EXHIBIT 10.19
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of the 25th day of June, 1997,
by and between AMERICAN TOWER SYSTEMS, INC., a Delaware corporation (herein
called "Purchaser") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (herein
collectively called "Shareholders") being all of the shareholders of Tower
Sites, Inc., and TOWER SITES, INC., d/b/a TOWER SITES, INC., a Connecticut
corporation ("Company"). The Shareholders and the Company are collectively
referred to herein as the "Sellers."
Agreement
In consideration of the mutual benefits to be derived therefrom and the
mutual agreements hereinafter contained, Purchaser and Sellers approve and adopt
this Agreement and mutually covenant and agree with each other as follows:
1. Assets to Be Purchased and Purchase Price.
1.1 On the Closing Date (as hereinafter defined) the Sellers shall
transfer to Purchaser the assets of Company consisting of (a) tower leases with
existing tenants (the "Tower Leases"), (b) certain items of leased and owned
real property (the "Realty") and (c) certain items of tangible personal property
(the "Personalty"), all free and clear of any debt or liens whatsoever which in
the aggregate shall represent all of the assets of Company, but not the debt or
other liabilities. The Tower Leases, Realty and Personalty are collectively
referred to herein as the "Transferred Assets" and are described in Schedules 1
(Tower Leases), 2 (Realty), and 3 (Personalty) hereto.
1.2 As consideration for the Transferred Assets being transferred
pursuant to Subparagraph 1.1 hereof, Purchaser shall on the Closing Date and
contemporaneously with such transfer of the Transferred Assets, and except as
provided in Subparagraph 5.4 hereof, pay to Sellers U.S. $1,500,000.00
("Purchase Consideration") subject to adjustment and proration for monthly land
lease payments, monthly tenant rental income and real and personal taxes paid to
respective municipalities. Upon execution hereof, Purchaser shall deposit a
$75,000.00 ▇▇▇▇▇▇▇ money deposit ("Deposit") with Moyle, Flanigan, ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A. ("Escrow Agent"), to be held in escrow pursuant to the
terms hereof and credited toward the Purchase Price at Closing. Sellers shall be
solely responsible for allocating the Purchase Consideration among themselves
and shall give Notice of such allocation to Purchaser at least two (2) days
prior to the Closing Date.
2. Representations and Warranties of Sellers.
2.1 Ownership of Stock/Transferred Assets.
Shareholders are the record owners and holders of all of the shares of
Company's common stock as of the date hereof and will continue to own such
shares until the Closing Date. The
Company is the record owner and holder of all of the Transferred Assets listed
in Schedules 1 through 3, inclusive, hereto and will continue to own such
Transferred Assets to, on and through the Closing Date. All such Transferred
Assets are or will be on the Closing Date owned free and clear of all liens,
encumbrances, charges and assessments of every nature, are subject to no
restrictions with respect to transferability, and, where applicable, all
consents of any parties to the Tower Leases required for their transfer to
Purchaser have or will be on the Closing Date obtained in writing. The Sellers
will have full power and authority to assign and transfer the Transferred Assets
in accordance with the terms hereof.
(b) Except for Tower Leases listed in Schedule 1 of this Agreement, and
repeater business to be retained by Sellers, there are no outstanding options,
contracts, calls, commitments, agreement or demands of any character relating to
the Transferred Assets.
(c) Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Connecticut, with all requisite
power and authority to own, operate and lease its properties and to carry on its
business as now being conducted, is duly qualified and in good standing in every
jurisdiction in which the property owned, leased or operated by it or the nature
of the Transferred Assets are located. The states in which Company is qualified
to do business are listed in Schedule 4.
(d) Schedule 5 contains a list of the officers, directors and
shareholders of Company; and a list of the articles of incorporation and bylaws
currently in effect of Company, copies of which have been furnished to
Purchaser.
(e) The execution and delivery of this Agreement does not, and, subject
to the approval and adoption by the Shareholders of Company contemplated hereby,
the consummation of the transaction contemplated hereby will not violate any
provision of Company's articles of incorporation or bylaws, or any provisions
of, or result in the acceleration of any obligation under, any mortgage, lien,
lease, agreement, instrument, court order, arbitration award, judgment or decree
to which Company is a party, or by which it is bound, and will not violate any
other restriction of any kind or character to which it is subject, or cause or
result in the filing of a bankruptcy or insolvency proceeding under state or
federal law.
(f) All Personalty of Company is in AS-IS, WHERE-IS condition and
repair, and Seller has no notice of any required repairs to the Personalty.
2.2 Changes since December 31, 1996.
Since December 31, 1996, there has not been:
(a) Any material adverse change in the Company's prospects, financial
condition, assets, liabilities, properties or business.
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(b) Any mortgage, pledge, lien or encumbrance made on any of the
Transferred Assets.
(c) Any sale, transfer or other disposition of assets of Company,
except in the normal course of business.
(d) Any other event or condition not in the ordinary course of
business.
2.3 Liabilities.
(a) There are no liabilities of Company, whether accrued, absolute,
contingent or otherwise, which arose or relate to any transaction of Company
occurring prior to December 31, 1996. There are no such liabilities of Company
which have arisen or relate to any transaction of Company occurring since
December 31, 1996, other than normal liabilities incurred in the normal conduct
of Company's business, and none of which have a material adverse effect on the
business or financial condition of the Company. As of the date hereof, there are
no known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, which may hereafter give rise to liabilities, except
in the normal course of Company's business.
(b) All corporate acts required of Company have been taken and all
reports and returns required to be filed by them with any governmental agency
have been filed. Company has no notice of any claimed violation of any, and is
in compliance with, all applicable federal, state, county, local and foreign
government laws, ordinances or regulations relating to the Transferred Assets.
Company has maintained files and records which contain all correspondence,
notices, applications and other documentation relating to all federal, state,
local and foreign governmental, regulatory agency and other licenses, approvals,
clearances, and investigations, or employees of Company relating to the
Transferred Assets. All such files and records have been heretofore identified
to and made available for review by Purchaser.
(c) There are no legal, administrative or other proceedings,
investigations, inquiries, or claims, judgments, injunctions or restrictions,
either threatened, pending or outstanding against or involving Company, or the
Transferred Assets, nor does Company know, or have reasonable grounds to know,
of any basis for any such proceedings, investigations, inquiries, or claims,
judgments, injunctions or restrictions relating to the Transferred Assets.
(d) Company does not have any contract with any governmental body
relating to the Transferred Assets which is subject to renegotiation.
(e) The past and anticipated future operations of the Transferred
Assets do not infringe or violate any patents, patent rights, trademarks, trade
names, copyrights and/or licenses thereof of others.
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(f) No claim, demand or notice is pending against the Company for
breach of any of the Tower Leases or for any similar claim, nor, to the best of
Sellers' knowledge, do any facts exist which may lead to any such claim, demand
or notice being asserted in the future.
(g) All policies of insurance carried by Company are in full force and
all premiums thereon are paid to date. Schedule 6 contains a true and correct
list of all policies of insurance, relating to the Transferred Assets.
(h) All negotiations relative to this Agreement and the transaction
contemplated hereby have been carried on directly by Shareholders with Purchaser
without the intervention of any broker or third party other than ▇▇▇▇▇▇▇▇▇ &
Company, Inc. ("Broker"). Seller shall pay Broker a commission pursuant to a
separate letter agreement between Seller and Broker. Neither Shareholders nor
Company has engaged, consented to, or authorized any other broker, investment
banker or third party to act on its behalf, directly or indirectly, as a broker
or finder in connection with the transaction contemplated by this Agreement.
(i) Neither Company nor any of its Subsidiaries has granted any license
or made any assignment of any of their patents, patent applications, invention
discoveries, trademarks, trade names or copyrights, relating to the Transferred
Assets, other than the Tower Leases and repeater business.
2.4 Taxes.
(a) All federal, state, foreign, county and local income, ad valorem,
excise, profits, franchise, occupation, property, sales, use, gross receipts and
other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by Company, and there are no unpaid taxes which are, or
could become a lien on the Transferred Assets. All tax returns of any kind
required to be filed have been filed and the taxes paid or accrued.
(b) Company's federal income tax returns have never been audited.
(c) The Company has not waived restrictions on assessment or collection
of taxes or consented to the extension of any statute of limitations relating to
any tax. Company has no knowledge of any possible deficiency assessments in
respect to federal income tax returns or other tax returns filed by it.
2.5 Tower Leases and Commitments.
(a) The Company has no commitments relating to the Transferred Assets
(except the Tower Leases and repeater business themselves).
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(b) The Company has not given a power of attorney which is currently in
effect, to any person, firm or, corporation for any purpose whatsoever.
2.6 Accuracy of All Statements Made by Sellers and Company.
No representation or warranty by Sellers or Company in this Agreement,
nor any statement, certificate, schedule or exhibit hereto furnished or to be
furnished by or on behalf of Sellers or Company pursuant to this Agreement, nor
any document or certificate delivered to Purchaser pursuant to this Agreement or
in connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
3. Representations and Warranties of Purchaser.
Purchaser represents and warrants as follows:
3.1 Organization and Good Standing.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with full power and authority
to enter into and perform the transactions contemplated by this Agreement.
3.2 Performance of this Agreement.
The execution and performance of this Agreement by Purchaser has been
authorized by the board of directors of Purchaser.
3.3 No Covenant as to Tax Consequences.
It is expressly understood and agreed that neither Purchaser nor its
employees, officers, counsel or agents has made any warranty or agreement,
expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences of any action pursuant to
or growing out of this Agreement.
4. Covenants of Sellers.
Sellers hereby covenant and agree to cause Company to comply with the
following:
4.1 Access to Information.
Purchaser and its authorized representatives shall have full access
during normal business hours to all properties, books, records, Tower Leases and
documents of Company, and Company
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shall furnish or cause to be furnished to Purchaser and its authorized
representative all information with respect to its affairs and business of
Company as Purchaser may reasonably request.
4.2 Actions Prior to Closing.
From and after the date of this Agreement and until the Closing Date:
(a) Except with the prior written consent of Purchaser, Company shall
carry on their business diligently and substantially in the same manner as
heretofore, and the Company shall not make or institute any unusual or novel
methods of purchase, sale, management, accounting or operation, except with the
prior written consent of Purchaser.
(b) Company shall not enter into any contract or commitment or engage
in any transaction not in the usual and ordinary course of business and
consistent with Company's business practices without the prior written consent
of Purchaser.
(c) Company shall not create any indebtedness other than short term
indebtedness incurred in the usual and ordinary course of business, pursuant to
existing Tower Leases disclosed in the Schedules submitted in connection
herewith, and in doing the acts and things contemplated by this Agreement.
(d) Company shall not amend its articles of incorporation or bylaws, or
make any changes in authorized or issued capital stock interests without the
prior written consent of Purchaser.
(e) Company shall maintain current insurance and such additional
insurance in effect as may be reasonably required by increased business and
risks; and all property shall be used, operated, maintained and repaired in a
normal business manner.
(f) Company shall use is best efforts (without making any commitments
on behalf of Purchaser) to preserve for Purchaser the present Contract
relationships of Company.
(g) Company shall not do any act or omit to do any act, or permit any
act or omission to act, which will cause a material breach of any Contract.
(h) Company shall duly comply with all applicable laws as may be
required for the valid and effective transfer of the Transferred Assets
contemplated by this Agreement, except that Purchaser hereby waives compliance
with the provisions of any bulk sales act.
(i) Company shall promptly notify Purchaser of any lawsuits, claims,
proceedings or investigations that may be threatened, brought, asserted or
commenced against it, its officers or directors involving in any way the
business, properties or assets of Company.
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5. Conditions Precedent to Purchaser's Obligations.
5.1 Truth of Representations and Warranties.
The representations and warranties made by Company and Sellers in this
Agreement or given on its or their behalf hereunder, shall be true and correct
on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing
Date.
5.2 Compliance with Covenants.
Sellers shall have performed and complied with all its obligations
under this Agreement which are to be performed or complied with by it prior to
or on the Closing Date, including the delivery of the closing documents
specified in Subparagraph 8.2.
5.3 Absence of Suit.
No action, suit or proceeding before any court or any governmental or
regulatory authority shall have been commenced or threatened and, no
investigation by any governmental or regulatory authority shall have been
commenced, against Purchaser, the Sellers, the Company or any of the affiliates,
associates, officers or directors of any of them, seeking to restrain, prevent
or change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions.
5.4 Receipt of Approvals, etc.
All approvals, consents and/or waivers that are necessary to effect the
transactions contemplated hereby shall have been received, unless the required
receipt of such approvals, consents and/or waivers is waived in writing by
Purchaser. If the consent to the assignment of a Contract has not been received
by the Closing Date, Purchaser may withhold a reasonable portion of the Purchase
Consideration -- based upon the value of that Contract -- until such consent
shall have been obtained.
5.5 No Material Adverse Change.
As of the Closing Date there shall not have occurred any material
adverse change which materially impairs the ability of Company to conduct their
business or the earning power thereof on the same basis as in the past.
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5.6 Accuracy of Financial Statement.
Purchaser and its representatives shall be satisfied as to the accuracy
of all balance sheets, statements of income and other financial statements of
Company furnished to Purchaser in connection herewith.
5.7 Noncompetition Agreements.
Noncompetition agreements referred to in Subparagraph 8.2(g) shall have
been executed.
5.8 Legal Opinion.
Purchaser shall have received an opinion of counsel for Company
referred to in Subparagraph 8.2(f).
5.9 Proceedings and Instruments Satisfactory; Certificates.
All proceedings, corporate or otherwise, to be taken in connection with
the transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as Purchaser may request shall have been
delivered to Purchaser. Company and the Sellers shall have delivered
certificates in such detail as Purchaser may request as to compliance with the
conditions set forth in this Article 5.
6. Conditions Precedent to Sellers' Obligations.
6.1 Truth of Representations and Warranties.
Purchaser's representations and warranties contained in this Agreement
shall be true at and as of the Closing Date as though such representations and
warranties were made at and as of the Closing Date.
6.2 Purchaser's Compliance with Covenants.
Purchaser shall have performed and complied with its obligations under
this Agreement which are to be performed or complied with by it prior to or on
the Closing Date. Specifically, Purchaser and Sellers have executed a license or
other agreement providing for Sellers' retention of the "repeater business" and
the non-exclusive right to use and access the Transferred Assets in connection
with such repeater business, provided such repeater business does not interfere
with Purchaser's use of the Transferred Assets.
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7. Indemnification.
7.1 Requirement of Indemnification.
Seller and each Seller, jointly and severally, shall indemnify
Purchaser for any loss, cost, expense or other damage (including, without
limitation, reasonable attorneys' fees and expenses) suffered by Purchaser
resulting from, arising out of, or incurred with respect to the falsity or the
breach of any representation, warranty or covenant made by Shareholders herein,
and any claims arising from actions by Company or Subsidiaries prior to the
Closing Date. Purchaser shall indemnify and hold the Sellers harmless from and
against any loss, cost, expense or other damage (including, without limitation,
reasonable attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to, the falsity or the breach of any representation,
covenant, warranty or agreement made by Purchaser herein, and any claims arising
from actions of Company or Subsidiaries from and after the Closing Date.
7.2 Notice and Resolution of Claim.
An indemnified party hereunder shall promptly give "Notice" (as
hereinafter defined) to the indemnifying party after obtaining knowledge of any
claim against the indemnified party as to which recovery may be sought against
the indemnifying party because of the indemnity set forth above, and, if such
indemnity shall arise from the claim of a third party, shall permit the
indemnifying party to assume the defense of any such claim or any litigation
resulting from such claim. Failure by the indemnifying party to give Notice to
the indemnified party of its election to defend any such claim or action by a
third party within fifteen (15) days after Notice thereof shall have been given
to the indemnifying party shall be deemed a waiver by the indemnifying party of
its right to defend such claim or action. If the indemnifying party assumes the
defense of such claim or litigation resulting therefrom, the obligations of the
indemnifying party hereunder as to such claim shall include taking all steps
necessary in the defense or settlement of such claim or litigation resulting
therefrom and holding the indemnified party harmless from and against any and
all losses, damages and liabilities including, without limitation, attorneys'
fees and expenses, caused by or arising out of any settlement approved by the
indemnifying party or any judgment in connection with such claim or litigation
resulting therefrom. The indemnifying party shall not, in the defense of such
claim or any litigation resulting therefrom, consent to entry of any judgment
except with the prior written consent of the indemnified party, or enter into
any settlement (except with the prior written consent of the indemnified party).
Notwithstanding the foregoing, any such judgment or settlement shall contain as
an unconditional term thereof the giving by the claimant or the plaintiff to the
indemnified party a release from all liability in respect of such claim or
litigation.
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7.3 Defense of Third-Party Claim.
If the indemnifying party shall not assume the defense of any such
claim by a third party or litigation resulting therefrom, the indemnified party
may defend against such claim or litigation in such manner as it may deem
appropriate and, unless the indemnifying party shall deposit with the
indemnified party a sum equivalent to the total amount demanded in such claim or
litigation plus the indemnified party's estimate of the cost of defending the
same, the indemnified party may settle such claim or litigation on such terms as
it may deem appropriate and the indemnifying party shall within thirty (30) days
of Notice from the indemnified party reimburse the indemnified party for the
amount of such settlement and for all losses or expenses, legal or otherwise,
incurred by the indemnified party in connection with the defense against or
settlement of such claim or litigation.
7.4 Payment.
The indemnifying party shall promptly reimburse the indemnified party
for the amount of any judgment rendered with respect to any claim by a third
party in such litigation and for all losses and expenses, legal or otherwise,
incurred by the indemnified party in connection with the defense against such
claim or litigation, and for any other loss suffered or incurred with respect to
the falsity or the breach of any representation, warranty, covenant or agreement
(whether or not arising out of the claim of a third party).
7.5 Effect of Taxes.
The determination of any indemnified loss, cost or expense shall take
into account any tax benefit derived by Purchaser or any affiliated companies.
To the extent that any deficiency for state, local, or federal income taxes
which may be established against Company for any year ended on or prior to
December 31, 1997, is occasioned by a determination by the Internal Revenue
Service or state or local departments of revenue that any increase in income for
the year gives rise to a deduction or deductions from ordinary income of Company
in the same aggregate amount for a subsequent taxable year or years, such
deficiency shall be assumed by Purchaser and shall not be a breach of any of
Company or Shareholders' warranties, representations and covenants in this
Agreement.
7.6 Time Limit on Indemnification.
No claim for indemnification may be asserted by Purchaser after the
second anniversary of the Closing Date, as hereinafter defined, except for (i)
state or federal sales or income taxes for any period ending on or prior to
December 31, 1997, which may be asserted at any time the applicable State
Departments of Revenue or Internal Revenue Service may still assert a
deficiency, and which indemnification is subject to the provisions of
Subparagraph 7.5 above, and (ii) claims arising out of a representation,
warranty or covenant that a Seller knew at the date of this
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Agreement was false or which arises out of a claim later known to a Seller which
Seller failed to disclose to Purchaser prior to the Closing Date.
7.7 Amount Limit on Indemnification.
Notwithstanding any other provision to the contrary, neither
Shareholders nor Purchaser shall be charged with any such indemnified loss, cost
or expense which in the aggregate does not exceed Five Thousand dollars
($5,000.00).
8. Closing.
8.1 Time and Place.
The closing of this transaction ("Closing") shall take place by mail
with the escrow documents to be delivered to the offices of Moyle, Flanigan,
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., in West Palm Beach, Florida, at 10:00
a.m., Palm Beach County, Florida, time on July 1, 1997, or at such other time
and place as the parties hereto shall agree upon. Such date is referred to in
this Agreement as the "Closing Date."
8.2 Documents To Be Delivered by Sellers.
At the closing Sellers shall deliver to Purchaser the following
documents :
(a) Duly executed assignments of the Tower Leases together with all
required consents thereto, in form and substance satisfactory to Purchaser.
(b) The originals or copies of the Tower Leases.
(c) A duly executed ▇▇▇▇ of sale absolute as to the Personalty with
full warranties of title and no liens, in form and substance acceptable to
Purchaser.
(d) Statutory Warranty Deed, or its Connecticut equivalent, as to the
Realty with full warranties of title and in a form and substance acceptable to
Purchaser.
(e) A certificate signed by the Sellers that the representations and
warranties made by them in this Agreement are true and correct on and as of the
Closing Date with the same effect as through such representations and warranties
had been made on or given on and as of the Closing Date and that Sellers have
performed and complied with all its obligations under this Agreement which are
to be performed or complied with by or prior to or on the Closing Date.
(f) A written opinion from counsel for Sellers dated as of the Closing
Date addressed to the Purchaser and its counsel satisfactory in form and
substance to Purchaser to the effect that:
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(1) The corporate existence and good standing and qualification of Company
is as stated in Subparagraph 2.1;
(2) This Agreement has been duly executed and delivered by Sellers and
constitutes a legal, valid and binding obligation of them enforceable
in accordance with its terms except as generally and by the
availability of equitable remedies;
(3) The Company has all requisite power and authority to own its property
and operate its business as and where it is now being conducted (except
as to the Rhode Island tower site);
(4) The Company has title to all of the Transferred Assets free and clear
of all mortgages, liens, leases, pledges, charges, security interests,
or encumbrances of any nature whatsoever except as set forth in such
opinion;
(5) To such counsel's knowledge after due investigation, this Agreement is
the legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except insofar as such enforceability may be
limited by bankruptcy and other laws affecting creditors' rights
generally and by the availability of equitable remedies;
(6) Counsel has no knowledge of any of the proceedings stated in
Subparagraph 2.3(c);
(7) To the best of counsel's actual knowledge without any investigation
required, Company is in compliance with all statutes, regulations,
rules and executive orders of all government authorities;
(8) To the best of counsel's knowledge Seller's representations and
warranties in Subparagraph 2 are true and correct; and
(9) The Noncompetition Agreement provided for herein to be entered into
between all or certain of the Sellers and Purchaser or Company, as the
case may be, are valid and binding individual obligations of the
Sellers who are parties to such agreements, enforceable against each of
them in accordance with the terms of such provisions.
(10) The transaction contemplated by this Agreement shall not cause or
result in the filing of a bankruptcy or insolvency proceeding under
state or federal law.
(g) Noncompetition agreements for a 10 year time period and within a 10
mile of radius of the Transferred Assets between each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and the Purchaser in satisfactory form to Purchaser, with the
exception of the repeater business.
(h) Copies of the Articles of Incorporation and good standing
certificate certified by the secretary of state.
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(i) Incumbency certificate relating to all parties executing documents
relating to any of the transactions contemplated hereby.
(j) General releases in form and substance satisfactory to Purchaser of
all claims that any officer, director or partner of Company may have to the date
of closing against Purchaser.
(k) Duly executed Assignment of Land Leases and Tower Leases, and, to
Seller's best efforts, Estoppel letters or Consents of Landlord, if needed, in a
form acceptable to Purchaser.
(l) The originals of the Land Leases.
(m) Duly executed Lease agreements for the repeaters.
(n) Such other documents of transfer, certificates of authority and
other documents as Purchaser may reasonably request.
8.3 Documents To Be Delivered by Purchaser.
At the closing Purchaser shall deliver to Sellers the following
documents:
(a) Cash, cashiers check, wire transfer of immediately available
federal funds, or Purchaser's attorneys' trust account check in the amount of
the Purchase Consideration provided for in Subparagraph 1.2 hereof.
(b) A certified copy of the duly adopted resolutions of Purchaser's
board of directors or executive committee authorizing or ratifying the execution
and performance of this agreement and authorizing or ratifying the acts of its
officers and employees in carrying out the terms and provisions thereof.
(c) A license agreement or other agreement providing for Sellers'
retention of the "repeater business" and the non-exclusive right to use and
access the Transferred Assets in connection with such repeater business,
provided such repeater business does not interfere with Purchaser's use of the
Transferred Assets.
9. Law Governing/Jurisdiction/Venue.
This Agreement and all transactions contemplated by this Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of Connecticut without regard to principles of conflicts of
laws. The parties acknowledge that a substantial portion of negotiations and
anticipated performance of this Agreement occurred or shall occur in Palm Beach
County, Florida, and that, therefore, without limiting the jurisdiction or venue
of any other federal or state courts, each of the parties irrevocably and
conditionally (i) agrees that any suit, action or other legal proceeding arising
out of or relating to this Agreement may be brought
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in the courts of record of the State of Florida in Palm Beach County, or the
courts of the United States, Southern District of Florida; (ii) consents to the
jurisdiction of each such court in any such suit, action or proceeding; and
(iii) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any such court.
10. Assignment.
This Agreement shall not be assigned by any party without the prior
written consent of the other parties which consent may be withheld for any
reason and any attempted assignment without such written consent shall be null
and void and without legal effect, except that this Agreement may be freely
assigned by Purchaser to any corporation wholly-owned by Purchaser. This
Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their successors, assigns, heirs, executors, administrators,
and personal representatives (if the consent required by this Article 10 is
properly secured if required).
11. Amendment and Modification.
Purchaser and Sellers may amend, modify and supplement this Agreement
in such manner as may be agreed upon by them in writing.
12. Termination and Abandonment.
This Agreement may be terminated and the transaction provided for by
this agreement may be abandoned without liability on the part of any part to any
other, at any time before the Closing Date:
(a) By mutual consent of Purchaser and Company;
(b) By Purchaser:
(1) If any of the conditions provided for in Article 5 of this Agreement
have not been met and have not been waived in writing by Purchaser.
(c) By Sellers:
(1) If any of the conditions provided for in Article 6 of this Agreement
have not been met and have not been waived in writing by Sellers.
In the event of termination and abandonment by any party as above provided in
this Article 12, Notice shall forthwith be given to the other party, and each
party shall pay its own expenses incident to preparation for the consummation of
this Agreement and the transactions contemplated hereunder.
14
13. Survival.
The covenants, agreements, indemnifications, representations and
warranties of the parties hereto shall survive the closing of the transactions
contemplated by this Agreement but shall expire when the indemnification claims
period expires pursuant to Subparagraph 7.6 hereof.
14. Default.
14.1 If this transaction does not close due to a default by Purchaser,
then Sellers may retain the Deposit as agreed upon and liquidated damages.
14.2 If this transaction does not close due to a default by Sellers or
Company, the Purchaser may receive a return of its Deposit or, in the
alternative, Purchaser may proceed in equity to specifically enforce Purchaser's
rights hereunder, including the right of specific performance.
15. Notices.
All notices, requests, demands and other communications hereunder
("Notices") shall be deemed to have been duly given, if delivered by hand or
mailed, certified or registered mail with postage prepaid:
(a) If to Sellers, to ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esquire, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or to such other person and place as Sellers shall
furnish to Purchaser by Notice; or
(b) If to Purchaser, to ______________________________ at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esquire, Moyle, Flanigan, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other
person and place as Purchaser shall furnish to Seller by Notice.
16. Announcements.
Announcements concerning the transactions provided for in this
agreement by Company, Sellers, or Purchaser shall be subject to the approval of
the others in all essential respects, except that Company's or Sellers' approval
of form shall not be required as to any statements and other information which
Purchaser may submit to the Securities and Exchange Commission, the New York
Stock Exchange or Purchaser's shareholders or be required to make pursuant to
any rule or regulation of the Securities and Exchange Commission or the New York
Stock Exchange.
15
17. Entire Agreement.
This instrument embodies the entire agreement between the parties
hereto with respect to the transactions contemplated herein, and there have been
and are no agreements, representations or warranties between the parties other
than those set forth or provided for herein.
18. Counterparts.
This Agreement may be executed in two or more partially or fully
executed counterparts, each of which shall be deemed an original and shall bind
the signatory, but all of which together shall constitute but one and the same
instrument, provided that Purchaser shall have no obligations hereunder until
all shareholders have become signatories hereto.
19. Headings.
The headings in the Articles and Paragraphs of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
20. Further Documents.
Purchaser and Sellers agree to execute any and all other documents and
to take such other action or corporate proceedings as may be necessary or
desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed all as of the day and year first above written.
WITNESSES: SELLERS:
(1) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
(2) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
As to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(1) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(2) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
As to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
16
TOWER SITES, INC.
(1) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
(2) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
As to Tower Sites, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PURCHASER:
AMERICAN TOWER SYSTEMS, INC.
(1) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(2) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Its: Exec. Vice President
As to Purchaser
17
SCHEDULES
1. Tower Leases.
2. Realty (land leases and property owned)
3. Personalty.
4. States in which Company is qualified to do business.
5. Names of officers, directors and shareholders, of Company.
6. Insurance.
