EXCHANGE AGREEMENT
EXCHANGE AGREEMENT ("Agreement"), dated as of February 8, 2001, between
Xxxxxx Communications Corporation, an Oklahoma corporation (the "Company"), and
AT&T Wireless Services, Inc., a Delaware corporation ("AWS"). Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto
under the Purchase Agreement (defined below).
WHEREAS, each of the Company and AWS are parties the Stock Purchase
Agreement, dated as of November 6, 2000, between such same parties (as such
agreement was amended pursuant to Amendment No. 1 to Stock Purchase Agreement of
even date herewith between the Company and AWS, the "Purchase Agreement"),
pursuant to which, among other things, AWS agreed to purchase from the Company,
and the Company agreed to issue and sell to AWS, 200,000 shares of the Company's
Series AA Preferred;
WHEREAS, as a condition to the Closing of the Transactions contemplated
under the Purchase Agreement and the obligations of the parties with respect
thereto, AWS required the Company to grant to AWS, and the Company desired to
provide AWS with, the exchange rights with respect to the Series AA Preferred
specified herein;
NOW, THEREFORE, for good and valid consideration, the receipt of which is
hereby acknowledged, each of the parties hereto, intending legally to be bound,
agrees as follows:
1. Mandatory Exchange Obligation. As soon as AWS may lawfully own shares of
the Company's Series A Convertible Preferred Stock, par value $1.00 per share
(the "Series A Convertible Preferred"), without creating an FCC Conflict with
respect to Oklahoma 5 (such date being referred to as the "Exchange Date"), each
share of Series AA Preferred owned by AWS shall be exchanged (the "Exchange")
for a single share of Series A Convertible Preferred. The Company covenants and
agrees to maintain in reserve at all times during which the foregoing exchange
obligation is in effect a sufficient number of authorized but unissued shares of
Series A Convertible Preferred to fulfill its obligations hereunder.
2. AWS to Resolve Potential Oklahoma 5 FCC Conflict. From and after the
Closing Date, AWS shall use commercially reasonable efforts to sell, transfer or
assign ownership of its interest in the FCC License for Oklahoma 5 as promptly
as practicable or otherwise take action such that AWS' ownership of 200,000
shares of Series A Convertible Preferred as contemplated in the Purchase
Agreement will not create an FCC Conflict with respect to Oklahoma 5.
3. Notice; Exchange of Shares. Each party hereto hereby agrees to provide
the other party (the "Non-Asserting Party") with written notice (the "Exchange
Notice") promptly after becoming aware that the Exchange Date has occurred (such
party who delivers an Exchange Notice may some times hereinafter be referred to
as the "Asserting
Party"). Such Exchange Notice shall include a certification by the Asserting
Party that the Exchange Date has occurred.
(a) In the event that the Company is the Asserting Party, if the
Non-Asserting Party does not deliver to the Asserting Party written notice (the
"Dispute Notice") disputing the Asserting Party's claim that the Exchange Date
has occurred, together with an opinion of the Non-Asserting Party's FCC counsel
supporting the Non-Asserting Party's claim, within five (5) business days after
receipt of the Exchange Notice (such period being referred to as the "Dispute
Period"), the exchange of Series AA Preferred for shares of Series A Convertible
Preferred as of the Exchange Date shall have been effected and deemed to have
occurred automatically, without any further action required of the parties
hereto. Within three (3) business days following the expiration of the Dispute
Period, assuming a Dispute Notice, together with the required opinion of FCC
counsel, is not delivered during the Dispute Period, the Company shall (i)
deliver to AWS a share certificate, in the form attached hereto as Exhibit A,
for the number of and representing the shares of Series A Convertible Preferred
acquired by AWS in the exchange and (ii) update its books and records (including
without limitation its stock ledger) to reflect the exchange.
(b) In the event that AWS is the Asserting Party, the exchange of Series AA
Preferred for shares of Series A Convertible Preferred as of the Exchange Date
shall have been effected and deemed to have occurred automatically, without any
further action required of the parties hereto. Within three (3) business days
after receipt of the Exchange Notice, the Company shall (i) deliver to AWS a
share certificate, in the form attached hereto as Exhibit A, for the number of
and representing the shares of Series A Convertible Preferred acquired by AWS in
the exchange and (ii) update its books and records (including without limitation
its stock ledger) to reflect the exchange.
4. Unconditional Obligations of the Parties. Each of the Company and AWS
acknowledges and agrees that the obligations of it under Sections 1 through 3
hereof constitute irrevocable and unconditional obligations, and shall not be
subject to counterclaim, set-off, deduction or defense, or to abatement,
suspension, deferment, diminution or reduction for any reason whatsoever. By way
of amplification , and not in limitation of the foregoing, the Company further
acknowledges and agrees to fulfill its obligations in respect of the exchange
described in Sections 1 and 3 above regardless of any claims it may have against
AWS or any other Person (whether or not related to the Transactions) and
regardless of the existence or non-existence of any facts or circumstances
(whether or not such facts or circumstances existed as of the date hereof or
were then known by the Company).
5. Further Assurances. Upon the request of either AWS or the Company, the
other party hereto shall forthwith execute and deliver, or cause to be executed
and delivered, such further instruments of exchange, assignment, transfer,
conveyance, endorsement, direction or authorization and other documents as may
reasonably be requested by such Person in order to effectuate the purposes of
this Agreement.
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6. Tax Treatment. Each of the Company and AWS agrees that the Exchange
provided for hereunder is, and to report such Exchange as, a tax-free exchange
under Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the
"Code"), and each such party agrees to not take any contrary position.
7. Miscellaneous.
(a) Amendment and Modification. This Agreement may be amended, modified or
supplemented only by written agreement of each of the parties.
(b) Waiver of Compliance; Consents. Any failure of any of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirement for a waiver of
compliance as set forth in this 7(b).
(c) Notices. All notices or other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person (including overnight courier service) against
receipt, by facsimile transmission with confirmation of receipt produced by the
machine used to transmit the facsimile, or by registered or certified mail
(return receipt requested), postage prepaid, with an acknowledgment of receipt
signed by the addressee or an authorized representative thereof, addressed as
follows (or to such other address for a party as shall be specified by like
notice; provided that notice of a change of address shall be effective only upon
receipt thereof):
If to AWS, to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Company, to:
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) Parties in Interest; Assignment. This Agreement is binding upon and is
solely for the benefit of the parties hereto and their respective permitted
successors, legal representatives and permitted assigns. Neither the Company nor
AWS may assign its rights and obligations hereunder without the prior written
consent of the other party; provided, however, that AWS may, without such
consent, assign its right, title and interest in, to and under this Agreement to
a wholly owned subsidiary of AT&T Corp., but shall remain responsible for its
obligations hereunder. Any assignment in violation of this Section 7(d) shall be
null and void and without any force or effect.
(e) Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflicts of law principles thereof. The parties hereto hereby irrevocably and
unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the County, the City and the State of New York (the "New York Courts") for any
litigation arising out of or relating to this Agreement, waive any objection to
the laying of venue of any such litigation in the New York Courts and agrees not
to plead or claim in any New York Court that such litigation brought therein has
been brought in an inconvenient forum.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Entire Agreement. This Agreement, including the exhibit hereto,
together with the other Transaction Documents, embody the entire agreement and
understanding
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of the parties hereto in respect of the transactions contemplated hereby. There
are no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein and
therein.
(h) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any New York Courts.
(i) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(j) Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any court determines that any covenant or any part of any
covenant is invalid or unenforceable, such covenant shall be enforced to the
extent permitted by such court, and all other covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
(k) Beneficiaries of Agreement. The representations, warranties, covenants
and agreements expressed in this Agreement are for the sole benefit of the other
parties hereto and are not intended to benefit, and may not be relied upon or
enforced by, any other party as a third party beneficiary or otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXX COMMUNICATIONS CORPORATION
By:______________________________
Name:
Title:
AT&T WIRELESS SERVICES, INC.
By:______________________________
Name:
Title:
EXHIBIT A
Form of Certificate of Series A Convertible Preferred
