns the Subject Stock set forth
opposite his name in Section 3.22 of the OPM Disclosure Schedule. Except as set
forth in Section 3.22 of the OPM Disclosure Schedule, such Stockholder owns and
has good and merchantable title to such Subject Stock as so set forth, free and
clear of all Liens.
4.3 No Conflict; Required Filings and Consents. Except for consents as
set forth in Section 4.3 of the Disclosure Schedule, neither the execution and
delivery by such Stockholder of this Agreement or any Collateral Document
executed or required to be executed by such Stockholder pursuant hereto or
thereto, nor the consummation of the Transactions, nor compliance with the
terms, conditions and provisions hereof or thereof by such Stockholder:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, 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 the 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 acceleration in, any Contractual
Obligation of such Stockholder, except for such conflicts, breaches,
defaults, violations or accelerations that would not, individually or
in the aggregate, have a Material Adverse Effect;
(ii) will result in or permit the creation or imposition of
any Lien upon any property or asset of such Stockholder; or
(iii) will require any Governmental Authorization or
Governmental Filing or Private Authorization of such Stockholder.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ATS
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ATS represents, warrants and covenants to, and agrees with, the
Stockholders as follows:
5.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) ATS is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and 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.
(b) ATS has all requisite corporate power and corporate authority
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 or to consummate the Transactions; and
the execution, delivery and performance 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 ATS. This Agreement has been duly executed and delivered by ATS 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 ATS will constitute, legal, valid and binding obligations of
ATS, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and the obligations of
debtors generally and by general principles of equity.
(c) Except for matters which would have not material adverse effect on
ATS, as of the Closing Date, neither the execution and delivery by ATS of this
Agreement or any Collateral Document executed or required to be executed by it
pursuant hereto or thereto, nor the consummation by ATS of the Transactions, nor
compliance with the terms, conditions and provisions hereof or thereof by ATS:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of ATS or any
Applicable Law on the part of ATS, 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 ATS; or
(ii) will require ATS to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA, except for filings under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.
5.2 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of ATS.
5.3 ATS Financing. ATS has and will, at all times that the Purchase
Price remains unpaid in full, have sufficient funds available to it to pay the
Purchase Price when due in accordance with the provisions of this Agreement and
all transaction related fees and expenses payable by ATS in connection with the
consummation of the Transactions.
5.4 Financial Information. ATS has heretofore furnished to the
Stockholders copies of the audited financial statements of ATS for the fiscal
year ended December 31, 1996 and the unaudited financial statements of ATS for
the six months ended June 30, 1997 (the "ATS Financial Statements"). ATS
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, are true, accurate
and complete in all material respects, do not contain any untrue statement of a
material fact or omit
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to state a material fact required by GAAP to be stated therein or necessary in
order to make the statements contained therein not misleading, and fairly
present the financial condition and the results of operations and cash flow of
ATS, 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.
5.5 Changes in Condition. Since the date of the most recent financial
statements constituting a part of the ATS Financial Statements, except to the
extent, if any, heretofore specifically disclosed in writing by ATS to the
Stockholders, there has been no material adverse change in ATS. There is no
Event known to ATS which materially adversely affects, or (so far as ATS can now
reasonably foresee) is likely to materially adversely affect, ATS, except to the
extent, if any, heretofore specifically disclosed in writing by ATS to the
Stockholders.
5.6 No Legal Action. There are no Legal Actions pending or, to the
knowledge of ATS, threatened against ATS or any of its Affiliated Entities,
officers or directors, that question or may affect the validity of this
Agreement or the right or ability of ATS to consummate the transactions
contemplated hereunder.
ARTICLE 6
COVENANTS
6.1 Access to Information; Confidentiality.
(a) OPM shall afford to ATS and its accountants, counsel, lenders,
financial advisors and other representatives (the "Representatives") full access
during normal business hours throughout the period prior to the Closing Date to
all of OPM's properties, books, contracts, commitments and records (including
without limitation Tax Returns) relating to the OPM Assets and the OPM Business
and, during such period, shall furnish promptly upon request (i) a copy of each
report, schedule and other document filed or received by any of them pursuant to
the requirements of any Applicable Law or filed by it with any Authority in
connection with the Transactions or which may have an adverse effect on the OPM
Assets or the OPM Business or the businesses, operations, properties, prospects,
personnel, condition (financial or other), or results of operations thereof,
(ii) all financial records, ledgers, work papers and other sources of financial
information possessed and controlled by OPM or its accountants deemed by ATS or
its Representatives necessary or useful for the purpose of performing an audit
of the OPM Assets and the OPM Business and certifying financial statements and
financial information, and (iii) such other information in the possession or
control of OPM or its accountants concerning any of the foregoing as ATS shall
reasonably request; provided, however, that OPM shall not be required to permit
any such access (x) to the extent same would unreasonably interfere with OPM's
normal business operations or (y) to any document, the delivery of which would,
in the opinion of OPM's counsel, have the effect of waiving any attorney-client
privilege enjoyed by OPM. All non-public information relating to the OPM Assets
or the OPM Business furnished prior to the execution, or pursuant to the
provisions, of this Agreement, including without limitation this Section, will
be kept confidential and shall not, without the prior written consent of OPM, be
disclosed by ATS in any manner whatsoever, in whole or in part, and shall not be
used for any purposes, other than in connection with the Transactions. In no
event shall ATS or any of its Representatives use such information to the
detriment of OPM. ATS agrees to reveal such information only to those of its
Representatives or other Persons who need to know such information for the
purpose of evaluating the Transactions, who are informed of the confidential
nature of such information and who shall undertake to act in accordance with the
terms and conditions of this Agreement. From and after the Closing, OPM shall
not, without the prior written consent of ATS, disclose any
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information with respect to the OPM Assets or the OPM Business, and no such
information shall be used for any purposes, other than in connection with the
Transactions or to the extent required by Applicable Law.
(b) Subject to the terms and conditions of Section 6.1(a), ATS may,
subject to prior consultation with OPM and to the reasonable approval of OPM
with respect to disclosure of information, disclose such information as may be
necessary in connection with seeking all Governmental and Private Authorizations
or that is required by Applicable Law to be disclosed. In the event that this
Agreement is terminated for any reason, ATS shall promptly redeliver all
non-public written material provided pursuant to this Section or any other
provision of this Agreement or otherwise in connection with the Transactions 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 ATS.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, any 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 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 either ATS or the
Stockholders or any condition to the obligations of the parties hereto, except
as set forth in Section 9.3(e).
6.2 Agreement to Cooperate.
(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
Transactions, and (y) to refrain from taking, or cause to be taken, any action
and to refrain from doing or causing to be done, any thing which could impede or
impair the consummation of the Transactions, including, in all cases, without
limitation using its reasonable business efforts (i) to prepare and file with
the applicable Authorities as 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 Transactions by all such applicable Authorities, each of which
must be obtained or become final to the extent provided in Section 7.1(a), (ii)
to obtain all necessary or appropriate waivers, consents and approvals,
including without limitation those referred to in Section 7.2(d), (iii) to
effect all necessary registrations, filings and submissions (including without
limitation filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and all filings necessary for
ATS to own and operate the OPM Assets and conduct the OPM Business), (iv) to
lift any injunction or other legal bar to the Transactions (and, in such case,
to proceed with the Transactions as expeditiously as possible), and (v) to
obtain the satisfaction of the conditions specified in Article 6, including
without limitation the truth and correctness as of the Closing Date as if made
on and as of the Closing Date of the representations and warranties of such
party and the performance and satisfaction as of the Closing Date of all
agreements and conditions to be performed or satisfied by such party.
(b) The parties shall cooperate with one another (including by ATS
providing access to the Stockholders to the books and records of OPM subsequent
to the Closing Date) in the preparation, execution and filing of all Tax
Returns, questionnaires, applications, or other documents regarding any real
property transfer or gains, sales, use, transfer, value added, stock transfer
and stamp Taxes, any transfer, recording, registration and other fees, and any
similar Taxes which become payable in connection with the Transactions that are
required or permitted to be filed on or before the Closing Date.
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(c) OPM shall cooperate and use its reasonable business efforts to
cause its independent accountants to reasonably cooperate with ATS, and at ATS'
expense, in order to enable ATS to have its independent accountants prepare
audited financial statements for the OPM Business described in Section 7.2(g).
OPM represents and warrants that any such financial statements will have been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods covered thereby, will be true, accurate and complete in all material
respects, and will fairly present the financial condition and results of
operation of the Company on the basis therein stated, as of the respective dates
thereof and for the respective periods covered thereby. Without limiting the
generality of the foregoing, OPM agrees that after the Closing Date it will (x)
consent to the use of such audited financial statements in any registration
statement or other document filed by ATS or any Affiliate of ATS under any
applicable federal or state securities Law the Securities Act or the Exchange
Act and (y) execute and deliver, and cause its directors and officers to execute
and deliver, such "representation" letters as are customarily delivered in
connection with audits and as ATS' independent accountants may reasonably
request under the circumstances.
6.3 Public Announcements. Until the Closing, or in the event of
termination of this Agreement, OPM and ATS shall consult with the other before
issuing any press release or otherwise making any public statements with respect
to this Agreement or the Transactions and shall not issue any such press release
or make any such public statement without the prior consent of the other.
Notwithstanding the foregoing, each party acknowledges and agrees that OPM and
ATS may, without its prior consent, issue such press releases or make such
public statements as may be required by Applicable Law, in which case, to the
extent practicable, the party proposing to make such press release or public
statement will consult with the other regarding the nature, extent and form of
such press release or public statement. In addition, subject to the terms and
conditions hereof, ATS may disclose the subject matter of this Agreement to
Persons with whom OPM has a business or contractual relationship in connection
with ATS' due diligence investigation of OPM.
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 likely to cause (i) any
representation or warranty made by it contained in this Agreement to be untrue
or inaccurate in any respect, or (ii) any covenant, condition or agreement made
by it contained in this Agreement not to be complied with or satisfied, or (iii)
any change to be made in the OPM Disclosure Schedule in any respect, or (iv) any
failure made by it to comply with or satisfy, or be able to comply with or
satisfy, any covenant, condition or agreement to be complied with or satisfied
by it hereunder, in each case in any respect such that one or more of the
conditions of Closing might not be satisfied; provided, however, that the
delivery of any notice pursuant to this Section shall not limit or otherwise
affect the remedies available hereunder to the party receiving such notice.
6.5 No Solicitation. OPM shall not, nor shall it knowingly permit any
of its Representatives (including, without limitation, any investment banker,
broker, finder, attorney or accountant retained by it) to, initiate, solicit or
facilitate, directly or indirectly, any inquiries or the making of any proposal
with respect to any Alternative Transaction, engage in any discussions or
negotiations concerning, or provide to any other Person any information or data
relating to, it or any Subsidiary for the purposes of, or otherwise cooperate in
any way with or assist or participate in, or facilitate any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, a proposal to seek or effect any Alternative Transaction, or agree to or
endorse any Alternative Transaction. "Alternative Transaction" means a
transaction or series of related transactions (other than the Transactions)
resulting in or likely to result in (i) any change of control of OPM, (ii) any
merger, consolidation or other business combination of OPM, regardless of
whether OPM is the surviving Entity unless the surviving Entity remains
obligated under this Agreement to the same extent as it was, (ii) any tender
offer or exchange offer for, or any acquisitions of, any securities of OPM, (iv)
any sale or other disposition of all or any substantial part of the OPM Assets
or the OPM Business, (v) any issue
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or sale, or any agreement to issue or sell, any capital stock, Convertible
Securities or Option Securities by OPM, or (vi) any sale, transfer, pledge,
assignment or other conveyance or any agreement to sell, transfer, pledge,
assign or otherwise convey, any Subject Stock. If OPM or any of its
Representatives receives any inquiry with respect to an Alternative Transaction
while this Agreement is in effect, OPM shall inform the inquiring party that it
is not entitled to enter into discussions or negotiations relating to an
Alternative Transaction.
6.6 Conduct of Business by OPM Pending the Closing. Except as otherwise
contemplated by this Agreement, after the date hereof and prior to the Closing
Date or earlier termination of this Agreement, unless ATS shall otherwise agree
in writing, OPM shall, to the extent relating to the OPM Business or the OPM
Assets:
(a) conduct its business in the ordinary and usual course of
business and consistent with past practice, including without
limitation the performance of such maintenance, repairs or replacements
with respect to communication towers, fixtures and Personal Property
comprising the OPM Assets as is consistent with past practice;
(b) use all reasonable business efforts to preserve intact its
business organizations and goodwill, keep available the services of its
present key employees, and preserve the goodwill and business
relationships with customers and others having business relationships
with it;
(c) confer, as and when reasonably requested, on a regular and
frequent basis with one or more representatives of ATS to report
material operational matters and the general status of ongoing
operations;
(d) maintain with financially responsible insurance companies
insurance on its assets and its business in such amounts and against
such risks and losses as are consistent with past practice;
(e) use reasonable business efforts to (i) operate the OPM
Business in conformity in all material respects with all Governmental
and Private Authorizations, Leases and Material Agreements on a basis
consistent with past practice and Applicable Law and the rules and
regulations of any Authority with jurisdiction over the OPM Assets or
the OPM Business, and (ii) maintain in full force and effect all such
Governmental and Private Authorizations, Leases and Material Agreements
relating to the OPM Business;
(f) not (i) dispose of any of the OPM Assets owned by OPM or
used in the operation of the OPM Business (other than for the
disposition in the ordinary course of business of immaterial assets
that are of no further use to the OPM Business) or (ii) modify or
change in any material respect, or enter into, any Material Agreement
relating to the OPM Business; and
(g) 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 3.17 of the OPM Disclosure Schedule.
6.7 Preliminary Title Reports. As promptly as practicable after the
execution of this Agreement, OPM shall, at its sole cost and expense, deliver or
cause to be delivered to ATS a standard preliminary title report (the "Title
Reports") dated on or after the date of this Agreement issued by such title
company or companies as OPM and ATS shall mutually reasonably agree with respect
to those OPM Assets comprised of the parcels of real property owned by OPM, as
described in Section 6.7 of the OPM Disclosure Schedule.
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6.8 Environmental Site Assessments. As promptly as practicable after
the execution of this Agreement, ATS may at its own cost and expense obtain, and
deliver to OPM full and complete copies of, Phase I environmental site
assessment reports (the "Environmental Reports") on any or all of those certain
parcels of real property described on Section 6.8 of the OPM Disclosure
Schedule. Site assessments shall be conducted by such consultants and
professionals as ATS and OPM shall mutually agree and shall be arranged at times
mutually convenient to the parties. Each of OPM and ATS shall be entitled to
have representatives present at the time such site assessments are conducted,
and to have copies of all correspondence with the Environmental Company.
6.9 Certain Tax Matters.
(a) The Stockholders shall be responsible, at their sole cost and
expense, for the preparation and filing of all federal and state income Tax
Returns of OPM for all taxable periods ending on or before the Closing Date (the
"Pass Through Returns") and for the payment of all Taxes shown on the Pass
Through Returns or otherwise payable with respect to all such periods. The Pass
Through Returns shall be prepared in a manner which is consistent with past
practices of OPM, except as otherwise required by Applicable Law. Income, gain,
loss, deduction and credit of OPM shall be allocated between the Pass Through
Returns and any succeeding taxable period on the basis of a closing of the books
of OPM at the close of business on the date preceding the Closing Date in
accordance with Section 1362(e)(6)(D) of the Code. The Buyer shall promptly
notify the Stockholders following receipt by the Buyer of any notice of audit,
examination or other proceeding (a "Tax Proceeding") with respect to any Pass
Through Return, and the Stockholders shall retain the sole right to control any
such Tax Proceeding, provided that the Buyer may participate in such Tax
Proceeding at its own expense, and provided, further, that ATS may control any
aspects of any such Tax Proceeding relating to any item for which ATS is or may
be liable. The Stockholders shall retain the sole right to file any amended Pass
Through Return. Notwithstanding the foregoing, the Stockholders may not settle
or otherwise agree to the resolution of any Tax Proceeding or file any such
amended Pass Through Return without in each case obtaining the prior written
consent of ATS such consent will not be unreasonably conditioned or withheld,
if, as a result of such settlement or resolution or the filing of any such
amended Pass Through Return, OPM's tax basis in any of its assets for any period
after the Closing Date would be reduced or OPM's tax position after the Closing
Date would otherwise be adversely affected.
(b) After the Closing Date, ATS shall cooperate with the Stockholders,
and the Stockholders shall cooperate with ATS, in connection with all Tax
matters that may affect the Stockholders or OPM for any taxable period that ends
on or before the Closing Date, including without limitation the preparation of
income tax returns and the conduct of any Tax Proceedings for any such taxable
period.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, the Stockholders shall join with ATS in making an
election under Section 338(h)(10) of the Code (and any corresponding elections
under state, local or foreign Tax Law) (collectively a "Section 338(h)(10)
Election") with respect to the purchase and sale of the Subject Stock hereunder.
ATS and the Stockholders agree to comply with all of the requirements and
conditions of Section 338(h)(10) of the Code and the Treasury Regulations
thereunder and all other applicable Code Sections and Treasury Regulations (and
state, local and foreign Tax Laws) relating thereto, including without
limitation the timely filing of Form 8023A entitled "Corporate Qualified Stock
Purchase Election." ATS and the Stockholders also agree to take all necessary
steps to effectuate such election (and any corresponding state, local or foreign
elections). None of the Stockholders or ATS will take any action, including
without limitation any action in connection with the filing of federal, state,
local or foreign Tax Returns, which would be inconsistent with or prejudice the
election under Section 338(h)(10) of the Code provided for hereunder. In the
event (i) ATS takes any action which has the effect of causing the Stockholders
not to be able to report the transactions contemplated by this Agreement as an
installment sale under the Code and (ii) the balance of the Purchase Price has
not been paid
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prior to April 10, 1999, ATS will advance to the Stockholders an amount equal to
the tax liability for the taxable year ended December 31, 1998 created by such
action. Such advance will be credited against the balance of the Purchase Price
and will be evidenced by a non-interest bearing promissory note of the
Stockholders secured by such balance and maturing on the earlier of (x) the
payment of the balance of the Purchase Price or (y) August 31, 1999.
6.10 ATS Post-Closing Covenants.
(a) ATS acknowledges that its obligation to make payment of the full
purchase price to the Stockholders is materially affected by the business and
financial performance of OPM subsequent to the Closing Date. OPM has previously
provided to ATS its business plan (the "Master Plan") regarding acquisition of
tower sites and construction of proposed towers, including estimates of the
financing required to: (i) compete the acquisition and development of tower
sites and towers, and (ii) meet the financial projections contained in the
Master Plan. A copy of the Master Plan is attached hereto as Exhibit C and made
a part hereof. ATS agreed that, except as hereinafter expressly limited, ▇▇▇▇▇
shall have the right, after the Closing Date, to continue to manage and direct
the OPM Business substantially in accordance with the Master Plan, in such
manner as he shall, in his reasonable business judgment, deems appropriate,
including without limitation those matters necessary or desirable to complete
the Master Plan. Notwithstanding the foregoing, ATS shall have the right to
approve the terms and conditions of any agreements with, or purchases or sales
of materials from or to, or any other business relationship with, any Affiliate
of any of the Stockholders, which approval shall be based on, among other
things, receipt of bids from Persons who are not Affiliated with any of the
Stockholders. ATS shall, within ten (10) days of receipt from OPM of any
proposal from an Affiliate and bids covering the subject of the proposal from
three (3) Persons who are not Affiliates of any of the Stockholders (at least
one of which has been selected by ATS), provide OPM with written notice of its
approval or disapproval of the proposed Affiliate transaction. In the event such
notice is not received by OPM within such ten (10) day period, ATS shall be
deemed to have approved the proposed Affiliate transaction. ATS further agrees
that it is essential that ATS provide the financing necessary to fund fully
completion of the Master Plan and its projections. Accordingly, ATS agrees that
it will, from time to time following the Closing Date, provide, upon written
request of ▇▇▇▇▇, all funds necessary to fund acquisition of tower sites,
construction of communications towers and other improvements reflected in the
Master Plan; provided, however, that such funding shall not exceed the aggregate
amount of $28,000,000 plus the amount by which (i) $9,000,000 exceeds (ii) the
aggregate principal amount borrowed by OPM from ATS prior to the Closing Date
and outstanding at such time. ATS agrees for itself, its successors and assigns
that, from and after the Closing Date until payment in full by ATS to the
Stockholders of the balance of the Purchase Price as provided in Section 2.2(b)
of this Agreement, in the absence of conduct by ▇▇▇▇▇ in the operation of the
OPM Business which constitutes gross negligence, willful or intentional
misconduct, or violation of any Applicable Law, it will not in any material
fashion interfere with the operation by ▇▇▇▇▇ of the OPM Business, so long as
such operation is in substantial compliance with the Master Plan. ATS
acknowledges and agrees that the members of the Board of Directors of OPM or
their successors in the event of any merger, consolidation or combination of OPM
or the sale or transfer of the OPM Business shall have satisfied all of their
fiduciary duties and responsibilities related to the OPM Business and ▇▇▇▇▇'
operation and management of the OPM Business if they shall adhere to the
provisions of this Section 6.10 and they need not take, or require to be taken,
any action in conflict with such provisions. The Stockholders acknowledge and
agree that the rights of ▇▇▇▇▇ are unique to ▇▇▇▇▇ and that, in the event of the
death or disability (mental or physical) of ▇▇▇▇▇, or his gross negligence or
willful or intentional misconduct in the operation of the OPM Business
substantially in accordance with the Master Plan, ATS shall not be required to
recognize as successor to him any individual nominated by the Stockholders, but
shall, in such event, use its reasonable business efforts to effect the timely
and expeditious implementation of the Master Plan, including without limitation
performance of its obligations with respect to funding set forth in this
Section. By executing this Agreement
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in his capacity as a Stockholder, ▇▇▇▇▇ agrees that he will devote his full time
and effort to the OPM Business.
(b) The Stockholders understand and agree that, anything in this
Section or elsewhere in this Agreement to the contrary notwithstanding, ATS is
under no obligation whatsoever to finance the acquisition of any sites (other
than those reflected in the Master Plan) or the construction of communication
towers and other improvements thereon by OPM (or any successor thereto), but may
do so independently and in a manner such that the operations of such
communication towers are not included in determining Cash Flow for purposes of
determining the Purchase Price. The Stockholders agree that OPM or the OPB
Business may be merged, consolidated or combined with or sold or otherwise
transferred to ATS or any Affiliate thereof, but, in any such event, ATS agrees
to maintain or cause to be maintained separate financial books and records of
OPM or the OPM Business in such manner as to enable the determination of Cash
Flow to be made in accordance with the provisions of Section 2.2(b).
(c) ATS will provide to the Stockholders, promptly after the same
become available, unaudited quarterly (for each of the first three (3) calendar
quarters) and annual consolidated financial statements of ATS (and, so long as
it exists, consolidated with its parent American Tower Systems Holding
Corporation). The Stockholders Representative shall have the right to examine
the books and records of ATS and to discuss financial, operational and other
affairs of ATS with the officers of ATS, at such times during normal business
hours as the Stockholders Representative shall, from time to time, reasonably
request, subject to the Stockholder Representative executing and delivering a
confidentiality agreement embodying terms and conditions comparable to those of
Section 6.1.
ARTICLE 7
CLOSING CONDITIONS
7.1 Conditions to Obligations of Each Party. The respective obligations
of each party to effect the Transactions 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 or threatened in writing by any Authority seeking to enjoin,
restrain, prohibit or make illegal or to impose any materially adverse
conditions in connection with, the consummation of the Transactions, it
being understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not in itself be
deemed to be a threat of any such Legal Action; and
(b) All authorizations, consents, waivers, orders or approvals
required to be obtained from all Authorities, and all filings,
submissions, registrations, notices or declarations required to be made
by any of the parties with any Authority, prior to the consummation of
the Transactions, shall have been obtained from, and made with, all
such Authorities, except for such authorizations, consents, waivers,
orders, approvals, filings, registrations, notices or declarations as
are set forth in Section 7.1(b) of the OPM Disclosure Schedule or the
failure to obtain or make would not, in the reasonable business
judgment of ATS, have a material adverse effect on the OPM Assets or
the OPM Business.
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7.2 Conditions to Obligations of ATS. The obligation of ATS to effect
the Transactions shall be subject to the satisfaction 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) 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 ATS
and its counsel, and ATS 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) The Stockholders shall have furnished ATS and, at ATS'
request, any bank or other financial institution providing credit to
ATS, with a favorable opinion, dated the Closing Date, of ▇▇▇▇▇,
McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel for OPM and the
Stockholders, with respect to the matters set forth in Sections 3.1(a),
(b) and (c), 3.7(b), 3.14, 3.22 and Article 4, and such other matters
arising after the date of this Agreement and incident to the
Transactions, as ATS or its counsel or its counsel may reasonably
request or which may be reasonably requested by any such bank or
financial institution or their respective counsel; counsel for OPM and
the Stockholders may, in furnishing such opinion, rely on, among other
things, on the representations and warranties of the Stockholders in
Section 3.7(b), 4.2 and 4.3;
(c) The representations and warranties of the Stockholders
contained in this Agreement or otherwise made in writing by it or on
its behalf pursuant hereto or otherwise made in connection with the
Transactions 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 those which speak as of a certain date which shall continue to
be true and correct as of such date on the Closing Date (including
without limitation giving effect to any later obtained knowledge of the
Stockholders, OPM or ATS, except as otherwise specifically provided
herein); each and all of the agreements and conditions to be performed
or satisfied by the Stockholders or OPM hereunder at or prior to the
Closing Date shall have been duly performed or satisfied in all
material respects; and the Stockholders shall have furnished ATS 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 ATS or its counsel
shall have reasonably requested;
(d) Except to the extent, if any, specifically set forth in
Section 7.2(d) of the OPM Disclosure Schedule, all 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 Transactions, including without
limitation those required in order for OPM to continue to own all of
the OPM Assets and continue to operate the OPM Business as conducted
immediately prior to the Closing (including without limitation, at the
cost and expense of OPM, all modifications of Private Authorizations,
Leases and Material Agreements of OPM set forth in Section 7.2(d) of
the OPM Disclosure Schedule) shall have been obtained, without the
imposition, individually or in the aggregate, of any condition or
requirement which could adversely affect ATS or OPM;
(e) Between the date of this Agreement and the Closing Date,
there shall not have occurred and be continuing any material adverse
change in OPM from that reflected in the most recent OPM Financial
Statements; as of the Closing Date, the Governmental Authorizations
with respect to the ownership or operation of the OPM Assets or the
conduct of the OPM Business shall not have been materially and
adversely affected by any act, or failure to act, of OPM;
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(f) The Stockholders and OPM shall have delivered or cause to
be delivered to ATS all of the Collateral Documents and other
agreements, documents and instruments required to be delivered by the
Stockholders or OPM to ATS at or prior to the Closing pursuant to the
terms of this Agreement;
(g) ATS shall have received from its independent accountants
(i) an unqualified report (as to the scope of the audit, access to the
books and records and the cooperation of management) on the financial
statements (consisting of balance sheets for each of the fiscal years
ended December 31, 1995 and 1996 and statements of operations and cash
flow for each of the two years in the period ended December 31, 1996)
of the OPM, which financial statements shall have been prepared in
conformity with GAAP and Regulation S-X under the Securities Act, or
(ii) such other documentation as shall be reasonably satisfactory to
ATS indicating that such an unqualified report could be issued if
requested by ATS;
(h) As of the Closing Date, except as otherwise set forth in
Section 3.7(a) of the OPM Disclosure Schedule, no Legal Action shall be
pending before or threatened in writing by any Authority which might,
in the reasonable business judgment of ATS, based upon the advice of
counsel, have a material adverse effect on the OPM, it being understood
and agreed that a written request by any Authority for information with
respect to the Transactions, which information could be used in
connection with such Legal Action, shall not be deemed to be a threat
of any such Legal Action;
(i) Each of the individuals named therein shall have executed
and delivered to ATS an agreement mutually acceptable to the parties
which when so agreed upon shall be attached as Exhibit A hereto and
made a part hereof (the "ATS Noncompetition Agreements");
(j) The Stockholders shall have delivered to ATS all use
permits, consents or other Governmental Authorizations of and all
Leases from the United States Forest Service set forth in Section
7.2(j) of the OPM Disclosure Schedule; and
(k) The Environmental Reports shall not disclose any
exception, 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 the Stockholders set forth in Section
3.21 (without regard to knowledge) to be inaccurate or incomplete in
any material respect;
(l) ATS shall have received, at its expense, a copy of the
standard ALTA title insurance policy insuring OPM's fee simple or
leasehold interest, as the case may be, in the land and improvements
located at each of the locations described in Section 7.2 (l) of the
OPM Disclosure Schedule and the Title Reports shall not disclose any
exception, 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 the Stockholders set forth in Section
3.5 (without regard to knowledge) to be inaccurate or incomplete in any
material respect;
(m) Each of the Stockholders shall have executed and delivered
to ATS a Form 8023A entitled "Corporate Qualified Stock Purchase
Election" with respect to the Section 338(h)(10) Election;
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(n) All Convertible Securities and Option Securities of OPM,
if any, outstanding immediately prior to the Closing shall be canceled
and, from and after the Closing, shall no longer be of any force or
effect;
(o) ▇▇▇▇ ▇. ▇▇▇▇▇, the chief executive officer of OPM and one
of the Stockholders and OPM, shall have executed and delivered to ATS
an agreement mutually acceptable to the parties which when so agreed
upon shall be attached as Exhibit D hereto and made a part hereof (the
"▇▇▇▇▇ Employment Agreement");
(p) ATS shall have received a favorable opinion of ▇▇▇▇▇,
McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., dated the Closing Date, with
respect to the validity of Section 6.10 under Florida law; and
(q) ATS shall have received the written resignations of all of
the officers and directors of OPM and of all of the trustees, if any,
under all Benefit Arrangements of OPM.
7.3 Conditions to Obligations of the Stockholders. The obligation of
the Stockholders to effect the Transactions shall be subject to the satisfaction
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) 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 the
Stockholders and their counsel, and the Stockholders and their 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) ATS shall have furnished the Stockholders, with favorable
opinions, dated the Closing Date, of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel
for ATS, with respect to the matters set forth in Section 5.1 and with
respect to such other matters arising after the date of this Agreement
and incident to the Transactions, as the Stockholders or their counsel
may reasonably request;
(c) The representations and warranties of ATS contained in
this Agreement or otherwise made in writing by it or on its behalf
pursuant hereto or otherwise made in connection with the Transactions
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 those
which speak as of a certain date which shall continue to be true and
correct as of such date on the Closing Date (including without
limitation giving effect to any later obtained knowledge of OPM, the
Stockholders or ATS, except as otherwise specifically provided herein);
each and all of the agreements and conditions to be performed or
satisfied by ATS hereunder at or prior to the Closing Date shall have
been duly performed or satisfied in all material respects; and ATS
shall have furnished the Stockholders 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 the Stockholders or their counsel shall have reasonably
requested;
(d) ATS shall have delivered or cause to be delivered to the
Stockholders all of the Collateral Documents and other agreements,
documents and instruments required to be delivered by ATS to the
Stockholders at or prior to the Closing pursuant to the terms of this
Agreement;
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(e) Between the date of this Agreement and the Closing Date,
there shall not have occurred and be continuing any material adverse
change in ATS from that reflected in the most recent ATS Financial
Statements;
(f) As of the Closing Date, no Legal Action shall be pending
before or threatened in writing by any Authority which might, in the
reasonable business judgment of the Stockholders, based upon the advice
of counsel, have a material adverse effect on ATS' ability to operate
the OPM Assets and the OPM Business subsequent to the Closing Date, it
being understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not be deemed to be
a threat of any such Legal Action;
(g) OPM shall have executed and delivered to the Stockholders
the ▇▇▇▇▇ Employment Agreement; and
(h) The Stockholders shall have received a favorable opinion,
dated the Closing Date, of Florida counsel with respect to the binding
effect on ATS of Section 6.10.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual consent of the Stockholders and ATS; or
(b) by either ATS or the Stockholders if any permanent
injunction, decree or judgment by any Authority preventing the
consummation of the Transactions shall have become final and
nonappealable; or
(c) by the Stockholders in the event (i) the Stockholders are
not in material breach of this Agreement and none of their
representations or warranties shall have become and continue to be
untrue in any material respect, and (ii) either (A) the Transactions
have not been consummated prior to the Termination Date, or (B) ATS is
in material breach of this Agreement or any of its representations or
warranties shall have become and continue to be untrue in any material
respect, and such a breach or untruth exists and is not capable of
being cured by and will prevent or delay consummation of the
Transactions by or beyond the Termination Date; or
(d) by ATS in the event (i) ATS is not in material breach of
this Agreement and none of its representations or warranties shall have
become and continue to be untrue in any material respect, and (ii)
either (A) the Transactions have not been consummated prior to the
Termination Date, or (B) OPM or the Stockholders are in material breach
of this Agreement or any of the Stockholders' representations or
warranties shall have become and continue to be untrue in any material
respect, and such a breach or untruth exists and is not capable of
being cured by and will prevent or delay consummation of the
Transactions by or beyond the Termination Date; or
(e) by ATS in the event of a failure of the condition set
forth in Section 7.2(k) or 7.2(l).
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The term "Termination Date" shall mean June 30, 1998 or such other date
as the parties may, from time to time, mutually agree.
The right of ATS or OPM 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.
8.2 Effect of Termination.
(a) Except as provided in Sections 6.1 (with respect to
confidentiality), 6.3 and 10.3 and this Section, in the event of the termination
of this Agreement pursuant to Section 8.1, or in the event the Transactions
shall not have been consummated prior to the end of business on the Termination
Date, this Agreement shall forthwith become void, there shall be no liability on
the part of any party, or any of their respective shareholders, 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 misrepresentation or breach of any of its warranties,
covenants or agreements set forth in this Agreement.
(b) In the event this Agreement is terminated pursuant to the
provisions of Section 8.1(a), 8.1(b) or 8.1(e), except as provided in Section
8.2(a), none of the parties shall have any further rights or remedies.
ARTICLE 9
INDEMNIFICATION
9.1 Survival. The representations and warranties of the parties
contained in or made pursuant to this Agreement or any Collateral Document shall
survive the Closing and shall remain operative and in full force and effect for
a period of (a) two (2) years after the Closing Date or (b) the applicable
statute of limitations in the case of matters of a nature referred to in
Sections 3.1, 3.11, 3.12, 3.21 and 3.22, Article 4 and Section 4.1, regardless
of any investigation or statement as to the results thereof made by or on behalf
of any party hereto. The covenants and agreements of the parties contained in or
made pursuant to this Agreement or any Collateral Document shall survive the
Closing and shall remain operative and in full force and effect for the statute
of limitations applicable to contractual obligations. The term "Indemnity
Period" shall mean the applicable period with respect to which a representation,
warranty, covenant or agreement survives the Closing as provided in this
Section. No claim for indemnification, other than with respect to fraud or
intentional and willful breach or misrepresentation, may be asserted after the
expiration of the Indemnity Period. Notwithstanding anything herein to the
contrary, any representation, warranty, covenant and agreement which arises and
is the subject of a Claim which is asserted in writing prior to the expiration
of the applicable Indemnity Period shall survive with respect to such Claim or
any dispute with respect thereto until the final resolution thereof.
9.2 Indemnification.
(a) Each Stockholder, jointly and severally, agrees that on and after
the Closing he shall indemnify and hold harmless OPM, ATS and their respective
stockholders, directors, officers, employees and representatives (collectively,
the "ATS Indemnified Parties") from and against any and all damages, claims,
losses, expenses, costs, obligations, and liabilities including, without
limiting the generality of the foregoing, liabilities for all reasonable
attorneys', accountants' and experts' fees and expenses incurred, including
those
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incurred to enforce the terms of this Agreement or any Collateral Document
(collectively, "Loss and Expense"), suffered by the ATS Indemnified Parties by
reason of, or arising out of any breach of representation or warranty made by
the Stockholders pursuant to this Agreement or any Collateral Document or any
failure by the Stockholders (or OPM prior to the Closing) to perform or fulfill
any of their covenants or agreements set forth in this Agreement or any
Collateral Document.
(b) ATS agrees to that on and after the Closing it will indemnify each
of the Stockholders and hold each of them harmless from and against all Loss and
Expense suffered by any of them by reason of, or arising out of :
(i) any breach of representation or warranty made by ATS
pursuant to this Agreement or any Collateral Document or any failure by
ATS to perform or fulfill any of its covenants or agreements set forth
in this Agreement or any Collateral Document or any failure of OPM to
perform or fulfill any of its covenants or agreements set forth in this
Agreement or any Collateral Document required to be performed after the
Closing; or
(ii) any Legal Action or other Claim by any third party
relating to ATS or the ownership or operations of OPM's business and
properties subsequent to the Closing, including without limitation any
and all obligations and liabilities under Governmental Authorizations,
Private Authorizations, Leases, Material Agreements, Employment
Arrangements, Plans, Benefit Arrangements and
Contractual Obligations.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, the parties agrees that the Stockholders shall not be
required to indemnify ATS, and ATS shall be required to indemnify the
Stockholders, if, notwithstanding the fact that OPM has not agreed to be, or
made any election to be or be treated as, a "consenting corporation" within the
meaning of Section 341(f) of the Code, the Internal Revenue Service or any other
Authority shall have determined that OPM has tax liability under Section 341 of
the Code.
9.3 Limitation of Liability.
(a) Notwithstanding the provisions of Section 9.2, after the Closing,
except as otherwise provided in Section 9.6, the ATS Indemnified Parties, on the
one hand, and the Stockholders, on the other hand, shall be entitled to recover
its Loss and Expense in respect of any Claim only in the event that the
aggregate Loss and Expense for all Claims exceeds, in the aggregate, $50,000, in
which event the indemnified party shall be entitled to recover all such Loss and
Expense (including without limitation such $50,000).
(b) In the case any event shall occur which would otherwise entitle any
party to assert a claim for indemnification hereunder, no Loss and Expense shall
be deemed to have been sustained by such party to the extent of any proceeds
received by such party from any insurance policies with respect thereto.
9.4 Notice of Claims. If an indemnified party believes that it has
suffered or incurred any Loss and Expense, it shall notify the indemnifying
party promptly in writing, and in any event within the applicable time period
specified in Section 9.1, describing such Loss and Expense, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such Loss and Expense shall have occurred. If any Legal Action
is instituted by a third party with respect to which an indemnified party
intends to claim any liability or expense as Loss and Expense under this
Article, such indemnified party shall promptly notify the indemnifying party of
such Legal Action, but the failure to so notify the indemnifying party shall not
relieve such indemnifying party of its obligations under this Article, except to
the extent such failure to notify prejudices such indemnifying party's ability
to defend against such Claim.
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9.5 Defense of Third Party Claims. The indemnifying party shall have
the right to conduct and control, through counsel of their own choosing,
reasonably acceptable to the indemnified party, any third party Legal Action or
other Claim, but the indemnified party may, at its election, participate in the
defense thereof at its sole cost and expense; provided, however, that if the
indemnifying party shall fail to defend any such Legal Action or other Claim,
then the indemnified party may defend, through counsel of its own choosing, such
Legal Action or other Claim, and (so long as it gives the indemnifying party at
least fifteen (15) days' notice of the terms of the proposed settlement thereof
and permits the indemnifying party to then undertake the defense thereof) settle
such Legal Action or other Claim and to recover the amount of such settlement or
of any judgment and the reasonable costs and expenses of such defense. The
indemnifying party shall not compromise or settle any such Legal Action or other
Claim without the prior written consent of the indemnified party, which consent
shall not unreasonably be withheld, delayed or conditioned if the terms and
conditions of such compromise or settlement proposed by the indemnifying party
and agreed to in writing by the claimant in such Legal Action or other Claim
(the "Settlement Proposal") (a) include a full release of the indemnified party
from the Legal Action or other Claim which is the subject of the Settlement
Proposal, and (b) if the indemnified party is an ATS Indemnified Party, do not
include any term or condition which would restrict in any material manner the
continued ownership or operations of the OPM Assets or the conduct of the OPM
Business in substantially the manner then being theretofore owned, operated and
conducted by ATS or OPM (or any successor or assign). No matter whether an
indemnifying party defends or prosecutes any third party Legal Action or Claim,
the indemnified and indemnifying parties shall cooperate in the defense or
prosecution thereof. Such cooperation shall include access during normal
business hours afforded to the indemnifying party to, and reasonable retention
by the indemnified party of, records and information which are reasonably
relevant to such third party Legal Action or Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder, and the indemnifying party shall
reimburse the indemnified party for all its reasonable out-of-pocket expenses in
connection therewith.
9.6 Exclusive Remedy. Except for fraud, willful or intentional
misrepresentation or willful or intentional breach of warranty, covenant or
agreement or as otherwise provided in Section 10.5, the indemnification provided
in this Article shall be the sole and exclusive post-Closing remedy available to
any party against the other party for any Claim under this Agreement.
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 thereunder 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 thereof or default thereunder 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 therewith.
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10.2 Fees, Expenses and Other Payments. All ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ filing
fees shall be borne equally by the Stockholders and ATS provided that the total
amount to be borne by Stockholders shall not exceed $25,000, all costs of
preliminary title reports to a date reasonably proximate to the Closing Date
shall be borne by the Stockholders, and all costs of environmental studies shall
be borne by ATS. 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 Transactions shall be borne by ATS and all other costs and
expenses incurred in connection with this Agreement and the consummation of the
Transactions, including without limitation fees and disbursements of counsel,
financial advisors and accountants incurred by the parties hereto, shall be
borne solely and entirely by the party which has incurred such costs and
expenses.
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 effective (a) three (3) 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 follows:
(a) If to ATS (or OPM after the Closing):
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
American Tower Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to any Stockholder or OPM (prior to the Closing):
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
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 9, 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 each party from
pursuing any other remedies available to it pursuant to the provisions of, and
subject to the limitations contained in, this Agreement or Applicable Law for
such breach or threatened breach. Anything in this Section or elsewhere in this
Agreement to the contrary notwithstanding, if an Authority of competent
jurisdiction shall have issued a Final Order that ATS is in material breach of
this Agreement, ATS shall pay to the Stockholders an aggregate amount to be
determined as follows: (a) the amount due as of such date in accordance with
Section 2.2(a); and (b) $5,000,000.
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.
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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 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 the
State of Florida 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. Anything in this Agreement to the contrary notwithstanding,
including without limitation the provisions of Article 8, 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 OPM
Disclosure Schedule and the other Collateral Documents delivered in connection
herewith), constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties,
with respect to the subject matter hereof .
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 by 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 ATS may assign its rights and remedies hereunder to any
bank or other financial institution which 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 Appointment of Representative. Each Stockholder hereby
irrevocably appoints and authorizes to act as its agent, representative and
attorney-in-fact hereunder (the "Stockholders Representative"). Each Stockholder
irrevocably authorizes the Stockholders Representative to take such action on
behalf of such Stockholder and to exercise all such powers as are expressly
delegated to the Stockholders Representative hereunder, together with such other
powers as are reasonably incidental thereto including, but not limited to, the
execution and delivery of certificates, statements, notices, approvals,
extensions, waivers, undertakings and amendments to this Agreement required or
permitted to be made, given or determined hereunder or in connection with the
transactions contemplated hereby. The holders of a majority of the Subject Stock
may, from time to time, remove the Representative and appoint a substitute or
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successor Stockholders Representative. Notice of any such removal and
appointment shall be given immediately to ATS and the Stockholders.
Simultaneously with the execution of this Agreement, each Stockholder (other
than the Stockholders Representative) has delivered to the Stockholders
Representative certificates representing the Subject Stock owned by such
Stockholder duly endorsed (or accompanies by duly endorsed stock powers). The
appointment and agency created hereby is irrevocable and shall survive the death
or incompetency of any Stockholder.
10.14 Mutual Drafting. This Agreement is the result of the joint
efforts of OPM and ATS, 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, ATS and OPM have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems, Inc.
By:_____________________________________
Name:
Title:
OPM - USA - INC.
By:______________________________________
Name:
Title:
Stockholders
_________________________________________
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DEFINITIONS
Acceptance Notice shall have the meaning given to it in Section 2.2(c).
Accounts Receivable shall mean (a) any and all rights to the payment of
money or other forms of consideration of any kind at any time now or hereafter
owing or to be owing to OPM attributable to the ownership or operation of the
OPM Business (whether classified under the Uniform Commercial Code of any state
as accounts, contract rights, chattel paper, general intangibles or otherwise),
including without limitation accounts receivable, letters of credit and the
right to receive payment thereunder, chattel paper, insurance proceeds, contract
rights, notes, drafts, instruments, documents, acceptances, and all other debts,
obligations and liabilities in whatever form now or hereafter owing from any
other Person, all guarantees, security and Liens for the payment of any thereof,
and all of OPM's rights to goods, now owned or hereafter acquired, sold
(delivered, undelivered, in transit or returned) which may be represented
thereby; and (b) all proceeds of any of the foregoing.
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 ATS, to
be expected to (a) adversely affect the validity or enforceability of this
Agreement or the likelihood of consummation of the Transactions, or (b)
adversely affect the business, operations, management, properties or prospects,
or the condition, financial or other, or results of operation of the OPM
Business, or (c) impair OPM's ability to fulfill its obligations under the terms
of this Agreement, or (d) adversely affect the aggregate rights and remedies of
ATS under this Agreement. Notwithstanding the foregoing, and anything in this
Agreement to the contrary notwithstanding, any Event generally affecting the
economy or the tower communications 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, twenty percent (20%) 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, twenty percent (20%) 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 OPM
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.
Amount Due shall have the meaning given to it in Section 2.2(a).
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation the FCA 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.
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Assets shall mean the business and the tangible and intangible assets
used in connection with the conduct of the business or operations of the OPM
Business, which business and assets are being exchanged, transferred or
otherwise conveyed hereunder.
ATS shall have the meaning given to it in the Preamble.
ATS' Financial Statements shall have the meaning given to it in Section
5.2
ATS' Indemnified Parties shall have the meaning given to it in Section
9.2(a)
ATS' Noncompetition Agreements shall have the meaning given to it in
Section 7.2(i).
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,
central bank or comparable agency or Entity, commission, corporation, court,
department, instrumentality, master, mediator, panel, referee, system or other
political unit or subdivision or other Entity of any of the foregoing, whether
domestic or foreign., including without limitation the FCC.
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, and (g) any compensation
policy and practice, but only to the extent that it covers or relates to any
officer, employee or other Person involved in the ownership and operation of the
Assets or the conduct of the business of the OPM Business.
Cash Flow shall have the meaning given to it in Section 2.2(b).
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.
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 Indemnity Escrow Agreement, the ATS
Noncompetition Agreements, the ▇▇▇▇▇ Employment Agreement, instruments of
conveyance and assignment sufficient to vest in ATS title to all of the Subject
Stock, and any other agreement, certificate, contract, instrument, notice,
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opinion or other document delivered pursuant to the provisions of this Agreement
or any Collateral Document.
Contract, Contractual Obligation shall mean any agreement, arrangement,
commitment, contract, covenant, indemnity, undertaking or other obligation or
liability which involves the ownership or operation of the OPM Assets or the
conduct of the OPM Business.
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.
Debt Reduction shall have the meaning given to it in Section 2.2(a).
Employment Arrangement shall mean, with respect to OPM, 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 OPM or any Affiliate),
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 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 OPM Assets or the conduct of the OPM Business.
Encumber shall mean to suffer, accept, agree to or permit the
imposition of a Lien.
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.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), 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
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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 Reports shall have the meaning given to it in Section
6.8.
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 OPM 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.
Executive Summary shall have the meaning given to it in Section 2.2(b).
FCA shall mean the Communication 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.
FCC shall mean the Federal Communications Commission and shall include
any successor Authority.
Final Order shall mean, with respect to any Authority, including
without limitation the FCC, one with respect to which no appeal, no stay, no
petition or application for rehearing, reconsideration, review or stay, whether
on motion of the applicable Authority or other Person or otherwise, and no other
Legal Action contesting such consent or approval, is in effect or pending and as
to which the time or deadline for filing any such appeal, petition or
application or other Legal Action has expired or, if filed, has been denied,
dismissed or withdrawn, and the time or deadline for instituting any further
Legal Action has expired.
Formula shall have the meaning given to it in Section 2.2(a).
GAAP shall mean means, except to the extent that a deviation therefrom
is expressly required by this Agreement and except that OPM maintains its books
on a modified cash-accrual basis, such 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.
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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, in connection
with the ownership or operation of the OPM Assets or the conduct of the OPM
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.
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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" or "hazardous substance" under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
applicable Authority or subject to any Environmental Law; or (d) the presence of
which on the real property owned or leased by such Person causes or threatens to
cause a nuisance upon any such real property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
such real property; or (e) the presence of which on adjacent properties could
constitute a trespass by such Person; or (f) that contains gasoline, diesel fuel
or other petroleum hydrocarbons, or any by-products or fractions thereof,
natural gas, polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
radon or other radioactive elements, ionizing radiation, electromagnetic field
radiation and other non-ionizing radiation, sonic forces and other natural
forces, lead, asbestos or asbestos-containing materials ("ACM"), or urea
formaldehyde foam insulation.
Indebtedness shall mean, with respect to any Person, (a) all items,
except items of capital stock or of surplus or of general contingency or
deferred tax reserves or any minority interest in any Subsidiary of such Person
to the extent such interest is treated as a liability with indeterminate term on
the consolidated balance sheet of such Person, which in accordance with GAAP
would be included in determining total liabilities as shown on the liability
side of a balance sheet of such Person, (b) all obligations secured by any Lien
to which any property or asset owned or held by such Person is subject, whether
or not the obligation secured thereby shall have been assumed, and (c) to the
extent not otherwise included, all Contractual Obligations of such Person
constituting capitalized leases and all obligations of such Person with respect
to Leases constituting part of a sale and leaseback arrangement.
Indebtedness for Money Borrowed shall mean, with respect to OPM, money
borrowed and Indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, 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, all Indebtedness upon which
interest charges are customarily paid by such Person, and all Indebtedness
(including capitalized lease obligations) issued or assumed as full or partial
payment for property or services, whether or not any such notes, drafts,
obligations or Indebtedness represent 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.
Initial Installment shall have the meaning given to it in Section 2.2.
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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, license, patents, permits, service marks, trademarks, trade names,
and applications with respect to any of the foregoing, technology and know-how.
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, guideline, 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 or
quasi-legal precedent; or (c) arbitrator's, mediator's or referee's award,
decision, finding or recommendation; including, in each such case or instance,
any interpretation, directive, guideline or request, whether or not having the
force of law including, in all cases, without limitation any particular section,
part or provision thereof.
Lease shall mean any lease of property, whether real, personal or
mixed, and all amendments thereto.
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.
Loss and Expense shall have the meaning given to it in Section 9.2(a).
Master Plan shall have the meaning given to it in Section 6.10.
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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.
Material Agreement shall mean, with respect to OPM, any Contractual
Obligation which (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 $20,000 during any of the last three fiscal years, (ii)
extends for more than three (3) months, or (iii) is not terminable on thirty
(30) days or less notice without penalty or other payment, (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 the OPM Business
in any of the last three fiscal years or is likely to account for more than
three percent (3%) of revenues of the OPM Business during the current fiscal
year, (f) is with the United States Forest Service or any other Authority, or
(g) involves the management by OPM of any communication tower of any other
Person.
▇▇▇▇▇ shall have the meaning given to it in Section 6.10.
▇▇▇▇▇ Employment Agreement shall have the meaning given to it in
Section 7.2(b).
Multiemployer Plan shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)3 of ERISA.
Net Revenues shall have the meaning given to it in Section 2.2(b).
Objection Notice shall have the meaning given it in the Section 6.10.
OPM shall have the meaning given to it in the Preamble.
OPM Assets shall mean all of the Assets of OPM.
OPM Business shall have the meaning given them in the third Whereas
paragraph.
OPM Communication Towers shall mean all of the communication towers and
other property associated therewith (including without limitation storage
facilities, generators and other property and equipment needed to operate such
towers) located on any real property (i) owned or leased by OPM as of the date
of this Agreement, or (ii) as to which valid and binding agreements to acquire
or lease by OPM are in effect as of the date of this Agreement, or (iii)
acquired or leased, or agreed to be acquired or leased, by OPM subsequent to the
date of this Agreement and prior to the Closing with the express prior written
consent of ATS. A true, complete and accurate list of all sites referred to in
clauses (i) and (ii) of the preceding sentence is set forth as part of Section
3.5(a) or (b) of the OPM Disclosure Schedule.
OPM Disclosure Schedule shall mean the OPM Disclosure Schedule dated as
of the date of this Agreement delivered by OPM to ATS.
OPM Employees shall have the meaning given it in the Section 3.15.
OPM Financial Statements shall have the meaning given to it in Section
3.2..
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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 a partnership, its agreement and certificate of
partnership, any agreements among partners, and any management and similar
agreements between the partnership and any general partners (or any Affiliate
thereof).
Pass Through Returns shall have the meaning given to it in Section 6.9.
PBGC shall mean the Pension Benefit Guaranty Corporation and any Entity
succeeding to any or all of its functions under ERISA.
Permitted Liens shall mean (a) Liens for current taxes not yet due and
payable, (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
OPM Business, and (c) such other Liens as are permitted by the provisions of
this Agreement to be in place on the Closing Date.
Permitted Site shall mean that a site with respect to which notice from
all applicable Authorities has been received by OPM (or its successors and
assigns) that all Governmental Authorizations necessary to construct a
communication tower on such site have been fully approved and are in full force
and effect.
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
OPM and used or useful as of the date hereof in the conduct of the business or
operations of the OPM 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 which is covered by 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, but only to the extent that it covers or relates to any
officer, employee or other Person involved in the ownership and operation of the
Assets or the conduct of the business of the OPM Business.
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.
Purchase Price shall have the meaning given to it in Section 2.2.
Real Property shall mean all of the fee estates and buildings and other
fixtures and improvements thereon, leasehold interest, easements, licenses,
rights to access, right-of- way, and other real property interest which are
owned or used by OPM as of the date hereof, in the operations of the OPM
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
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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).
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.
Stockholders shall have the meaning given to it in the Preamble.
Stockholders' knowledge means the actual knowledge of any Stockholder
or any OPM officer or senior manager, as such knowledge exists on the date of
this Agreement and no later date, after reasonable review of appropriate OPM
records.
Stockholders Representative shall have the meaning given to it in
Section 10.14.
Subject Stock shall have the meaning given to it in the first Whereas
paragraph.
Subsidiary shall mean, with respect to a Person, any Entity a majority
of the capital stock ordinarily entitled to vote for the election of directors
of which, or if no such voting stock is outstanding, 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.
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, addition to tax or
additional amount 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 Allocation Schedule shall have the meaning given to it in Section
2.2(c).
Tax Claim shall mean any Claim which relates to Taxes, including
without limitation the representations and warranties set forth in Section 3.11.
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 of any Tax.
Title Reports shall have the meaning given to it in Section 6.7.
Termination Date shall have the meaning given to it in Section 8.1.
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Transactions shall mean the transactions contemplated to be consummated
on or prior to the Closing Date, including without limitation the purchase and
sale of the Subject Stock and the execution, delivery and performance of the
Collateral Documents.
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