AMENDED AND RESTATED MERGER AGREEMENT
BY AND AMONG
UBIQUITEL INC.,
UBIQUITEL OPERATING COMPANY,
THE MERGER SUBSIDIARIES OF UBIQUITEL INC.,
VIA WIRELESS, LLC,
THE MEMBERS OF VIA WIRELESS, LLC,
THE STOCKHOLDERS
AND
THE CONTROLLING ▇▇▇▇▇ STOCKHOLDERS
DATED: AS OF APRIL 18, 2001
TABLE OF CONTENTS
ARTICLE 1 Transactions...................................... 2
1.1 The Mergers.............................. 2
(a) The Mergers.............................. 2
(b) Consummation of the Mergers.............. 3
(c) Effective Date of the Mergers............ 3
(d) Effect of the Mergers.................... 3
(e) The Surviving Corporations' Certificates
of Incorporation; Bylaws; Directors and
Officers................................. 3
1.2 Merger Consideration..................... 3
(a) Aggregate Merger Consideration........... 3
(b) Consideration for Individual Mergers..... 4
(c) Rights as Holders........................ 5
(d) Anti-dilution............................ 6
(e) Treasury Stock........................... 6
1.3 Purchase of LLC Interest from the Selling
Member.............................................. 6
(a) Purchase and Sale........................ 6
(b) Purchase Price........................... 6
(c) Deliveries............................... 6
(d) Conditions to Consummating the Interest
Sale................................................ 6
1.4 Performance Unit Appreciation Rights
Plan................................................ 6
1.5 No Fractional Shares..................... 7
1.6 Escrow of Shares......................... 7
ARTICLE 2 Transaction Pre-Closing and Closing............... 8
2.1 Pre-Closing.............................. 8
(a) Pre-Closing Date......................... 8
(b) Intentionally Omitted.................... 8
(c) Delivery of Closing Documents into
Escrow.............................................. 8
(d) Spectrum Transition...................... 8
(e) Proxy of the Members of LLC.............. 8
(f) Pre-Closing Covenants.................... 9
(g) Payment of ▇▇▇▇▇' Net Assets
Consideration....................................... 9
2.2 Deliveries to UbiquiTel.................. 9
(a) Pre-Closing Certificate.................. 9
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(b) Authorizing Documents.................... 9
(c) Consents and Approvals................... 9
(d) Good Standing Certificates............... 10
(e) Opinions of LLC Parties' Counsels........ 10
(f) Resignations and Releases................ 10
(g) Stockholder's Releases................... 10
(h) Other Instruments........................ 10
2.3 UbiquiTel Parent's Deliveries............ 10
(a) Pre-Closing Certificate.................. 10
(b) Resolutions.............................. 10
(c) Consents and Approvals................... 11
(d) Opinion of UbiquiTel Parent and
UbiquiTel's Counsel................................. 11
(e) UbiquiTel Stock.......................... 11
(f) Other Instruments........................ 11
2.4 Related Agreements....................... 11
(a) Loan Agreement and Subordination
Agreement........................................... 11
(b) Management Agreement..................... 11
(c) Lock-Up Agreement........................ 11
(d) Escrow Agreement......................... 12
(e) Indemnification Agreement with
Controlling ▇▇▇▇▇ Stockholders...................... 12
2.5 Closing.................................. 12
ARTICLE 3 Pre-Closing Conditions to Consummating the
Mergers................................................... 12
3.1 Joint Conditions......................... 12
(a) HSR Act.................................. 12
(b) NASDAQ Listing........................... 13
(c) UbiquiTel Parent Stockholders' Meeting... 13
(d) [INTENTIONALLY OMITTED].................. 13
(e) No Litigation............................ 13
(f) FCC Approval............................. 13
3.2 UbiquiTel Parent, UbiquiTel and Merger
Subs' Conditions.................................... 13
(a) LLC Parties' Representations True........ 13
(c) LLC Parties Consents..................... 14
(e) Related Agreements....................... 15
(f) Financing................................ 15
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(g) Pre-Closing Deliveries................... 15
(h) The Sprint Agreements.................... 15
(i) Conversion Condition..................... 15
3.3 LLC Parties' Conditions to Closing....... 15
(a) UbiquiTel Parent, UbiquiTel and Merger
Subs' Representations True.......................... 16
(b) UbiquiTel, UbiquiTel Parent and Merger
Subs' Compliance with Agreement..................... 16
(c) UbiquiTel Consents....................... 16
(d) No Litigation............................ 16
(e) Related Agreements....................... 16
(f) Closing Deliveries....................... 17
(g) RTFC Loan Payoff......................... 17
ARTICLE 4 Covenants Regarding Consummation of the
Transaction............................................... 17
4.1 Satisfaction of Conditions to Closing.... 17
(a) Joint Responsibilities................... 17
(b) LLC Parties' Responsibilities............ 18
(c) UbiquiTel Parent, UbiquiTel and Merger
Subs' Responsibilities.............................. 18
4.2 UbiquiTel Announcements.................. 19
ARTICLE 5 Termination....................................... 20
5.1 Reasons for Termination.................. 20
(a) By Mutual Consent........................ 20
(b) By UbiquiTel Parent...................... 20
(c) By LLC................................... 20
(d) Drop Dead Date........................... 20
5.3 UbiquiTel Parent's Termination
Procedure........................................... 21
5.4 LLC's Termination Procedure.............. 21
5.5 Effect of Termination.................... 21
ARTICLE 6 Representations and Warranties Concerning LLC..... 22
6.1 LLC; Entry Into Agreements............... 22
(a) Organization and Good Standing........... 22
(b) Validity and Authorization; Power and
Authority........................................... 22
(c) Subsidiary............................... 23
(d) No Conflict.............................. 23
(e) LLC Parties Consents Required............ 23
6.2 Financial Information.................... 24
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(a) Financial Statements; Books and
Records............................................. 24
(b) Conduct of Business...................... 24
(c) No Material Adverse Effect............... 25
6.3 Member Interests; Capitalization......... 25
6.4 Assets................................... 25
(a) Personal Property........................ 26
(b) Real Property............................ 26
(c) Intellectual Property.................... 28
(d) Contracts................................ 29
6.5 Liabilities.............................. 30
(a) No Undisclosed Liabilities............... 30
(b) Tax Matters.............................. 30
(c) Litigation............................... 32
(d) Employee Liabilities..................... 32
(e) Warranties............................... 33
6.6 Insurance................................ 33
6.7 Employees................................ 33
6.8 Employee Benefit Plans................... 34
6.9 Licenses................................. 35
6.10 Environmental Matters.................... 37
(a) Environmental Laws....................... 37
(b) Environmental Claims..................... 38
(c) Permits.................................. 38
6.11 No Brokers Fees; No Commissions.......... 38
6.12 Certain Information...................... 38
ARTICLE 7 Representations and Warranties Concerning the
Members and the Stockholders.............................. 39
7.1 Stockholders; Entry Into Agreements...... 39
(a) Organization and Good Standing........... 39
(b) Validity and Authorization; Power and
Authority........................................... 39
(c) No Conflict.............................. 40
(d) LLC Parties Consents; Stockholders
Consents Not Required............................... 40
(e) Ownership and Transfer of Members'
Interests........................................... 40
7.2 Financial Information.................... 40
(a) Financial Statements; Books and
Records............................................. 40
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(b) Conduct of Business...................... 41
7.3 Equity Interests......................... 41
(a) Capitalization........................... 41
(b) Ownership and Transfer by Stockholders... 41
7.4 No Contracts............................. 41
(b) Tax Matters.............................. 42
(c) Litigation............................... 43
7.6 Sale of ▇▇▇▇▇ Telco Businesses........... 43
7.7 Certain Information...................... 43
ARTICLE 8 Representations and Warranties of Ubiquitel
Parent, UbiquiTel and the Merger
Subs...................................................... 44
8.1 Entry Into Agreements.................... 44
(a) Organization and Good Standing........... 44
(b) Corporate Power and Authority; Validity
and Authorization................................... 44
8.2 Conflicts and Consents................... 44
(a) No Conflict.............................. 44
(b) Consents Obtained........................ 45
8.3 No Brokers Fees; No Commissions.......... 45
8.4 UbiquiTel Stock.......................... 45
8.5 SEC Documents............................ 45
8.6 No Material Adverse Effect............... 45
8.7 Capitalization........................... 45
8.8 No Liabilities........................... 46
8.9 Compliance with Laws..................... 46
8.10 Certain Information...................... 46
8.11 Disclosure............................... 47
ARTICLE 9 Pre-Closing Covenants of the LLC Parties.......... 47
9.1 Conduct of Business of LLC............... 47
9.2 Access to Information and Employees...... 47
9.3 Financial Statements..................... 48
9.4 Conduct of the Members................... 48
9.5 Trading Prohibition...................... 48
9.6 Non-Negotiation.......................... 48
ARTICLE 11 Certain Agreements............................... 49
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11.1 Consulting Agreement..................... 49
11.2 Preparation of the Proxy Statement and
the Resale Registration Statement................... 49
(a) [INTENTIONALLY OMITTED].................. 49
(b) Proxy Statement.......................... 49
(c) Resale Registration Statement............ 49
(d) UbiquiTel Parent's Actions............... 50
(e) [INTENTIONALLY OMITTED].................. 50
11.3 UbiquiTel Stockholders' Meeting.......... 50
11.4 Post-Closing Agreements of Stockholders
and UbiquiTel Parent................................ 50
(a) Further Actions.......................... 50
(b) Access to Information.................... 51
(c) Directors................................ 51
(d) Member Loans............................. 51
(e) Reorganization Qualification............. 51
(f) Qualification of the ▇▇▇▇▇ Merger........ 51
11.5 Payoff of Certain Obligations at
Closing............................................. 51
11.6 Tax Matters For UbiquiTel Parent and
Members............................................. 52
(a) Tax Periods Ending on or Before the
Closing Date........................................ 52
(b) Straddle Periods......................... 52
(c) Tax Obligations.......................... 52
(d) General Cooperation on Tax Matters....... 53
(e) Contests................................. 54
(f) [Omitted]................................ 54
(g) Additional Tax Matters................... 54
11.7 Tax Matters in ▇▇▇▇▇ Merger.............. 55
(a) Tax Periods Ending on or Before the
Closing Date........................................ 56
(b) ▇▇▇▇▇ Straddle Periods................... 56
(c) Tax Obligations.......................... 56
(d) General Cooperation on Tax Matters....... 57
(e) Contests................................. 57
(f) Carryback CFT Deduction.................. 58
11.8 Waiver of Purchase Rights by Members..... 59
11.9 Release from Stockholder Guarantees...... 59
11.10 FCC Matters.............................. 59
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11.11 Amendment of Due Diligence Schedules..... 59
ARTICLE 12 Indemnification.................................. 60
12.1 Survival; Etc............................ 60
(a) Breach................................... 60
(b) Survival................................. 60
(c) Survival of Representations and
Warranties.......................................... 60
12.2 Indemnities.............................. 61
(a) Indemnification of UbiquiTel............. 61
(b) UbiquiTel Parent's Indemnification....... 62
12.3 Limitations on Indemnities............... 62
(a) Basket................................... 62
(b) Escrow and Maximum Indemnification
Amount.............................................. 62
(c) No Limitations on Tax Indemnifications... 63
(d) Damages.................................. 63
(e) Exclusivity.............................. 63
12.4 Notice and Opportunity to Defend......... 63
(a) Claim Notices, Etc....................... 63
(b) Defense Costs............................ 64
(c) Third Party Claims....................... 64
12.5 Delays or Omissions, Etc................. 64
12.6 Governing Law............................ 64
12.7 Dispute Resolution....................... 65
(a) Arbitration.............................. 65
(b) Emergency Relief......................... 65
ARTICLE 13 Miscellaneous.................................... 66
13.1 Successors and Assigns................... 66
13.2 Entire Agreement......................... 66
13.3 Amendment................................ 66
13.4 Extension; Waiver........................ 66
13.5 Notices, Etc............................. 66
13.6 Third Party Beneficiary, Etc............. 73
13.7 Reformation; Severability................ 73
13.8 Counterparts............................. 73
13.9 Titles and Subtitles..................... 73
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13.10 Expenses................................. 73
13.11 Responsibility for Merger Sub
Obligations......................................... 74
13.12 Confidentiality.......................... 74
(a) Post-Signing Confidentiality............. 74
(b) Post-Closing Confidentiality............. 74
INDEX OF EXHIBITS AND SCHEDULES
Exhibit 1.2................... Merger Consideration
Exhibit 1.2(b)(ii)(B)(i)...... Estimated Net Assets
Statement
Exhibit 1.2(b)(ii)(B)(ii)..... Remaining ▇▇▇▇▇ Stockholders
Exhibit 2.1(e)................ Proxy
Exhibit 1.4................... PAR Plan
Exhibit 2.2(f)................ Officer and Director
Resignations and Releases
Exhibit 2.2(g)................ Stockholder Releases
Exhibit 2.4(c)................ Lock-Up Agreement
Exhibit 2.4(d)................ Escrow Agreement
Exhibit 11.9.................. Guarantees to be Released
LLC Disclosure Schedule
Stockholders Disclosure Schedule
UbiquiTel Disclosure Schedule
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DEFINED TERMS
AAA.................................. 65
Accounts............................. 26
accumulated funding deficiency....... 35
Affiliate............................ 25
Affiliated Group..................... 55
Aggregate Merger Consideration....... 3
Agreement............................ 1
amount of unfunded benefit
liabilities........................ 35
Approvals............................ 15
Asserted Liability................... 63
▇▇▇▇▇▇............................... 1
Basket............................... 62
BFI.................................. 1
Breach............................... 60
CCC.................................. 3
CFT Deduction........................ 58
CFT Payment.......................... 58
Closing.............................. 8, 12
Closing Date......................... 3
Code................................. 32
Combined Company..................... 34
Companies............................ 22
Company.............................. 22
Consents............................. 15
Contracts............................ 29, 30
Controlling ▇▇▇▇▇ Stockholders....... 2
Controlling ▇▇▇▇▇ Stockholders
Indemnification Agreement.......... 12
Copyrights........................... 28
CVC.................................. 1
CVC Merger........................... 3
▇. ▇▇▇▇▇▇▇▇.......................... 1
Default.............................. 30
Defense Costs........................ 64
disqualified person.................. 34
Effective Date....................... 3
employee benefit plan................ 34
Employee Benefit Plans............... 34
Environmental Claim.................. 38
Environmental Laws................... 37
Equipment Leases..................... 26
ERISA................................ 34
ERISA Affiliate...................... 34
Escrow Account....................... 7
Escrow Agreement..................... 12
Escrow Amount........................ 7
Estimated Net Assets Statement....... 4
▇▇▇▇▇................................ 1
▇▇▇▇▇ ▇▇............................. 2
▇▇▇▇▇ Merger......................... 3
▇▇▇▇▇ Pre-Acquisition Period......... 58
▇▇▇▇▇ Pre-Closing Periods............ 56
▇▇▇▇▇ Representative................. 16
▇▇▇▇▇ Stock.......................... 4
▇▇▇▇▇ Stockholders................... 4
▇▇▇▇▇ Straddle Periods............... 56
▇▇▇▇▇ Telco Businesses............... 3
▇▇▇▇▇ Telco Sale Agreement........... 43
▇▇▇▇▇ Trust.......................... 2
Event of Default..................... 30
Exchange Act......................... 45
FCC.................................. 13
Financial Statements................. 40
FIT Refund........................... 58
GAAP................................. 24
Good Standing Certificate............ 10
Hazardous Materials.................. 38
▇▇▇▇▇▇ Trust......................... 2
HSR Act.............................. 13
Indemnified Party.................... 63
Indemnifying Party................... 63
Intellectual Property................ 28
Interest Sale........................ 6
IPLLC................................ 1
KCI.................................. 1
Kerman............................... 1
Kerman Merger........................ 2
Labor Claims......................... 34
Laws................................. 27
Leased Premises...................... 27
Lender............................... 30
Lessors.............................. 27
Licenses............................. 36
Liens................................ 26
LLC.................................. 1
LLC Disclosure Schedule.............. 22
LLC Financial Statements............. 24
LLC Indemnitors...................... 61
LLC Interests........................ 2
LLC Mandatory Consents............... 15
LLC Material Adverse Change.......... 14
LLC Parties.......................... 2
LLC Parties Closing Certificate...... 9
LLC Parties Consents................. 14
LLC Parties Indemnitees.............. 62
LLC Subsidiary....................... 23
LLC's knowledge...................... 22
Loan Agreement....................... 11
Lock-Up Agreement.................... 11
Loss................................. 61
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Losses............................... 61
▇. ▇▇▇▇▇▇▇▇.......................... 1
Management Agreement................. 11
Mandatory Consents................... 17
Marks................................ 28
Maximum Indemnification Amount....... 62
Member............................... 1
Member Post-Closing Period........... 54
Member Pre-Closing Period............ 52
Member Representative................ 54
Members.............................. 1
Members Committee.................... 20
Member's Interest.................... 2
Members' Interests................... 2
Members Representative............... 16
Merger Consideration................. 3
Merger Sub........................... 1
Merger Sub I......................... 1
Merger Sub II........................ 1
Merger Sub III....................... 1
Merger Sub IV........................ 1
Merger Sub V......................... 1
Merger Sub VI........................ 1
Merger Subs.......................... 1
Mergers.............................. 3
Multiemployer Plan................... 34
Net Assets........................... 4
Net Assets Statement................. 5
Order................................ 32
Organizational Documents............. 23
Outside Confidentiality Agreement.... 33
PAR Plan............................. 7
Parent............................... 55
Paribas.............................. 15
Paribas Consent...................... 17
PARs................................. 7
Parties.............................. 1
Party................................ 1
party in interest.................... 34
Patents.............................. 28
Paying LLC Indemnitor................ 61
Paying Stockholder Group
Indemnitor......................... 61
PC................................... 41
PC4.................................. 1
PC4 Merger........................... 2
PCS.................................. 1
PCS Licenses......................... 36
PCS Merger........................... 2
Pension Plan......................... 35
Permits.............................. 14
Permitted Liens...................... 26
Person............................... 25
Personal Property.................... 26
Pinnacles............................ 1
Pinnacles Merger..................... 2
Policies............................. 33
Post-Acquisition Period.............. 58
Post-Closing Periods................. 58
Prior Policies....................... 33
Proceedings.......................... 32
prohibited transaction............... 34
Proxy Statement...................... 49
PTC.................................. 1
Ramyar............................... 1
RCBM................................. 1
Real Estate Contracts................ 27
Real Property........................ 26
Related Agreements................... 11
Remaining ▇▇▇▇▇ Stockholders......... 4
Remaining LLC Indemnitors............ 61
Remaining Stockholder Group
Indemnitors........................ 61
reportable event..................... 35
Representatives...................... 48
Resale Registration Statement........ 49
Respondent........................... 65
Revised Net Assets Statement......... 5
RTFC Loan Agreement.................. 30
S&K.................................. 1
SEC.................................. 13
SEC Documents........................ 45
Securities Act....................... 13
Selling Member....................... 1
Signing Date......................... 1
Sprint Affiliation Agreement......... 25
Stock................................ 5
Stockholder Entity................... 39
Stockholder Group.................... 39
Stockholder Group Indemnified
Claim.............................. 61
Stockholder Group Indemnitors........ 61
Stockholders......................... 1
Stockholders Disclosure Schedule..... 39
Straddle Periods..................... 52
Subordination Agreement.............. 11
Survival Period...................... 60
Tax.................................. 32
Tax Returns.......................... 32
Taxes................................ 32
Technology Contracts................. 28
Termination Date..................... 21
Testamentary Trust................... 2
Tower Leases......................... 28
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Trade Secrets........................ 28
Twenty Day Average Closing Price..... 62
UbiquiTel............................ 1
UbiquiTel Closing Certificate........ 10
UbiquiTel Confidential Information... 74
UbiquiTel Consents................... 45
UbiquiTel Disclosure Schedule........ 44
UbiquiTel Indemnitees................ 61
UbiquiTel Indemnitors................ 62
UbiquiTel Legal Requirements......... 46
UbiquiTel Mandatory Consents......... 17
UbiquiTel Material Adverse Change.... 16
UbiquiTel Parent..................... 1
UbiquiTel Stock...................... 3
UbiquiTel Stockholders' Meeting...... 50
Vilas Trust.......................... 2
Voting Agreement..................... 20
welfare benefit plans................ 35
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EXHIBIT 2.1
AMENDED AND RESTSTATED MERGER AGREEMENT
This AMENDED AND RESTSTATED MERGER AGREEMENT (this "AGREEMENT") is entered
into as of April 18, 2001 (the "SIGNING DATE"), by and among the following
parties (each a "PARTY," and collectively, the "PARTIES") and amends and
restates in its entirety that certain Merger Agreement as of February 22, 2001
by and among the Parties:
UBIQUITEL INC.:
1. UbiquiTel Inc., a Delaware corporation ("UBIQUITEL PARENT"),
UBIQUITEL OPERATING COMPANY:
1. UbiquiTel Operating Company, a Delaware corporation and a wholly-owned
subsidiary of UbiquiTel Parent ("UBIQUITEL"),
UBIQUITEL AFFILIATES (INDIVIDUALLY, A "MERGER SUB" AND COLLECTIVELY, THE "MERGER
SUBS"):
1. UVMS I, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB I"),
2. UVMS II, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB II"),
3. UVMS III, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB III"),
4. UVMS IV, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB IV"),
5. UVMS V, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB V"),
6. UVMS VI, Inc., a California corporation and wholly-owned subsidiary of
UbiquiTel Parent ("MERGER SUB VI"),
LLC:
1. VIA Wireless, LLC, a California limited liability company ("LLC"),
THE MEMBERS OF LLC (INDIVIDUALLY, A "MEMBER" AND COLLECTIVELY, THE "MEMBERS"):
1. Central Valley Cellular, Inc., a California corporation ("CVC"),
2. Ponderosa Cellular 4, Inc., a California corporation ("PC4"),
3. Personal Communications Service, Inc., a California corporation ("PCS"),
4. Pinnacles PCS, Inc., a California corporation ("PINNACLES"),
5. Kerman Communication Technologies, Inc., a California corporation
("KERMAN"),
6. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Associates, L.P., a California limited partnership
("SELLING MEMBER"),
THE PARTIES CONTROLLING THE MEMBERS (THE "STOCKHOLDERS"):
1. ▇.▇. ▇▇▇▇▇ Inc., a California corporation and the sole stockholder of
CVC ("▇▇▇▇▇"),
A-1-1
2. The Ponderosa Telephone Co., a California corporation and sole
stockholder of PC4 ("PTC"),
3. RCBM, LLC, a California limited liability company and a stockholder of
PCS ("RCBM"),
4. Ramyar, LLC, a California limited liability company and a stockholder of
PCS ("RAMYAR"),
5. Instant Phone, LLC, a California limited liability company and a
stockholder of PCS ("IPLLC"),
6. ▇▇▇▇▇ Family, Inc., a California corporation and sole stockholder of
Pinnacles ("BFI"),
7. Kerman Communications, Inc., a California corporation and a stockholder
of Kerman ("KCI"),
8. ▇▇▇▇▇▇ Family Limited Partnership, a California family limited
partnership and a stockholder of Kerman ("▇▇▇▇▇▇"),
9. S&K ▇▇▇▇▇ Family Limited Partnership, a California family limited
partnership and a stockholder of Kerman ("S&K"),
10. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual resident of the State of California
and a general partner of the Selling Member ("▇. ▇▇▇▇▇▇▇▇"),
11. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual resident of the State of California
and a general partner of the Selling Member ("▇. ▇▇▇▇▇▇▇▇"),
THE PARTIES CONTROLLING ▇▇▇▇▇ (THE "CONTROLLING ▇▇▇▇▇ STOCKHOLDERS"):
1. Irrevocable Trust Under the Will of ▇▇▇▇ ▇. ▇▇▇▇▇, a California
testamentary trust ("TESTAMENTARY TRUST"),
2. ▇.▇. ▇▇▇▇▇ Family Limited Partnership, a California limited partnership
("▇▇▇▇▇ ▇▇"),
3. ▇▇▇▇ ▇▇▇▇▇ Vilas 1990 Trust, a California inter vivos irrevocable trust
("VILAS TRUST")
4. The ▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ Charitable Remainder Trust II, a California
inter vivos irrevocable trust ("▇▇▇▇▇▇ TRUST"), and
5. The ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Charitable Remainder Trust II, a California
inter vivos irrevocable trust (the "▇▇▇▇▇ TRUST").
R E C I T A L S
A. The Members own, in the aggregate, all of the issued and outstanding units of
membership interests of LLC (the "LLC INTERESTS"), consisting in the
aggregate of 1,383,737 units (the authorized membership interests of LLC,
whether or not owned by a Member being referred to individually as a
"MEMBER'S INTEREST" and collectively as the "MEMBERS' INTERESTS"). LLC, LLC
Subsidiary (as defined in Section 6.1(c) (SUBSIDIARY) herein), the Members,
the Stockholders and, if Merger Sub V merges into ▇▇▇▇▇, the Controlling
▇▇▇▇▇ Stockholders are sometimes collectively referred to herein as the "LLC
PARTIES."
B. The Parties deem it advisable and in their respective best interests to
enter into the transactions contemplated hereby.
C. The Parties acknowledge that they have received adequate consideration for
entering into, and have relied upon the promises, covenants, representations
and warranties contained in, this Agreement, and that they will be benefited
by the transactions contemplated herein.
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A G R E E M E N T
Based on the recitals set forth above and the representations, warranties,
covenants and agreements contained herein, the Parties, intending to be legally
bound, agree as follows:
ARTICLE 1
TRANSACTIONS
1.1 THE MERGERS.
(a) THE MERGERS.
Upon the terms and subject to the conditions set forth in this Agreement, on
the Effective Date (as defined in Section 1.1(c) herein):
1. Merger Sub I shall merge with and into PC4 (the "PC4 MERGER");
2. Merger Sub II shall merge with and into PCS (the "PCS MERGER");
3. Merger Sub III shall merge with and into Pinnacles (the
"PINNACLES MERGER");
4. Merger Sub IV shall merge with and into Kerman (the "KERMAN
MERGER"); and
5. If ▇▇▇▇▇ no longer owns the ▇▇▇▇▇ Telco Businesses (as defined
below), Merger Sub V shall merge with and into ▇▇▇▇▇ (the "▇▇▇▇▇
MERGER"), and if ▇▇▇▇▇ owns the ▇▇▇▇▇ Telco Businesses, Merger Sub V
shall merge with and into CVC (the "CVC MERGER").
The foregoing mergers collectively are referred to herein as the "MERGERS."
From and after the Effective Date, the separate existence of the Merger Subs
shall cease and PC4, PCS, Pinnacles, Kerman, and either CVC or ▇▇▇▇▇, as the
case may be, shall continue as the surviving corporations in the Mergers, and
shall continue to be governed by the laws of the State of California. The
capital stock of all of the subsidiaries of ▇▇▇▇▇ other than CVC, and all
businesses, assets, rights, liabilities and obligations of ▇▇▇▇▇ and its
subsidiaries of any character whatsoever, other than the capital stock of CVC
that ▇▇▇▇▇ owns, collectively are referred to herein as the "▇▇▇▇▇ TELCO
BUSINESSES."
(b) CONSUMMATION OF THE MERGERS.
The Mergers shall be consummated by filing Agreements of Merger with the
Secretary of State of the State of California, together with all other
documents, notices and filings required by the California Corporations Code
("CCC").
(c) EFFECTIVE DATE OF THE MERGERS.
The Agreements of Merger shall provide that the Mergers shall be effective
as of the date set forth in the Agreements of Merger filed with the Secretary of
State of the State of California (the "EFFECTIVE DATE").
(d) EFFECT OF THE MERGERS.
At the Effective Date, the effect of each Merger shall be as provided in
Section 1107 of the CCC.
(e) THE SURVIVING CORPORATIONS' CERTIFICATES OF INCORPORATION; BYLAWS;
DIRECTORS AND OFFICERS.
The certificates of incorporation and bylaws of the surviving corporations,
in each case as in effect on the Effective Date, shall be the certificates of
incorporation and bylaws of Merger Sub I, Merger Sub II, Merger Sub III, Merger
Sub IV and Merger Sub V, respectively, except that the first Article of each
such certificate of incorporation shall be amended to amend the name of the
surviving corporation. As of the Effective Date, the Boards of Directors and
officers of each of Merger Sub I,
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Merger Sub II, Merger Sub III, Merger Sub IV and Merger Sub V shall be the
Boards of Directors and officers of each of the respective surviving
corporations.
1.2 MERGER CONSIDERATION.
(a) AGGREGATE MERGER CONSIDERATION.
The aggregate consideration payable to the Stockholders (excluding the
stockholder of CVC and including the ▇▇▇▇▇ Stockholders (as defined in Section
1.2(b)(ii)(B)(I)), in the event the ▇▇▇▇▇ Merger occurs) in connection with the
Mergers and the Interest Sale (as defined in Section 1.3(a) herein)
(collectively, the "AGGREGATE MERGER CONSIDERATION"; references herein to a
Person's individual portion of the Aggregate Merger Consideration are referred
to as such Person's "MERGER CONSIDERATION") shall be 16,350,491 shares of duly
authorized, validly issued, fully paid and nonassessable shares of UbiquiTel
Parent's common stock, par value $0.0005 per share (the "UBIQUITEL STOCK"), plus
any additional shares of UbiquiTel Stock required to be allocated hereunder
pursuant to Section 1.4, along with any dividends or distributions thereon after
the Effective Date.
(b) CONSIDERATION FOR INDIVIDUAL MERGERS.
(i) Subject to the provisions of Section 1.2(b)(ii), the capital
stock of the Members participating in the Mergers which are issued and
outstanding immediately prior to the Effective Date shall, on the
Effective Date, by virtue of the Merger and without any action on the
part of the holders thereof, be converted into the right to receive the
number of shares of UbiquiTel Stock, along with any dividends or
distributions thereon after the Effective Date, as set forth on Exhibit
1.2 attached hereto.
(ii) CONSIDERATION FOR THE ▇▇▇▇▇ MERGER. If the ▇▇▇▇▇ Merger occurs
under Section 1.1(a) hereof (in lieu of the CVC Merger), then each share
of common stock of ▇▇▇▇▇ (the "▇▇▇▇▇ STOCK") issued and outstanding
immediately prior to the Effective Date shall, on the Effective Date, by
virtue of the ▇▇▇▇▇ Merger and without any action on the part of the
holders thereof, be converted into the following:
(A) UBIQUITEL STOCK.
The right to receive a number of shares of UbiquiTel Stock, along with any
dividends or distributions thereon after the Effective Date, determined in
accordance with the provisions of Exhibit 1.2.
(B) NET ASSETS CONSIDERATION.
The right to receive an amount of cash equal to the Net Assets (as defined
herein) divided by the total number of ▇▇▇▇▇ shares issued and outstanding at
the Effective Date (the "NET ASSETS CONSIDERATION"). The Net Assets
Consideration shall be paid to the ▇▇▇▇▇ Stockholders (as defined below) on the
Effective Date, except that the amount of cash and cash equivalents in the RTFC
escrow shall be paid only when it has been received by UbiquiTel, all pursuant
to Section 2.1(g). "NET ASSETS" shall mean cash and cash equivalents of ▇▇▇▇▇
and its subsidiaries as of the Effective Date, plus the amount of any Tax
refunds or overpayments to which ▇▇▇▇▇ and its subsidiaries are entitled as of
the Effective Date minus liabilities of ▇▇▇▇▇ and its subsidiaries as of the
Effective Date, including the liability for Taxes of ▇▇▇▇▇ and its subsidiaries,
but not including any deferred Tax liabilities as determined in accordance with
generally accepted accounting principles.
(I) CALCULATION AND PAYMENT OF NET ASSETS.
Exhibit 1.2(b)(ii)(B)(I) presents ▇▇▇▇▇' good faith estimate of the Net
Assets (the "ESTIMATED NET ASSETS STATEMENT"). Between the date hereof and the
Pre-Closing Date (as defined in Section 2.1), ▇▇▇▇▇ and UbiquiTel Parent shall
cooperate in an effort to reach agreement on the amount of the assets and
liabilities to be set forth on the Net Assets Statement (as defined in (II)
below) to be
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delivered by ▇▇▇▇▇ at the Pre-Closing (as defined in Section 2.1). To this end,
the Controlling ▇▇▇▇▇ Stockholders and the remaining stockholders of ▇▇▇▇▇ (as
identified on Exhibit 1.2(b)(ii)(B)(II) attached hereto (the "REMAINING ▇▇▇▇▇
STOCKHOLDERS," and together with the Controlling ▇▇▇▇▇ Stockholders, the "▇▇▇▇▇
STOCKHOLDERS")) shall cause ▇▇▇▇▇ to cooperate fully with UbiquiTel Parent and
its tax advisers, and shall promptly provide UbiquiTel Parent with all
information, records, tax returns, work papers, and access to ▇▇▇▇▇' tax
advisers as is necessary to enable UbiquiTel Parent to understand the basis for
▇▇▇▇▇' calculations.
(II) CLOSING NET ASSETS STATEMENT.
Prior to the Pre-Closing Date, the ▇▇▇▇▇ Representative (as defined in
Section 3.3 (LLC PARTIES' CONDITIONS TO CLOSING) herein) shall deliver to
UbiquiTel Parent a statement of the Net Assets dated as of the close of business
on the day immediately preceding the Pre-Closing Date (the "NET ASSETS
STATEMENT"). The Net Assets Statement shall be prepared in accordance with the
same principles, methods and procedures used in the preparation of the Estimated
Net Assets Statement. If UbiquiTel Parent agrees with the Net Assets Statement
as delivered by the ▇▇▇▇▇ Representative, it shall so signify by initialing the
same. If it disagrees with the Net Assets Statement it shall, on or before the
Pre-Closing Date, deliver to the ▇▇▇▇▇ Representative a revised net assets
statement (the "REVISED NET ASSETS STATEMENT"). If UbiquiTel Parent delivers to
the ▇▇▇▇▇ Representative a Revised Net Assets Statement, then the amount of the
difference between the liabilities shown on the Net Assets Statement and the
liabilities shown on the Revised Net Assets Statement shall be deposited by
UbiquiTel Parent in a separate interest-bearing account until the filing of the
tax returns described in Section 11.7 (TAX MATTERS IN ▇▇▇▇▇ MERGER) herein.
(III) PAYMENT OF TAX RETURN ADJUSTMENT AMOUNT.
Within 5 days after the filing of the Tax Returns described in Section 11.7,
(i) UbiquiTel shall pay to the ▇▇▇▇▇ Representative the amount (including the
amounts, if any, deposited in a separate account pursuant to (II) above and
interest thereon), if any, by which the amount of Net Assets, as adjusted for
Taxes for which the ▇▇▇▇▇ Stockholders are responsible under Section 11.7 and
Tax refunds or Tax overpayments to which ▇▇▇▇▇ or its subsidiaries was entitled
as of the Effective Date, in either case, only to the extent not previously
taken into account in determining the Net Assets, exceeds the amount of the Net
Assets as set forth on the Net Assets Statement or Revised Net Assets Statement
above, or (ii) the ▇▇▇▇▇ Representative shall pay to UbiquiTel the amount (with
a credit for the amounts, if any, deposited in a separate account pursuant to
(II) above), if any, by which Net Assets, as adjusted for Taxes for which the
▇▇▇▇▇ Stockholders are responsible under Section 11.7 and Tax refunds or Tax
overpayments to which ▇▇▇▇▇ or its subsidiaries was entitled as of the Effective
Date, in either case, only to the extent not previously taken into account in
determining the Net Assets, is less than the Net Assets as set forth on the Net
Assets Statement or Revised Net Assets Statement above. If any Tax refund is
taken into account in the calculation of the Net Assets, UbiquiTel Parent or
▇▇▇▇▇, as the case may be, shall make any payment attributable thereto within
ten (10) days following the date on which UbiquiTel Parent or ▇▇▇▇▇ actually
receives the refund. Payments, if any, pursuant to this Section 1.2 shall be
made by wire transfer of immediately available funds. The Parties shall treat
any payment made pursuant to this paragraph (III) as an adjustment to the Merger
Consideration for all purposes.
(c) RIGHTS AS HOLDERS.
On and after the Effective Date, holders of stock of the Members (including
the ▇▇▇▇▇ Stockholders in lieu of the CVC stockholder if the ▇▇▇▇▇ Merger
occurs) shall cease to have any rights as stockholders except the right to
receive the Merger Consideration set forth in this Section 1.2 with respect to
shares of the Members' or ▇▇▇▇▇', as the case may be, stock held by them (all of
such stock being referred to herein as "STOCK"). The Merger Consideration paid
upon the surrender for exchange of Stock in accordance with the terms of this
Agreement shall be deemed, when paid or issued
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hereunder, to have been paid or issued, as the case may be, in full satisfaction
of all rights pertaining to such Stock or UbiquiTel Stock.
(d) ANTI-DILUTION.
(i) In the event of any stock dividend, stock split,
reclassification, recapitalization, combination or exchange of shares
with respect to, or rights issued to all UbiquiTel Parent stockholders in
respect of, UbiquiTel Stock on or after the date hereof and prior to the
Effective Date, the consideration payable in the Mergers and to the
Selling Member shall be adjusted accordingly.
(ii) UbiquiTel Parent and UbiquiTel each agree that they shall not
take any action for the purposes of avoiding the provisions of this
Section 1.2(d). In the event that UbiquiTel Parent or UbiquiTel shall
enter into any transaction which is for the purpose of, or which results
in, the avoidance of the provisions of this section, the benefits
provided by this section shall nevertheless apply and be preserved.
(e) TREASURY STOCK.
All shares of capital stock of the Members or ▇▇▇▇▇, as the case may be,
that are held as treasury stock shall, on the Effective Date, be canceled and
retired and shall cease to exist, and no shares of UbiquiTel Stock or other
consideration shall be delivered or owing in exchange therefor.
1.3 PURCHASE OF LLC INTEREST FROM THE SELLING MEMBER.
(a) PURCHASE AND SALE.
At the Closing, the Selling Member agrees to sell, and UbiquiTel Parent
agrees to cause Merger Sub VI to purchase, all of the LLC Interest held by the
Selling Member for the consideration determined in accordance with the
provisions of Exhibit 1.2 attached hereto. The purchase and sale of the LLC
Interest by the Selling Member to Merger Sub VI herein is referred to as the
"INTEREST SALE."
(b) PURCHASE PRICE.
The purchase price for the LLC Interest included in the Interest Sale shall
be the number of duly authorized, validly issued, fully paid and non-assessable
shares of UbiquiTel Stock, along with any dividends or distributions thereon
after the Effective Date determined in accordance with the provisions of Exhibit
1.2 attached hereto.
(c) DELIVERIES.
At the Pre-Closing, the Selling Member shall execute and deliver to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to hold in escrow pursuant to Section 2.1(c), documents of
transfer in a form reasonably required by Merger Sub VI, and the Selling Member
shall execute such additional agreements, including without limitation,
amendments to the Operating Agreement, as shall reasonably be deemed to be
appropriate and necessary in order to transfer the LLC Interest being sold by
the Selling Member. The Selling Member's LLC Interest shall be transferred at
Closing by delivery of such documents of transfer to Merger Sub VI.
(d) CONDITIONS TO CONSUMMATING THE INTEREST SALE.
The obligations of Merger Sub VI or UbiquiTel Parent and the Selling Member
to consummate the Interest Sale are conditioned on the Closing of the Mergers.
1.4 PERFORMANCE UNIT APPRECIATION RIGHTS PLAN.
Exhibit 1.4 lists the holders of the 8,750 LLC Performance Unit Appreciation
Rights ("PARS") currently outstanding under LLC's Performance Unit Appreciation
Rights Plan (the "PAR PLAN"), and the number of PARs held by each such holder.
At the Effective Date, LLC shall terminate its PAR
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Plan, and each holder of PARs shall become entitled to receive, in substitution
for the PARs previously held by each such holder and subject to the provisions
of this Section 1.4, the number of shares of UbiquiTel Stock set forth opposite
each holder's name on Exhibit 1.4. All of such shares shall be issued to the
former PAR holders at the Closing Date, and one-half of such shares shall be
distributed to each such holder on the Closing Date. The other half of such
shares shall be distributed to each such holder on the date that is 180 days
following the Closing Date; PROVIDED, HOWEVER, that if any such holder
voluntarily terminates his employment with UbiquiTel prior to such 180th day
following the Closing Date, such one-half of such holder's shares shall be
forfeited and shall be cancelled unilaterally by UbiquiTel Parent (or its
transfer agent) on its stock transfer records. During such 180 days, each such
holder shall be entitled to vote the shares that have not been distributed to
him or her, to receive dividends on such shares, and to all other beneficial
rights as owner of such shares (other than the right to transfer, sell or
otherwise dispose of such shares). If any shares of UbiquiTel Stock are
forfeited hereunder by one or more holders because any such holder has
voluntarily terminated its employment with UbiquiTel prior to the 180th day
following the Closing Date, such shares, after cancellation by UbiquiTel Parent
(or its transfer agent), shall be redistributed instead to the Stockholders and
the Selling Member, proportionately based on the total number of shares of
UbiquiTel Stock to be received by such Person in accordance with the provisions
of Exhibit 1.2. Each holder listed on Exhibit 1.4 shall be a third-party
beneficiary of the agreements of UbiquiTel set forth in this Section 1.4,
entitled to enforce the same for his benefit.
1.5 NO FRACTIONAL SHARES.
No certificates representing fractional shares of UbiquiTel Stock shall be
issued upon the surrender for exchange of Stock or the LLC Interests, and such
fractional share interests shall not entitle the owner thereof to vote or to
have any rights of a stockholder of UbiquiTel Parent. In lieu of any such
fractional shares, each holder of Stock or the LLC Interests who would otherwise
have been entitled to a fraction of a share of UbiquiTel Stock will receive a
full share of UbiquiTel Stock, if the fraction is one-half or greater, and shall
not receive such fractional share, if the fraction is less than one-half.
1.6 ESCROW OF SHARES.
On the Closing Date, and subject to the terms and conditions set forth in
the Escrow Agreement (as defined in Section 2.4(d) (ESCROW AGREEMENT) herein),
the Stockholders (except for ▇▇▇▇▇ and including the Controlling ▇▇▇▇▇
Stockholders, if the ▇▇▇▇▇ Merger occurs) and the Selling Member shall deposit
into the escrow created by the Escrow Agreement (the "ESCROW ACCOUNT") the
aggregate amount of 2,000,000 shares of UbiquiTel Stock (the "ESCROW AMOUNT");
and each Stockholder (except for ▇▇▇▇▇ and including the Controlling ▇▇▇▇▇
Stockholders, if the ▇▇▇▇▇ Merger occurs) and the Selling Member will deposit
the number of shares set forth in Exhibit 1.2. The Escrow Amount shall be held
and disbursed in accordance with the Escrow Agreement and Sections 3.2(a)(LLC
PARTIES' REPRESENTATIONS TRUE) and 12.3 (LIMITATIONS ON INDEMNITIES) of this
Agreement.
ARTICLE 2
TRANSACTION PRE-CLOSING AND CLOSING
2.1 PRE-CLOSING.
(a) PRE-CLOSING DATE.
Unless this Agreement has been terminated pursuant to the provisions of
Article 5 (TERMINATION), the Pre-Closing of the Mergers (the "PRE-CLOSING")
shall take place on the third business day after the satisfaction or written
waiver of the conditions (other than the execution or delivery of agreements,
certificates, legal opinions or other instruments to be delivered at the
Pre-Closing) contained herein; PROVIDED, HOWEVER, that if on such date ▇▇▇▇▇
still owns the ▇▇▇▇▇ Telco Businesses, then, at ▇▇▇▇▇' discretion, it can extend
the Pre-Closing to a date which is three (3) days after the sale of the ▇▇▇▇▇
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Telco Businesses, but in no event shall ▇▇▇▇▇ be permitted to extend the
Pre-Closing (for this reason) after June 30, 2001. The date of the Pre-Closing
shall be the Pre-Closing Date. UbiquiTel Parent and LLC shall exercise
commercially reasonable efforts to give advance notice of the proposed
Pre-Closing Date as soon as such date is ascertainable. The Pre-Closing shall
take place at the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to UbiquiTel
Parent, located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m., local
time, or at such other place or by such other means as the Parties hereto may
agree.
(b) INTENTIONALLY OMITTED.
(c) DELIVERY OF CLOSING DOCUMENTS INTO ESCROW.
At the Pre-Closing, (i) the LLC Parties shall deliver to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
to hold as escrow agent for UbiquiTel until the Closing, all of the documents
specified in Section 2.2 and those specified in Section 2.4 to be delivered by
any of the LLC Parties, and (ii) UbiquiTel Parent shall deliver to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., to hold as escrow agent for the LLC Parties until the
Closing, (A) all of the documents specified in Section 2.3 and those specified
in Section 2.4 to be delivered by UbiquiTel, and (B) fully executed counterparts
of the Agreements of Mergers for the Mergers to be filed with the California
Secretary of State. With respect to the documents described in the foregoing
clauses (i) and (ii)(A), all of such documents so delivered shall be dated as of
the Pre-Closing Date and shall be delivered on the Closing Date without redating
or modification.
(d) SPECTRUM TRANSITION.
Immediately following the Pre-Closing Date, UbiquiTel shall take such steps,
all at its sole cost and expense, as may be necessary promptly to implement and
complete the Spectrum Transition (as defined in Addendum VI to the UbiquiTel
Sprint Management Agreement). LLC shall take all necessary actions and provide
access to its properties for the purpose of enabling UbiquiTel to complete the
Spectrum Transition.
(e) PROXY OF THE MEMBERS OF LLC.
On the Pre-Closing Date, each Member of LLC shall, and the Stockholders
controlling such Member shall cause such Member to, execute an irrevocable proxy
in the form attached as Exhibit 2.1(e) giving UbiquiTel the right to vote all
Members' Interests then owned by such Member during the Pre-Closing Period. The
Parties acknowledge, and agree not to contest, that such irrevocable proxy is
intended to be an irrevocable appointment of a proxy for all purposes pursuant
to Section 705(e)(2) of the CCC.
(f) PRE-CLOSING COVENANTS.
In addition to the covenants and warranties of the Parties set forth
elsewhere in this Agreement, and as a special covenant related solely to the
period between the Pre-Closing Date and the Closing Date (the "PRE-CLOSING
PERIOD"), each Party covenants, warrants, and agrees that he, she, or it will
take no action or forego to take any actions during the Pre-closing Period that
would cause any representation or warranty set forth in this Agreement on behalf
of such Party or any Affiliate of such Party to become untrue or inaccurate, or
that would be inconsistent with any such representation or warranty, or that
would cause any document delivered pursuant to Section 2.1(c) on behalf of such
Party or an Affiliate of such Party to become untrue or inaccurate or that would
be inconsistent with any such document.
(g) PAYMENT OF ▇▇▇▇▇' NET ASSETS CONSIDERATION.
At the Pre-Closing, UbiquiTel or UbiquiTel Parent, as appropriate, shall
(a) irrevocably instruct the depositary selected by ▇▇▇▇▇ for deposit of the
cash that is included in the Net Assets Statement under the caption "Cash and
cash equivalents" (the "▇▇▇▇▇ DEPOSITARY") to transfer an amount equal to (x)
the Net Assets Consideration less (y) the amount of the cash and cash
equivalents then in the RTFC
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escrow (the "NET ASSETS CONSIDERATION LESS RTFC ESCROW") to an account with a
bank designated by UbiquiTel (the "BANK"), which may be an existing UbiquiTel
account or a newly-formed account, upon notice from the ▇▇▇▇▇ Representative
that the Agreement of Merger with respect to the ▇▇▇▇▇ Merger has been filed
with the California Secretary of State, and (b) irrevocably instruct the Bank to
disburse the Net Assets Consideration Less RTFC Escrow to the ▇▇▇▇▇ Stockholders
at the Closing in the amounts set forth on a schedule to be provided by the
▇▇▇▇▇ Representative at the Pre-Closing. The ▇▇▇▇▇ Depositary shall also be
irrevocably instructed to transfer the amount of the cash and cash equivalents
then in the RTFC escrow to the Bank as soon as it is received by the ▇▇▇▇▇
Depositary, and the Bank shall be irrevocably instructed to disburse such amount
to the ▇▇▇▇▇ Stockholders in the amounts set forth on a schedule to be provided
by the ▇▇▇▇▇ Representative at the Pre-Closing.
2.2 DELIVERIES TO UBIQUITEL.
At the Pre-Closing, the LLC Parties shall deliver, or cause to be delivered,
to UbiquiTel Parent the following items:
(a) PRE-CLOSING CERTIFICATE.
The LLC Parties shall jointly deliver a Pre-Closing certificate executed by
each of the LLC Parties in a form reasonably satisfactory to UbiquiTel Parent
(the "LLC PARTIES PRE-CLOSING CERTIFICATE").
(b) AUTHORIZING DOCUMENTS.
LLC and the Members (and ▇▇▇▇▇, if the ▇▇▇▇▇ Merger occurs) shall deliver
copies, certified or otherwise identified to UbiquiTel Parent's reasonable
satisfaction, of company documents that UbiquiTel Parent shall reasonably
request, including resolutions of LLC and resolutions of the Members (and ▇▇▇▇▇,
if the ▇▇▇▇▇ Merger occurs) authorizing this Agreement, the Related Agreements
(as defined in Section 2.4 (RELATED AGREEMENTS) hereof) and the transactions and
other acts contemplated herein and therein.
(c) CONSENTS AND APPROVALS.
The LLC Parties shall jointly deliver copies of all LLC Parties Consents (as
defined in Section 3.2(c) (LLC PARTIES CONSENTS) that have been obtained by the
LLC Parties.
(d) GOOD STANDING CERTIFICATES.
LLC, LLC Subsidiary and the Members (and ▇▇▇▇▇, if the ▇▇▇▇▇ Merger occurs)
shall deliver certificates, issued within 10 days before the date of the
Pre-Closing, (i) from the respective Secretaries of State of the states of
incorporation or organization of such entities, evidencing that each is validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, and (ii) from each state in which such entity is
qualified to do business as a foreign entity, evidencing that such entity is so
qualified and in good standing (each, a "GOOD STANDING CERTIFICATE") in each
such state.
(e) OPINIONS OF LLC PARTIES' COUNSELS.
The LLC Parties shall deliver legal opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., counsel to LLC, (ii) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel
to ▇▇▇▇▇, (iii) counsels to each of the Members and Stockholders, and (iv) FCC
counsel to LLC, dated as of the Pre-Closing Date, in form and substance
reasonably satisfactory to UbiquiTel Parent. In rendering their opinions, such
counsel may rely on the opinions of other counsel to LLC and/or the Members with
respect to certain matters included in such opinions.
(f) RESIGNATIONS AND RELEASES.
The LLC Parties shall deliver resignations and releases executed by each
officer of LLC, and each officer and director of each Member (and, if the ▇▇▇▇▇
Merger occurs, of ▇▇▇▇▇) in the form attached as Exhibit 2.2(f).
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(g) STOCKHOLDER'S RELEASES.
The Stockholders shall deliver releases executed by each such Stockholder in
the form attached as Exhibit 2.2(g).
(h) OTHER INSTRUMENTS.
Such other instruments, documents or information that UbiquiTel Parent
reasonably requests in order to more effectively consummate the transactions
contemplated hereby or by the Related Agreements.
2.3 UBIQUITEL PARENT'S DELIVERIES.
At the Pre-Closing, UbiquiTel Parent shall deliver the following items to
the Selling Member and the Stockholders (and, if the ▇▇▇▇▇ Merger occurs, to the
▇▇▇▇▇ Stockholders in lieu of CVC):
(a) PRE-CLOSING CERTIFICATE.
A Pre-Closing certificate executed by UbiquiTel Parent (the "UBIQUITEL
PRE-CLOSING CERTIFICATE"), in a form reasonably acceptable to the recipients
thereof.
(b) RESOLUTIONS.
Copies, certified or otherwise, identified to LLC's reasonable satisfaction,
of all company documents that LLC shall reasonably request, including
resolutions of the respective boards of directors of UbiquiTel Parent, UbiquiTel
and the Merger Subs, authorizing this Agreement, the Related Agreements and the
transactions and other acts contemplated either herein or therein.
(c) CONSENTS AND APPROVALS.
Copies of all of the UbiquiTel Consents (as defined in Section 8.2(b)
(CONSENTS OBTAINED) herein) that have been obtained, and all Approvals obtained
by UbiquiTel Parent.
(d) OPINION OF UBIQUITEL PARENT AND UBIQUITEL'S COUNSEL.
An opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, dated as of the Pre-Closing Date, in
form and substance reasonably satisfactory to LLC.
(e) UBIQUITEL STOCK.
The UbiquiTel Stock to be delivered pursuant to Sections 1.2(a),
1.2(b)(ii)(A), and 1.4.
(f) OTHER INSTRUMENTS.
Such other instruments, documents or information that LLC reasonably
requests in order to more effectively consummate the transactions contemplated
hereby or by the Related Agreements.
2.4 RELATED AGREEMENTS.
The Parties, as appropriate, shall execute and deliver the following
documents, such agreements, documents or instruments executed by and among
UbiquiTel Parent, UbiquiTel and the Merger Subs, on the one hand, and the LLC
Parties, on the other hand, pursuant to this Agreement being referred to herein
as the "RELATED AGREEMENTS:"
(a) LOAN AGREEMENT AND SUBORDINATION AGREEMENT.
Concurrently with the execution of this Agreement, UbiquiTel and LLC have
entered into a loan agreement for a $25 million credit facility provided by
UbiquiTel to LLC (the "LOAN AGREEMENT") and the Members have entered into a
subordination agreement (the "SUBORDINATION AGREEMENT").
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(b) MANAGEMENT AGREEMENT.
Concurrently with the execution of this Agreement, UbiquiTel and LLC have
entered into a management agreement (the "MANAGEMENT AGREEMENT").
(c) LOCK-UP AGREEMENT.
At the Pre-Closing, each Stockholder (and, if the ▇▇▇▇▇ Merger occurs, and
the ▇▇▇▇▇ Stockholders in lieu of ▇▇▇▇▇) will enter into a lock-up agreement
with UbiquiTel Parent substantially in the form attached as Exhibit 2.4(c)
(each, a "LOCK-UP AGREEMENT"), which agreement shall restrict the sale or other
disposition of his, her or its holdings of UbiquiTel Stock without the prior
written consent of UbiquiTel Parent, as follows: 50% of the shares of UbiquiTel
Stock held by each Stockholder or the ▇▇▇▇▇ Stockholders after the Pre-Closing
shall be released from the restrictions on resale 90 days after the Closing
Date; and 50% of the shares of UbiquiTel Stock held by each Stockholder or the
▇▇▇▇▇ Stockholders after the Pre-Closing shall be released from the restrictions
on resale 180 days after the Closing Date. Notwithstanding the foregoing, each
Stockholder or ▇▇▇▇▇ Stockholder that is required to enter into a Lock-Up
Agreement shall have the right to pledge his, her or its UbiquiTel Stock subject
to the Lock-Up Agreement as collateral for margin loans before the restrictions
on resale imposed by the Lock-Up Agreement terminate.
(d) ESCROW AGREEMENT.
At the Pre-Closing, UbiquiTel Parent, UbiquiTel and the Stockholders (and,
if the ▇▇▇▇▇ Merger occurs, the Controlling ▇▇▇▇▇ Stockholders) shall enter into
an escrow agreement in the form attached as Exhibit 2.4(d) (the "ESCROW
AGREEMENT") with such changes as the escrow agent named therein may reasonably
request, such Agreement to become effective at the Closing.
(e) INDEMNIFICATION AGREEMENT WITH CONTROLLING ▇▇▇▇▇ STOCKHOLDERS.
Concurrently with the execution of this Agreement, the Controlling ▇▇▇▇▇
Stockholders have entered into an indemnification agreement with UbiquiTel
Parent, UbiquiTel and the Merger Subs indemnifying them against any liabilities
arising out of or relating to ▇▇▇▇▇ or the operation of the business and
properties of ▇▇▇▇▇ prior to the ▇▇▇▇▇ Merger (the "CONTROLLING ▇▇▇▇▇
STOCKHOLDERS INDEMNIFICATION AGREEMENT").
2.5 CLOSING.
The closing of the Mergers (the "CLOSING") shall take place after the
Pre-Closing Date, on a date (the "CLOSING DATE") which shall be the third day
after UbiquiTel notifies the Members in writing that it has completed the
Spectrum Transition; PROVIDED, HOWEVER, that if the Members have not received
such notice by the 27th day following the Pre-Closing Date, then the Closing
Date shall be on the 30th day after the Pre-Closing Date. On the Closing Date,
the Members shall instruct and cause ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ to file with the
Secretary of State of the State of California the Agreements of Mergers for the
Mergers. Upon the acceptance for filing by the Secretary of State of the State
of California of such Agreements of Mergers, (a) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall
notify UbiquiTel and ▇▇▇▇▇▇▇▇▇ Traurig that the Agreements of Mergers were so
accepted, and (b) promptly shall disburse to the LLC Parties those documents and
items it holds in escrow pursuant to Section 2.1(c) of this Agreement. Upon
receipt of notice by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ that the Agreements of Mergers
were accepted for filing by the Secretary of State of the State of California,
(x) ▇▇▇▇▇▇▇▇▇ Traurig promptly shall disburse to UbiquiTel those documents and
items it holds in escrow pursuant to Section 2.1(c) of this Agreement, (y)
UbiquiTel shall cause all of the principal and accrued and unpaid interest on
the RTFC Loan to be paid off and discharged, in accordance with Section 11.5 of
this Agreement, and (z) UbiquiTel shall pay the Net Assets Consideration.
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ARTICLE 3
PRE-CLOSING CONDITIONS TO CONSUMMATING THE MERGERS
3.1 JOINT CONDITIONS.
The obligations of UbiquiTel Parent, UbiquiTel, the Merger Subs and the LLC
Parties to consummate the transactions provided for in this Agreement and the
Related Agreements are subject to the satisfaction, at or prior to the
Pre-Closing Date, of the following conditions:
(a) HSR ACT.
The waiting periods with respect to each of the Mergers and the Interest
Sale prescribed by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (collectively, the
"HSR ACT") shall have expired or early termination of such waiting periods under
the HSR Act shall have been granted.
(b) NASDAQ LISTING.
The UbiquiTel Stock shall have been approved for listing on The NASDAQ Stock
Market, subject to official notice of issuance.
(c) UBIQUITEL PARENT STOCKHOLDERS' MEETING.
UbiquiTel Parent shall have held the UbiquiTel Stockholders' Meeting (as
defined in Section 11.3 (UBIQUITEL STOCKHOLDERS' MEETING) herein) and its
stockholders shall have approved the consummation of the transactions provided
for in this Agreement and the Related Agreements.
(d) [INTENTIONALLY OMITTED].
(e) NO LITIGATION.
No preliminary injunction, order, decree or ruling shall be in effect which
restrains or prohibits the execution and delivery of this Agreement, any Related
Agreement or the consummation of the transactions contemplated by any of the
foregoing.
(f) FCC APPROVAL.
The Federal Communications Commission ("FCC") shall have issued one or more
public notices approving the assignment of LLC's PCS Licenses in accordance with
the terms of this Agreement.
3.2 UBIQUITEL PARENT, UBIQUITEL AND MERGER SUBS' CONDITIONS.
The obligations of UbiquiTel Parent, UbiquiTel and the Merger Subs to
consummate the transactions contemplated by this Agreement and the Related
Agreements are subject to the satisfaction, or waiver by UbiquiTel Parent, at or
prior to the Pre-Closing Date, of the following conditions:
(a) LLC PARTIES' REPRESENTATIONS TRUE.
The LLC Parties' representations and warranties made in this Agreement or
any Related Agreement shall be true and correct in all respects as of the date
of this Agreement and as of the Pre-Closing Date, except as affected by the
transactions contemplated hereby and except as has not resulted in and will not
constitute an LLC Material Adverse Change, and the LLC Parties shall have
delivered the LLC Parties Pre-Closing Certificate, which shall state the
foregoing; PROVIDED, HOWEVER, that if and to the extent that the failure to
fulfill or otherwise comply with the LLC Parties' representations, warranties,
covenants and agreements set forth in this Agreement is the sole result of the
actions or inactions of UbiquiTel in its capacity as Operating Manager pursuant
to the Management Agreement (and not the result of any actions or inactions of
the Principal LLC Officer under such Agreement, as defined therein), such
failure or non-compliance shall not be deemed a breach by the
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LLC Parties hereunder. For purposes of this Agreement, "LLC MATERIAL ADVERSE
CHANGE" means (i) any termination of the Sprint Affiliation Agreement, or
(ii) any change, effect, event or occurrence that would reasonably be expected
to result in (A) a decrease in the balance sheet net worth of LLC, measured
immediately prior to the Pre-Closing, of at least $10.0 million, or (B) a
reduction of anticipated cash flow, or increased losses, of UbiquiTel Parent (on
a consolidated basis) attributable to LLC's operations, at or after the
Pre-Closing, discounted at 10% per annum, having a net present value of at least
$10.0 million. If the LLC Parties' representations and warranties made in this
Agreement or any Related Agreement are not true and correct in all respects as
of the Pre-Closing Date and such failure to be true and correct in all respects
(i) does not result in or constitute an LLC Material Adverse Change, and
(ii) would give rise to a Loss (as defined in Section 12.2(a)(i) (LLC PARTIES
INDEMNIFICATION)) that would be required to be indemnified pursuant to Section
12.2 (INDEMNITIES) hereof, then (after application of all of the terms,
deductibles and limitations set forth in Section 12.3 (LIMITATIONS ON
INDEMNITIES) the LLC Parties shall indemnify UbiquiTel against such Loss
pursuant to Section 12.2, provided that, (A) to the extent such Loss can be
quantified and agreed upon at the Pre-Closing by all Parties acting in good
faith, in whole or in part, the LLC Parties shall pay UbiquiTel the amount of
such Loss required to be indemnified, or part thereof, in cash or in UbiquiTel
Stock (at the LLC Parties' discretion) at the Closing, and (B) to the extent
such Loss or part thereof becomes quantified after the Pre-Closing, the LLC
Parties shall pay the amount of such Loss as and when it becomes quantified.
(b) LLC PARTIES' COMPLIANCE WITH AGREEMENT.
The LLC Parties, in all respects, shall have performed each agreement, and
shall have complied with each covenant to be performed or complied with by them,
or any of them, on or prior to the Pre-Closing Date under this Agreement or any
Related Agreement, except where the failure to so perform or comply (i) would
not constitute an LLC Material Adverse Change, or (ii) is not in bad faith, and
the LLC Parties shall have delivered the LLC Parties Pre-Closing Certificate,
which shall state the foregoing.
(c) LLC PARTIES CONSENTS.
The LLC Parties shall have exercised commercially reasonable efforts to
obtain the LLC Parties Consents and shall have obtained the LLC Mandatory
Consents. The term "LLC PARTIES CONSENTS" shall mean:
(i) All required governmental licenses and permits, if any, necessary
to enable UbiquiTel to conduct the business of LLC after the Pre-Closing
in substantially the same manner as such business was conducted before
the Pre-Closing (the "PERMITS");
(ii) All authorizations, consents and approvals (if any) of any
filings (if any) with any governmental authority that are required to
(A) validly execute, deliver and perform this Agreement or the Related
Agreements or (B) consummate the transactions provided for in this
Agreement and the Related Agreements (collectively, the "APPROVALS"); and
(iii) All other material consents, approvals or authorizations of
third parties required in connection with LLC or the Members' valid
execution, delivery or performance of this Agreement and the Related
Agreements or the consummation of the Mergers or Interest Sale or any of
the transactions contemplated hereby or thereby on the part of any of
them including, but not limited to, the consents required under the
Contracts and Licenses (as defined in Section 6.9 (LICENSES) herein)
(collectively, "CONSENTS"); PROVIDED, HOWEVER, that the Parties hereto
acknowledge that at the request of UbiquiTel, the LLC Parties shall not
seek to obtain the consent of Aegon (as set forth in the LLC Disclosure
Schedule Section 6.1(e)).
The following LLC Parties Consents shall be deemed to be the "LLC MANDATORY
CONSENTS": the consent of Sprint, pursuant to the Sprint Affiliation Agreement
(as defined in Section 6.2(b) hereof);
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the Rural Telephone Finance Cooperative, pursuant to the RTFC Loan Agreement (as
defined in Section 6.4(d)(iii) hereof); and the Federal Communications
Commission, pursuant to the PCS Licenses.
(d) NO LITIGATION.
No action, suit or proceeding shall be pending or, to the knowledge of the
LLC Parties, threatened, which seeks to restrain or prohibit, or to obtain
damages or other relief in connection with the execution and delivery of this
Agreement, any Related Agreement or the consummation of the transactions
contemplated by any of the foregoing, except as would not constitute an LLC
Material Adverse Change. The LLC Parties shall have delivered the LLC Parties
Pre-Closing Certificate, which shall state the foregoing with respect to the LLC
Parties.
(e) RELATED AGREEMENTS.
The LLC Parties shall have entered into the Related Agreements to which they
are to be parties.
(f) FINANCING.
The Second Amendment and Consent to Credit Agreement executed by and among,
INTER ALIA, UbiquiTel Parent, UbiquiTel, BNP Paribas ("PARIBAS") and various
banks, and shall be in full force and effect and the conditions set forth in
Section 9.02 (viii) thereof shall be satisfied, provided that if such conditions
shall not have been satisfied, (i) UbiquiTel shall not exercise its right to
terminate this Agreement for a period of 90 days from the date on which
(i) Paribas notifies UbiquiTel that one of the conditions set forth in Section
9.02(viii) has not and can not be satisfied, or (ii) the parties agree that one
of such conditions has not and can not be satisfied, during which period the
Parties shall in good faith cooperate to explore alternative means for
completing the transaction, and (ii) if UbiquiTel exercises its right to
terminate under this Section 3.2(f), it shall pay immediately to LLC, in cash or
by wire transfer, the amount of $4,900,000.
(g) PRE-CLOSING DELIVERIES.
The deliveries pursuant to Section 2.2 shall have been made.
(h) THE SPRINT AGREEMENTS.
The Sprint Affiliation Agreement and any agreements to which LLC is a party
regarding the use of Sprint's name and/or logo or other intellectual property
shall be in full force and effect on the Pre-Closing Date.
(i) CONVERSION CONDITION.
The Type II Conversion (as defined in Addendum VI to the UbiquiTel Sprint
Management Agreement) shall have occurred; provided that if such condition shall
not have been met by July 30, 2001, UbiquiTel Parent shall be deemed to have
waived such condition.
3.3 LLC PARTIES' CONDITIONS TO CLOSING.
The obligations of the LLC Parties to consummate the transactions
contemplated by this Agreement and the Related Agreements are subject to the
satisfaction, or waiver in writing by the ▇▇▇▇▇ Representative (as defined
herein) (on behalf of ▇▇▇▇▇ and CVC) and the Members Representative (as defined
herein) (on behalf of the Members other than CVC) at or prior to the Pre-
Closing Date, of the conditions set forth below. For purposes of this Agreement,
the "▇▇▇▇▇ REPRESENTATIVE" shall be one individual agent appointed by ▇▇▇▇▇ to
act on behalf of ▇▇▇▇▇ or the ▇▇▇▇▇ Stockholders, as the case may be, in any
matter that this Agreement designates may be taken by the ▇▇▇▇▇ Representative.
For purposes of this Agreement, the "MEMBERS REPRESENTATIVE" shall be one
individual agent appointed by the Members to act on behalf of the Members in any
matter that this Agreement designates may be taken by the Members
Representative.
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(a) UBIQUITEL PARENT, UBIQUITEL AND MERGER SUBS' REPRESENTATIONS TRUE.
The representations and warranties made by UbiquiTel Parent, UbiquiTel and
the Merger Subs herein shall be true and correct in all respects as of the date
of this Agreement and as of the Pre-Closing Date, except as affected by the
transactions contemplated hereby and except as has not resulted in and will not
constitute a UbiquiTel Material Adverse Change, and UbiquiTel Parent shall have
delivered the UbiquiTel Pre-Closing Certificate, which shall state the
foregoing. For purposes of this Agreement, "UBIQUITEL MATERIAL ADVERSE CHANGE"
means any termination of the UbiquiTel Sprint Management Agreement and any
change, effect, event or occurrence which would reasonably be expected to (i)
result in liabilities to UbiquiTel Parent (on a consolidated basis) at or after
the Pre-Closing of at least $20.0 million, or (ii) result in a reduction of cash
flow, or increased losses, of UbiquiTel Parent (on a consolidated basis) at or
after the Pre-Closing, discounted at 10%, having a net present value of at least
$20.0 million.
(b) UBIQUITEL, UBIQUITEL PARENT AND MERGER SUBS' COMPLIANCE WITH
AGREEMENT.
Each of UbiquiTel Parent, UbiquiTel and the Merger Subs, in all respects,
shall have complied with each covenant to be performed or complied with by it on
or prior to the Pre-Closing Date under this Agreement or any Related Agreement,
except where the failure to so perform or comply (i) would not constitute a
UbiquiTel Material Adverse Change, or (ii) is not in bad faith, and UbiquiTel
Parent shall have delivered the UbiquiTel Pre-Closing Certificate, which shall
state the foregoing.
(c) UBIQUITEL CONSENTS.
UbiquiTel shall have used commercially reasonable efforts to obtain the
UbiquiTel Consents (as defined in Section 8.2(b) (CONSENTS OBTAINED) herein),
and shall have obtained the UbiquiTel Mandatory Consents. The following
UbiquiTel Consents shall constitute UbiquiTel Consents that, if not obtained,
will result in a UbiquiTel Material Adverse Change: (i) the consent of Paribas
and other banks pursuant to that certain Credit Agreement dated as of March 31,
2000 (the "PARIBAS CONSENT"); (ii) UbiquiTel Parent's stockholders' approval of
the transactions contemplated hereby, (iii) the consent of Sprint Spectrum L.P.
pursuant to the UbiquiTel Sprint Management Agreement; and (iv) approval by the
FCC (collectively, the "UBIQUITEL MANDATORY CONSENTS") (the LLC Mandatory
Consents and UbiquiTel Mandatory Consents hereinafter are referred to
collectively as the "MANDATORY CONSENTS").
(d) NO LITIGATION.
No action, suit or proceeding shall be threatened or pending, which seeks to
restrain or prohibit, or to obtain other relief in connection with, the
execution and delivery of this Agreement, any Related Agreement or the
consummation of the transactions contemplated by any of the foregoing, except as
would not constitute a UbiquiTel Material Adverse Change. UbiquiTel Parent shall
have delivered the UbiquiTel Pre-Closing Certificate, which shall state the
foregoing with respect to UbiquiTel Parent, UbiquiTel and the Merger Subs.
(e) RELATED AGREEMENTS.
UbiquiTel Parent, UbiquiTel and the Merger Subs shall have entered into the
Related Agreements to which each is a party.
(f) CLOSING DELIVERIES.
The deliveries pursuant to Section 2.3 shall have been made.
(g) RTFC LOAN PAYOFF.
All amounts of principal and accrued and unpaid interest owing by LLC under
the RTFC Loan Agreement shall have been set aside by UbiquiTel, to the
reasonable sastisfaction of LLC, to provide
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for repayment of such principal and accrued and unpaid interest pursuant to
Section 2.5 and 11.5 hereof.
ARTICLE 4
COVENANTS REGARDING CONSUMMATION OF THE TRANSACTION
4.1 SATISFACTION OF CONDITIONS TO CLOSING.
(a) JOINT RESPONSIBILITIES.
Each Party shall use his, her or its reasonable best efforts to satisfy the
conditions to the obligations of the Parties hereunder, and to consummate and
make effective as promptly as practicable the transactions provided for herein,
including:
(i) DEFENDING THE AGREEMENT.
Defending lawsuits or other legal proceedings challenging this Agreement or
any Related Agreement or the consummation of the transactions provided for in
this Agreement or any Related Agreement;
(ii) LIFTING INJUNCTIONS.
Using reasonable best efforts to lift or rescind any injunction, restraining
order or other order adversely affecting the ability of the Parties to
consummate the transactions provided for in this Agreement or any Related
Agreement; and
(iii) OTHER ACTIONS.
Taking such other reasonable actions that are necessary, appropriate or
advisable, unless responsibility for taking such actions has been delegated to
certain Parties pursuant to Section 4.1(b) (LLC PARTIES' RESPONSIBILITIES) or
4.1(c) (UBIQUITEL'S AND MERGER SUBS' RESPONSIBILITIES) including, without
limitation, using reasonable best efforts to obtain all Approvals and Permits,
and all consents of third parties. In case, at any time after the Effective
Date, any further action is necessary or desirable to carry out the purposes of
this Agreement, each Party and its officers and directors shall use their
reasonable best efforts to take all such action.
(iv) FCC CONSENT.
Within ten (10) business days after the execution of this Agreement, LLC
will file one or more applications with the FCC requesting the FCC's consent to
the assignment of the PCS Licenses (as defined in Section 6.9 (LICENSES)
herein). The other Parties to this Agreement shall complete and execute whatever
other documents are required to be filed in conjunction with the filing of the
aforementioned application(s) by LLC and shall otherwise cooperate with LLC in
the preparation, filing and prosecution of the application(s) in an effort to
have such application(s) granted by the FCC at the earliest practical date. Each
Party shall promptly and timely provide to the FCC whatever additional
information the FCC may request and make whatever additional changes in the
application(s) and this Agreement the FCC may require, unless the disclosure of
such information or such action would have a material adverse effect upon such
Party. Each Party shall promptly provide the other Parties with copies of any
and all communications to or from the FCC concerning the application(s) and
shall cooperate in defending against any petition, complaint or other objection
that any third party may file to such application(s).
(b) LLC PARTIES' RESPONSIBILITIES.
(i) HSR ACT FILINGS.
The LLC Parties shall make their HSR Act filings in compliance with such act
as soon as practicable after the execution of this Agreement, provide any
additional information that the Federal
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Trade Commission or the Justice Department requests as promptly as practicable,
and perform all other acts required of them under the HSR Act in order to
satisfy the condition contained in Section 3.1(a) (HSR ACT). Time is of the
essence with respect to the HSR Act filings. The LLC Parties shall pay one-half
of the total HSR Act filing fees required in connection with the HSR Act
filings, which shall be credited against the expenses permitted to be paid by
LLC pursuant to Section 13.10 (EXPENSES).
(ii) CONSENTS.
The LLC Parties shall use commercially reasonable efforts to obtain the LLC
Parties Consents and the Permits, and shall keep UbiquiTel Parent informed of
their efforts (including the nature thereof) and any difficulties they are
encountering with respect to obtaining such Consents after the execution of this
Agreement; the LLC Parties shall also provide copies of all filings, letters,
and written requests related to such efforts.
(iii) UBIQUITEL STOCKHOLDERS' MEETING.
The LLC Parties shall promptly provide to UbiquiTel Parent, upon request,
such information as UbiquiTel Parent may require to prepare the Proxy Statement
(as defined in Section 11.2(b) (PROXY STATEMENT AND FORM S-4) hereof) to be
distributed to its stockholders for the UbiquiTel Stockholders' Meeting.
(c) UBIQUITEL PARENT, UBIQUITEL AND MERGER SUBS' RESPONSIBILITIES.
(i) HSR ACT FILINGS.
UbiquiTel Parent, UbiquiTel and the Merger Subs shall make their HSR Act
filings in compliance with such act as soon as practicable after the execution
of this Agreement, provide any additional information that the Federal Trade
Commission or the Justice Department requests as promptly as practicable, and
perform all other acts required of them under the HSR Act in order to satisfy
the condition contained in Section 3.1(a) (HSR ACT); PROVIDED, HOWEVER, that in
no event shall UbiquiTel Parent, UbiquiTel, the Merger Subs or any of their
subsidiaries be required to divest, hold separate, offer for sale, abandon,
limit its operation of or take similar action with respect to any assets or any
business interest in connection with any Approval (including, without limitation
under the HSR Act). Time is of the essence with respect to the HSR Act filings.
UbiquiTel shall pay one-half of the total HSR Act filing fees required in
connection with the HSR Act filings.
(ii) UBIQUITEL'S CONSENTS AND PERMITS.
UbiquiTel Parent shall use commercially reasonable efforts to obtain the
UbiquiTel Parties Consents and the Permits and shall keep the LLC Parties
informed of their efforts (including the nature thereof) and any difficulties it
is encountering with respect to obtaining such Consents after the execution of
this Agreement; and UbiquiTel Parent shall also provide copies of all filings,
letters and written requests related to such efforts other than with respect to
the Paribas financing described in Section 3.2(f); provided that UbiquiTel
Parent shall provide notice within 2 business days to the LLC Parties if Paribas
provides notice to UbiquiTel that one of the conditions set forth in Section
9.02(viii) of the Credit Agreement among Paribas, as an administrative agent,
other Banks, UbiquiTel, and UbiquiTel Parent, dated as of March 31, 2000 has not
been met.
(iii) UBIQUITEL PARENT'S STOCKHOLDERS' MEETING.
UbiquiTel Parent shall take all steps required to hold the UbiquiTel
Stockholders' Meeting, including preparing and circulating to its stockholders
the Proxy Statement, as soon as practicable after the execution of this
Agreement.
(iv) VOTING AGREEMENT.
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The UbiquiTel Parent's stockholders named therein shall have executed and
delivered to LLC a voting agreement in a form reasonably satisfactory to LLC
(the "VOTING AGREEMENT"). UbiquiTel Parent shall exercise its reasonable best
efforts to defend and keep the Voting Agreement in full force and effect, and to
enforce the terms of such agreement.
(v) NASDAQ LISTING.
UbiquiTel Parent shall use reasonable best efforts and pay all costs and
expenses to timely apply for and to cause to be listed on The NASDAQ Stock
Market the UbiquiTel Stock to be issued in connection with the Mergers, upon
official notice of issuance.
4.2 UBIQUITEL ANNOUNCEMENTS.
The LLC Parties, UbiquiTel Parent, UbiquiTel and the Merger Subs shall not
issue any press release with respect to the transactions contemplated hereby;
PROVIDED, that UbiquiTel Parent may issue press releases with respect to the
transactions contemplated hereby, but shall allow LLC and its counsel adequate
advance notice and opportunity to review and comment upon, and shall consult
with, LLC before issuing any press release. To the extent that UbiquiTel Parent,
acting on the advice of counsel, is required as a public company to issue any
press releases promptly, it shall provide such notice and opportunity to review
as is consistent with its legal obligations as determined by its counsel.
ARTICLE 5
TERMINATION
5.1 REASONS FOR TERMINATION.
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned at any time prior to the Pre-Closing Date, notwithstanding
adoption thereof by the stockholders of UbiquiTel Parent, UbiquiTel, the Merger
Subs, the Members or the Stockholders, only by following the termination
procedures set forth in this Article 5, for the following reasons:
(a) BY MUTUAL CONSENT.
By the mutual written consent of UbiquiTel Parent and LLC, duly authorized
by the Board of Directors of UbiquiTel Parent and the Members Committee of LLC.
For purposes of this Agreement, "MEMBERS COMMITTEE" shall mean the members
committee of LLC comprised of ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(b) BY UBIQUITEL PARENT.
(i) By UbiquiTel Parent, after compliance with the procedures set
forth in this Article 5, if any of the conditions set forth in Section
3.2 (UBIQUITEL PARENT, UBIQUITEL AND MERGER SUBS' CONDITIONS) have not
been met or shall become impossible to satisfy.
(ii) By UbiquiTel Parent, if UbiquiTel shall have exercised its right
to terminate the Management Agreement pursuant to Section 6.2 thereof.
(c) BY LLC.
By LLC, after compliance with the procedures set forth in this Article 5, if
any of the conditions set forth in Section 3.3 (LLC PARTIES' CONDITIONS TO
CLOSING) have not been met or shall become impossible to satisfy.
(d) DROP DEAD DATE.
By either of UbiquiTel Parent or LLC (acting through the Members Committee),
if the Effective Date shall not have occurred on or before September 30, 2001
(the "TERMINATION DATE"), otherwise than as a result of any material breach of
any provision of this Agreement by the Party seeking to
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effect such termination; PROVIDED, HOWEVER, that the Termination Date shall be
extended (i) by the number of days, if any, to cure any curable matter that is
the subject of a notice under Section 5.3 (UBIQUITEL PARENT'S TERMINATION
PROCEDURE) or Section 5.4 (LLC'S TERMINATION PROCEDURE), and (ii) by the number
of days, if any, required to comply with Section 3.2(f) hereof.
5.2 NOTICE OF PROBLEMS.
Each Party will promptly give written notice to the other Parties when it
becomes aware of the occurrence or failure to occur, or the impending or
threatened occurrence or failure to occur, of any fact or event that would cause
or constitute, or would be likely to cause or constitute (i) any of its
representations or warranties contained herein being or becoming untrue or
incorrect, (ii) its failure to perform any of its covenants or agreements
contained herein, or (iii) any Mandatory Consent to be obtained by such Party
being unlikely to be obtained, or (iv) any of the conditions delegated to it, or
any condition to the obligation of the Parties contained in Section 3.1 (JOINT
CONDITIONS), being or becoming impossible to satisfy. No such notice shall
affect the representations, warranties, covenants, agreements or conditions of
the Parties hereunder, or prevent any Party from relying on the representations
and warranties contained herein.
5.3 UBIQUITEL PARENT'S TERMINATION PROCEDURE.
If UbiquiTel Parent discovers, by reason of a written notice given pursuant
hereto or otherwise, circumstances that would give it the right to terminate
this Agreement pursuant to Section 5.1(b) (BY UBIQUITEL PARENT), then UbiquiTel
Parent shall deliver a written notice to the LLC Parties of such circumstances,
specifying the factual basis therefor in reasonable detail. The LLC Parties
shall have the right to cure any such matter within 20 business days following
the date of delivery of such notice, unless it is manifest that such matter is
not curable. If such circumstances create a termination right pursuant to
Section 5.1(b) (BY UBIQUITEL PARENT), then after such written notice and the LLC
Parties' failure to cure, or immediately following such written notice if it is
manifest that such matter is not curable, UbiquiTel Parent may terminate this
Agreement by giving a written notice of termination to the LLC Parties.
5.4 LLC'S TERMINATION PROCEDURE.
If LLC discovers, by reason of a notice given pursuant hereto or otherwise,
circumstances that would give it the right to terminate this Agreement pursuant
to Section 5.1(c) (BY LLC), then LLC, acting through the Members Committee,
shall deliver a notice to UbiquiTel Parent of such circumstances, specifying the
factual basis therefor in reasonable detail. UbiquiTel Parent shall have the
right to cure any such matter within 20 business days following the date of
delivery of such notice, unless it is manifest that such matter is not curable.
If such circumstances create a termination right pursuant to Section 5.1(c) (BY
LLC), then after such written notice and UbiquiTel Parent's failure to cure, or
immediately following such written notice if it is manifest that such matter is
not curable, LLC may terminate this Agreement by giving a written notice of
termination to UbiquiTel.
5.5 EFFECT OF TERMINATION.
Upon termination hereof pursuant to this Article 5, no Party shall have any
liability or continuing obligation to another Party arising out of this
Agreement, or out of actions taken in connection herewith, except that this
Section 5.5 and Section 13.12 (CONFIDENTIALITY) shall survive termination
hereof; PROVIDED, HOWEVER, that nothing herein shall limit or eliminate any
liability that any Party may have to another in law or in equity for any breach
of this Agreement; and PROVIDED FURTHER, that nothing herein shall limit or
eliminate the right of LLC to enforce payment of the sum of $4,900,000 required
to be paid by UbiquiTel Parent and UbiquiTel upon termination of this Agreement
for the reasons set forth in Section 3.2(f) hereof.
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5.6 NO RIGHT TO TERMINATE AFTER PRE-CLOSING DATE.
No Party shall have any right to terminate this Agreement for any reason
from and after the Pre-Closing Date.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES CONCERNING LLC
For purposes of this Article 6, unless otherwise expressly stated herein or
the context requires otherwise, the "COMPANIES" shall mean LLC and the LLC
Subsidiary, collectively and "COMPANY" shall mean LLC or LLC Subsidiary,
singularly. References to "LLC'S KNOWLEDGE" or words of similar import mean (i)
the actual knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, and (ii) the
knowledge the foregoing individuals would have after reasonable inquiry and
diligence. Subject to the limitations set forth in Article 12 (INDEMNIFICATION)
hereof, the Members and the Stockholders, jointly and severally, represent and
warrant to UbiquiTel Parent, UbiquiTel and the Merger Subs that, except as
specifically set forth on the disclosure schedule to this Article 6, which shall
be organized by section and sub-section numbers corresponding to this Article 6
(the "LLC DISCLOSURE SCHEDULE"):
6.1 LLC; ENTRY INTO AGREEMENTS.
(a) ORGANIZATION AND GOOD STANDING.
LLC is a limited liability company duly organized and validly existing under
the laws of the State of California and is in good standing under such laws. LLC
Subsidiary is a limited liability company duly organized and validly existing
under the laws of the State of Nevada and is in good standing under such laws.
Each of the Companies has all requisite power and authority to own, lease and
operate all properties and assets owned or leased by it and to conduct its
business as previously and currently conducted by it. Each of the Companies is
qualified to do business and is in good standing in each jurisdiction in which
it is required to be so qualified, except where the lack of such qualification
would not have a material adverse effect on the Companies. The LLC Disclosure
Schedule lists all jurisdictions in which each Company is qualified to do
business as a foreign entity. LLC has made available to UbiquiTel true, correct
and complete copies of the Organizational Documents of LLC and LLC Subsidiary,
as currently in effect. LLC is a successor in interest to Central Wireless
Partnership, which was a general partnership duly organized and validly existing
under the laws of California. The merger of Central Wireless Partnership into
LLC conformed in all material respects with the laws of California and all
necessary action was taken to cause LLC to succeed to all of the properties,
franchises, permits, liabilities, and businesses of Central Wireless
Partnership.
As used in this Agreement, the term "ORGANIZATIONAL DOCUMENTS" means
(a) the articles or certificate of incorporation and the bylaws of a
corporation; (b) the partnership agreement and any statement of partnership of a
general partnership; (c) the limited partnership agreement and the certificate
of limited partnership of a limited partnership; (d) the articles or certificate
of organization and the regulations or operating agreement of a limited
liability company; (e) any charter or similar document adopted or filed in
connection with the creation, formation, or organization of an entity; and (f)
any amendment to any of the foregoing.
(b) VALIDITY AND AUTHORIZATION; POWER AND AUTHORITY.
This Agreement and the Related Agreements have been duly authorized,
executed and delivered by LLC and constitute (or, in the case of Related
Agreements or instruments called for hereby or thereby to be executed by LLC at
or before the Closing, upon execution will constitute) the legal, valid and
binding obligation of LLC enforceable against LLC in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws
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relating to creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) SUBSIDIARY.
Except for the ownership of all of the issued and outstanding Member
Interests of VIA Building, LLC (the "LLC SUBSIDIARY") by LLC, no Company owns
any capital stock or other equity interests, directly or indirectly, of any
corporation, partnership, association or other business entity and no Company is
a party to any agreement relating to the acquisition or disposition of such an
interest. LLC has good, valid and marketable title to all of the issued and
outstanding equity interests of LLC Subsidiary, free and clear of any Liens (as
defined in Section 6.4(a)(i) (TITLE) herein), other than Permitted Liens (as
defined in Section 6.4(a)(i) (TITLE) herein).
(d) NO CONFLICT.
Neither the execution, delivery or performance of this Agreement or the
Related Agreements, nor the consummation of the Mergers or the transactions
contemplated hereby or thereby will (i) result in any violation of the terms of,
(ii) contravene or conflict with, (iii) accelerate the performance of the
obligations required under, (iv) constitute a default under, (v) give any right
of termination or cancellation under, or (vi) give any right to make any change
in any of the liabilities or obligations under, the Organizational Documents of
any Company, as appropriate, any Order (as defined in Section 6.5(c)(ii)
(ORDERS) herein), or any agreement, contract, note, bond, debenture, indenture,
mortgage, deed of trust, lease, License, judgment, decree, order, law, rule or
regulation or other restriction applicable to any Company or to which any
Company is a party or by which any Company or its property or assets are bound
or affected that, in any such case, will result in a material adverse effect on
any Company. Neither the execution, delivery and performance of this Agreement
or the Related Agreements, nor the consummation of the transactions contemplated
hereby or thereby will result in the creation of any Lien upon any of the
properties or assets of any Company.
(e) LLC PARTIES CONSENTS REQUIRED.
The LLC Disclosure Schedule lists all LLC Parties Consents for which filing
or other action is required by LLC. Subject to Sections 2.1(d) and 2.1(f), LLC
has taken or shall have taken prior to the Pre-Closing Date all other actions
necessary for the consummation by LLC of the transactions contemplated by this
Agreement and the Related Agreements.
6.2 FINANCIAL INFORMATION.
(a) FINANCIAL STATEMENTS; BOOKS AND RECORDS.
Attached to the LLC Disclosure Schedule are true and correct copies of
(i) the audited consolidated balance sheet for the Companies at December 31,
1999, and the related statement of profit and loss and cash flows for the
periods then ended, (ii) the unaudited consolidated balance sheet for the
Companies at December 31, 2000, and the related statement of profit and loss for
the twelve-month period then ended and (iii) when delivered pursuant hereto,
similar financial statements for each additional month ending after the date
hereof (collectively, the "LLC FINANCIAL STATEMENTS"). The LLC Financial
Statements fairly present the financial position of the Companies as of the
dates thereof and the results of the Companies' operations and cash flows for
the periods then ended, in accordance with GAAP, except for the variances from
GAAP set forth in the notes to the LLC Financial Statements, subject, in the
case of the LLC Financial Statements listed in items (ii) and (iii) of the
immediately preceding paragraph, to normal recurring period-end adjustments and
absence of notes and a statement of cash flows in each case that, if presented,
would not differ materially from those included in the financial statements for
the year ended December 31, 1999. For purposes of this Agreement, "GAAP" shall
mean those generally accepted accounting principles and practices which are used
in the United States and recognized as such by the American Institute of
Certified Public
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Accountants acting through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards or committees
thereof. Each of the Companies' books and records (including without limitation,
all financial records, business records, minute books, ownership transfer
records, customers lists, referral source lists and records pertaining to
services or products delivered to customers) (i) are complete and correct in all
material respects and all transactions to which such Company is or has been a
party are reflected therein in all material respects, (ii) have been maintained
in accordance with such Company's historical practices, and (iii) form the basis
for such Company's financial statements.
(b) CONDUCT OF BUSINESS.
Except as specifically contemplated herein, since December 31, 1999, no
Company has (i) changed its authorized or issued Members' Interests; granted any
option or right to purchase Members' Interests; issued any security convertible
into such Members' Interests; granted any registration rights; purchased,
redeemed, retired or otherwise acquired any Members' Interests; or declared or
paid any distribution or payment in respect of Members' Interests; (ii) amended
its Organizational Documents; (iii) sold or transferred (other than in the
ordinary course of business) any assets with a fair market value in excess of
$100,000 individually, or $250,000 in the aggregate; (iv) mortgaged, pledged or
subjected to any Lien (other than a Permitted Lien) or other encumbrance any
assets; (v) incurred or become subject to any debt, liability (including
indemnification, guaranty and repurchase obligations) or lease obligation, other
than current liabilities incurred in the ordinary course of business that do not
exceed $100,000 individually, or $250,000 in the aggregate; (vi) incurred
obligations or entered into or amended or terminated contracts outside of the
ordinary course of business; (vii) suffered any damage, destruction or loss of
any assets in the aggregate in excess of $50,000; (viii) experienced any
equipment malfunction that materially interfered or interferes with the conduct
of its business; (ix) waived or relinquished any material rights or canceled or
compromised any debt or claim owing to it, in either case, without adequate
consideration or not in the ordinary course of business; (x) made any change in
its accounting methods or practices; (xi) made any material change in its
billing and collection practices and procedures; (xii) paid any bonuses or made
any increase in the compensation, commissions or benefits payable or to become
payable to any of its officers, directors, employees, consultants or agents
other than in the ordinary course of business; (xiii) entered into any
transaction with any of its or LLC's Affiliates (including, without limitation,
by paying, distributing or transferring any funds or assets to the Members,
whether in their capacity as Members or in any other capacity other than the
payment of employment compensation to Members who are employees); (xiv) made
capital expenditures in excess of $10,000,000, in the aggregate; (xv) taken any
action to accelerate, amend or change the period of exercisability or vesting of
options or other rights granted under its PAR Plan, stock option or benefit
plans or, except as may be required pursuant to the terms of any such plan or
any agreement entered into prior to the date hereof pursuant thereto, authorized
cash payments in exchange for any options or other rights granted under any of
such plans; (xvi) entered into or amended any agreements pursuant to which any
other party was granted exclusive marketing, servicing, manufacturing or other
exclusive rights of any type or scope with respect to any of its services,
products, processes or technology; (xvii) paid, discharged, satisfied, settled
or compromised any case, claim, liability or obligation (absolute, accrued,
asserted or unasserted, contingent or otherwise) arising other than in the
ordinary course of business, other than the payment, discharge or satisfaction
of liabilities reflected or reserved against in the LLC Financial Statements;
(xviii) reduced the amount of any material insurance coverage provided by
existing insurance policies; (xix) revalued any of its assets, including without
limitation writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business except as required by
GAAP; (xx) entered into any agreement with any third party which limits in any
manner the territory or scope of activities which LLC or LLC Subsidiary may
engage; (xxi) other than in the ordinary course of business, made or changed any
material election in respect of Taxes (as defined in Section 6.5(b) (TAX
MATTERS) herein), adopted or changed any accounting method in respect of Taxes,
filed any amendment to a material Tax Return (as defined in
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Section 6.5(b) (TAX MATTERS) herein), or settled any claim or assessment in
respect of Taxes; (xxii) entered into any amendment or modification of the
Sprint Affiliation Agreement dated as of January 1999, by and between Sprint
Spectrum L.P. and Central Wireless Partnership (the "SPRINT AFFILIATION
AGREEMENT"), as amended, and any other agreements between LLC and Sprint or
incurred any breaches under such Agreement, or (xxiii) agreed to do any of the
foregoing. For purposes of this Agreement, "AFFILIATE" shall mean, with respect
to any Person (as defined herein), any other Person that, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person. For purposes of this Agreement, "PERSON"
shall mean an individual, corporation, partnership, joint venture, limited
liability company, association, joint stock company, trust, unincorporated
organization or other entity.
(c) NO MATERIAL ADVERSE EFFECT.
Except as contemplated by this Agreement, since the date of the most recent
LLC Financial Statements delivered prior to the date hereof, each Company has
conducted its business only in the ordinary course consistent with past practice
and there has been no event or occurrence that has caused a material adverse
effect on such Company other than economic conditions affecting the U.S. economy
generally or the telecommunications industry generally.
6.3 MEMBER INTERESTS; CAPITALIZATION.
The authorized, issued and outstanding equity interests of each Company, as
well as the identity of all of the Members and their respective ownership of
units of Members' Interests, are as set forth in the LLC Disclosure Schedule.
There are no other equity interests of any Company either authorized or
outstanding. All of the issued and outstanding units have been duly authorized
and validly issued, are fully paid and nonassessable and are free and clear of
any preemptive rights. No certificates have been issued to represent the
Members' LLC Interests or the equity interests of any Company. There are no
outstanding preemptive, conversion or other rights, or other options, warrants
or agreements granted by, issued by, or binding upon, any Company for the
issuance, sale, purchase, repurchase, redemption, acquisition or other transfer
of its equity securities.
6.4 ASSETS.
(a) PERSONAL PROPERTY.
(i) TITLE.
LLC or LLC Subsidiary is the owner of the assets reflected in the LLC
Financial Statements and has good and marketable title to all such assets that
are personalty (the "PERSONAL PROPERTY") (other than the leased Personal
Property described below), in each case free and clear of all Liens, except for
(A) liens for non-delinquent taxes and assessments, (B) liens of lessors arising
under statute, (C) other claims and encumbrances, charges or statutory liens
that do not materially detract from the value of, or impair the use or transfer
of, such Personal Property, Real Property (as defined in Section 6.4(b) (REAL
PROPERTY) herein) or other assets, (D) inchoate statutory liens for amounts not
yet payable, and (E) those liens listed as permitted liens on the LLC Disclosure
Schedule (the "PERMITTED LIENS"). For purposes of this Agreement, "LIENS" shall
mean security interests, liens (▇▇▇▇▇▇ or inchoate), encumbrances, mortgages,
pledges, equities, charges, assessments, easements, covenants, restrictions,
reservations, defects in title, encroachments and other burdens, whether arising
by contract or under law. With respect to any Personal Property that is leased,
LLC or LLC Subsidiary is in material compliance with each such lease and is the
sole holder of a valid and subsisting leasehold interest, free and clear of any
Liens, other than Permitted Liens. The LLC Disclosure Schedule lists all lease
agreements, service agreements or other agreements related to leased Personal
Property (the "EQUIPMENT LEASES").
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(ii) FACILITIES AND EQUIPMENT.
All buildings, facilities, offices, improvements on real estate, fixtures,
machinery, equipment, vehicles or other properties, owned or leased by any
Company for the conduct of its business (A) are in good condition and repair,
reasonable wear and tear excepted, and (B) are sufficient for all business
operations as presently conducted by such Company.
(iii) BANK ACCOUNTS.
The LLC Disclosure Schedule sets forth the names and locations of all banks,
trust companies, savings and loan associations and other financial institutions
at which any Company maintains accounts of any nature (collectively, the
"ACCOUNTS"), the numbers of such accounts and the names of all persons
authorized to draw thereon or to make withdrawals therefrom. The LLC Disclosure
Schedule also sets forth the name of each Person holding a general or special
power of attorney from LLC or LLC Subsidiary and a description of the terms of
such power.
(b) REAL PROPERTY.
(i) FEE SIMPLE.
The LLC Disclosure Schedule sets forth a description of each parcel of real
property owned by any Company and identifies which Company owns such real
property, including, but not limited to, those properties reflected on the LLC
Financial Statements (the "REAL PROPERTY"), together with a summary description
of the buildings, structures and improvements thereon. Such Company has good and
marketable title in fee simple absolute to all Real Property, and to the
buildings, structures and improvements thereon, in each case free and clear of
all Liens other than Permitted Liens. Except for such leases, licenses and other
interests as are particularly described in the LLC Disclosure Schedule, such
Company has not granted any leases, licenses or other interests in the Real
Property or any part thereof. All leases, licenses or other interests disclosed
therein are current, in good standing, and no Company is in default thereunder.
(ii) LEASES.
The LLC Disclosure Schedule sets forth a description of the nature of each
Company's possession and use of the land, premises, buildings, structures and
improvements held by lease, license or otherwise (the "LEASED PREMISES") and
sets forth a description of the material basic terms of the lease or other
instrument involved (including, without limitation, the term, the number of
renewal options, if any, and the amount of rent or charges due thereunder), such
leases, subleases (including, without limitation, the prime leases governing
such subleases), licenses, easement agreements or co-location agreements with
respect thereto, including all amendments or modifications thereto and all
assignments thereof, together with those agreements in which a Company has
leased certain portions of the Real Property to third parties and/or has
subleased or licensed portions of the Leased Premises to third parties, all as
described in the LLC Disclosure Schedule, the "REAL ESTATE CONTRACTS".
The Company identified as such in the LLC Disclosure Schedule is the sole
holder of valid and subsisting leases, licenses or other interests in the Leased
Premises as specified therein, free and clear of any Liens, other than Permitted
Liens. All rental payments, charges, fees and other amounts due and payable by
any Company in connection with the Real Estate Contracts are current, there are
no defaults by any Company with respect thereto or, to LLC's knowledge, by any
other party thereto, and no event has occurred that, with the passing of time or
the giving of notice or both, would constitute a default (x) by any Company
thereunder or (y) to LLC's knowledge, by any other party thereunder. The
lessors, licensors, sublessors or grantors to LLC under the Real Estate
Contracts (the "LESSORS") have no defense, setoff or counterclaim against any
Company or against any Member arising out of the Real Estate Contracts or in any
way relating thereto. No lessee, sublessee or licensee of any Company has a
defense, setoff or counterclaim against any Company arising out of the Real
Estate Contracts or in any
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way related thereto. All options in favor of any Company to purchase any of the
Leased Premises, if any, are in full force and effect and are described in the
LLC Disclosure Schedule. To the extent applicable to the Leased Premises, such
Company is in exclusive and continuing possession of the Leased Premises and,
subject to the terms of the related Real Estate Contract, has the right to quiet
enjoyment of the Leased Premises for the full term of the related Real Estate
Contract and any renewal option related thereto. Each Real Estate Contract is in
full force and effect and has not been modified, changed, altered or amended in
any respect (other than as set forth in the LLC Disclosure Schedule), no Real
Estate Contract is terminable as a result of the transaction contemplated
herein, and no leasehold or other interest of any Company in the Leased Premises
is subject or subordinate to any Lien, other than Permitted Liens. LLC has made
available to UbiquiTel true, correct and complete copies of all Real Estate
Contracts, including any and all subleases, amendments or supplements thereto,
and guaranties or other security in connection therewith. There are no leasing
or other fees or commissions due, nor will any become due, in connection with
the Real Estate Contracts or any renewals or extensions or expansions
thereunder.
The Real Estate Contracts constitute all agreements with respect to the
leases, licenses and other interests set forth in the LLC Disclosure Schedule,
and there are no agreements, written or oral, other than the Real Estate
Contracts, concerning the Leased Premises. No Company has assigned its interest
in any of the Real Estate Contracts nor sublet any of the Leased Premises
thereunder, nor does any Company hold and occupy the Leased Premises under
assignment or sublease from any other party, except as provided in the LLC
Disclosure Schedule. No Company has received any written notice of, or has any
knowledge with respect to, any current violation of any judgment, writ, decree,
order, law, statute, ordinance, code, rule or regulation with respect to the
Real Estate Contracts, Leased Premises or Real Property ("LAWS"), including,
without limitation, zoning violations and violations of the Americans With
Disabilities Act, on the Leased Premises or the Real Property, and the
applicable Company is in occupancy and possession of the Leased Premises and the
Real Property in material compliance with all Laws.
(iii) TOWER LEASES.
With respect to leases or licenses of tower space to which any Company is a
party ("TOWER LEASES"), to LLC's knowledge, (A) there are no applications,
ordinances, petitions, resolutions or other matters pending before any
governmental agency having jurisdiction to act on zoning changes that would
prohibit or make nonconforming the use of any of the Leased Premises by such
Company, (B) no Company has voluntarily granted any, and is not a party to any
agreement providing for, any easements, conditions, restrictions, reservations,
rights or options that would materially and adversely affect the use of the
Leased Premises under the Tower Leases, except for Permitted Liens; and (C) of
those Real Estate Contracts where a Company has leased, sublet, or licensed
space on the applicable Leased Premises for purposes of constructing a tower or
an addition to an existing tower thereon: the tower or referenced additions
thereto are fully constructed and operational; all contracts under any and all
construction agreements, written or oral, have been paid in full; there are no
conditions of default existing under said construction agreements as of the date
of this Agreement; and no Liens (other than Permitted Liens) have or will attach
to the applicable Real Property arising from said construction agreements. For
purposes of this Agreement, the Tower Leases are included in and are a part of
the Real Estate Contracts, and all of the representations and warranties set
forth in Section 6.4(b)(ii) above apply to the Tower Leases.
(c) INTELLECTUAL PROPERTY.
(i) INTELLECTUAL PROPERTY.
The term "INTELLECTUAL PROPERTY" shall include all fictitious business
names, trade names, registered and unregistered trademarks, service marks and
applications owned, used or licensed by any Company (collectively, "MARKS"), all
patents and patent applications (if any) owned, used or licensed by any
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Company (collectively, "PATENTS"), all registered and unregistered copyrights
(if any) in both published works and unpublished works owned, used or licensed
by any Company (collectively, "COPYRIGHTS"), and all know-how, inventions, trade
secrets, confidential information, software, technical information, process
technology, plans, drawings and blue prints owned, used or licensed by any
Company as licensee or licensor (collectively, "TRADE SECRETS"). The
Intellectual Property also includes all such rights and assets of any Company
under all contracts to which any Company is a party or by which any Company is
bound relating to the Intellectual Property including, without limitation,
contracts by which any Company licenses Intellectual Property to third parties
and contracts by which third parties license to, or otherwise permit the use of
its intellectual property by, any Company (collectively, "TECHNOLOGY
CONTRACTS").
(ii) OWNERSHIP.
Except with respect to Intellectual Property licensed by a Company from a
third party pursuant to a Technology Contract, one or more of the Companies is
the owner of all right, title and interest in and to the Intellectual Property,
free and clear of all Liens (other than Permitted Liens). The Intellectual
Property includes all such property necessary for the operation of the
respective businesses of the Companies as they currently are proposed to be, and
have been, conducted. Without limiting the foregoing, each Company is properly
licensed to use all computer software (and copies thereof) used by it. No right,
license or consent of, or payment to, any third party will be required as a
result of consummation of the transactions contemplated hereby for the continued
use of the Intellectual Property by the Companies. The LLC Disclosure Schedule
contains a list of all Company-owned Intellectual Property and Intellectual
Property licensed by a Company from a third party. The Companies have taken
reasonable precautions to protect the secrecy, confidentiality and value of the
Intellectual Property. Neither LLC, LLC Subsidiary nor the Members have ever
received, or have any knowledge of, any claim alleging any interference,
infringement, misappropriation, or violation of any Intellectual Property of any
Person (including any claim that LLC or LLC Subsidiary must license or refrain
from using any Intellectual Property of any Person). To LLC's knowledge, no
Person has interfered with, infringed upon, misappropriated, or otherwise
misused any Intellectual Property of LLC or LLC Subsidiary.
(iii) TECHNOLOGY CONTRACTS.
The LLC Disclosure Schedule contains an accurate and complete list of all of
the Technology Contracts, including all of the parties to each Technology
Contract. Each Company is, and to LLC's knowledge, each other party to the
Technology Contracts is, in compliance with all Technology Contracts in all
material respects, is not currently in default thereunder, and no event has
occurred that, with the passing of time or the giving of notice or both, would
constitute a default thereunder.
(d) CONTRACTS.
(i) DEFINITION.
The LLC Disclosure Schedule lists all agreements, contracts, notes, bonds,
debentures, indentures, mortgages, deeds of trust, leases, licenses, obligations
and promises (whether written or oral) (together with the Equipment Leases, the
Real Estate Contracts and the Technology Contracts, the "CONTRACTS")) that are
material to the business of any Company, including, without limitation, all the
foregoing (A) that provide for future payments, claims or obligations to or from
any Company of $25,000 or more per year or $100,000 or more over the term
thereof, or (B) that are (1) collective bargaining agreements or other
agreements with any labor union, (2) joint venture agreements, partnership
agreements or other agreements involving a sharing of profits, losses, costs or
liabilities, (3) agreements containing covenants that in any way purport to
restrict the business activity of any Company or limit the freedom of any
Company to engage in any line of business or to compete with any Person,
(4) standard forms of agreements providing for payments to or for any Person
based on sales,
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originations, closings, purchases or profits (other than direct payments for
goods), (5) powers of attorney, (6) agreements providing for the payment of
special or consequential damages by any Company, (7) agreements relating to
capital expenditures in excess of $100,000 by any Company, (8) warranties
regarding products or services, guarantees or other similar undertakings by any
Company, (9) agreements involving indemnification for obligations of third
parties, (10) employment, secrecy, proprietary information, noncompetition,
restrictive covenant, or confidentiality agreements with key employees, (11)
requirements or output contracts, (12) business alliance or joint marketing
agreements, (13) agreements with Sprint Communication Company, L.P., Sprint
Spectrum, L.P. or Sprint PCS or any of their Affiliates, (14) documents related
to debt for borrowed money, or (15) amendments, modifications or supplements to
any of the foregoing. As used herein, the term "CONTRACTS" also shall be deemed
to refer to all agreements between any Company, on the one hand, and any Member,
any Affiliate of any Member, or any director or executive officer of any
Company, on the other hand.
(ii) SPRINT AGREEMENTS.
The Sprint Affiliation Agreement and the related Sprint agreements (which
agreements are included in the definition of "Contracts" set forth above) are in
full force and effect as of the Signing Date. LLC has received no notice of
default with respect to the Sprint Affiliation Agreement and the related Sprint
agreements, other than as specifically disclosed on the LLC Disclosure Schedule.
Sprint has given its consent to the transactions contemplated by the Merger
Agreement and the Related Agreements and such consent has not been modified or
withdrawn.
(iii) RTFC LOAN AGREEMENT.
As of the date hereof, the loan agreement (the "RTFC LOAN AGREEMENT") by and
between LLC, as borrower, and the Rural Telephone Finance Cooperative (the
"LENDER") and all other Loan Documents (as that term is defined in the RTFC Loan
Agreement), are in full force and effect, without any amendments, and no Default
(as that term is defined in the RTFC Loan Agreement) (a "DEFAULT") exists and no
Event of Default (as that term is defined in the RTFC Loan Agreement) (an "EVENT
OF DEFAULT") has occurred or is continuing under the RTFC Loan Agreement, nor
has any Company received any notice from the Lender alleging that a Default or
an Event of Default has occurred or is continuing.
(iv) LEGALLY BINDING.
All of the Contracts are legal, valid and binding on the Company party
thereto, are in full force and effect and represent legitimate transactions. No
Company is in violation of or default under any of the Contracts and, to LLC's
knowledge, no other party to any Contract is in material violation or default
thereunder. No event, occurrence or condition exists which, with the lapse of
time, the giving of notice, or both, would become a material violation or
default by any Company or, to LLC's knowledge, any other party thereto, under
any Contract. There are no outstanding, and to LLC's knowledge, no threatened,
disputes or disagreements with respect to any of the Contracts. No Company has
released any material rights under any Contract. All rights of the Companies
under the Contracts will be enforceable by the Companies after the Closing
without the consent or agreement of any other party.
(v) COPIES.
LLC has made available to UbiquiTel true and complete copies of each
Contract, including all amendments thereto. There are no unwritten amendments
to, or waivers under, any Contract.
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6.5 LIABILITIES.
(a) NO UNDISCLOSED LIABILITIES.
There are no liabilities of any Company, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances having specific application to the
Companies (excluding general, economic or industry conditions) which could
reasonably be expected to result in any such liability, other than (i)
liabilities disclosed and/or provided for in the most recent LLC Financial
Statements, (ii) liabilities incurred in the ordinary course of business
consistent with past practices since the date of the most recent LLC Financial
Statements, or (iii) liabilities under this Agreement or the Related Agreements
or reflected in any schedule, exhibit or other documents delivered in connection
herewith or therewith.
(b) TAX MATTERS.
(i) All material Tax Returns required to be filed by or on behalf of
each Company have been properly prepared and timely filed with the
appropriate taxing authorities in all jurisdictions in which such Tax
Returns are required to be filed (after giving effect to any valid
extensions of time in which to make such filings) and all such Tax
Returns were true, complete and correct in all material respects. LLC has
been subject to tax as a partnership for federal, state, local and
foreign income tax purposes since its inception.
(ii) All Taxes (whether or not shown on any Tax Returns) payable by
or on behalf of the Companies have been fully and timely paid, including
all required estimated tax payments sufficient to avoid any
understatement penalties. The cash reserves or accruals for Taxes
provided in the books and records of the Company with respect to any
period for which Tax Returns have not yet been filed or for which Taxes
are not yet due and owing are, or prior to the Pre-Closing Date, will be,
sufficient for all unpaid Taxes of the Company through and including the
Pre-Closing Date (including, without limitation, with respect to any
Taxes resulting from the Transactions contemplated by this Agreement).
Neither Company has any liability for Taxes of any other Person as a
transferee, successor, by contract or otherwise, except with respect to
Taxes for which withholding may be required. There are no Liens as a
result of any unpaid Taxes upon any of the assets of the Companies.
(iii) The Companies have not executed or filed with the Internal
Revenue Service or any other taxing authority any agreement, waiver or
other document or arrangement extending or having the effect of extending
the period for assessment or collection of Taxes (including, but not
limited to, any applicable statute of limitation), and no power of
attorney with respect to any Tax matter is currently in force. The
Companies are not the subject of any private letter ruling of the
Internal Revenue Service or comparable rulings of other taxing
authorities.
(iv) The Companies have complied in all material respects with all
applicable laws, rules and regulations relating to the payment and
withholding of Taxes on amounts paid or owing to any employee,
independent contractor, creditor, Member or other third party and have
duly and timely withheld and paid over to the appropriate taxing
authorities all Taxes with respect to such amounts.
(v) All deficiencies asserted or assessments made as a result of any
examinations by the Internal Revenue Service or any other taxing
authority of the Tax Returns of or covering or including the Companies
have been fully paid, and there are no other audits or investigations by
any taxing authority or proceedings in progress, nor have the Members or
the Companies received any notice from any taxing authority that it
intends to conduct such an audit or investigation. No issue has been
raised by a U.S. federal, state, local or foreign taxing authority in any
current or prior examination of the Companies which, by application of
the same or similar principles, could reasonably be expected to result in
a proposed material
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deficiency for any subsequent taxable period. No claim has been made by a
taxing authority in a jurisdiction where the Companies do not file Tax
Returns such that they are or may be subject to taxation by that
jurisdiction.
(vi) Neither the Companies, nor any other Person (including any of
the Members) on behalf of the Companies, has (A) agreed to or is required
to make any adjustments pursuant to Section 481(a) of the Code or any
similar provision of state, local or foreign law by reason of a change in
accounting method initiated by the Companies, or has any application
pending with any taxing authority requesting permission for any changes
in accounting methods that relate to the business or operations of the
Companies, or has otherwise taken any action that would have the effect
of deferring any liability for Taxes from any taxable period ending on or
before the Effective Date to any taxable period ending thereafter or
(B) executed or entered into a closing agreement pursuant to Section 7121
of the Code or any predecessor provision thereof or any similar provision
of state, local or foreign law with respect to the Companies.
(vii) Except for this Agreement or as provided in the Operating
Agreement, the Companies are not parties to any tax-sharing or similar
agreement or arrangement (whether or not written) pursuant to which the
Companies will have any obligation to make any payments after the
Pre-Closing Date.
(viii)There is no contract, agreement, plan or arrangement covering
any person that, individually or collectively, could give rise to the
payment of any amount that would not be deductible by UbiquiTel or any of
its Affiliates by reason of Section 280G of the Code, or would constitute
compensation in excess of the limitation set forth in Section 162(m) of
the Code.
(ix) Each Company has substantial authority for the treatment of or
has disclosed (in accordance with Section 6662(d)(2)(B)(ii) of the Code)
on its federal income Tax Returns all positions taken therein that could
give rise to a substantial understatement of federal income tax within
the meaning of Section 6662(d) of the Code.
(x) As used in this Agreement, the term "TAXES" means all federal,
state, local, foreign and other governmental net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, lease, service, service use, withholding, payroll, employment,
unemployment, excise, severance, stamp, occupation, premium, property,
windfall profits, customs, duties or other taxes, fees, assessments or
charges of any kind whatever, together with any interest and any
penalties, additions to tax or additional amounts with respect thereto,
and the term "TAX" means any one of the foregoing Taxes; the term "TAX
RETURNS" means all returns, declarations, reports, statements and other
documents required to be filed in respect of Taxes; and the term "CODE"
means the Internal Revenue Code of 1986, as amended (all citations to the
Code, or to the Treasury Regulations promulgated thereunder, shall
include any amendments or any substitute or successor provisions
thereto).
(c) LITIGATION.
(i) PROCEEDINGS.
There is no pending action, arbitration, audit, charge, complaint, demand,
litigation or suit (whether civil, criminal or administrative (including,
without limitation, Equal Employment Opportunity Commission, Department of Labor
or Office of Federal Contract Compliance, National Labor Relations Board, and
similar state or federal agencies)) that (A) has been received or commenced by
or against any Company, or (B) has been received or commenced by or against any
Company and that relates to this Agreement, any Related Agreement or the
transactions contemplated herein or therein (collectively, the "PROCEEDINGS"),
and, to LLC's knowledge, no such Proceedings have been threatened.
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(ii) ORDERS.
There is no award, decision, injunction, judgment, order, ruling, subpoena,
writ or verdict of any court, arbitrator or government agency (each, an "ORDER")
to which any Company is subject that relates to or affects this Agreement, any
Related Agreement or the transactions contemplated herein or therein.
(iii) DISCLOSURE SCHEDULE.
The LLC Disclosure Schedule sets forth a brief description of each
Proceeding pending or, to LLC's knowledge, threatened at the date hereof.
(d) EMPLOYEE LIABILITIES.
The LLC Disclosure Schedule accurately lists as of the date set forth
therein, (i) the hire date of and year-to-date cash compensation paid to each
employee of each Company (specifying as to each such employee the respective
amounts of base salary, bonus and commissions paid to such employee), (ii) the
monthly salary of each employee for each of the last 12 months, (iii) all
written employee policies of each Company, and (iv) all accrued and unpaid
commissions, bonus payments or vacation pay due to employees of each Company as
of December 31, 2000.
(e) WARRANTIES.
There are no express written warranties with respect to the quality or
absence of defects of the systems, products or services that any Company has
sold or performed which are in force as of the date hereof. No Company has been
required to pay direct, incidental, or consequential damages to any Person in
connection with any of such systems, products or services at any time during the
three year period preceding the date hereof.
6.6 INSURANCE.
The LLC Disclosure Schedule contains a list of all insurance policies
maintained by each Company (including, without limitation, policies on its
assets, and upon its business and operations), against loss or damage, risks,
hazards and liabilities (the "POLICIES"). The Policies are valid and enforceable
and, to LLC's knowledge, are with insurers that are financially sound and
reputable. The premiums due and owing with respect to the Policies have been
paid, premiums not yet due have been adequately accrued for, and no Company has
received any written notice of cancellation or of intention not to renew any
such Policy. The LLC Disclosure Schedule also sets forth a list of each other
insurance policy or insurance contract relating to any Company or the business
of any Company pursuant to which any Company is or may hereafter be entitled to
assert claims for insurance coverage (the "PRIOR POLICIES"). The covered Company
or Companies have timely pursued all rights to recover (if any) under the
Policies and the Prior Policies.
6.7 EMPLOYEES.
(a) To LLC's knowledge, no officer, employee or independent contractor
of any Company is in violation of any term of any contract, proprietary
information agreement, noncompetition agreement, or any other agreement to a
former employer relating to the right of any such person to be engaged by
such Company or to the use of Intellectual Property of others in any
Company's business (an "OUTSIDE CONFIDENTIALITY AGREEMENT"). There are
neither pending, nor to LLC's knowledge, threatened, any Proceedings with
respect to any Outside Confidentiality Agreement.
(b) There is no labor strike, dispute, slowdown, picketing or
stoppage pending or, to LLC's knowledge, threatened against or directly
affecting any Company, nor has any Company experienced any of the foregoing
since its formation. No Company is subject to any collective
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bargaining agreement. No union representation exists and, to LLC's
knowledge, there has been no union organization effort respecting the
employees of any Company.
(c) LLC and LLC Subsidiary are in material compliance with all
applicable laws relating to the employment of labor and the
employer-employee relationship and with all agreements relating to the
employment of its employees, including applicable wage and hour laws, equal
opportunity laws, fair employment laws, safety laws, worker compensation
statutes, unemployment laws, benefits laws, immigration/visa regulations
(e.g., H-1B) and social security laws. No proceedings are pending or
threatened by or against LLC or LLC Subsidiary concerning: wages,
compensation, bonuses, commissions, awards, benefits, or payroll deductions,
wrongful termination, negligent hiring, invasion of privacy or defamation,
noncompetition agreements or similar restrictive covenants, equal employment
or alleged violations regarding race, color, religion, sex, national origin,
age, handicap, veteran's status, pregnancy, marital status, disability, or
any other recognized class, status, or attribute under any federal, state,
local or foreign equal employment law prohibiting discrimination or any
other claim based on the employment relationship or termination of the
employment relationship (collectively "LABOR CLAIMS"), and LLC knows of no
basis for any Labor Claim against LLC.
(d) Neither LLC nor LLC Subsidiary is bound by or subject to (and none
of its respective assets or properties is bound by or subject to) any
arrangement with any labor union. No employees of LLC or LLC Subsidiary are
represented by any labor union or covered by any collective bargaining
agreement and, to LLC's knowledge, no campaign to establish such
representation is in progress.
6.8 EMPLOYEE BENEFIT PLANS.
(a) The LLC Disclosure Schedule lists all employee benefit plans,
programs, payroll practices, arrangements and contracts (including each
"employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), and all other
bonus, scholarship program, retirement, deferred compensation, stock bonus,
stock purchase, restricted stock, stock option, oral or written commitment
regarding retiree health, life or any other retiree benefit, employment,
dependent care, cafeteria plan, hospitalization, medical insurance,
termination, stay agreement or bonus, value appreciation, change in control
and severance plan, program, arrangement or contract that LLC and/or any
Member or any trade or business whether or not incorporated which are under
control (collectively referred to as the "COMBINED COMPANY"), or which are
treated as a single employer with the Combined Company under Section 414(b),
(c), (m) or (o) or the Code ("ERISA AFFILIATE"), which the Combined Company
or an ERISA Affiliate maintains or ever has maintained, or to which the
Combined Company or any ERISA Affiliate contributes, ever has contributed or
ever has been required to contribute in connection with its employees (the
"EMPLOYEE BENEFIT PLANS"). None of the Employee Benefit Plans is a
"Multiemployer Plan" or is or has been subject to Sections 4063 or 4064 or
ERISA.
(b) All Employee Benefit Plans (and each related trust, insurance
contract or fund) comply in form and in operation in all material respects
with the applicable requirements of all laws, rules and regulations
governing or applying to such Employee Benefit Plans, including without
limitation ERISA and the Code, and each such Plan has been operated in
accordance with its terms, except as will not have a material adverse effect
on any Company or ERISA Affiliate.
(c) No liability has been incurred, and there exists no material
condition or circumstance which could result in any material liability to
any Combined Company or ERISA Affiliate under ERISA, the Code or any other
applicable law, other than liability for benefits due under the appropriate
Employee Benefit Plans. All contributions (including all employer and
employee salary
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reduction contributions) which are required to be made under any of such
Plans or by law (without regard to any waivers granted under Section 412 of
the Code), to any funds or trusts established thereunder or in connection
therewith, have been made by the due date thereof (including any valid
extension), and all contributions for any period ending on or before the
Pre-Closing Date which are not yet due will have been paid on or prior to
the Pre-Closing Date.
(d) No Company or ERISA Affiliate, "party in interest" or "disqualified
person" with respect to the Employee Benefit Plans has engaged in or
permitted to occur, any transaction prohibited by ERISA Section 406 or any
"prohibited transaction" under Code Section 4975(c) or any breach of
fiduciary duty under ERISA with respect to any Employee Benefit Plans,
except for any transactions which are exempt under ERISA Section 408 or Code
Section 4975.
(e) All filings required by ERISA and the Code as to each Employee
Benefit Plan have been timely filed, and all notices and disclosures to
participants required by either ERISA or the Code, including all notices
required under ERISA Section 601 ET SEQ. and Code Section 4980B, have been
timely provided. Each Combined Company and ERISA Affiliate has complied in
all material respects with all of the provisions of Parts 6 and 7 of Title I
of ERISA and Code Section 4980B, except as will not have a material adverse
effect on such Combined Company or ERISA Affiliate.
(f) All the Combined Companies and ERISA Affiliates have made available
to UbiquiTel correct and complete copies of the plan documents, contracts
and summary plan descriptions, the most recent determination letter received
from the Internal Revenue Service, where applicable, the most recent three
years of Form 5500 Annual Reports, where applicable, all related trust
agreements, insurance contracts and other funding agreements which implement
each Employee Benefit Plan, written communications to employees relating to
the Employee Benefit Plans, if any, written descriptions of any non-written
agreements relating to the Employee Benefit Plans, if any, and such other
documents requested by UbiquiTel with respect to each Employee Benefit Plan.
(g) There are no pending actions, claims, lawsuits, arbitrations,
governmental or other proceedings or investigations which have been
asserted, instituted or threatened against the Employee Benefit Plans, the
assets of any of the trusts under such plans, the plan sponsor or the plan
administrator, or against any fiduciary of the Employee Benefit Plans with
respect to the operation of such plans (other than routine benefit claims)
and the investment of assets of such Plans, including any investigation or
review by the IRS, Department of Labor or the Pension Benefit Guaranty
Corporation, nor does the Combined Company or any ERISA Affiliate have
knowledge of facts which could reasonably be expected to form the basis for
any such claim, lawsuit, arbitration, governmental or other proceeding or
investigation.
(h) Neither the Combined Company nor any ERISA Affiliate has:
(i) withdrawn in a complete or partial withdrawal from any Multiemployer
Plan prior to the Pre-Closing Date; (ii) incurred any liability due to the
termination or reorganization of a Multiemployer Plan; (iii) terminated any
"Pension Plan", as defined in Section 3(2) of ERISA, or filed a notice of
termination with respect to any Pension Plan; or (iv) received a notice of
termination issued by the Pension Benefit Guaranty Corporation pursuant to
Section 4042 of ERISA with respect to any Pension Plan. With respect to the
Pension Plans subject to Title IV of ERISA, if any, there are no "amount of
unfunded benefit liabilities" as defined in Section 4001(a)(18) of ERISA,
there has been no "reportable event" as that term is defined in Section 4043
of ERISA and the regulations thereunder which would require the giving of
notice or any event requiring disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA, and all premiums due the PBGC have been paid in full. No
Pension Plan which is subject to Part III of Subtitle B of Title I of ERISA
or Section 412 of the Code has incurred any "accumulated funding deficiency"
as defined in Section 302(a)(2) of ERISA and Section 412(a)(2) of the Code
whether or not waived.
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(i) The Pension Plans are intended to qualify under Section 401 of the
Code and have received a favorable determination letter from the Internal
Revenue Service that the Pension Plans satisfy the requirements of Section
401 of the Code and the related trusts maintained pursuant thereto are
exempt from federal income taxation under Section 501 of the Code, and
nothing has occurred with respect to the operation of Pension Plans which
could cause the loss of such qualification or exemption.
(j) Neither the Combined Company nor any ERISA Affiliate maintains
retiree life or retiree health insurance plans which are Employee Benefit
Plans and "welfare benefit plans" within the meaning of Section 3(1) of
ERISA and which provide for continuing benefits or coverage for any
participant or any beneficiary of a participant, except as may be required
under COBRA and at the expense of the participant or the participant's
beneficiary for employees (and their beneficiaries) of the Combined Company
and any ERISA Affiliate.
6.9 LICENSES.
(a) Each of LLC and LLC Subsidiary has all governmental licenses,
permits, approvals, authorizations, exemptions, classifications,
registrations and certificates, and all consents or agreements with
governmental authorities (collectively, "LICENSES") necessary to conduct its
business in the manner and to the extent that it has been conducted, except
where the failure to possess such Licenses would not have a material adverse
effect on such Company. All of the Licenses and the parties thereto are
listed on the LLC Disclosure Schedule. The LLC Disclosure Schedule also
lists every application for any new License as well as for the renewal or
modification of any existing License. The Companies have made available to
UbiquiTel true and complete copies of all of the Licenses. All Licenses are
in full force and effect, and, to LLC's knowledge, no event has occurred
that may constitute or result in a material violation of the terms and
conditions of any License, or result in the revocation, suspension, material
adverse modification or nonrenewal of any License. No Company has received
any written notice of or has any knowledge of any actual, alleged or
potential violation, revocation, suspension, modification or nonrenewal of
any License.
(b) LLC has made all material filings required by any and all federal,
state and local governmental authorities (including, without limitation, as
appropriate, the FCC and the California Public Utilities Commission), as are
necessary to own, lease, license and operate its respective properties and
to conduct its business, including the planned build-out of the PCS
telecommunications network, as described in the Sprint Affiliation
Agreement. There is not pending or, to LLC's knowledge, threatened any
petition, complaint, investigation or other proceeding by or before any
federal, state or local governmental authority with respect to LLC or the
Licenses.
(c) The Licenses for PCS (the "PCS LICENSES") are not subject to any
conditions other than those conditions listed thereon and those conditions
generally applicable to entities holding similar licenses issued by the FCC.
The PCS Licenses for F Block Spectrum expire on April 28, 2007, the
five-year build-out period for the PCS Licenses expires on April 28, 2002,
and the ten-year build-out period for the PCS Licenses expires on April 28,
2007. The PCS License for A Block Spectrum expires on December 14, 2004. The
PCS Licenses have been granted pursuant to one or more public notices that
have become "final" (meaning that all applicable administrative and judicial
appeal, review and reconsideration periods of the orders granting the PCS
Licenses have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC's having
instituted review of the grant of the PCS Licenses on its own motion).
(d) LLC's FCC Licenses (including the PCS Licenses) constitute all of
the licenses, permits, consents or authorizations required by the FCC to
permit LLC to operate its PCS
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telecommunications network and to conduct its business, including the
Build-Out Plan of the PCS telecommunications network, as described in the
Sprint Affiliation Agreement. All fees due and payable to governmental
authorities, including, but not limited to, any required by the FCC in
connection with the PCS Licenses, such as down payments or installment
payments required by FCC rules to be paid as of the date hereof, as well as
applicable payments to the Telecommunications Relay Service Fund, Universal
Service Fund, Regulatory Assessments fees, and any such other payment
obligations imposed by governmental authorities, have been fully paid (other
than the Installment Payment Plan promissory notes in favor of the FCC in
the amount set forth in the Company's unaudited financial statements as at
and for the year ended December 31, 2000).
(e) All completed and planned development, implementation, construction
and operation of the telecommunications network pursuant to the PCS Licenses
comply in all material respects with all currently applicable
telecommunications statutes or published regulations, including, without
limitation, the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, and all published FCC rules, regulations,
and orders currently in effect.
(f) LLC has provided notification to licensed operators of Fixed
Microwave Services as required by Section 101.103 of the FCC's rules (47
C.F.R. Section 101.103). Except as set forth on the LLC Disclosure Schedule,
neither LLC nor any Member has received any notice of or has any obligations
to reimburse any third party for any relocation expenses required under
Section 24.239 through 24.253 of the FCC's rules (47 C.F.R.
Sections 24.239-24.253).
(g) There are no material violations of the Communications Act of 1934,
as amended, or any published FCC rules or regulations, or of any other state
or local laws, published rules, or regulations, with respect to the
Licenses, and the Licenses have been duly issued under the Communications
Act and the FCC's rules and regulations and are in force and in effect.
There is no outstanding adverse decree, order, or other ruling that has been
issued by the FCC or any other governmental entity against LLC or any Member
or any other party with respect to the Licenses, and there is no complaint,
investigation, proceeding, petition, notice of violation, notice of apparent
liability, or mutually exclusive application pending or, to LLC's knowledge,
threatened, by or before the FCC or any other administrative or governmental
body, court or arbitrator against LLC or any Member or any other party with
respect to the Licenses. To LLC's knowledge no event has occurred that would
permit or warrant the FCC to commence revocation proceedings or otherwise
terminate the Licenses, or which would materially adversely affect any of
the rights of LLC or its Members thereunder.
(h) As of January 31, 2001, the principal balances owing on each of the
Installment Payment Plan promissory notes made by Central Wireless
Partnership in favor of the FCC and assigned by Central Wireless Partnership
to LLC is $6,360,574.86, the interest rate is 6.25 percent per annum, and
the suspension interest owing is $0. Except for the encumbrances resulting
from the promissory notes in favor of the FCC, the Communications Act of
1934, as amended, and all applicable FCC's rules, regulations and policies
promulgated thereunder, on a license of the type held by LLC or any Member,
the Licenses are and will at the Closing be unencumbered and free of any
liens, charges or defects.
6.10 ENVIRONMENTAL MATTERS.
(a) ENVIRONMENTAL LAWS.
LLC has received no notice of, and has no knowledge with respect to, any
current violation of Environmental Laws (as hereinafter defined) related to the
Leased Premises or the Real Property, or the presence or release of Hazardous
Materials (as hereinafter defined) on or from the Leased Premises. Neither LLC
nor LLC Subsidiary has received any written communication from any Person
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that alleges that any Company is not in compliance with any Environmental Law.
Neither LLC nor, to LLC's knowledge, any of the Lessors or other occupants, have
released or discharged from or on to the Leased Premises any Hazardous Materials
or any toxic wastes, substances or materials (including, without limitation,
asbestos). LLC has no knowledge that any underground or above-ground chemical
treatment or storage tanks or gas or oil ▇▇▇▇▇ are located on the Leased
Premises. As used herein, the term "ENVIRONMENTAL LAWS" means the Resource
Conservation and Recovery Act and the Comprehensive Environmental Response
Compensation and Liability Act and other federal laws governing the environment
as in effect on the date of this Agreement, together with their implementing
regulations, guidelines, rules or orders as of the date of this Agreement, and
all state, regional, county, municipal and other local laws, regulations,
ordinances and rules that are equivalent or similar to the federal laws recited
above or that purport to regulate Hazardous Materials, and, in addition, the
National Historic Preservation Act, and the National Environmental Policy Act of
1969. As used herein, the term "HAZARDOUS MATERIALS" means petroleum, including
crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures of natural gas or
such synthetic gas), and any substance, material, waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental Law.
(b) ENVIRONMENTAL CLAIMS.
There is no Environmental Claim pending or, to LLC's knowledge, threatened
(A) against any Company, or (B) against any Person whose liability for any
Environmental Claim any Company has or may have retained or assumed either
contractually or by operation of law. As used herein, "ENVIRONMENTAL CLAIM"
means any and all written administrative, regulatory or judicial actions, suits,
Liens or notices of non-compliance or violation by any governmental authority
alleging potential liability (including, without limitation, potential liability
for enforcement, investigatory costs, cleanup costs, governmental response
costs, removal costs, remedial costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or resulting
from (A) the presence, or release or threatened release into the environment of
any hazardous material or pollutant at any location, or (B) any violation, or
alleged violation, of any Environmental Law.
(c) PERMITS.
Each Company has obtained all permits and authorizations relating to
Environmental Laws necessary to operate its business, except for those permits
the failure of which to obtain would not cause a material adverse effect.
6.11 NO BROKERS FEES; NO COMMISSIONS.
All negotiations relative hereto and the transactions contemplated hereby
have been carried on by the LLC Parties directly with UbiquiTel and the Merger
Subs without any act by any Company that would give rise to any claim against
any Company, UbiquiTel, the Merger Subs or their respective Affiliates for a
brokerage commission, finder's fee or other similar payment.
6.12 CERTAIN INFORMATION.
None of the information supplied or to be supplied by the LLC Parties
specifically for inclusion in (i) the Resale Registration Statement will, at the
time the Resale Registration Statement is filed with the SEC, at any time that
such Resale Registration Statement is amended or supplemented, and at the time
such form becomes effective under the Securities Act (as defined in Section
11.2(a) (PREPARATION) hereof), contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Proxy Statement will, at
the time it is filed with the SEC, at any time that it is amended or
supplemented, at the time it is mailed to the holders of UbiquiTel Stock and at
the time of the UbiquiTel Stockholders'
A-1-35
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES CONCERNING THE MEMBERS AND THE STOCKHOLDERS
In this Article 7, each Member and the Stockholder or Stockholders owning
equity in such Member are referred to collectively as a "STOCKHOLDER GROUP."
Additionally, for purposes of this Article 7 and Section 12.2(a)(ii)
(STOCKHOLDER GROUPS' INDEMNIFICATION) herein only, and in the case of an ▇▇▇▇▇
Merger only, except as otherwise stated herein, the Controlling ▇▇▇▇▇
Stockholders collectively shall be deemed to comprise a Stockholder Group, each
Controlling ▇▇▇▇▇ Stockholder shall be deemed to be a Stockholder herein, and
▇▇▇▇▇ shall be deemed to be a Member; PROVIDED, HOWEVER, that except as set
forth in Section 7.6 (SALE OF ▇▇▇▇▇ TELCO BUSINESSES) herein, no representation
or warranty is being made in this Agreement, including without limitation, this
Article 7, with respect to the ▇▇▇▇▇ Telco Businesses. For purposes of this
Article 7, the representations and warranties made with respect to any one
Stockholder Group shall be deemed to be made jointly and severally by the
members of such Stockholder Group, and the representations and warranties made
with respect to a Member or a Stockholder in this Article 7 shall be deemed to
be made jointly and severally only by the Stockholder Group to which such Member
or Stockholder belongs. The representations and warranties made herein with
respect to the members of more than one Stockholder Group shall be deemed to be
made by each Stockholder Group severally, and not jointly with other Stockholder
Groups. Subject to the foregoing and Article 12 (INDEMNIFICATION) hereof, the
Members and the Stockholders represent and warrant to UbiquiTel and the Merger
Subs that, except as specifically set forth on the disclosure schedule to this
Article 7, which shall be organized by section and sub-section numbers
corresponding to this Article 7 (the "STOCKHOLDERS DISCLOSURE SCHEDULE"):
7.1 STOCKHOLDERS; ENTRY INTO AGREEMENTS.
(a) ORGANIZATION AND GOOD STANDING.
Each member of each Stockholder Group (a "STOCKHOLDER ENTITY") that is not a
natural person is duly organized and validly existing under the laws of the
State of California, is in good standing under such laws, and has all requisite
power and authority to own, lease and operate all properties and assets owned or
leased by it and to conduct its business as previously and currently conducted
by it. Each Stockholder Entity is qualified to do business and is in good
standing in each jurisdiction in which it is required to be so qualified, except
where the lack of such qualification would not have a material adverse effect on
such Stockholder Entity. The Stockholders Disclosure Schedule lists all
jurisdictions in which any Stockholder Entity is qualified to do business as a
foreign entity and indicates which of the Stockholder Entities is so qualified
in each such jurisdiction. The Stockholders Disclosure Schedule also lists, for
each Stockholder Entity, the names of the Persons owning 10% or more of the
equity of such Stockholder Entity and the percentage owned by each such Person.
Each Member has made available to UbiquiTel a true and correct copy of its
Organizational Documents and minute books.
(b) VALIDITY AND AUTHORIZATION; POWER AND AUTHORITY.
Each Member and Stockholder, as applicable, has full power and authority to
consummate the Merger to which it is a party and to execute, deliver and perform
this Agreement, the Related Agreements and the other instruments called for
hereby or thereby to which it is a party. This Agreement and the Related
Agreements to which a Stockholder Entity is a party have been duly authorized,
executed and delivered by each such Stockholder Entity and constitute (or, in
the case of
A-1-36
Related Agreements or instruments called for hereby or thereby to be executed by
a Stockholder Entity at or before the Closing, upon execution will constitute)
the legal, valid and binding obligation of such Stockholder Entity enforceable
against such Stockholder Entity in accordance with their respective terms.
(c) NO CONFLICT.
Except as set forth in the Stockholders Disclosure Schedule, neither the
execution, delivery or performance of this Agreement or the Related Agreements,
nor the consummation of the Mergers or the transactions contemplated hereby or
thereby will (i) result in any violation of the terms of, (ii) contravene or
conflict with, (iii) accelerate the performance of the obligations required
under, (iv) constitute a default under, (v) give any right of termination or
cancellation under, or (vi) give any right to make any change in any of the
liabilities or obligations under, the Organizational Documents of any
Stockholder Entity, any Order, or any agreement, contract, note, bond,
debenture, indenture, mortgage, deed of trust, lease, License, judgment, decree,
order, law, rule or regulation or other restriction applicable to any
Stockholder Entity or to which any Stockholder Entity is a party or by which any
Stockholder Entity or its property or assets are bound or affected that, in any
such case, will result in a material adverse effect on any Member or any
Stockholder.
(d) LLC PARTIES CONSENTS; STOCKHOLDERS CONSENTS NOT REQUIRED.
The Stockholders Disclosure Schedule lists all LLC Parties Consents for
which filing or other action is required by a Member. Subject to Section 2.1(f),
each Member has taken or shall have taken prior to the Pre-Closing Date all
other actions necessary for the consummation by such Member of the transactions
contemplated by this Agreement and the Related Agreements. No approval, filing,
consent, permit, for which filing or other action is required by any Stockholder
is required for the valid execution, delivery or performance of this Agreement
and the Related Agreements or the consummation of the Mergers, or any of the
transactions contemplated hereby or thereby.
(e) OWNERSHIP AND TRANSFER OF MEMBERS' INTERESTS.
Each Member represents that it has good, valid and marketable title to the
units of Members' Interests owned by it, free and clear of any Liens. Each
Member represents that it is not a party to any contract, agreement or
understanding (other than this Agreement) relating to the issuance, sale,
redemption, purchase, repurchase, acquisition or other transfer or voting of any
units of Members' Interests or any other equity security of any Company, other
than LLC's Operating Agreement. Consummation of the transactions contemplated by
this Agreement will transfer to UbiquiTel indirect ownership of all of the
Members' Interests of LLC free and clear of all Liens.
7.2 FINANCIAL INFORMATION.
(a) FINANCIAL STATEMENTS; BOOKS AND RECORDS.
Attached to the Stockholders Disclosure Schedule are true and correct copies
of (i) the balance sheets for each of the Members (other than the Selling
Member) as of the close of each such Member's most recent fiscal year, and the
related statement of profit and loss and cash flows for the periods then ended,
including any audit and it reports thereon that have been rendered with respect
to such financial statements, (ii) the unaudited balance sheet for each Member
at September 30, 2000, and the related statement of profit and loss for the nine
month period then ended, and (iii) when delivered pursuant hereto, similar
financial statements for each additional month ending after the date hereof
(such financial statements of a Stockholder Entity being referred to herein as
the "FINANCIAL STATEMENTS"). Each Member's Financial Statements fairly present
the financial position of the Member to which it pertains as of the dates
thereof and the results of such Member's operations and cash flows for the
periods then ended, in accordance with GAAP, except for the variances from GAAP
set forth in the notes to such Member's Financial Statements, subject, in the
case of such Member's Financial
A-1-37
Statements listed in items (ii) and (iii) of the immediately-preceding
paragraph, to normal recurring period-end adjustments and absence of notes and a
statement of cash flows in each case that, if presented, would not differ
materially from those included in the financial statements for the most recent
fiscal year of each such Member.
(b) CONDUCT OF BUSINESS.
Each Member (i) does not conduct, and has never conducted, any business of
any nature whatsoever except for (A) holding its Member Interest in LLC and
(B) those businesses specifically described on the Stockholders Disclosure
Schedule, and (ii) does not have any assets (other than its Member Interest).
7.3 EQUITY INTERESTS.
(a) CAPITALIZATION.
The authorized, issued and outstanding equity interests of each Member are
as set forth in the Stockholders Disclosure Schedule. There are no other equity
interests of any Member either authorized or outstanding. All of the issued and
outstanding equity interests of each Member have been duly authorized and
validly issued, are fully paid and nonassessable, and are free and clear of any
preemptive rights. There are no outstanding preemptive, conversion or other
rights, or other options, warrants or agreements granted by, issued by, or
binding upon, any Member for the issuance, sale, purchase, repurchase,
redemption, acquisition or other transfer of any equity interests or securities
of any Member. Immediately prior to the Effective Date of the Merger to which it
is a party, no Stockholder shall have the right to assert dissenters' or
appraisal rights under applicable state law (or if such dissenters' or appraisal
rights exist, each Stockholder shall have waived such rights), or otherwise have
the right to demand cash or other payment for Stock in connection with such
Merger, other than the Merger Consideration to be received by such Stockholder.
(b) OWNERSHIP AND TRANSFER BY STOCKHOLDERS.
Each Stockholder represents that it has good, valid and marketable title to
the equity interests of the Member owned by it, free and clear of any Liens, and
upon consummation of the Mergers contemplated hereby, UbiquiTel or the Merger
Subs, as the case may be, will collectively own all of the outstanding Member
Interests. Consummation of the transactions contemplated by this Agreement will
transfer to UbiquiTel all of the shares of Stock or other equity interest of
each Member.
7.4 NO CONTRACTS.
No Member is or has ever been a party to, nor are any assets of any Member
subject or ever been subject to, any Contract or agreement.
7.5 LIABILITIES.
(a) NO UNDISCLOSED LIABILITIES.
Except as set forth or reserved against in full in the most recent Financial
Statements, no Member has any debt, guaranty, liability or obligation of any
nature, whether known or unknown, accrued, absolute, contingent, determined or
determinable or otherwise, whether due or to become due, and to each Member's
knowledge, there is no basis for the assertion against it of any such debt,
guaranty, liability or obligation.
(b) TAX MATTERS.
(i) All material Tax Returns required to be filed by or on behalf of
the Member or any of its subsidiaries or any Affiliated Group of which
the Member or any of its subsidiaries was
A-1-38
a member have been properly prepared and timely filed with the
appropriate taxing authorities in all jurisdictions in which such Tax
Returns are required to be filed (after giving effect to any valid
extensions of time in which to make such filings) and all such Tax
Returns were true, complete and correct in all material respects.
(ii) All Taxes (whether or not shown on any Tax Returns) payable by
or on behalf of the Member or any of its subsidiaries either directly, as
part of the consolidated Tax Returns of another taxpayer, or otherwise
have been fully and timely paid, including all required estimated tax
payments sufficient to avoid any understatement penalties. The cash
reserves or accruals for Taxes provided in the books and records of the
Member with respect to any period for which Tax Returns have not yet been
filed or for which Taxes are not yet due and owing are, or prior to the
Effective Date, will be, sufficient for all unpaid Taxes of the Member
through and including the Effective Date (including, without limitation,
with respect to any Taxes resulting from the Transactions contemplated by
this Agreement). Other than as provided on the Stockholders Disclosure
Schedule, neither the Member nor any of its subsidiaries has any
liability for Taxes of any other person as a transferee, successor, by
contract or otherwise, except with respect to Taxes for which withholding
may be required and has been made. There are no Liens as a result of any
unpaid Taxes upon any of the assets of the Member or any of its
subsidiaries.
(iii) Neither the Member nor any of its subsidiaries has executed or
filed with the Internal Revenue Service or any other taxing authority any
agreement, waiver or other document or arrangement extending or having
the effect of extending the period for assessment or collection of Taxes
(including, but not limited to, any applicable statute of limitation),
and no power of attorney with respect to any Tax matter is currently in
force. Neither the Member nor any of its subsidiaries is the subject of
any private letter ruling of the Internal Revenue Service or comparable
rulings of other taxing authorities.
(iv) The Member and each of its subsidiaries has complied in all
material respects with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes on amounts paid or owing
to any employee, independent contractor, creditor, stockholder or other
third party and has duly and timely withheld and paid over to the
appropriate taxing authorities all Taxes with respect to such amounts.
(v) All deficiencies asserted or assessments made as a result of any
examinations by the Internal Revenue Service or any other taxing
authority of the Tax Returns of or covering or including the Member or
any of its subsidiaries have been fully paid, and there are no other
audits or investigations by any taxing authority or proceedings in
progress, nor have the Stockholders, the Member or any of its
subsidiaries received any notice from any taxing authority that it
intends to conduct such an audit or investigation. No issue has been
raised by a U.S. federal, state, local or foreign taxing authority in any
current or prior examination which, by application of the same or similar
principles, could reasonably be expected to result in a proposed material
deficiency for any subsequent taxable period. No claim has been made by a
taxing authority in a jurisdiction where the Member or any of its
subsidiaries does not file Tax Returns such that it is or may be subject
to taxation by that jurisdiction.
(vi) Neither the Member, nor any member of the Member's Affiliated
Group (including any of the Stockholders) on behalf of the Member, has
(A) agreed to or is required to make any adjustments pursuant to Section
481(a) of the Code or any similar provision of state, local or foreign
law by reason of a change in accounting method initiated by the Member,
or has any application pending with any taxing authority requesting
permission for any changes in accounting methods that relate to the
business or operations of the Member or any of its subsidiaries, or has
otherwise taken any action that would have the effect of deferring any
A-1-39
liability for Taxes from any taxable period ending on or before the
Effective Date to any taxable period ending thereafter or (B) executed or
entered into a closing agreement pursuant to Section 7121 of the Code or
any predecessor provision thereof or any similar provision of state,
local or foreign law with respect to the Member or any of its
subsidiaries.
(vii) Except for this Agreement, as provided in the Stockholders
Disclosure Schedule, and the Operating Agreement, neither the Member nor
any of its subsidiaries is a party to any tax-sharing or similar
agreement or arrangement (whether or not written) pursuant to which it
will have any obligation to make any payments after the Effective Date.
(viii) There is no contract, agreement, plan or arrangement covering
any person that, individually or collectively, could give rise to the
payment of any amount that would not be deductible by UbiquiTel or any of
its Affiliates by reason of Section 280G of the Code, or would constitute
compensation in excess of the limitation set forth in Section 162(m) of
the Code.
(ix) The Member and each of its subsidiaries has substantial
authority for the treatment of or has disclosed (in accordance with
Section 6662(d)(2)(B)(ii) of the Code) on its federal income Tax Returns
all positions taken therein that could give rise to a substantial
understatement of federal income tax within the meaning of Section
6662(d) of the Code.
(c) LITIGATION.
There is no pending Proceeding that has been received or commenced by or
against any Stockholder Entity that otherwise relates to or may affect the
Mergers, the Interest Sale, this Agreement, any Related Agreement or the
transactions contemplated herein or therein, nor, to each Member's knowledge,
have any such Proceedings been threatened.
7.6 SALE OF ▇▇▇▇▇ TELCO BUSINESSES.
▇▇▇▇▇ and the Controlling ▇▇▇▇▇ Stockholders (and not any of the Members or
the other Stockholders) jointly and severally make the following warranties in
this Section 7.6. The agreement for the disposition of the ▇▇▇▇▇ Telco
Businesses (the "▇▇▇▇▇ TELCO SALE AGREEMENT") is a valid, binding and
enforceable obligation of the ▇▇▇▇▇ Stockholders, ▇▇▇▇▇ and its subsidiaries to
sell, and the other parties to the ▇▇▇▇▇ Telco Sale Agreement to buy, the ▇▇▇▇▇
Telco Businesses. The ▇▇▇▇▇ Telco Sale Agreement provides that UbiquiTel and its
subsidiaries and Affiliates shall not have any liabilities or obligations
whatsoever, and shall be released from any and all such liabilities and
obligations, under the ▇▇▇▇▇ Telco Sale Agreement upon the consummation of the
transactions contemplated by this Agreement. The ▇▇▇▇▇ Telco Sale Agreement
contains a valid, binding and enforceable covenant of each party to such
agreement and its Affiliates and successors and assigns not to ▇▇▇ UbiquiTel or
any of its subsidiaries or Affiliates. The ▇▇▇▇▇ Telco Sale Agreement provides
that UbiquiTel and its subsidiaries and Affiliates are third-party beneficiaries
of the above-described provisions of such agreements and that such provisions
cannot be amended, terminated, modified, waived or otherwise negated without the
prior written consent of UbiquiTel.
7.7 CERTAIN INFORMATION.
None of the information supplied or to be supplied by the Members or the
Stockholders specifically for inclusion in (i) the Resale Registration Statement
will, at the time the Resale Registration Statement is filed with the SEC, at
any time that such Resale Registration Statement is amended or supplemented, and
at the time such form becomes effective under the Securities Act, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statement therein not misleading,
or (ii) the Proxy Statement, will, at the time it is filed with the SEC, at any
time it is amended or supplemented, at the time it is mailed to
A-1-40
the holders of UbiquiTel Stock and at the time of the UbiquiTel Stockholders'
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF UBIQUITEL PARENT, UBIQUITEL AND
THE MERGER SUBS
For purposes of this Article 8, unless otherwise expressly stated herein or
the context requires otherwise, "UBIQUITEL" shall mean UbiquiTel Parent and
UbiquiTel, collectively. UbiquiTel and the Merger Subs, jointly and severally,
represent and warrant to the LLC Parties and the ▇▇▇▇▇ Stockholders that, except
as set specifically forth on the disclosure schedule to this Article 8, which
shall be organized by section and sub-section numbers corresponding to this
Article 8 (the "UBIQUITEL DISCLOSURE SCHEDULE"):
8.1 ENTRY INTO AGREEMENTS.
(a) ORGANIZATION AND GOOD STANDING.
UbiquiTel and each of the Merger Subs are corporations duly organized and
validly existing under the laws of the jurisdictions in which each corporation
is incorporated and are in good standing under such laws. UbiquiTel Parent owns,
beneficially and of record, all of the issued and outstanding shares of capital
stock of UbiquiTel and each Merger Sub.
(b) CORPORATE POWER AND AUTHORITY; VALIDITY AND AUTHORIZATION.
UbiquiTel and the Merger Subs each have full corporate power and authority
to execute, deliver and perform this Agreement and the Related Agreements. This
Agreement has been duly authorized, executed and delivered by UbiquiTel and the
Merger Subs, and is enforceable against UbiquiTel and the Merger Subs, in
accordance with its terms. The Related Agreements to which UbiquiTel and each of
the Merger Subs is a party have been (or, in the case of Related Agreements to
be delivered at or before the Closing, upon execution will be) duly authorized,
executed and delivered by UbiquiTel and the Merger Subs, and will constitute the
legal, valid and binding obligations enforceable against each of them in
accordance with their terms.
8.2 CONFLICTS AND CONSENTS.
(a) NO CONFLICT.
The execution, delivery and performance of this Agreement and the Related
Agreements, and the consummation of the transactions contemplated hereby and
thereby will not result in any violation of the terms of and will not
contravene, conflict with, accelerate the performance of the obligations
required under, or constitute a default under, the certificate of incorporation
or bylaws of UbiquiTel or any of the Merger Subs, or any agreement, judgment,
decree, order, law, rule or regulation or other restriction applicable to any of
them, or to which any of them is a party or by which UbiquiTel or any of the
Merger Subs or their respective properties or assets is bound, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of any of them.
(b) CONSENTS OBTAINED.
Other than the approvals referred to in Section 3.1(a) (HSR ACT), the
Permits and the consents listed on the UbiquiTel Disclosure Schedule
(collectively, the "UBIQUITEL CONSENTS"), no material consents, approvals or
authorizations of third parties are required in connection with UbiquiTel and
the Merger Subs' valid execution, delivery and performance of this Agreement and
the Related Agreements
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or the consummation of any of the transactions contemplated hereby or thereby on
the part of such party.
8.3 NO BROKERS FEES; NO COMMISSIONS.
All negotiations relative hereto and the transactions contemplated hereby
have been carried on by UbiquiTel or any of the Merger Subs directly with the
LLC Parties without any act by UbiquiTel or the Merger Subs that would give rise
to any claim against the LLC Parties, ▇▇▇▇▇ or their Affiliates for a brokerage
commission, finder's fee or other similar payment.
8.4 UBIQUITEL STOCK.
The shares of UbiquiTel Stock, when issued, sold and delivered in accordance
with the terms hereof will be duly and validly issued, fully paid and
nonassessable and issued free and clear of any Liens.
8.5 SEC DOCUMENTS.
UbiquiTel Parent has heretofore delivered or made available to the LLC
Parties UbiquiTel Parent's Registration Statement on Form S-1, including the
final prospectus contained therein, all reports filed by UbiquiTel Parent under
Sections 13(a), 14(a), 14(c) and 15(d) of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the "EXCHANGE
ACT"), with the SEC on or after March 1, 2000 (the "SEC DOCUMENTS"). As of their
respective dates, each of the SEC Documents complied in all material respects
with all applicable requirements of the Securities Act and the Exchange Act. The
audited consolidated financial statements and unaudited consolidated financial
statements of UbiquiTel Parent included in the SEC Documents fairly present the
financial position of UbiquiTel Parent as of the dates of such financial
statements and the results of UbiquiTel's operations and cash flows for the
periods then ended, in accordance with GAAP, except for the variances from GAAP
set forth in the notes thereto.
8.6 NO MATERIAL ADVERSE EFFECT.
Since the date of the most recent filing by UbiquiTel Parent under the
Exchange Act prior to the date hereof, there has been no event or occurrence
that has caused or is reasonably expected to cause a material adverse effect on
UbiquiTel other than (i) operating losses in the ordinary course of business or
(ii) economic conditions affecting the U.S. economy generally or the
telecommunications industry generally.
8.7 CAPITALIZATION.
(a) The authorized stock of UbiquiTel consists of 10,000 shares of
common stock, par value $0.01 per share; 1,000 shares of such stock are
issued and outstanding, and all of such stock is issued to UbiquiTel Parent.
(b) The authorized capital stock of UbiquiTel Parent consists of
(i) 100,000,000 shares of UbiquiTel Stock, of which 63,543,604 shares were
issued and outstanding as of December 31, 2000, (ii) 10,000,000 shares of
preferred stock, par value $.001 per share, of which no shares were issued
and outstanding as of December 31, 2000, and (iii) those options and
warrants to purchase UbiquiTel Stock as set forth in the UbiquiTel
Disclosure Schedule. All of the issued and outstanding shares of UbiquiTel
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and are free and clear of any preemptive rights. Except as set
forth in the UbiquiTel Disclosure Schedule, there are no outstanding
preemptive, conversion or other rights, or other options, warrants or
agreements granted by, issued by, or binding upon, UbiquiTel Parent for the
issuance, sale, purchase, repurchase, redemption, acquisition or other
transfer of its equity
A-1-42
securities other than stock that may be issued pursuant to stock option
plans or agreements described in the SEC Documents.
8.8 NO LIABILITIES.
At the date of this Agreement, UbiquiTel has no debt, guaranty, liability or
obligation of any nature in excess of $1.0 million, whether accrued, absolute,
contingent or otherwise, whether due or to become due, and whether known or
unknown, and there is no basis for the assertion against it of any such debt,
guaranty, liability or obligation except (i) to the extent set forth or reserved
against in full in UbiquiTel's audited consolidated financial statements and
unaudited consolidated financial statements included in the SEC Documents, and
(ii) liabilities incurred in the ordinary course of business since September 30,
2000.
8.9 COMPLIANCE WITH LAWS.
UbiquiTel has not violated any term of any judgment, writ, decree, order,
law, statute, rule or regulation to which it is subject or a party, or by which
the business or assets of UbiquiTel are bound or affected (collectively, the
"UBIQUITEL LEGAL REQUIREMENTS"), except as would not have a material adverse
effect on UbiquiTel. UbiquiTel has not received notice of any actual, alleged or
potential violation of a UbiquiTel Legal Requirement.
8.10 CERTAIN INFORMATION.
(a) None of the information supplied or to be supplied by UbiquiTel,
specifically for inclusion or incorporation by reference in, or which may be
deemed to be in incorporated by reference in, any registration statement
filed or to be filed with the SEC, at any time that it is amended or
supplemented and at the time it becomes effective under the Securities Act,
contained or will contain any untrue statement of a material fact or omitted
or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(b) None of the information supplied or to be supplied by UbiquiTel
specifically for inclusion or incorporation by reference in, or which may be
deemed to be in incorporated by reference in (i) the Resale Registration
Statement will, at the time the Resale Registration Statement is filed with
the SEC, at any time that it is amended or supplemented, and at the time it
becomes effective under the Securities Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
(ii) the Proxy Statement will, at the time it is filed with the SEC, at any
time that it is amended or supplemented, at the time it is mailed to the
holders of UbiquiTel Stock and at the time of the UbiquiTel Stockholders'
Meeting contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder, except that no representation or warranty
is made by UbiquiTel with respect to statements made or incorporated by
reference therein based on information supplied by the LLC Parties
specifically for inclusion therein.
8.11 DISCLOSURE.
None of the representations or warranties of UbiquiTel or any of the Merger
Subs contained in this Agreement, the Related Agreements or the UbiquiTel
Disclosure Schedule contains any untrue statement of a material fact or omits to
state a material fact herein or therein necessary in order to make the
statements contained herein or therein not misleading.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OF THE LLC PARTIES
During the period from the date of this Agreement and (a) with respect to
the covenants set forth in Section 9.1, 9.2, and 9.3, continuing until the
Pre-Closing Date, and (b) with respect to the covenants set forth in Sections
9.4, 9.5, and 9.6, continuing until the Closing Date, the LLC Parties agree
that:
9.1 CONDUCT OF BUSINESS OF LLC.
Unless otherwise expressly contemplated hereby, in the Related Agreements,
or approved in writing by UbiquiTel Parent, LLC shall conduct its business and
operations only in, and LLC shall not take any action except in, the ordinary
course of business and consistent with past practices or otherwise in accordance
with the Management Agreement. In the conduct of its business, LLC shall comply
with the covenants set forth in Section 4.1(b) (LLC PARTIES' RESPONSIBILITIES).
The LLC Parties shall use reasonable best efforts to:
(a) maintain LLC's and the LLC Subsidiary's respective rights and
franchises and preserve their respective relationships with customers,
suppliers and others having business dealings with them with the objective
of maintaining and promoting their respective ongoing businesses;
(b) preserve, protect and maintain for UbiquiTel Parent and UbiquiTel
the goodwill of LLC and LLC Subsidiary's employees;
(c) to keep available to UbiquiTel Parent and UbiquiTel LLC's present
officers and employees and agents; and
(d) confer with UbiquiTel Parent and/or UbiquiTel concerning LLC's
operational matters of a material nature.
The LLC Parties shall consult with UbiquiTel Parent and/or UbiquiTel on
strategies for operating, maintaining and preserving LLC and LLC Subsidiary's
respective businesses and effecting an orderly transition to UbiquiTel Parent
ownership of such businesses.
9.2 ACCESS TO INFORMATION AND EMPLOYEES.
The LLC Parties shall permit, upon reasonable notice during normal business
hours, UbiquiTel Parent and its Representatives (as defined herein) to visit and
inspect any of the properties of the LLC Parties and the LLC Subsidiary,
including books and records, and to discuss the affairs, finances and accounts
of the LLC Parties and the LLC Subsidiary, and UbiquiTel Parent's prospects,
plans and intentions with the LLC Parties' officers, certain employees (as
allowed by the LLC Parties), brokers and independent UbiquiTel Parent
accountants, as often as any such person may deem necessary or desirable and
reasonably request. Notwithstanding anything in this Section 9.2 to the
contrary, prior to any investigation contemplated herein, UbiquiTel Parent
and/or its Representatives shall notify ▇▇▇▇▇ ▇▇▇▇▇▇ on behalf of the LLC
Parties and request consent to conduct the foregoing actions (which consent may
not be unreasonably withheld). For purposes of this Agreement, "Representatives"
means, collectively, a party's directors, officers, employees, stockholders or
members (as the case may be), partners, financial parties in interest, agents,
advisors, attorneys, accountants, consultants, Affiliates, financing sources and
representatives of any of the foregoing Persons.
9.3 FINANCIAL STATEMENTS.
The LLC Parties shall deliver to UbiquiTel Parent not later than the 20th
business day of each succeeding month after the date of this Agreement, the
following financial statements for LLC for the most recently completed month: an
unaudited balance sheet as of the end of such month; and associated statements
of profit and loss and cash flow for such month.
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9.4 CONDUCT OF THE MEMBERS.
Each of the Members shall continue to own no assets other than its Member
Interest, to conduct no business operations of any kind other than to own its
Member Interest, and to incur no liability other than the liabilities associated
with this Agreement, the Related Agreements, and the consummation of the
Mergers.
9.5 TRADING PROHIBITION.
The Stockholders and the Controlling ▇▇▇▇▇ Stockholders acknowledge that the
transactions contemplated hereby and information disclosed to the LLC Parties
and their representatives constitute or include material non-public information
concerning UbiquiTel Parent, and that they may not acquire or sell any shares of
UbiquiTel Stock, or encourage any other Person to do so, and that they will
advise any of their respective directors, officers, employees, agents or
Affiliates who have knowledge of the transactions contemplated hereby that they
may not acquire or sell any shares of UbiquiTel Stock, or encourage any other
Person to do so.
9.6 NON-NEGOTIATION.
In consideration of the substantial expenditure of time and money by
UbiquiTel Parent in connection with this transaction, the LLC Parties jointly
and severally agree that none of them will, after the execution of this
Agreement and until the termination of this Agreement in accordance with its
terms or the Closing, (i) directly or indirectly solicit, encourage, initiate,
negotiate or discuss with any third party any acquisition proposal relating to
LLC, whether by way of a purchase of assets or membership interests, business
combination, merger, or other transaction, or (ii) provide any information to
any third party the purpose of which is to permit such third party to evaluate
any such acquisition proposal. Any LLC Party that becomes aware of any
communication by a third party to any LLC Party about or relating to any such
acquisition proposal shall promptly advise UbiquiTel Parent of such
communication.
ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
CERTAIN AGREEMENTS
11.1 CONSULTING AGREEMENT.
On the Signing Date, ▇▇▇▇▇ ▇▇▇▇▇▇ and UbiquiTel will enter into a consulting
agreement pursuant to which ▇▇▇▇▇ ▇▇▇▇▇▇ will provide consulting services to
UbiquiTel, on terms and conditions mutually acceptable to the parties thereto.
11.2 PREPARATION OF THE PROXY STATEMENT AND THE RESALE REGISTRATION
STATEMENT.
(a) [INTENTIONALLY OMITTED]
(b) PROXY STATEMENT.
UbiquiTel Parent and LLC (if requested by UbiquiTel Parent) shall jointly
prepare a proxy statement (the "PROXY STATEMENT"), in accordance with the
Exchange Act and the rules and regulations under the Exchange Act, with respect
to the Mergers and the Interest Sale. UbiquiTel Parent and the LLC Parties shall
cooperate with each other in the preparation of the Proxy Statement. UbiquiTel
Parent shall use reasonable best efforts to respond promptly to any comments
made by the SEC with
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respect to the Proxy Statement and to cause the definitive Proxy Statement to be
mailed to the UbiquiTel Parent stockholders, as determined by UbiquiTel Parent,
at the earliest practicable date.
(c) RESALE REGISTRATION STATEMENT.
Prior to the Pre-Closing, UbiquiTel Parent, and the Stockholders and all
▇▇▇▇▇ Stockholders who receive UbiquiTel Shares hereunder (collectively the
"Selling Stockholders"), shall jointly prepare a registration statement (the
"Resale Registration Statement") on Form S-3 (or Form S-1 if UbiquiTel Parent is
not then eligible to file on Form S-3) to be filed with the SEC in connection
with the resale by the Selling Stockholders of the shares of UbiquiTel Stock
that the Selling Stockholders and holders of PARs receive pursuant to the terms
of the Mergers in accordance with the Securities Act. If UbiquiTel's counsel
determines that UbiquiTel may file the Resale Registration Statement prior to
the Closing, then UbiquiTel shall file the Resale Registration Statement with
the SEC as soon as possible following the Pre-Closing. If UbiquiTel's counsel
determines it cannot file the Resale Registration Statement until after the
Closing, then UbiquiTel shall file the Resale Registration Statement not later
than the 3rd business day following the Closing. UbiquiTel Parent shall give the
Selling Stockholders and their counsel reasonable time to review and comment on
any and all documents to be filed with the SEC in connection with the Resale
Registration Statement. UbiquiTel Parent shall use reasonable best efforts to
respond promptly to any comments made by the SEC with respect to the Resale
Registration Statement and to cause the Resale Registration Statement to be
declared effective under the Securities Act as promptly as practicable after the
filing thereof with the SEC, but in no event later than the date that shares are
first permitted to be sold under the Lock-Up Agreement. If the Resale
Registration Agreement is declared effective under the Securities Act, then
UbiquiTel Parent shall use reasonable best efforts to prepare and file such
amendments and supplements to the Resale Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the Resale
Registration Statement effective for a period of not less than two years from
the CLOSING DATE, PROVIDED, HOWEVER, that if UbiquiTel Parent files on
Form S-1, UbiquiTel Parent may convert the Form S-1 to a registration statement
on Form S-3 from and after the time that UbiquiTel Parent first is eligible to
use Form S-3 for the registration of UbiquiTel Stock for resale. UbiquiTel
Parent will furnish to the Selling Stockholders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other customary documents as they
may reasonably request in order to facilitate the disposition of the UbiquiTel
Stock owned by them. UbiquiTel Parent shall use its reasonable best efforts to
register and qualify the UbiquiTel Stock covered by the Resale Registration
Statement under such other securities or Blue Sky laws of such states as shall
be reasonably requested by the Selling Stockholders, provided, that UbiquiTel
Parent shall not be required in connection therewith or as a condition thereto
to qualify to do business or file a general consent to service of process in any
such states. UbiquiTel Parent will bear and pay all expenses incurred in
connection with any registration, filing or qualification of the UbiquiTel Stock
to be registered hereunder, including (without limitation) all registration,
filing and qualification fees, printers fees and legal and accounting fees of
UbiquiTel Parent's attorneys and accountants, but excluding any discounts or
commissions incurred in connection with the sale of any UbiquiTel Stock and the
legal and accounting fees of attorneys and accountants engaged by the Selling
Stockholders. If the Resale Registration Statement is not declared effective by
the date that any shares of UbiquiTel Stock are first permitted to be sold under
the Lock-Up Agreement, UbiquiTel shall pay to the Stockholders and the Selling
Member, in cash or by wire transfer within five (5) business days after such
date, the aggregate amount of $4,900,000 to be allocated among the Stockholders
and the Selling Member proportionately based on such Person's total number of
shares of UbiquiTel Stock received as Merger Consideration in accordance with
the provisions of EXHIBIT 1.2; and such payment shall be the exclusive remedy of
the Stockholders and the Selling Member for any Losses, expenses or damages
incurred in connection with their inability to resell the shares of the
UbiquiTel Stock pursuant to the effective Resale Registration Statement on the
date when such resale is first permitted by the Lock-Up Agreement, or pursuant
to any registration of UbiquiTel Stock under the Securities Act; provided, that
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nothing herein shall be deemed to relieve UbiquiTel Parent from its continuing
obligations hereunder, including (without limitation) the obligations to respond
promptly to SEC comments and to cause the Resale Registration Statement to be
declared effective as promptly as possible.
(d) UBIQUITEL PARENT'S ACTIONS.
UbiquiTel Parent shall, as promptly as practicable, take any action (other
than qualifying to do business in any jurisdiction in which it is not now so
qualified) required to be taken under any applicable state securities laws in
connection with the issuance of UbiquiTel Stock in connection with the Mergers
and the Interest Sale, and the LLC Parties shall furnish all information
concerning the LLC Parties as may be reasonably requested in connection with any
such action. UbiquiTel Parent shall keep the LLC Parties advised of the status
of any actions taken under any applicable state securities laws.
(e) [INTENTIONALLY OMITTED]
11.3 UBIQUITEL STOCKHOLDERS' MEETING.
UbiquiTel Parent shall take all action necessary, in accordance with the
DGCL, the Exchange Act and other applicable law and its certificate of
incorporation and bylaws, to convene and hold a special meeting of the
stockholders of UbiquiTel Parent (the "UBIQUITEL STOCKHOLDERS' MEETING") as
promptly as practicable after the date hereof for the purpose of considering,
voting and approving upon this Agreement. The Board of Directors of UbiquiTel
Parent shall (a) recommend that the stockholders of UbiquiTel Parent vote in
favor of the adoption of this Agreement at the UbiquiTel Stockholders' Meeting,
(b) cause such recommendation to be included in the Proxy Statement,
(c) solicit proxies in favor of the adoption of this Agreement, and (d) use
reasonable best efforts to obtain the required vote of the stockholders of
UbiquiTel Parent.
11.4 POST-CLOSING AGREEMENTS OF STOCKHOLDERS AND UBIQUITEL PARENT.
The Stockholders and UbiquiTel Parent covenant and agree that after the
Closing:
(a) FURTHER ACTIONS.
UbiquiTel Parent shall have the right to act in the name and on behalf of
LLC and the Members, including, without limitation, through the execution and
delivery of such further instruments of transfer and conveyance, documents and
certificates as may be reasonably requested by UbiquiTel Parent in order to more
effectively convey and transfer to UbiquiTel Parent all of the equity interests
or other securities of the Members, to aid and assist in reducing to possession
or exercising rights with respect to same, or to consummate any of the
transactions contemplated hereby. The Stockholders shall, as promptly as
practicable after receipt, deliver to UbiquiTel Parent any cash, checks, mail,
packages, notices and other similar communications of the Members or LLC that
any of them receives.
(b) ACCESS TO INFORMATION.
The Stockholders and UbiquiTel Parent shall afford to the other and their
respective Representatives reasonable access to their respective books and
records in order to prepare tax returns and other governmental filings.
(c) DIRECTORS.
On or before the Closing Date, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ shall be appointed to the
UbiquiTel Parent Board of Directors.
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(d) MEMBER LOANS.
On or before the Pre-Closing Date, LLC shall provide to UbiquiTel Parent all
documents reasonably requested by UbiquiTel Parent to evidence that all loans
made to any Member by its Stockholders have been forgiven or terminated in their
entirety to be effective as of the Closing; PROVIDED, HOWEVER, that if the ▇▇▇▇▇
Merger occurs in lieu of the CVC Merger, the Controlling ▇▇▇▇▇ Stockholders
shall provide to UbiquiTel Parent all documents reasonably requested by
UbiquiTel Parent to evidence that all loans made to ▇▇▇▇▇ by the ▇▇▇▇▇
Stockholders have been forgiven or terminated in their entirety to be effective
as of the Closing.
(e) REORGANIZATION QUALIFICATION.
The Mergers (except the ▇▇▇▇▇ Merger) are intended to qualify as
reorganizations pursuant to Section 368(a)(1)(A) and (a)(2)(E) of the Code. The
Stockholders and UbiquiTel Parent shall take the position on all Tax Returns
that, for all purposes, such Mergers qualify as reorganizations within the
meaning of such Code sections. Further, UbiquiTel Parent and the Stockholders
agree that they will report such Mergers accordingly and that they will not take
any action which is reasonably likely to be considered to be inconsistent with
such reporting positions.
(f) QUALIFICATION OF THE ▇▇▇▇▇ MERGER.
The ▇▇▇▇▇ Merger is intended to be treated as a purchase by UbiquiTel Parent
of all of the outstanding capital stock of ▇▇▇▇▇. The ▇▇▇▇▇ Stockholders and
UbiquiTel Parent shall take the position on all Tax Returns that, for all
purposes, the ▇▇▇▇▇ Merger is so treated. Further, UbiquiTel Parent and the
▇▇▇▇▇ Stockholders agree that they will report such Merger accordingly and that
they will not take any action which is reasonably likely to be considered to be
inconsistent with such reporting position.
11.5 PAYOFF OF CERTAIN OBLIGATIONS AT CLOSING.
Immediately following the Closing, UbiquiTel shall pay in full all amounts
of principal and accrued but unpaid interest of LLC to RTFC under the RTFC Loan
Agreement, and shall receive in return from the RTFC, in form and substance
satisfactory to counsel for UbiquiTel and the LLC Parties, all documents
(including without limitation UCC-3 termination statements executed by RTFC and
otherwise prepared for filing) necessary to release and fully terminate the
rights, liens and security interests of RTFC or any Persons claiming through
RTFC in connection with the RTFC Loan Agreement. In connection with such
payment, UbiquiTel shall cooperate with the LLC Parties with respect to releases
of any and all guaranties or pledges given by the LLC Parties and the return of
any and all collateral properly belonging to such Parties.
11.6 TAX MATTERS FOR UBIQUITEL PARENT AND MEMBERS.
Except as expressly provided otherwise in Section 11.7 with respect to the
▇▇▇▇▇ Merger, the following provisions shall govern the allocation of
responsibility as between UbiquiTel Parent, the Members, and the Stockholders
for certain tax matters following the Pre-Closing Date or the Closing Date, as
applicable:
(a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE.
The Stockholder of each Member (in the case of PCS, IPLLC, and in the case
of Kerman, KCI), or any designated representative thereof, shall have the
obligation to prepare all Tax Returns that are required to be filed by or with
respect to the income, assets, or operations of that Stockholder's affiliated
Member for all taxable years or other taxable periods ending on or prior to the
Closing Date with respect to that Member (a "MEMBER PRE-CLOSING PERIOD"). Each
such Tax Return shall be submitted to UbiquiTel Parent at least 30 days prior to
filing for approval, which shall not be unreasonably
A-1-48
withheld. Except as provided in this Section 11.6 and in Section 11.7 with
respect to the ▇▇▇▇▇ Merger, UbiquiTel Parent shall have the exclusive
obligation and authority to timely file or cause to be timely filed all Tax
Returns that are required to be filed by or with respect to the income, assets
or operations of a Member or any successor thereto, LLC and LLC Subsidiary.
(b) STRADDLE PERIODS.
UbiquiTel Parent shall prepare or cause to be prepared and file or cause to
be filed any Tax Returns of LLC, LLC Subsidiary, and each Member for Tax periods
that begin before the Closing Date and end after the Closing Date (the "STRADDLE
PERIODS"). All such Tax Returns prepared by UbiquiTel Parent shall be submitted
to the Stockholders (in the case of PCS, IPLLC, and in the case of Kerman, KCI)
of each respective Member at least thirty (30) days prior to the filing of such
Tax Return for approval, which approval shall not be unreasonably withheld. For
purposes of this Section 11.6(b), in the case of any Taxes that are imposed on a
periodic basis and are payable for a Straddle Period, the portion of such Tax
which relates to the portion of such taxable period ending on the Closing Date
shall (A) in the case of any Taxes other than Taxes based upon or related to
income or receipts, be deemed to be the amount of such Tax for the entire
taxable period multiplied by a fraction, the numerator of which is the number of
days in the taxable period ending on the Closing Date, and the denominator of
which is the number of days in the entire taxable period; PROVIDED, HOWEVER,
that in the case of real or personal property Taxes, UbiquiTel Parent shall bear
any supplemental or additional assessments that result from the Mergers (except
the ▇▇▇▇▇ Merger), and (B) in the case of any Tax based upon or related to
income or receipts be deemed equal to the amount which would be payable if the
relevant taxable period ended on the Closing Date. Any credits relating to a
taxable period that begins before and ends after the Closing Date shall be taken
into account as though the relevant taxable period ended on the Closing Date.
For purposes of Section 11.6(c), the portion of any Member's Straddle Period
that ends on or before the Closing Date shall be treated as a Member Pre-
Closing Period.
(c) TAX OBLIGATIONS.
(i) Each Stockholder Group shall be responsible for, and shall pay or
cause to be paid to or for the benefit of UbiquiTel Parent and its
subsidiaries, any and all Taxes that may be imposed upon or assessed
against or otherwise determined to be attributable to its affiliated
Member or its assets: (i) with respect to any Member Pre-Closing Period,
(ii) arising by reason of any breach or inaccuracy of the representations
contained in Sections 6.5(b) or 7.5(b) hereof, (iii) with respect to any
and all Taxes of any member of an Affiliated Group, as defined in
Section 11.6(g)(i), of which a Member is or was a member on or prior to
the Closing Date, including any Taxes for which the Member may be liable
under Section 1.1502-6 of the Treasury Regulations promulgated under the
Code (or any similar provision of state, local or foreign law), (iv) by
reason of being a successor-in-interest or transferee of another Person
on or prior to the Closing Date, and (v) without duplication, with
respect to any Taxes incurred by the Member, in connection with the
transactions contemplated by this Agreement (subject to clause (A) of
Section 11.6(b) (STRADDLE PERIODS) hereof). Notwithstanding the
foregoing, the Members shall not be responsible for any additions to Tax,
interest or penalties arising from UbiquiTel Parent's negligence in
filing of any Tax Returns timely submitted or UbiquiTel Parent's late
payment of any Taxes with respect to which funds were made available for
timely payment by the Members. For purposes of this Agreement, the
federal, state and local income Tax liabilities attributable to any
Stockholder, Member or its subsidiaries for any Member Pre-Closing Period
shall be computed without taking into account (A) any item of loss,
deduction, credit, refund, loss carryback or similar item that is
attributable to UbiquiTel Parent or its subsidiaries; or (B) any item of
loss, deduction, credit, refund, loss carryback or similar item that is
attributable to LLC or LLC Subsidiary for any Tax period or portion of a
Tax period subsequent to the Pre-Closing Date.
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(ii) Notwithstanding anything to the contrary in Section 11.6(b),
Section 11.6(c)(i), Section 11.6(g), or the Operating Agreement,
UbiquiTel Parent, but not the Members, shall be responsible for payment
of any Taxes to the extent such Taxes result from any Tax items (whether
incurred in the ordinary course of business or otherwise) of LLC that
arise after the Pre-Closing Date. Furthermore, Tax items of LLC that
arise from transactions not in the ordinary course of business and not
contemplated by this Agreement and the Related Agreements that occur on
or after the Pre-Closing Date shall be deemed to arise after the
Effective Date.
(d) GENERAL COOPERATION ON TAX MATTERS.
(i) UbiquiTel Parent, the Members, and each of the Stockholders shall
cooperate fully, as and to the extent reasonably requested by any other
Party, in connection with the filing of Tax Returns pursuant to this
Section 11.6 and any audit, litigation or other proceeding with respect
to Taxes. Such cooperation shall include the retention and (upon the
other Party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and
making employees available on a mutually convenient basis to provide
additional information and explanation of any materials provided
hereunder. Each Member agrees (A) to retain all books and records with
respect to Tax matters pertinent to the Member or its Stockholders
relating to any taxable period beginning before the Closing Date, until
the expiration of the statute of limitations (and, to the extent notified
by UbiquiTel Parent or a Stockholder, any extensions thereof) of the
respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give the
other Party reasonable written notice prior to transferring, destroying
or discarding any such books and records and, if the other Party so
requests, to allow the other Party to take possession of such books and
records. UbiquiTel Parent, the Members and each of the Stockholders
acknowledge that any and all information obtained in connection with the
preparation of any Tax Return, audit or judicial or administrative
proceeding or determination pursuant to this Section 11.6 is of a
confidential nature and that all such information shall be used only for
the purposes set forth in this Section 11.6.
(ii) So long as such action would not create any material liability
for such Party, UbiquiTel Parent and each Stockholder further agree, upon
request, to use their best efforts to obtain any certificate or other
document from any governmental authority or any other Person as may be
necessary to mitigate, reduce, or eliminate any Tax that could be imposed
on a Member (including, but not limited to, with respect to the
transactions contemplated hereby).
(iii) UbiquiTel Parent and each Stockholder further agree, upon
request, to provide the other Party with all information that either
Party may be required to report pursuant to Section 6043 of the Code and
all Treasury Department Regulations promulgated thereunder.
(e) CONTESTS.
(i) Each Member's Stockholder (in the case of PCS, IPLLC, and in the
case of Kerman, KCI) and their duly appointed representatives
(collectively, the "MEMBER REPRESENTATIVE") shall have the authority to
control any audit or examination by any taxing authority, and contest,
resolve and defend against any assessment for additional Taxes, notice of
Tax deficiency or other adjustment of Taxes of or relating to any
liability of a Member for its Member Pre-Closing Periods; PROVIDED,
HOWEVER, that no Member Representative shall, without the prior consent
of UbiquiTel Parent, which consent shall not be unreasonably withheld,
enter into any settlement of any contest or otherwise compromise any
issue that would have a material adverse effect on the Tax benefits of
UbiquiTel Parent or the Member for taxable years ending after the Closing
Date. UbiquiTel Parent and its duly appointed Representatives shall have
the
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exclusive authority to control any audit or examination by any taxing
authority, initiate any claim for refund, amend any Tax Return and
contest, resolve and defend against any assessment for additional Taxes,
notice of Tax deficiency or other adjustment of Taxes of or relating to
any liability of a Member for Taxes for any taxable year or other taxable
period ending after the Closing Date (a "MEMBER POST-CLOSING PERIOD");
PROVIDED, HOWEVER, that (a) neither UbiquiTel Parent nor its subsidiaries
nor any of their duly appointed Representatives shall, without the prior
written consent of the Member Representative, enter into any settlement
of any contest or otherwise compromise any issue that adversely affects
the liability of the Member's Stockholder or Stockholders for any Member
Pre-Closing Period Taxes, and (b) neither UbiquiTel Parent nor its
subsidiaries nor any of their duly appointed representatives shall,
without the prior consent of the Member Representative, enter into any
settlement of any contest or otherwise compromise any issue that would
require payment by such Member Representative's Stockholder Group
Indemnitors of any amount under this Agreement unless UbiquiTel Parent
shall have waived or caused to be waived for itself and its subsidiaries
any right to indemnification for Taxes from such Member Representative's
Stockholder Group Indemnitors.
(ii) UbiquiTel Parent agrees to notify in writing the Member
Representative of any affected Member within ten business days of receipt
of any notice, whether oral or in writing, of any federal, state, local
or foreign Tax examinations, claims, settlements, proposed adjustments,
or related matters that may affect in any way such Member
Representative's Stockholder Group Indemnitors' obligations under this
Agreement and shall promptly forward all written notifications and other
communications from any Tax authority received by UbiquiTel relating to
any Tax audit or other proceeding relating to the Tax liability of or
with respect to a Member. The failure of UbiquiTel Parent to give the
Member Representative such written notice shall not excuse such Member
Representative's Stockholder Group Indemnitors from their obligations
under this Agreement with respect to any increased Tax liability directly
or indirectly attributable to any such written notification or other
communication, unless such failure materially prejudices the ability of
the Member Representative's Stockholder Group to defend or dispute such
examination, claim, settlement, adjustment or related matter.
(iii) This Section 11.6(e) shall be subject to the provisions of
Article 12 of this Agreement.
(f) [OMITTED].
(g) ADDITIONAL TAX MATTERS.
(i) TAX SHARING AGREEMENTS.
Any Tax sharing agreement (other than the Operating Agreement) to which the
LLC, LLC Subsidiary, or a Member is a party hereby is terminated as of the
Closing Date and will have no further effect for any taxable year (whether the
current year, a future year, or a past year). For purposes of this Agreement,
the term "AFFILIATED GROUP" means an affiliated group within the meaning of Code
Section 1504(a), and when used with respect to a Member, means the Affiliated
Group to which such Member belongs.
(ii) RETURNS FOR PERIODS THROUGH THE CLOSING DATE.
Each respective corporate Stockholder ("PARENT") of each respective Member
will include the income of the Member (including any deferred income triggered
into income by Reg. Section 1.1502-13 and Reg. Section 1.1502-14 and the excess
loss accounts taken into income under Reg. Section 1.1502-19) on each such
Parent's consolidated federal income Tax Returns for all periods through the
Closing Date and pay any federal income Taxes attributable to such income. Each
Member
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will furnish Tax information to its respective Parent for inclusion in such
Parent's federal consolidated income Tax Return for the period which includes
the Closing Date. Each Parent will allow UbiquiTel Parent an opportunity to
review and comment upon such Tax Returns (including any amended returns) to the
extent that they relate to a Member. Parent will take no position on such
returns that relate to a Member that would adversely affect the Member after the
Closing Date unless such position would be reasonable in the case of a Person
that owned the Member both before and after the Closing Date. The income of each
Member will be apportioned to the period up to and including the Closing Date
and the period after the Closing Date, by closing the books of the Member as of
the close of business on the Closing Date.
(iii) CARRYBACKS.
With respect to any post acquisition Tax attributes for which UbiquiTel
Parent cannot waive a carryback, each Parent will pay to UbiquiTel Parent within
ten (10) days any Tax refund (or reduction in Tax liability) resulting from a
carryback of a post-acquisition Tax attribute of its former Member into the
Parent's consolidated Tax Return, when such refund or reduction is realized by
Parent. Each Parent will cooperate with its former Member in obtaining such
refunds (or reduction in Tax liability), including through the filing of amended
Tax Returns or refund claims. UbiquiTel Parent agrees to indemnify each Parent
for any Taxes resulting from the disallowance of such post-acquisition Tax
attribute on audit or otherwise.
(iv) RETENTION OF CARRYOVERS.
No Parent will elect to retain any net operating loss carryovers or capital
loss carryovers of its Member under Reg. Section 1.1502-20(g). At any Parent's
request, UbiquiTel Parent will cause such Parent's former Member to join with
Parent in filing any necessary elections under Reg. Section 1.1502-20(g).
(v) POST-CLOSING ELECTIONS.
At any Parent's request, UbiquiTel Parent will cause such Parent's former
Member to make and/or join with Parent in making any election after the Closing
if the making of such election does not have a material adverse impact on
UbiquiTel Parent or such Parent's former Member for any post-acquisition Tax
period.
11.7 TAX MATTERS IN ▇▇▇▇▇ MERGER.
Notwithstanding the other provisions of this Agreement (including, without
limitation, Section 7.5(b)), if the ▇▇▇▇▇ Merger occurs, the following
provisions shall govern the allocation of responsibility as between UbiquiTel
Parent, ▇▇▇▇▇ and the ▇▇▇▇▇ Stockholders for certain tax matters following the
Pre-Closing Date or the Closing Date, as applicable.
(a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE.
The ▇▇▇▇▇ Representative shall have the obligation to prepare all Tax
Returns that are required to be filed by or with respect to the income, assets,
or operations of ▇▇▇▇▇ and its subsidiaries for all taxable years or other
taxable periods ending on or prior to the Closing Date (the "▇▇▇▇▇ PRE-CLOSING
PERIODS"). Each such Tax Return shall be submitted to UbiquiTel Parent at least
30 days prior to filing for approval, which shall not be unreasonably withheld.
Except as provided in the preceding sentence, UbiquiTel Parent shall have the
exclusive obligation and authority to timely file or cause to be timely filed
all Tax Returns that are required to be filed by or with respect to the income,
assets or operations of ▇▇▇▇▇ or any successor thereto.
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(b) ▇▇▇▇▇ STRADDLE PERIODS.
UbiquiTel Parent shall prepare or cause to be prepared and file or cause to
be filed any Tax Returns of ▇▇▇▇▇ or its subsidiaries for taxable years or
taxable periods which begin before the Closing Date and end after the Closing
Date ("▇▇▇▇▇ STRADDLE PERIODS"). UbiquiTel Parent shall furnish to the ▇▇▇▇▇
Representative for review and approval, which approval shall not be unreasonably
withheld, a draft of each such Tax Return that UbiquiTel Parent proposes to file
at least 30 days prior to the filing of such return. For purposes of this
Agreement, in the case of any Taxes that are imposed on a periodic basis and are
payable for an ▇▇▇▇▇ Straddle Period, the portion of such Tax that relates to
the portion of such taxable period ending on the Closing Date shall (x) in the
case of any Taxes other than Taxes based upon or related to income or receipts,
be deemed to be the amount of such Tax for the entire taxable period multiplied
by a fraction the numerator of which is the number of days in the taxable period
ending on the Closing Date and the denominator of which is the number of days in
the entire taxable period, PROVIDED, HOWEVER, that in the case of real or
personal property Taxes, UbiquiTel Parent shall bear any supplemental or
additional assessments that result from the ▇▇▇▇▇ Merger, and (y) in the case of
any Tax based upon or related to income or receipts be deemed equal to the
amount which would be payable if the relevant taxable period ended on the
Closing Date. Any credits relating to an ▇▇▇▇▇ Straddle Period shall be taken
into account as though the relevant taxable period ended on the Closing Date.
For purposes of Section 11.7(c), the portion of the ▇▇▇▇▇ Straddle Period that
ends on or before the Closing Date shall be treated as a ▇▇▇▇▇ Pre-Closing
Period.
(c) TAX OBLIGATIONS.
(i) The ▇▇▇▇▇ Stockholders shall be responsible for, shall pay or
cause to be paid and reimburse UbiquiTel Parent and its subsidiaries for
any and all Taxes that may be imposed upon or assessed against, or
otherwise determined to be attributable to ▇▇▇▇▇ or its assets: (i) with
respect to any ▇▇▇▇▇ Pre-Closing Period, (ii) arising by reason of any
breach or inaccuracy of the representations contained in Section
6.5(b) or 7.5(b) hereof, (iii) with respect to any and all Taxes of any
member of an Affiliated Group, as defined in Section 11.6(g)(i), of which
▇▇▇▇▇ or its subsidiaries are or was a member on or prior to the ▇▇▇▇▇
Closing Date, including any Taxes for which ▇▇▇▇▇ or its subsidiaries may
be liable under Section 1.1502-6 of the Treasury Regulations promulgated
under the Code (or any similar provision of state, local or foreign law),
(iv) by reason of being a successor-in-interest or transferee of another
Person on or prior to the Closing Date, and (v) without duplication, with
respect to any Taxes incurred by ▇▇▇▇▇ before the Closing Date in
connection with the transactions contemplated by this Agreement (subject
to clause (x) of the third sentence of Section 11.7(b) (STRADDLE PERIODS)
hereof). Notwithstanding the foregoing, (i) the ▇▇▇▇▇ Stockholders shall
not be responsible for any Taxes pursuant to this Section 11.7(c) to the
extent such Taxes have been paid on or before the Closing Date or have
been taken into account in computing the Net Assets pursuant to Section
1.2(b)(ii)(B) or the Tax Return adjustment amount payable pursuant to
Section 1.2(b)(ii)(B)(III), and (ii) the ▇▇▇▇▇ Stockholders shall not be
responsible for any additions to Tax, interest or penalties arising from
UbiquiTel Parent's negligence in filing of any Tax Returns timely
submitted by the ▇▇▇▇▇ Stockholders or UbiquiTel Parent's late payment of
any Taxes with respect to which funds were made available for the timely
payment thereof under Section 1.2(b)(ii)(B)(III). For purposes of this
Agreement, the federal, state and local income Tax liabilities
attributable to ▇▇▇▇▇ or its subsidiaries for any ▇▇▇▇▇ Pre-Closing
Period shall be computed without taking into account (A) any item of
loss, deduction, credit, refund, loss carryback or similar item that is
attributable to UbiquiTel Parent or its subsidiaries; and (B) any item of
loss, deduction, credit, refund, loss carryback or similar item that is
attributable to LLC or LLC Subsidiary for any Tax period or portion of a
Tax period subsequent to the Pre-Closing Date.
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(ii) Notwithstanding anything to the contrary in Section 11.7(b),
Section 11.7(c)(i) or the Operating Agreement, UbiquiTel Parent, but not
the ▇▇▇▇▇ Stockholders, shall be responsible for payment of any Taxes to
the extent such Taxes result from any Tax items (whether incurred in the
ordinary course of business or otherwise) of LLC that arise after the
Pre-Closing Date. Furthermore, Tax items of LLC that arise from
transactions not in the ordinary course of business and not contemplated
by this Agreement and the Related Agreements that occur on or after the
Pre-Closing Date shall be deemed to arise after the Effective Date.
(d) GENERAL COOPERATION ON TAX MATTERS.
(i) UbiquiTel Parent and the ▇▇▇▇▇ Representative agree to consult
and resolve in good faith any issues arising in connection with the
preparation or review of any Tax Return or the calculation of any Tax
described in this Section 11.7. After the ▇▇▇▇▇ Closing, the ▇▇▇▇▇
Representative and UbiquiTel Parent shall, and shall cause their
respective Affiliates to provide the requesting Party or its designee
with such assistance as may reasonably be requested by such Party or its
designee in connection with the preparation of any Tax Return, audit or
judicial or administrative proceeding or determination relating to
liability for Taxes of or with respect to UbiquiTel Parent (relating to
▇▇▇▇▇ or its subsidiaries), ▇▇▇▇▇, or any of their Affiliates including
access to the books and records, and the assistance of the officers and
employees of ▇▇▇▇▇ and its subsidiaries. UbiquiTel Parent and the ▇▇▇▇▇
Stockholders acknowledge that any and all information obtained in
connection with the preparation of any Tax Return, audit, or judicial or
administrative proceeding or determination pursuant to this Section
11.7(d) is of a confidential nature and that all such information shall
be used only for the purposes set forth in the immediately preceding
sentence.
(ii) So long as such action would not create any material liability
for such Party, UbiquiTel Parent and the ▇▇▇▇▇ Representative further
agree, upon request, to use their best efforts to obtain any certificate
or other document from any governmental authority or any other Person as
may be necessary to mitigate, reduce, or eliminate any Tax that could be
imposed on a Member (including, but not limited to, with respect to the
transactions contemplated hereby).
(iii) UbiquiTel Parent and the ▇▇▇▇▇ Representative further agree,
upon request, to provide the other Party with all information that either
Party may be required to report pursuant to Section 6043 of the Code and
all Treasury Department Regulations promulgated thereunder.
(e) CONTESTS.
(i) The ▇▇▇▇▇ Representative and its duly appointed representatives
shall have the authority to control any audit or examination by any
taxing authority, and contest, resolve and defend against any assessment
for additional Taxes, notice of Tax deficiency or other adjustment of
Taxes of or relating to any liability of ▇▇▇▇▇ and its subsidiaries for
all ▇▇▇▇▇ Pre-Closing Periods; PROVIDED, HOWEVER, that neither the ▇▇▇▇▇
Representative nor any duly appointed representative of the ▇▇▇▇▇
Representative shall, without the prior consent of UbiquiTel Parent,
which consent shall not be unreasonably withheld, enter into any
settlement of any contest or otherwise compromise any issue that would
have a material adverse effect on the Tax benefits of UbiquiTel Parent or
▇▇▇▇▇ or any subsidiary for taxable years ending after the Closing Date.
UbiquiTel Parent and its duly appointed Representatives shall have the
exclusive authority to control any audit or examination by any taxing
authority, initiate any claim for refund, amend any Tax Return and
contest, resolve and defend against any assessment for additional Taxes,
notice of Tax deficiency or other adjustment of Taxes of or relating to
any liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable
year or other taxable period ending after the Closing Date (the
"POST-CLOSING PERIODS"); PROVIDED, HOWEVER,
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that (a) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of
their duly appointed representatives shall, without the prior written
consent of the ▇▇▇▇▇ Representative, enter into any settlement of any
contest or otherwise compromise any issue that adversely affects the
liability of the ▇▇▇▇▇ Stockholders for any ▇▇▇▇▇ Pre-Closing Period
Taxes, and (b) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any
of their duly appointed representatives shall, without the prior consent
of the ▇▇▇▇▇ Representative, enter into any settlement of any contest or
otherwise compromise any issue that would require payment by the
Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under
this Agreement unless UbiquiTel Parent shall have waived or caused to be
waived for itself and ▇▇▇▇▇ and its subsidiaries any right to
indemnification for Taxes from the Controlling ▇▇▇▇▇ Stockholders.
(ii) NOTICES. UbiquiTel Parent agrees to notify the ▇▇▇▇▇
Representative in writing within ten business days of receipt of any
notice, whether oral or in writing, of any federal, state, local or
foreign Tax examinations, claims, settlements, proposed adjustments, or
related matters that may affect in any way the Controlling ▇▇▇▇▇
Stockholders' obligations under this Agreement and shall promptly forward
all written notifications and other communications from any Tax authority
received by such Party or, with respect to UbiquiTel Parent, ▇▇▇▇▇ or
their respective subsidiaries relating to any Tax audit or other
proceeding relating to the Tax liability of or with respect to ▇▇▇▇▇ or
its subsidiaries. The failure of UbiquiTel Parent to give the ▇▇▇▇▇
Representative such written notice shall not excuse the Controlling ▇▇▇▇▇
Stockholders from their obligations under this Agreement with respect to
any increased Tax liability directly or indirectly attributable to any
such written notification or other communication, unless such failure
materially prejudices the ability of the ▇▇▇▇▇ Representative to defend
or dispute such examination, claim, settlement, adjustment or related
matter.
(iii) The provisions of this Section 11.7(e) shall be subject to the
provisions of Article 12 of this Agreement.
(f) CARRYBACK CFT DEDUCTION.
The federal income tax deduction for the California Franchise Tax (the "CFT
DEDUCTION") paid by ▇▇▇▇▇ and its subsidiaries for the tax period ending on the
Closing Date may be claimed as a deduction by UbiquiTel Parent on its
consolidated federal income Tax Return for the first tax period ending
subsequent to the Closing Date in which such deduction may properly be claimed
(the "POST-ACQUISITION PERIOD"). If UbiquiTel Parent files a claim for a federal
income tax refund ("FIT REFUND") for a tax period of ▇▇▇▇▇ and its subsidiaries
ending on or before the Closing Date (an "▇▇▇▇▇ PRE-ACQUISITION PERIOD") as a
result of a net operating loss carryback from the Post-Acquisition Period,
UbiquiTel Parent shall make a payment to the ▇▇▇▇▇ Stockholders of 50% of any
such FIT Refund or part thereof attributable solely to the CFT Deduction (the
"CFT PAYMENT"). UbiquiTel Parent shall make the CFT payment, if any, within 60
days of, and only upon UbiquiTel Parent's actual receipt of, a FIT Refund
attributable to the CFT Deduction. UbiquiTel Parent's obligation to make any CFT
Payment shall be subject to the following additional terms and conditions: (i)
UbiquiTel Parent shall be under no obligation, and the ▇▇▇▇▇ Stockholders shall
have no right, to require UbiquiTel Parent to file any claim for refund or
amended returns relating to any ▇▇▇▇▇ Pre-Acquisition Period; (ii) except as
otherwise provided in this Agreement, UbiquiTel Parent may take any actions
following the Closing Date with regard to the transfer of the ownership of
▇▇▇▇▇, its subsidiaries or their assets, even if such actions preclude any
carryback of any net operating losses; (iii) any UbiquiTel Parent FIT Refund
shall be considered attributable to the CFT Deduction only to the extent of any
additional FIT Refund received, if any, as a result of and but for the CFT
Deduction; (iv) the maximum amount of any CFT Payment to the ▇▇▇▇▇ Stockholders
shall be $825,000; (v) UbiquiTel Parent shall be indemnified by the ▇▇▇▇▇
Stockholders pursuant to Article 12 for any CFT Payment made to the ▇▇▇▇▇
Stockholders if any FIT Refund attributable to the CFT Deduction is subsequently
disallowed for any reason; and
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(vi) UbiquiTel Parent shall have no obligation to make a CFT Payment if it has
not received a FIT Refund attributable to the CFT deduction on or before
December 31, 2005. Notwithstanding any other provision of this Agreement,
UbiquiTel Parent shall not be obligated to make any other payment to the ▇▇▇▇▇
Stockholders as a result of any Tax refund claim filed with respect to any ▇▇▇▇▇
Pre-Acquisition Period to the extent that such Tax refund claim arises from a
net operating loss carryback from any Post-Acquisition Period. UbiquiTel Parent
shall notify the ▇▇▇▇▇ Representative within 30 days of filing a claim for an
FIT Refund with respect to an ▇▇▇▇▇ Pre-Acquisition Period and whether such
claim includes an FIT Refund attributable to the CFT Deduction. If such a refund
claim is filed, UbiquiTel Parent's Chief Financial Officer shall provide a
certification to the ▇▇▇▇▇ Representative on each of December 31, 2002,
December 31, 2003, December 31, 2004, and December 31, 2005, as to whether or
not UbiquiTel Parent has received an FIT Refund attributable to the CFT
Deduction.
11.8 WAIVER OF PURCHASE RIGHTS BY MEMBERS.
So long as this Agreement has not been terminated in accordance with the
provisions of Article 5 hereof, the Members waive any and all rights of first
refusal or other similar purchase rights with respect to LLC Interests each such
Member may have pursuant to the Operating Agreement, including, without
limitation, such rights as set forth in Article 12 thereof.
11.9 RELEASE FROM STOCKHOLDER GUARANTEES.
At the CLOSING, UbiquiTel Parent or UbiquiTel shall obtain the release of
the LLC Parties (and their respective officers, directors, employees,
shareholders and Affiliates) from the guarantees listed on Schedule 11.9;
PROVIDED, HOWEVER, that if UbiquiTel Parent or UbiquiTel is unable to obtain
such releases at the Closing, UbiquiTel Parent and/or UbiquiTel shall continue
to use commercially reasonable efforts (which efforts shall include having
UbiquiTel Parent or UbiquiTel named as a guarantor, if acceptable to the
respective creditors) to obtain such releases, and in any event shall indemnify
and hold harmless the LLC Parties (and their respective officers, directors,
employees, shareholders and Affiliates) against any liability with respect to
any such guarantees. Any indemnification amounts to be paid by UbiquiTel Parent
and/or UbiquiTel pursuant to this Section 11.9 shall be paid promptly upon
demand, without limitation or offset.
11.10 FCC MATTERS.
UbiquiTel shall be responsible for any unjust enrichment payment required by
Section 1.2111 of the FCC's rules with respect to the transfer of the PCS
Licenses from VIA to UbiquiTel.
11.11 AMENDMENT OF DUE DILIGENCE SCHEDULES.
LLC may, within three days next following the execution of this Agreement,
amend the LLC Disclosure Schedule (excluding Sections 6.5 and 6.10) for
additional disclosures not to exceed $1.0 million individually or in the
aggregate.
ARTICLE 12
INDEMNIFICATION
12.1 SURVIVAL; ETC.
(a) BREACH.
As used herein, a Party's "BREACH" shall mean (i) with respect to any
representation or warranty made in Sections 6 and 8 of this Agreement or in any
of the Related Agreements, such representation or warranty being untrue as of
the Pre-Closing Date, (ii) with respect to any representation or warranty made
in Section 7 of this Agreement, such representation or warranty being untrue as
of the Closing
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Date, and (ii) any breach of any of such Party's covenants, agreements, or
obligations under this Agreement or under any of the Related Agreements. At the
Closing, "Breach" shall also include any fact, event, circumstance, or matter
that causes a representation or warranty (i) made in Sections 6 and 8 on the
date of this Agreement to become untrue between the date of this Agreement and
the Pre-Closing Date, or (ii) made in Section 7 on the date of this Agreement to
become untrue between the date of this Agreement and the Closing Date, except
and to the extent that such Breach has been cured in accordance with the terms
set forth in Article 5 hereof.
(b) SURVIVAL.
The representations and warranties of the Parties made in this Agreement or
any Related Agreement, and the indemnification obligations of the Parties in
connection with a Breach thereof, shall survive the Closing for the periods of
time set forth in Section 12.1(c) (SURVIVAL OF REPRESENTATIONS AND WARRANTIES)
below.
(c) SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
If the Closing occurs, the representations and warranties set forth in
Article 6 (REPRESENTATIONS AND WARRANTIES CONCERNING LLC), and Article 8
(REPRESENTATIONS AND WARRANTIES OF UBIQUITEL PARENT, UBIQUITEL AND THE MERGER
SUBS) of this Agreement shall survive for twelve (12) months following the
Pre-Closing Date, and the representations and warranties set forth in Article 7
(REPRESENTATIONS AND WARRANTIES CONCERNING THE MEMBERS AND STOCKHOLDERS) of this
Agreement shall survive for twelve (12) months following the Closing Date;
PROVIDED, HOWEVER, that (i) the representations, warranties, and covenants set
forth in Sections 6.5(b) (TAX MATTERS), 7.5(b) (TAX MATTERS), 11.6 (TAX MATTERS
FOR UBIQUITEL PARENT AND MEMBERS) and 11.7 (TAX MATTERS IN ▇▇▇▇▇ MERGER) shall
survive for the period of any applicable statute of limitations, (ii) the
representations and warranties set forth in Section 6.10 (ENVIRONMENTAL MATTERS)
shall survive for twenty-four (24) months following the Closing Date, (iii) the
representations and warranties set forth in Section 8.10(a) and (b) (CERTAIN
INFORMATION) shall survive for forty-eight (48) months following the Closing
Date, and (iv) the representations and warranties set forth in
Sections 6.1(a) (ORGANIZATION AND GOOD STANDING), 6.1(b) (VALIDITY AND
AUTHORIZATION; POWER AND AUTHORITY), 6.3 (CAPITALIZATION), 7.1(a) (ORGANIZATION
AND GOOD STANDING), 7.1(b) (VALIDITY AND AUTHORIZATION; POWER AND AUTHORITY),
7.1(e) (OWNERSHIP AND TRANSFER BY MEMBERS OF MEMBERS' INTERESTS),
8.1(a) (ORGANIZATION AND GOOD STANDING), 8.1(b) (CORPORATE POWER AND AUTHORITY;
VALIDITY AND AUTHORIZATION), 8.4 (UBIQUITEL STOCK), 8.7 (CAPITALIZATION), and
any claim based on fraud, whether at common law or as codified in state or local
statutes, shall survive without limitation ("SURVIVAL PERIOD"). Any claim for
Losses (as defined in Section 12.2(a)(i) (LLC PARTIES INDEMNIFICATION) herein)
based on a Breach of a representation or warranty that is not commenced during
the Survival Period of such representation or warranty shall be deemed waived,
and no Person shall have any remedy against any Party for any such Breaches.
12.2 INDEMNITIES.
(a) INDEMNIFICATION OF UBIQUITEL.
(i) LLC PARTIES INDEMNIFICATION.
Subject to the other provisions of this Article 12, the Stockholders and the
Selling Member (excluding ▇▇▇▇▇ if it has merged with Merger Sub V but including
the Controlling ▇▇▇▇▇ Stockholders in such case), jointly and severally
(collectively, as applicable, the "LLC INDEMNITORS"), shall defend, indemnify
and hold UbiquiTel Parent and its Affiliates, and their respective directors,
officers, employees, stockholders or members (as the case may be), agents,
advisors, attorneys, accountants, consultants and Affiliates (collectively, the
"UBIQUITEL INDEMNITEES"), harmless from and against, and promptly reimburse the
UbiquiTel Indemnitees for, any loss, expense, damage, deficiency, liability,
claim or obligation, including investigative costs, costs of defense, settlement
costs (subject to approval
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as provided below) and attorneys' and accountants' fees (individually, a "LOSS"
and collectively, "LOSSES") that any UbiquiTel Indemnitee suffers or incurs or
to which any UbiquiTel Indemnitee becomes subject, which Losses arise out of or
in connection with (a) any Breach by LLC, and (b) any claim asserted by any
third party that, assuming the truth thereof, would constitute a Breach by LLC.
If any LLC Indemnitor (a "PAYING LLC INDEMNITOR") is required to pay or is held
liable for any amount with respect to an LLC indemnified claim, each of the
other LLC Indemnitors (the "REMAINING LLC INDEMNITORS") shall be liable to the
Paying LLC Indemnitor for, and shall contribute to and hold the Paying LLC
Indemnitor harmless from and against, an amount equal to such LLC Indemnitor's
proportionate share of such liability (based upon the aggregate dollar value of
the consideration received by such LLC Indemnitor pursuant to this Agreement) as
adjusted to account for a default by any LLC Indemnitor in meeting its
obligations hereunder. Any such amounts shall be paid within five days of the
date any Paying LLC Indemnitor is held liable for, or is required to pay, an LLC
Indemnified Claim.
(ii) STOCKHOLDER GROUPS' INDEMNIFICATION.
Subject to the other provisions of this Article 12, the members of each
Stockholder Group (collectively, as applicable, the "STOCKHOLDER GROUP
INDEMNITORS"), jointly and severally among the members of such Stockholder
Group, and severally and not jointly among separate Stockholder Groups, shall
defend, indemnify and hold the UbiquiTel Indemnitees harmless from and against,
and promptly reimburse the UbiquiTel Indemnitees for, any Losses that any
UbiquiTel Indemnitee suffers or incurs or to which any UbiquiTel Indemnitee
becomes subject, which Losses arise out of or in connection with any Breach by
such Stockholder Group of Article 7 hereof or Section 11.6 (TAX MATTERS FOR
UBIQUITEL PARENT AND MEMBERS). Each Stockholder belonging to a Stockholder Group
Indemnitor agrees that any liability for indemnification (a "STOCKHOLDER GROUP
INDEMNIFIED CLAIM") under this Section 12.2(a)(ii) shall be borne by each
Stockholder belonging to such Stockholder Group Indemnitor jointly and
severally, regardless of which Stockholder of such Stockholder Group Indemnitor
is required to make any payments to a UbiquiTel Indemnitee for such Stockholder
Group Indemnified Claim pursuant to this Section 12.2(a)(ii). If any Stockholder
of a Stockholder Group Indemnitor (a "PAYING STOCKHOLDER GROUP INDEMNITOR") is
required to pay or is held liable for any amount with respect to a Stockholder
Group Indemnified Claim, each of the other Stockholders of such Stockholder
Group Indemnitor (the "REMAINING STOCKHOLDER GROUP INDEMNITORS") shall be liable
to the Paying Stockholder Group Indemnitor for, and shall contribute to and hold
the Paying Stockholder Group Indemnitor harmless from and against, an amount
equal to such Stockholder's proportionate share of such liability based upon
number of shares of UbiquiTel Stock received by such Stockholder pursuant to
this Agreement, as adjusted to account for a default by any Stockholder in
meeting its obligations hereunder. Any such amounts shall be paid within five
days of the date any Paying Stockholder Group Indemnitor is held liable for, or
is required to pay, a Stockholder Group Indemnified Claim.
(iii) ▇▇▇▇▇ GROUP'S INDEMNIFICATION.
The UbiquiTel Indemnitees shall be indemnified pursuant to the Controlling
▇▇▇▇▇ Stockholders Indemnification Agreement and not pursuant to this
Article 12 for any Losses that arise out of or in connection with the ▇▇▇▇▇
Telco Businesses, including but not limited to, any Losses that results from a
breach of Section 11.7 (TAX MATTERS IN ▇▇▇▇▇ MERGER) to the extent that such
Losses relate to the ▇▇▇▇▇ Telco Businesses.
(b) UBIQUITEL PARENT'S INDEMNIFICATION.
Subject to the other provisions of this Article 12, UbiquiTel Parent and its
Affiliates, jointly and severally (collectively, the "UBIQUITEL INDEMNITORS"),
shall defend, indemnify and hold the LLC Parties, the ▇▇▇▇▇ Stockholders and
their Affiliates and their respective directors, officers, employees,
stockholders and members (as the case may be), agents, advisors, attorneys,
accountants, consultants and Affiliates (collectively, the "LLC PARTIES
INDEMNITEES"), harmless from and against, and promptly
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reimburse the LLC Indemnitees for, any Losses that any of the LLC Parties
suffers or incurs or to which any of the LLC Parties become subject, which
Losses arise out of or in connection with (a) any Breach by any of UbiquiTel
Parent, UbiquiTel or the Merger Subs of this Agreement, and (b) any claim
asserted by any third party that, assuming the truth thereof, would constitute a
Breach by any of UbiquiTel Parent, UbiquiTel or the Merger Subs.
12.3 LIMITATIONS ON INDEMNITIES.
(a) BASKET.
After the Pre-Closing, none of the LLC Indemnitors or the Stockholder Group
Indemnitors shall have any obligation to indemnify the UbiquiTel Indemnitees for
Losses arising from a Breach of this Agreement until the indemnifiable Losses
incurred by the UbiquiTel Indemnitees, arising from a Breach of this Agreement
at or prior to the Pre-Closing (with respect to the LLC Indemnitors) or the
Closing (with respect to the Stockholder Group Indemnitors), exceed $2,225,000
in the aggregate (the "BASKET"), at which time the LLC Indemnitors and the
Stockholder Group Indemnitors shall indemnify the UbiquiTel Indemnitees only for
amounts of the Losses in excess of the Basket, subject to the Maximum
Indemnification Amount set forth in Section 12.3(b) (ESCROW AND MAXIMUM
INDEMNIFICATION AMOUNT) below.
(b) ESCROW AND MAXIMUM INDEMNIFICATION AMOUNT.
No Stockholder, Selling Member or Controlling ▇▇▇▇▇ Stockholder shall incur
any liability for Losses pursuant to this Article 12 in excess of its Maximum
Indemnification Amount. For purposes of this Agreement, a Stockholder's, Selling
Member's or Controlling ▇▇▇▇▇ Stockholder's "MAXIMUM INDEMNIFICATION AMOUNT" is
its proportionate share of $30,000,000. Losses for Breach of this Agreement may
be assessed against shares of UbiquiTel Stock in the Escrow Account or against
one or more Stockholders, Controlling ▇▇▇▇▇ Stockholders, or the Selling Member;
PROVIDED that a Stockholder, the Selling Member or a Controlling ▇▇▇▇▇
Stockholder may at its option discharge any indemnification obligation with cash
rather than with UbiquiTel Stock. Any shares of UbiquiTel Stock delivered to
UbiquiTel from the Escrow Account to satisfy claims for Losses shall be valued
at the Twenty Day Average Closing Price. For purposes of this Agreement, "TWENTY
DAY AVERAGE CLOSING PRICE" means the average of the Closing sale price per share
of UbiquiTel Stock as reported on The Nasdaq Stock Market during the twenty
consecutive trading-day period ending on the fifth trading day prior to the
Signing Date.
(c) NO LIMITATIONS ON TAX INDEMNIFICATIONS.
Notwithstanding any other provisions of this Agreement, the limitations set
forth in Sections 12(a) and 12(b) do not apply with respect to any Breach of the
representations, warranties, and covenants set forth in Sections 6.5(b), 7.5(b),
11.6, and 11.7.
(d) DAMAGES.
Losses recoverable for Breach of this Agreement shall be limited to actual
damages, and no Party shall recover consequential, punitive, lost opportunity or
special damages of any nature, regardless of the nature of such Party's claim or
such Party's theory of liability. In determining such Losses, the Parties shall
make appropriate adjustments for Tax benefits and insurance coverage and take
into account the time cost of money (using the short term Applicable Federal
Rate as the discount rate). All indemnification payments made under this
Article 12 by an indemnifying party shall be deemed adjustments to the Merger
Consideration, if any, received by such indemnifying party.
(e) EXCLUSIVITY.
In the absence of fraud, the indemnification provisions of this Article 12
shall be the exclusive remedy for any Losses, expense, damage, deficiency,
liability, claim or obligation, including investigative
A-1-59
costs, costs of defense, settlement costs (subject to consent as provided in
Section 12.4(b) (DEFENSE COSTS) below) and attorneys' and accountants' fees in
connection with this Agreement or any Related Agreement or any Breach hereof or
thereof.
12.4 NOTICE AND OPPORTUNITY TO DEFEND.
(a) CLAIM NOTICES, ETC.
If any Party (the "INDEMNIFIED PARTY") receives notice of any third-party
claim or commencement of any third-party action or proceeding (an "ASSERTED
LIABILITY") with respect to which any other Party (an "INDEMNIFYING PARTY") is
obligated to provide indemnification pursuant to this Article 12, the
Indemnified Party shall promptly give all Indemnifying Parties notice thereof.
The Indemnified Party's failure so to notify an Indemnifying Party shall not
cause the Indemnified Party to lose its right to indemnification under this
Article 12, except to the extent that such failure materially prejudices the
Indemnifying Party's ability to defend against an Asserted Liability that such
Indemnifying Party has the right to defend against hereunder (and except as
otherwise set forth in this Article 12). Such notice shall describe the Asserted
Liability in reasonable detail, and if practicable shall indicate the amount
(which may be estimated) of the Losses that have been or may be asserted by the
Indemnified Party. Each of the Indemnifying Parties may defend against an
Asserted Liability on behalf of the Indemnified Party utilizing counsel
reasonably acceptable to the Indemnified Party, unless (i) the Indemnified Party
reasonably objects to the assumption of such defense on the grounds that counsel
for such Indemnifying Party cannot represent both the Indemnified Party and such
Indemnifying Party because such representation would be reasonably likely to
result in a conflict of interest or because there may be defenses available to
the Indemnified Party that are not available to such Indemnifying Party, (ii)
such Indemnifying Party is not capable (by reason of insufficient financial
capacity, bankruptcy, receivership, liquidation, managerial deadlock, managerial
neglect or similar events) of maintaining a reasonable defense of such action or
proceeding, or (iii) the action or proceeding seeks injunctive or other
equitable relief against the Indemnified Party. In the event the Indemnifying
Party elects to conduct the defense, it is entitled to have exclusive control
over the defense and settlement thereof and the Indemnified Party will cooperate
and make available to the Indemnifying Party such assistance and materials as it
may reasonably request, at the Indemnifying Party's expense. Notwithstanding the
foregoing, the Indemnifying Party shall not be entitled to control, but may
participate in, and the Indemnified Party shall be entitled to have sole control
over, the defense or settlement of any claim that (i) seeks a temporary
restraining order, preliminary or permanent injunction or specific performance
against the Indemnified Party, or (ii) would impose liability on the part of the
Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.
(b) DEFENSE COSTS.
If any Indemnifying Party defends an Asserted Liability in accordance with
Section 12.4(a) (CLAIM NOTICES, ETC.), it shall do so at its own expense and
shall not be responsible for the costs of defense, investigative costs,
attorneys' fees or other expenses incurred to defend the Asserted Liability
(collectively, "DEFENSE COSTS") of the Indemnified Party (which may continue to
defend, at its own expense). Notwithstanding the foregoing, if the Person
asserting the Asserted Liability against the Indemnified Party claims or seeks
amounts in excess of the amount set forth in Section 12.3(b) (ESCROW AND MAXIMUM
INDEMNIFICATION AMOUNT), then the Indemnifying Party shall remain liable for the
Defense Costs incurred by the Indemnified Party. If the Indemnified Party
assumes the defense of an Asserted Liability by reason of clauses (i), (ii) or
(iii) of subsection 12.4(a) (CLAIM NOTICES, ETC.) above, or because the
Indemnifying Party has not elected to assume the defense, then such Indemnifying
Party shall indemnify the Indemnified Party for its Defense Costs; PROVIDED,
HOWEVER, the Indemnifying Parties shall not be liable for the costs of more than
one counsel for all Indemnified Parties in any one jurisdiction.
A-1-60
(c) THIRD PARTY CLAIMS.
The Parties shall cooperate with each other with respect to the defense of
any claims or litigation made or commenced by third parties subsequent to the
applicable Closing Date with respect to which indemnification is not available
(for any reason) under this Article 12, PROVIDED that the Party requesting
cooperation shall reimburse the other Party for the other Party's reasonable
out-of-pocket costs and expenses of furnishing such cooperation.
12.5 DELAYS OR OMISSIONS, ETC.
Except as provided in Section 12.1 (SURVIVAL; ETC.) and Section 12.4 (NOTICE
AND OPPORTUNITY TO DEFEND), no delay or omission to exercise any right, power or
remedy inuring to any Party upon any breach or default of any Party under this
Agreement or any Related Agreement shall impair any such right, power or remedy
of such Party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring.
12.6 GOVERNING LAW.
This Agreement and the Related Agreements shall be governed by, and
construed, interpreted and applied in accordance with the internal laws of the
State of Delaware. Subject to Section 12.7 (DISPUTE RESOLUTION), each Party
hereto hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Eastern District of California, Fresno Division
and, if such court does not have jurisdiction, of the courts of the State of
California in Fresno County, for the purposes of any action arising out of this
Agreement or any of the Related Agreements, or the subject matter hereof or
thereof, brought by any other Party. Subject to Section 12.7 (DISPUTE
RESOLUTION), to the extent permitted by applicable law, each Party hereby waives
and agrees not to assert, by way of motion, as a defense or otherwise in any
such action, any claim (i) that it is not subject to the jurisdiction of the
above-named courts, (ii) that the action is brought in an inconvenient forum,
(iii) that it is immune from any legal process with respect to itself or its
property, (iv) that the venue of the suit, action or proceeding is improper or
(v) that this Agreement or any Related Agreement, or the subject matter hereof
or thereof, may not be enforced in or by such courts.
12.7 DISPUTE RESOLUTION.
(a) ARBITRATION.
(i) Any controversy or claim arising out of or relating to this
Agreement or any of the Related Agreements, or the breach thereof, shall
be settled by arbitration before three arbitrators in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the
"AAA") as in force on the date hereof, and judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The initiating Party shall designate an arbitrator
when it gives written notice of arbitration to the other Party (the
"RESPONDENT").
(ii) The Respondent shall designate its arbitrator when it files its
answering statement, and if it fails to do so, then the second arbitrator
shall be named by the AAA. The two arbitrators so selected shall name a
third arbitrator within 30 days, or if they fail to do so, then the third
arbitrator shall be appointed by the AAA. If any arbitrator appointed
hereunder shall die, resign, refuse, or become unable to act before an
arbitration decision is rendered, then the vacancy shall be filled by the
methods set forth in this Section 12.7(a) for the original appointment of
such arbitrator. All three arbitrators (and any successors) shall be
A-1-61
impartial, and no arbitrator shall have any bias or any personal or
financial interest in the arbitration or any past or present personal or
financial relationship with the Parties.
(iii) Each Party shall bear its own arbitration costs and expenses;
PROVIDED, HOWEVER, that the arbitrators shall have discretion in awarding
attorneys' fees and other costs, in addition to any other relief to which
a Party to the arbitration may be entitled. The arbitration hearing shall
be held in Fresno, California at a location designated by a majority of
the arbitrators. The arbitration shall be governed by the substantive
laws of the State of Delaware.
(iv) Except as set forth in Section 12.7(b) (EMERGENCY RELIEF) below,
the Parties stipulate that the provisions of this Section 12.7 shall be a
complete defense to any suit, action or proceeding instituted in any
federal, state or local court or before any administrative tribunal with
respect to any controversy or dispute arising out of this Agreement or
any of the Related Agreements. Neither Party hereto nor the arbitrators
may disclose the existence or results of any arbitration hereunder
without the prior written consent of the other Party; nor will any Party
hereto disclose to any third party any confidential information disclosed
by any other Party hereto in the course of an arbitration hereunder
without the prior written consent of such other Party. Notwithstanding
the foregoing, the Parties acknowledge that UbiquiTel Parent may disclose
the existence or results of an arbitration hereunder, as well as
information otherwise required to be disclosed by deposition, subpoena or
other court or governmental action in connection with UbiquiTel Parent's
obligations under the Exchange Act and the rules and regulations
promulgated thereunder and in connection with UbiquiTel Parent's
registration of offerings of securities under the Securities Act and the
rules and regulations promulgated thereunder, other laws, regulations or
stock exchange requirements.
(b) EMERGENCY RELIEF.
Notwithstanding anything in this Section 12.7 to the contrary and subject to
the provisions of Section 12.6 (GOVERNING LAW), any Party hereto may seek from a
court any provisional remedy that may be necessary to protect any rights or
property of such Party pending the establishment of the arbitral tribunal or its
determination of the merits of the controversy.
ARTICLE 13
MISCELLANEOUS
13.1 SUCCESSORS AND ASSIGNS.
The provisions hereof shall inure to the benefit of, and be binding upon,
the permitted assigns, successors, heirs, executors and administrators of the
Parties hereto. This Agreement may not be assigned without the written consent
of UbiquiTel Parent and the LLC Parties and any attempted assignment without
such consent shall be null and void; PROVIDED, HOWEVER, UbiquiTel Parent,
UbiquiTel and the Merger Subs may assign any of its rights and obligations
hereunder to any Affiliate that agrees in writing to be bound hereby, so long as
any such assignment is consistent with Section 11.4(e) hereof.
13.2 ENTIRE AGREEMENT.
This Agreement and the Related Agreements (including the disclosure
schedules and exhibits hereto and thereto), and the other documents delivered
pursuant hereto and thereto and referenced herein and therein, constitute the
full and entire understanding and agreement between the Parties with respect to
the subject matters set forth herein and therein and supersede any other
agreements, written or oral, with regard to the subject matter hereof. This
Agreement supersedes that certain letter agreement dated September 28, 2000, as
amended, among certain of the Parties hereto.
A-1-62
13.3 AMENDMENT.
Subject to any applicable provisions of the DGCL and the CCC, at any time
prior to the applicable Effective Date, the Parties hereto may modify or amend
this Agreement by written agreement executed and delivered by duly authorized
officers of the respective Parties. This Agreement may not be modified or
amended except by written agreement executed and delivered by each of the
respective Parties. Notwithstanding the foregoing, the Merger Consideration that
the Stockholders shall receive can be adjusted if all of the Members' Committee
approves of any such changes.
13.4 EXTENSION; WAIVER.
At any time prior to the applicable Effective Date, the Parties may (a)
extend the time for the performance of any of the obligations or other acts of
the other Parties, (b) waive any inaccuracies in the representations and
warranties of the other Parties contained in this Agreement or in any document
delivered pursuant to this Agreement, or (c) subject to Section 13.3
(AMENDMENT), waive compliance with any of the agreements or conditions of the
other Parties contained in this Agreement. Any agreement on the part of a Party
to any such extension or waiver shall be valid only if set forth in a written
instrument executed and delivered by a duly authorized officer on behalf of such
Party. The failure of any Party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
13.5 NOTICES, ETC.
All notices and other communications required or permitted hereunder shall
be in writing and shall be sent by certified or registered mail, postage prepaid
with return receipt requested, telecopy (with hard copy delivered by overnight
courier service), or delivered by hand, messenger or overnight courier service,
and shall be deemed given when received at the addresses or telecopy numbers of
the Parties set forth below, or at such other address or telecopy number
furnished in writing to the other Parties hereto:
To UbiquiTel Parent, UbiquiTel or the Merger Subs:
UbiquiTel Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and CEO
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
To LLC:
VIA Wireless, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇▇▇ Financial Center
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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and to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Paper, Esq.
To ▇▇▇▇▇ or CVC:
▇.▇. ▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
To PC4:
Ponderosa Cellular 4, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇'▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
To PCS:
Personal Communications Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To Pinnacles:
Pinnacles PCS, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
A-1-64
To Kerman:
Kerman Communication Technologies, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To the Selling Members:
▇. ▇▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Associates, L.P.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
To PTC:
Ponderosa Telephone Co.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇'▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
To IPLLC:
Instant Phone, LLC
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
A-1-65
To Ramyar:
Ramyar, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To RCBM:
Rcbm, Llc
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To BFI:
▇▇▇▇▇ Family, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To KCI:
Kerman Communications, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To ▇▇▇▇▇▇:
▇▇▇▇▇▇ Family Limited Partnership
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
A-1-66
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To S&K:
S&K ▇▇▇▇▇ Family Limited Partnership
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To Testamentary Trust:
Irrevocable Trust Under the Will of ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇▇ & Fores
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To ▇▇▇▇▇ ▇▇:
▇.▇. ▇▇▇▇▇ Family Limited Partnership
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
A-1-67
and to:
▇▇▇▇▇▇▇▇ & Fores
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To Vilas Trust:
▇▇▇▇ ▇▇▇▇▇ Vilas 1990 Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇▇ & Fores
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To ▇▇▇▇▇▇ Trust:
The ▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ Charitable Remainder Trust II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇▇ & Fores
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To ▇▇▇▇▇ Trust:
The ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Charitable Remainder Trust II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-1-68
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇▇ & Fores
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or such other address as the parties hereto may by notice in writing duly
designate.
13.6 THIRD PARTY BENEFICIARY, ETC.
There shall be no third party beneficiary hereof. Neither the availability
of, nor any limit on, any remedy hereunder limits the remedies of any Party
hereto against third parties.
13.7 REFORMATION; SEVERABILITY.
In case any provision hereof shall be invalid, illegal or unenforceable,
such provision shall be reformed to best effectuate the intent of the Parties
and permit enforcement hereof, and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
If such provision is not capable of reformation, it shall be severed from this
Agreement and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
13.8 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
13.9 TITLES AND SUBTITLES.
The titles of the paragraphs and subparagraphs hereof are for convenience of
reference only and are not to be considered in construing this Agreement.
13.10 EXPENSES.
The Stockholders (and, if the ▇▇▇▇▇ Merger occurs, the ▇▇▇▇▇ Stockholders)
will bear all of the expenses (third-party or otherwise) incurred by LLC, LLC
Subsidiary, and the Members in connection with the preparation, execution and
performance of this Agreement, the Related Agreements and the transactions
contemplated herein or therein, including without limitation all fees and
expenses of agents, representatives, counsel and accountants. Notwithstanding
the foregoing, prior to the Pre-Closing, LLC may pay up to $3.0 million for the
expenses it incurs in connection with this Agreement for its and its Members'
accountants, attorneys, filing fees (including HSR Act filing fees), financial
advisory services and fairness opinions. In its capacity as Operating Manager
under the Management Agreement, UbiquiTel will promptly authorize payments up to
such limit by LLC at the request of the Members Committee. UbiquiTel will bear
all of its expenses and the expenses of UbiquiTel Parent and the Merger Subs.
A-1-69
13.11 RESPONSIBILITY FOR MERGER SUB OBLIGATIONS.
UbiquiTel Parent shall be directly responsible for assuring that the Merger
Subs perform all of their obligations hereunder.
13.12 CONFIDENTIALITY.
Each of UbiquiTel Parent, UbiquiTel and the Merger Subs, on the one hand,
and the LLC Parties, on the other hand, acknowledge and agree that the other
Party is and will be relying upon the agreements made by them in this Section
13.12 in entering into this Agreement and consummating the transactions
contemplated hereby.
(a) POST-SIGNING CONFIDENTIALITY.
Between the date of this Agreement and the Closing, all of the Parties to
this Agreement will maintain in confidence, and will cause their Representatives
to maintain in confidence, any written, oral, or other information obtained in
confidence from any other Party in connection with this Agreement or the
transactions contemplated hereby, unless (i) such information is already known
to such Person or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such Person,
(ii) the use of such information is necessary or appropriate in making any
filing or obtaining any consent required for the consummation of the
transactions contemplated hereby, or (iii) the furnishing or use of such
information is required by or necessary or appropriate in connection with any
applicable proceedings. If the transactions contemplated hereby are not
consummated, each Party hereto will destroy as much of any written information
obtained in confidence from any other Party in connection with this Agreement or
the contemplated transactions or return such information to such Party as the
other Party may request.
(b) POST-CLOSING CONFIDENTIALITY.
From the Closing and for a period of two (2) years thereafter, the LLC
Parties (for the purposes of this Section 13.12(b) the LLC Parties shall not
include LLC or the Members (including ▇▇▇▇▇, if the ▇▇▇▇▇ Merger occurs)) shall
not, except as may be required by law or court order, at any time reveal,
divulge, communicate or make known to any Person (other than UbiquiTel Parent,
UbiquiTel and their respective agents) any information of UbiquiTel Parent or
UbiquiTel of a confidential and proprietary nature obtained in connection with
the transactions contemplated hereby and any technical information, product
information, customer information, marketing plans, proposals or information,
financial information, or any data, written material, records or documents used
by or relating to the business of LLC that are of a confidential nature (the
"UBIQUITEL CONFIDENTIAL INFORMATION"). In the event that any of the LLC Parties
believes that it is required to disclose any such UbiquiTel Confidential
Information pursuant to any applicable law or court order, such LLC Party shall
give timely written notice to UbiquiTel Parent so that UbiquiTel Parent may have
an opportunity to obtain a protective order or other appropriate relief.
Notwithstanding anything to the contrary contained herein, the LLC Parties'
obligations and UbiquiTel Parent's rights under this Section 13.12(b) shall
remain in effect after, and shall survive, the Closing of the transactions
contemplated by this Agreement. Each of the LLC Parties specifically
acknowledges and agrees that the provisions of this Section 13.12(b) are
reasonable and necessary to protect the interests of UbiquiTel Parent and
UbiquiTel, that any violation of this Section 13.12(b) will result in an
irreparable injury to UbiquiTel Parent and UbiquiTel and that the remedy at law
for any breach of this Section 13.12(b) will be inadequate. In the event of any
breach or threatened breach by any of the LLC Parties of any provision of this
Section 13.12(b), UbiquiTel Parent, in addition to any other relief available to
it, shall be entitled to temporary and permanent injunctive relief, restraining
such Party from using or disclosing any UbiquiTel Confidential Information in
whole or in part, or from engaging in conduct that otherwise would constitute a
breach of the obligations of such Party under this Section 13.12(b), without the
necessity of proving actual damages or posting a bond or other security. Such
relief shall be in addition to and not in lieu of any other remedies that may be
available, including an action for the recovery of damages.
A-1-70
IN WITNESS WHEREOF, the undersigned have executed this AMENDED AND RESTATED
MERGER AGREEMENT as of the date first set forth above.
UBIQUITEL COMPANIES:
UBIQUITEL INC.
By:
-----------------------------------------
Name:
Title:
UBIQUITEL OPERATING COMPANY
By:
-----------------------------------------
Name:
Title:
UBIQUITEL AFFILIATES:
UVMS I, INC.
By:
-----------------------------------------
Name:
Title:
UVMS II, INC.
By:
-----------------------------------------
Name:
Title:
UVMS III, INC.
By:
-----------------------------------------
Name:
Title:
UVMS IV, INC.
By:
-----------------------------------------
Name:
Title:
A-1-71
IN WITNESS WHEREOF, the undersigned have executed this MERGER AGREEMENT as
of the date first set forth above.
UVMS V, INC.
By:
-----------------------------------------
Name:
Title:
UVMS VI, INC.
By:
-----------------------------------------
Name:
Title:
LLC:
VIA WIRELESS, LLC
By:
-----------------------------------------
Name:
Title:
THE MEMBERS:
CENTRAL VALLEY CELLULAR, INC.
By:
-----------------------------------------
Name:
Title:
PONDEROSA CELLULAR 4, INC.
By:
-----------------------------------------
Name:
Title:
PERSONAL COMMUNICATIONS SERVICE, INC.
By:
-----------------------------------------
Name:
Title:
A-1-72
IN WITNESS WHEREOF, the undersigned have executed this MERGER AGREEMENT as
of the date first set forth above.
PINNACLES PCS, INC.
By:
-----------------------------------------
Name:
Title:
KERMAN COMMUNICATION TECHNOLOGIES, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ASSOCIATES, L.P.
By:
-----------------------------------------
Name:
Title:
THE STOCKHOLDERS:
▇.▇. ▇▇▇▇▇ INC.
By:
-----------------------------------------
Name:
Title:
THE PONDEROSA TELEPHONE CO.
By:
-----------------------------------------
Name:
Title:
RCBM, LLC
By:
-----------------------------------------
Name:
Title:
A-1-73
IN WITNESS WHEREOF, the undersigned have executed this MERGER AGREEMENT as
of the date first set forth above.
RAMYAR, LLC
By:
-----------------------------------------
Name:
Title:
INSTANT PHONE, LLC
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇ FAMILY, INC.
By:
-----------------------------------------
Name:
Title:
KERMAN COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
S&K ▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
A-1-74
IN WITNESS WHEREOF, the undersigned have executed this MERGER AGREEMENT as
of the date first set forth above.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
THE CONTROLLING ▇▇▇▇▇ STOCKHOLDERS:
IRREVOCABLE TRUST UNDER THE WILL OF ▇▇▇▇ ▇.
▇▇▇▇▇
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
TRUSTEE
▇.▇. ▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ TRUST
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
TRUSTEE
By:
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
TRUSTEE
A-1-75
IN WITNESS WHEREOF, the undersigned have executed this MERGER AGREEMENT as
of the date first set forth above.
THE ▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇ CHARITABLE REMAINDER
TRUST II
By:
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇
TRUSTEE
By:
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
TRUSTEE
By:
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇
SPECIAL TRUSTEE
THE ▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇ CHARITABLE REMAINDER
TRUST II
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
TRUSTEE
By:
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
TRUSTEE
By:
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇
SPECIAL TRUSTEE
A-1-76
