EXHIBIT 1
STOCK PURCHASE, SETTLEMENT AND RELEASE AGREEMENT
THIS STOCK PURCHASE, SETTLEMENT AND RELEASE AGREEMENT (this "AGREEMENT"),
dated as of April 8, 1999, is by and among Carl R. Moore, Thomas F. "Fred" Moore
and Roy J. Moore, (such individuals are collectively referred to as the
"Purchasers"), T.W. Moore and Betty Moore (such individuals together with the
Purchasers are sometimes collectively referred to as the "Moores"), FWT
Acquisition, Inc., a Delaware corporation (the "Seller"), FWT, Inc., a Texas
corporation (the "Company") and Baker Communications Fund, L.P., a Delaware
limited partnership ("Baker Fund").
PRELIMINARY STATEMENTS
A. Each of the Seller, the Company and the Moores entered into that
certain Stock Purchase and Redemption Agreement, dated as of November 12, 1997
(together with the Schedules, Annex and Exhibits thereto, the "1997 Purchase
Agreement"). Capitalized terms used in this Agreement, but not otherwise
defined, will have the meanings ascribed thereto in the 1997 Purchase Agreement.
B. After giving effect to the Closing Transactions under the 1997 Purchase
Agreement and prior to giving effect to the transactions contemplated herein,
the Purchasers owned an aggregate of 27.2283 shares of the Company's common
stock, par value $10.00 per share ("Common Stock"), representing 19.99995593% of
the outstanding Common Stock of the Company, and the Seller owned 108.9135
shares of Common Stock, representing 80.00004407% of the outstanding Common
Stock of the Company.
C. The Seller desires to sell to the Purchasers, and the Purchasers desire
to purchase from the Seller, 108.9135 shares of Common Stock.
D. The Seller is willing to relinquish and waive any claims or rights
which the Seller has, or in the future may have, to all amounts currently held
in escrow in accordance with the Terms of the 1997 Purchase Agreement (the
"Released Amount") in order to make $7,000,000 available as promptly as
practicable to the Company in exchange for the Company's release of any claims
it may have against the Seller or Baker Fund,
E. The Company desires to receive such $7,000,000 and is willing to
release any claims it may have against the Seller or Baker Fund in exchange
therefor.
F. The parties hereto desire to settle all claims with respect to the
matters set forth herein and desire to enter into this Agreement to effect such
settlement.
G. Upon the terms and conditions set forth in this Agreement, the parties
have simultaneously executed this Agreement and effected the transactions
described herein.
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STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing preliminary statements
and the terms and conditions of this Agreement, and other good, valuable and
binding consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, now
agree as follows:
ARTICLE I.
PURCHASE AND SALE OF SECURITIES
Section 1.1 CLOSING. On the date hereof (the "CLOSING DATE"), the
parties have executed and delivered, or have caused to be executed and
delivered, this Agreement and each of the agreements and documents listed in
Section 1.4 (such agreements and documents delivered pursuant to Section 1.4 are
collectively referred to as the "Ancillary Agreements") and have consummated
each of the other transactions described in this Article I (the "CLOSING").
Section 1.2 STOCK PURCHASE TRANSACTIONS. The Purchasers shall
purchase an aggregate of 108.9135 shares of Common Stock representing all of the
shares of Common Stock owned by the Seller (the "Purchased Shares") from the
Seller for an aggregate cash consideration paid at Closing of $1. The Purchased
Shares shall be allocated among the Purchasers as set forth on Schedule I
hereto.
The Seller shall deliver to the Purchasers the certificates
representing the Purchased Shares held by it duly endorsed for transfer. After
giving effect to the purchase of the Purchased Shares the Purchasers shall hold
136.1418 shares of Common Stock, representing 100% of the outstanding Common
Stock.
Section 1.3 TERMINATION OF ALL AGREEMENTS, ARRANGEMENTS AND
UNDERSTANDINGS.
(a) TERMINATION OF SHAREHOLDERS' AGREEMENT. Each of the Seller, the
Purchasers, the Company and Baker Fund (i) hereby terminates that certain
Shareholders' Agreement, dated as of November 12, 1997, among the Seller, the
Purchasers, the Company, and, for the limited purposes set forth therein, Baker
Fund (the "SHAREHOLDERS' Agreement") and (ii) acknowledges and agrees that the
Shareholders' Agreement is without further force and effect.
(b) TERMINATION OF REGISTRATION RIGHTS AGREEMENT. Each of the
Seller, the Company and the Purchasers (i) hereby terminates that certain
Registration Rights Agreement, dated as of November 12, 1997, among the Seller,
the Purchasers and the Company (the "REGISTRATION RIGHTS AGREEMENT") and (ii)
acknowledges and agrees that the Registration Rights Agreement is without
further force and effect.
(c) TERMINATION OF THE ESCROW AGREEMENT. Each of the Moores and the
Seller acknowledges that that certain Escrow Agreement, dated November 12, 1997,
among the Seller, each of the Moores and U.S. Trust Company of Texas, N.A. (the
"ESCROW Agent"), is terminated and rendered without force and effect pursuant to
and except as otherwise provided in the Escrow Instructions (as such term is
defined below).
(d) TERMINATION OF ALL ARRANGEMENTS. Each of the Moores, the Seller,
the Company and Baker Fund acknowledges and agrees that, except as expressly
provided for in this Agreement and the Ancillary Agreements, (i) any and all
agreements (including those set forth above in this Section 1.3), arrangements
and understandings, both written and oral, between or among any of the Moores,
the Seller, the Company or Baker Fund are hereby terminated and without any
further force and effect and (ii) no agreements, arrangements or understandings,
either written or oral, exist between or among any of the Moores, the Seller,
the Company or Baker Fund.
Section 1.4 EXECUTION OF ANCILLARY AGREEMENTS.
(a) ESCROW INSTRUCTIONS AND TERMINATION AGREEMENT. Each of the
Moores and the Seller has executed and delivered to the Escrow Agent the escrow
instructions and termination agreement in the form attached as Schedule II
hereto (the "ESCROW Instructions").
(b) RESIGNATION FROM COMPANY'S BOARD OF DIRECTORS. The Seller has
delivered to the Company a written notice of resignation from the Company's
board of directors executed by each of John C. Baker, Edward W. Scott and
Lawrence A. Bettino (the "FORMER DIRECTORS") effective as of the Closing Date.
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ARTICLE II
CERTAIN RELEASES AND WAIVERS
Section 2.1 RELEASE AND RESERVATION OF SPECIFIED OBLIGATIONS BY THE
SELLER AND BAKER FUND.
(a) RELEASE OF SPECIFIED OBLIGATIONS. Subject to the provisions of
Section 2.1(b), the Seller and Baker Fund, on behalf of themselves and their
respective Affiliates and their Affiliates' respective successors, assigns and
transferees, hereby releases, acquits and forever discharges each of the Moores
and their respective Affiliates and their respective heirs, legal
administrators, successors, assigns and transferees (collectively, the "MOORE
RELEASED PARTIES"), of and from any and all obligations, claims, demands,
liabilities, suits or causes of action of any kind whatsoever, whether known or
unknown, at common law or by statute or otherwise (except for any obligations,
claims, demands, liabilities, suits or causes of action arising out of or under
this Agreement or the Ancillary Agreements), which the Seller or Baker Fund or
their respective Affiliates or their Affiliates' respective successors, assigns
or transferees has or may have or may hereafter claim to have, against a Moore
Released Party relating to the following (together, the "MOORE OBLIGATIONS");
(i) any inaccuracy in any representation or warranty of the
company or any of the Moores under the 1997 Purchase Agreement or in any Closing
Document (as such term is defined in the 1997 Purchase Agreement);
(ii) any failure to perform or observe any covenant or agreement
to be performed by the Company or any of the Moores set forth in the 1997
Purchase Agreement, any Closing Document or any document delivered to the Seller
pursuant to the 1997 Purchase Agreement; and
(iii) any actions or omissions occurring prior to the Closing
Date by any of the Moore Released Parties with respect to the operation or
business of the Company:
and, subject to the provisions of Section 2.1(b), each of the
Seller and Baker Fund on behalf of themselves and their respective Affiliates
and their and their Affiliates' successors, assigns and transferees covenants
not to sue any of the Moore Released Parties under any municipal, local, state
or federal law. common or statutory, for any actions or omissions whatsoever
with regard to the satisfaction of all obligations relating to the Moore
Obligations.
(b) RESERVATION OF SPECIFIED OBLIGATIONS. Nothing contained in this
Agreement will constitute a release, acquittal or discharge of any claims or a
covenant not to sue on any claims which the Seller or Baker Fund, or any
Affiliate of the Seller or Baker Fund, has or may hereafter have if any claims
or lawsuits are asserted by any party, including the Company and its
Subsidiaries but excluding the Moore Released Parties (other than the Company
and its subsidiaries) and such claims or lawsuits arise out of or relate to the
Company, including without limitation, in connection with the Company's 9-7/8%
Senior Subordinated Notes due 2007 or the Company's indebtedness for borrowed
money (collectively, the "RELEVANT CLAIMS"), in which case nothing in this
Agreement will restrict the ability of the Seller or Baker Fund, or any
Affiliate of the Seller or Baker Fund, to pursue any claim against the Moore
Released Parties.
Section 2.2 RELEASE AND RESERVATION OF SPECIFIED OBLIGATIONS BY THE
MOORES.
(a) RELEASE OF SPECIFIED OBLIGATIONS. Subject to the provisions of
Section 2.2(b), each of the Moores, on behalf of themselves and their respective
Affiliates (other than the Company and its subsidiaries) and their Affiliates'
respective legal administrators, successors, assigns and transferees, hereby
releases, acquits and forever discharges the Seller, Baker Fund, their
respective Affiliates and their respective officers, directors, shareholders,
partners, employees, agents, successors, assigns and transferees (collectively,
the "SELLER RELEASED PARTIES"), of and from any and all obligations, claims,
demands, liabilities, suits or causes of action of any kind whatsoever, whether
known or unknown, at common law or by statute or otherwise (except for any
obligations, claims, demands, liabilities, suits or causes of action arising out
of or under this Agreement or the Ancillary Agreements), which any of the Moores
or their respective Affiliates (other than the Company and its subsidiaries) or
their or their Affiliates' respective legal administrators, successors, assigns
or transferees has or may have or may hereafter claim to have, against a Seller
Released Party relating to the following (together, the "SELLER OBLIGATIONS"):
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(i) any inaccuracy in any representation or warranty of the
Seller under the 1997 Purchase Agreement or in any Closing Document (as such
term is defined in the 1997 Purchase Agreement);
(ii) any failure to perform or observe any covenant or
agreement to be performed by the Seller set forth in the 1997 Purchase
Agreement, any Closing Document or any document delivered to the Company or the
Moores pursuant to the 1997 Purchase Agreement; and
(iii) any actions or omissions occurring prior to the Closing
Date by any of the Seller Released Parties with respect to the operation or
business of the Company;
and, subject to the provisions of Sec.6. on 2.2(b), each of the Moores, on
behalf of themselves and their respective Affiliates (other than the Company and
its subsidiaries) and their and their Affiliates' respective legal
administrators, successors, assigns and transferees, covenants not to sue any of
the Seller Released Parties under any municipal, local, state or federal law,
common or statutory, for any actions or omissions whatsoever with regard to the
satisfaction of all obligations relating to the Seller Obligations.
(b) RESERVATION OF SPECIFIED OBLIGATIONS. Nothing contained in this
Agreement will constitute a release, acquittal or discharge of any claims or a
covenant not to sue on any claims which any of Moores, or any Affiliate of the
Moores (other than the Company and its subsidiaries), has or may hereafter have
if any claims or lawsuits are asserted by any party other than the Seller
Released Parties arising out of or relating to the Relevant Claims, in which
case nothing in this Agreement will restrict the ability of the Moores, or any
Affiliate of the Moores (other than the Company and its subsidiaries), to pursue
any claim against the Seller Released Parties.
Section 2.3 RELEASE OF SPECIFIED OBLIGATIONS BY THE COMPANY. The Company,
on behalf of itself and its Affiliates (other than the Moores) and its and its
Affiliates' respective legal administrators, successors, assigns and
transferees, hereby releases, acquits and forever discharges the Moore Released
Parties and the Seller Released Parties of and from any and all obligations,
claims, demands, liabilities, suits or causes of action of any kind whatsoever,
whether know or unknown, at common law or by statute or otherwise (except for
any obligations, claims, demands,' liabilities, suits or causes of action
arising out of or under this Agreement), which the Company or its Affiliates
(other than the Moores) or its or its Affiliates' respective legal
administrators, successors, assigns or transferees has or may have or may
hereafter claim to have, against a Moore Released Party or a Seller Released
Party relating to the following (together, the "ADDITIONAL OBLIGATIONS"):
(i) any inaccuracy in any representation or warranty of the
Moores or the Seller under the 1997 Purchase Agreement or in any Closing
Document (as such term is defined in the 1997 Purchase Agreement);
(ii) any failure to perform or observe any covenant or
agreement to be performed by the Moores or the Seller set forth in the 1997
Purchase Agreement. any Closing Document or any document delivered to the
Company pursuant to the 1997 Purchase Agreement; and
(iii) any actions or omissions occurring prior to the Closing
Date by any of the Moore Released Parties or the Seller Released Parties with
respect to the operation or business of the Company; and the Company, on behalf
of itself and its Affiliates (other than the Moores) and its and its Affiliates'
respective legal administrators, successors, assigns and transferees, covenants
not to sue any of the Moore Related Parties or the Seller Released parties under
any municipal, local, state or federal law, common or statutory, for any acts or
omissions whatsoever with regard to the satisfaction of all obligations relating
to the Additional Obligations.
Section 2.4 RIGHT TO OFFICER AND DIRECTOR INDEMNIFICATION. Nothing
contained in this Agreement will constitute a release, acquittal or discharge of
any claims of the Former Directors for indemnification by Company of its
officers and directors to the extent that such right to indemnification as an
officer or director of Company existed on or before the date hereof; PROVIDED,
HOWEVER, that nothing in this Section 2.4 will be deemed (a) to expand or
increase Company's obligation to indemnify the Former Directors in their
capacity as an officer or director of Company and (b) to affect or diminish in
any way Company's fight to contest a claim by the Former Directors for
indemnification as an officer or director of Company based upon a fact,
circumstance or defense existing on or prior to the date of this Agreement or
arising after the date hereof.
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Section 2.5 CERTAIN WAIVERS BY THE COMPANY, THE MOORES, THE SELLER AND
BAKER FUND. The Company, the Moores, Seller and Baker Fund hereby acknowledge
that the law firm of Akin, Gump, Strauss, Hanar & Feld, L.L.P. ("AGSH&F") has
provided in the past, currently provides and may in the future provide legal
representation past, current or future to both Baker Fund and its Affiliates, as
well as the Company. Each of the Company, the Seller and Baker Fund hereby waive
any and all conflicts of interest as a result of AGSH&F's past, current or
future legal representation of Baker Fund and its Affiliates, on the one hand,
and its legal representation of the Company, on the other hand. The Moores
hereby waive any and all conflicts of interest as a result of AGSH&F's future
legal representation of Baker Fund and its Affiliates, on the one hand, and its
future legal representation of the Company, on the other hand. In the event a
conflict of interest arises in the future with respect to AGSH&F's legal
representation of the Company, on the one hand, and Baker Fund and its
Affiliates, on the other hand, each of the Company, the Moores, the Seller and
Baker Fund hereby consent to AGSH&F's withdrawal from its legal representation
of the Company and its continued legal representation of Baker fund and its
Affiliates.
ARTICLE III. COVENANTS
The Company and the Moores jointly and severally covenant to the
Seller and Baker Fund as follows:
Section 3.1 AMENDMENT OF CREDIT AGREEMENT. Neither the Company nor the
Moores shall, without the prior written consent of Baker Fund, amend, modify or
take any action, including, without limitation, any assignment or transfer, of
that certain Credit Agreement, dated as of November 12, 1997, as amended, by and
among the Company, the financial institutions listed on the signature pages
thereof and BT Commercial Corporation, as agent for the lenders (the "BT CREDIT
AGREEMENT"), or any agreement relating to or entered into in connection with the
BT Credit Agreement, which could in the reasonable opinion of Baker Fund
directly or indirectly adversely affect Baker Fund's rights or obligations or
otherwise increase the exposure of the Baker Fund under that certain Guaranty,
dated January 20, 1999, by Baker Fund in favor of the lenders under the BT
Credit Agreement.
Section 3.2 ADDITIONAL CAPITAL. The Company shall use its best efforts to
continue the search initiated by the Board of Directors and senior management of
the Company prior to the date hereof to locate new working capital and lenders
capable and willing to provide sufficient funding to allow the Company to
continue its operations.
Section 3.3 RELEASED AMOUNT. At the Closing an Affiliate of one or more of
the Moores shall lend or contribute to the Company, substantially on the terms
set forth in Schedule III hereto, $7,000,000, by wire transfer of immediately
available federal funds. The Company shall use a portion of the proceeds of such
financing to pay in full any and all amounts owing to the lenders pursuant to
the BT Credit Agreement and any agreement relating to or entered into in
connection therewith by May 5, 1999, or such earlier date as may be required by
such lenders.
Section 3.4 LEGAL ASSISTANCE; CERTAIN INFORMATION. Each of the Company and
the Moores shall (i) provide the Seller and/or Baker Fund with such legal
assistance (at no out-of-pocket expense to the Company or the Moores) as shall
be reasonably requested by the Seller and/or Baker Fund in connection with any
Relevant Claims, (ii) keep the Seller and Baker Fund or their designated
representative fully informed on a weekly basis as to the status of any and all
negotiations, discussions, agreements or arrangements with the holders of the
Relevant Claims. and (iii) provide the Seller, Baker Fund and their respective
representatives with access to any and all other information in the possession
or under the control of the Moores or the Company deemed relevant by the Seller
or Baker Fund.
Section 3.5 RESIGNATIONS FROM BOARD OF DIRECTORS. The Company hereby
accepts the letters of resignation from the Board of Directors of the Company
referred to in Section 1.4(b).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE MOORES
Each of the Moores, severally but not jointly, hereby represents and
warrants to the Seller, Baker Fund and the Company that the statements made in
this Article IV were true, correct and complete immediately prior to the
consummation of the Closing.
Section 4.1 CAPACITY OF THE PURCHASERS. Each of the Moores is an
individual which possesses the requisite legal
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capacity and the right to execute, deliver and perform this Agreement and each
Ancillary Agreement to which such person ix a party, without obtaining any
approval or giving any notice.
Section 4.2 EXECUTION, DELIVERY AND ENFORCEABILITY. Each of the Moores has
duly executed and delivered this Agreement and each Ancillary Agreement to which
it is a party, and each such agreement constitutes a valid, legal and binding
obligation of such person, enforceable against such person in accordance with
its terms.
Section 4.3 CONSENTS. Each of the Moores' execution, delivery and
performance of this Agreement and each Ancillary Agreement to which it is a
party does not require such person to obtain any approval or consent from, make
any filing with, or give any notice to any Person.
Section 4.4 CONFLICTS. Each of the Moores' execution, delivery and
performance of this Agreement and each Ancillary Agreement to which it is a
party does not directly or indirectly breach or violate any applicable Order,
agreement or contract to which any of the Purchasers or any of their assets is
subject or bound.
Section 4.5 NO PROHIBITIONS. Each of the Moores' execution, delivery and
performance of this Agreement and each Ancillary Agreement to which it is a
party does not violate any material Applicable Law, and no Lawsuit before any
court or other Governmental Authority is pending or, to such person's knowledge,
threatened that could prohibit any of the Purchasers from consummating any of
the transactions contemplated by this Agreement or any Ancillary Agreement.
Section 4.6 CERTAIN PROTECTION. Other than the stock purchase and the loan
to the Company contemplated hereby and the services which certain of the Moores
have agreed to provide to the Company, none of the Moores has 'taken any action
on or prior to the date hereof in connection with any Relevant Claims, as a
result of which any of the Moore Released Parties is or could become entitled to
any release, protection or other benefit. None of the Moores has received or is
a party to any release, agreement to release or agreement to provide protection
or other benefit to any of the Moores as of the date hereof relating to the
matters contemplated hereby.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND BAKER FUND
Each of the Seller and Baker Fund, for and on behalf of itself only,
hereby represents and warrants to each of the Moores and the Company that the
statements made in this Article V were true. correct and complete immediately
prior to the consummation of the Closing.
Section 5.1 ORGANIZATION. The Sellor is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
Baker Fund is a limited partnership duly organized and validly existing under
the laws of the State of Delaware.
Section 5.2 POWER AND AUTHORITY. Each of the Seller and Baker Fund
possesses the requisite power and authority to execute deliver and perform this
Agreement and each Ancillary Agreement to which it is a party, without obtaining
any approval or giving any notice, other than approvals or notices properly
obtained prior to the execution hereof.
Section 5.3 EXECUTION, DELIVERY AND ENFORCEABILITY. Each of the Seller and
Baker Fund has duly authorized, executed and delivered this Agreement and each
Ancillary Agreement to which it is a party, and each such agreement constitutes
a valid, legal and binding obligation of such pony, enforceable against such a
party in accordance with its terms, subject to any Law Affecting Creditors'
Rights.
Section 5.4 CONSENTS. Each of the Seller's and Baker Fund's execution,
delivery and performance of this Agreement and each Ancillary Agreement to which
it is a party does not require such party to obtain any approval or consent
from, make any filing with, or give any notice to any Person, other than
approvals, consents or notices properly obtained prior to the execution hereof.
Section 5.5 CONFLICTS. Each of the Seller's and Baker Fund's execution,
delivery and performance of this Agreement and each Ancillary Agreement to which
it is a party will not directly or indirectly breach or violate any applicable
Order agreement or contract to which such party or any of its assets is subject
or bound.
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Section 5.6 NO PROHIBITIONS. Each of the Seller's and Baker Fund's
execution, delivery and performance of this Agreement and each Ancillary
Agreement to which it is a party will not violate any material Applicable Law,
and no lawsuit before any court or other Governmental Authority is pending or,
to such party's knowledge, threatened that could prohibit such party from
consummating the transactions contemplated by this Agreement or may Ancillary
Agreement.
Section 5.7 NO BROKER. Neither the Seller nor Baker Fund has any
obligation or liability to any broker, finder or other Person for any broker or
similar services with respect to the transactions contemplated hereby.
Section 5.8 SHARES. All the Purchased Shares have been validly authorized
and issued, are fully paid and nonassessable, and were not issued in breach or
violation of any Applicable Law, Contract or contractual or statutory preemptive
rights. Except as set forth in the Shareholders Agreement, no restrictions exist
upon the transfer of the Purchased Shares and the certificates representing the
Purchased Shares do not contain any legends indicating the existence of any such
restrictions, other than restrictions under applicable securities laws.
Section 5.9 OWNERSHIP OF THE SHARES. All the Purchased Shares have been
transferred free and clear of all Liens other than restrictions on transfer
arising under applicable securities laws, and the Purchased Shares constitute
all of the Seller's ownership interests in Company. Upon consummation of the
transactions contemplated herein, the Seller will not hold, directly or
indirectly, any securities (including debt securities) of Company or its
affiliates.
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ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Seller, Baker Fund and
each of the Moores that the statements made in this Article VI were true,
correct and complete immediately prior to the consummation of the Closing.
Section 6.1 ORGANIZATION. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Texas.
Section 6.2 POWER AND AUTHORITY. The Company possesses the requisite power
and authority to execute, deliver and perform this Agreement without obtaining
any approval or giving any notice, other than approvals or notices properly
obtained prior to the execution hereof.
Section 6.3 EXECUTION, DELIVERY AND ENFORCEABILITY. The Company has duly
authorized, executed and delivered this Agreement, and this Agreement
constitutes a valid, legal and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to any law Affecting
Creditors' Rights.
Section 6.4 CONSENTS. The Company's execution, delivery and performance of
this Agreement does not require the Company to obtain any approval or consent
from, make any filing with, or give any notice to any Person, other than
approvals, consents or notices properly obtained prior to the execution hereof.
Section 6.5 CONFLICTS. The Company's execution, delivery and performance
of this Agreement will not directly or indirectly breach or violate any
applicable Order, agreement or contract to which the Company or any of its
assets is subject or bound.
Section 6.6 NO PROHIBITIONS. The Company's execution, delivery and
performance of this Agreement will not violate any material Applicable Law, and
no lawsuit before any court or other Governmental Authority is pending or, to
the Company's knowledge, threatened that could prohibit the Company from
consummating the transactions contemplated by this Agreement.
Section 6.7 NO BROKER. The Company does not have any obligation or
liability to any broker, finder or other Person for any broker or similar
services with respect to the transactions contemplated hereby.
ARTICLE VII.
GENERAL
Section 7.1 AMENDMENT. No amendment to this Agreement will be effective
unless in a writing signed by each of the parties.
Section 7.2 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original agreement, but all
of which will constitute one and the same agreement. Any party may execute and
deliver this Agreement by an executed signature page transmitted by a facsimile
machine, If a party transmits its signature page by a facsimile machine, such
party will promptly thereafter deliver an originally executed signature page to
the other parties, provided that any failure to deliver such an originally
executed signature page will not affect the validity, legality or enforceability
of this Agreement.
Section 7.3 ENTIRE AGREEMENT. This Agreement, together with the Ancillary
Agreements, constitute the entire agreement and understanding among the parties
and supersedes all prior agreements and understandings, both written and oral,
with respect to the subject matter of this Agreement.
Section 7.4 GOVERNING LAW. This Agreement will be governed by the laws of
the State of New York, regardless of the laws that might otherwise govern under
the conflicts of laws principles of the State of New York.
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Section 7.5 NO THIRD PARTY BENEFICIARIES. Except as expressly stated in
this Agreement, this Agreement is solely for the benefit of the parties and no
other Person will have any right, interest or claim under this Agreement.
Section 7.6 NOTICE. All claims, consents, designations, notices, waivers
and other communications in connection with this Agreement or any Ancillary
Agreement will be in writing and delivered in accordance with Section 9.9 of the
1997 Purchase Agreement.
Section 7.7 REPRESENTATION BY LOYAL COUNSEL. Each party is a sophisticated
Person that was advised by experienced legal counsel and other advisors in the
negotiation and preparation of this Agreement and the Ancillary Agreements. All
costs and expenses of such representation will be borne by the parties incurring
such costs and expenses.
Section 7.8 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction will not invalidate the
remaining provisions of this Agreement or affect the validity or enforceability
of such provision in any other jurisdiction. Any such prohibited or
unenforceable provision will be given effect to the extent possible in the
jurisdiction where such provision is prohibited or unenforceable.
Section 7.9 SUCCESSORS. This Agreement will be binding upon and will inure
to the benefit of each party and its heirs, legal representatives, and
successors, provided that this section will not permit the assignment or other
transfer of this Agreement, whether by operation of law or otherwise, if such
assignment or other transfer is not otherwise permitted under this Agreement.
Section 7.10 TIME OF THE ESSENCE. Time is of the essence in the
performance of this Agreement and all dates and periods specified in this
Agreement.
Section 7.11 WAIVER. No provision of this Agreement will be considered
waived unless such waiver is in writing and signed by the party that benefits
from the enforcement of such provision. No waiver of any provision in this
Agreement, however, will be deemed a waiver of a subsequent breach of such
provision or a waiver of a similar provision.
Section 7.12 FURTHER ASSURANCES. Subject to the other terms and conditions
of this Agreement, at any time and from time to time after the Closing, each
party will execute and deliver all instruments and documents and take all other
action that any other party may reasonably request to consummate or to evidence
the consummation of the transactions contemplated by this Agreement.
Section 7.13 REMEDIES. In addition to being entitled to exercise all
rights provided herein or granted by law, including recovery of damages, the
parties hereto will be entitled to specific performance of the obligations of
any other party under this Agreement or the Ancillary Agreements without the
showing of economic loss and without any bond or other security being required.
Each of the parties hereto (severally and not jointly) agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of
any breach of its obligations described in the foregoing sentence and each
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
[SIGNATURES ON THE NEXT PAGE]
1N WITNESS WHEREOF, each party has executed and delivered, or has caused a
duly authorized Person to execute and deliver, this Agreement to be effective as
of the Closing Date.
9
SELLER: FWT ACQUISITION, INC.
PURCHASERS: /S/ JOHN C. BAKER
JOHN C. BAKER
CHAIRMAN OF THE BOARD AND PRESIDENT
/S/ CARL R. MOORE
CARL R. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/THOMAS P "FRED" MOORE
THOMAS P "FRED" MOORE, IN HIS INDIVIDUAL
CAPACITY
/S/ ROY J. MOORE
ROY J. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/ T.W. MOORE
T.W. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/ BETTY MOORE
BETTY MOORE, IN HER INDIVIDUAL CAPACITY
BAKER: BAKER COMMUNICATIONS FUND, L.P.
BY: BAKER CAPITAL PARTNERS, LLC
TITLE: GENERAL PARTNER
BY: /S/JOHN C. BAKER
JOHN C. BAKER, MANAGER
COMPANY: FWT, INC.
BY:/S/ JOHN BAKER
NAME: JOHN BAKER
TITLE: CHAIRMAN
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IN WITNESS WHEREOF, each party has executed and delivered, or has caused a
duly authorized Person to execute and deliver, this Agreement to be effective as
of the Closing Date.
SELLER: FWT ACQUISITION, INC.
/S/ JOHN C. BAKER
JOHN C. BAKER
CHAIRMAN OF THE BOARD AND PRESIDENT
PURCHASER: /S/ CARL R. MOORE
CARL R. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/ THOMAS P. "FRED" MOORE
THOMAS P "FRED" MOORE, IN HIS INDIVIDUAL
CAPACITY
/S/ ROY J. MOORE
ROY J. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/ T.W. MOORE
T.W. MOORE, IN HIS INDIVIDUAL CAPACITY
/S/ BETTY MOORE
BETTY MOORE, IN HER INDIVIDUAL CAPACITY
BAKER: BAKER COMMUNICATIONS FUND, L.P.
BY: BAKER CAPITAL PARTNERS, LLC
TITLE: GENERAL PARTNER
BY: /S/ JOHN C. BAKER
JOHN C. BAKER, MANAGER
BAKER: FWT, INC.
BY:
NAME:
TITLE:
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SCHEDULE I
ALLOCATION OF PURCHASED SHARES
PURCHASER ALLOCATION
Carl R, Moore 33.3%
Thomas F. "Fred" Moore 33.3%
Roy J. Moore 33.3%
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SCHEDULE II
ESCROW INSTRUCTIONS AND TERMINATION AGREEMENT
THIS ESCROW INSTRUCTIONS AND TERMINATION AGREEMENT (this "AGREEMENT"),
dated as of April 8, 1999 (the "CLOSING DATE"), by and among Carl R. Moore,
Thomas F. "Fred" Moore, Roy J. Moore, T. W. Moore and Betty Moore (such
individuals are sometimes collectively referred to as the "MOORES,"), FWT
Acquisition, Inc., a Delaware corporation (the "SELLER") and U.S. Trust Company
of Texas, N.A., as escrow agent ("ESCROW AGENT"). The Moores, the Seller and the
Escrow Agent are sometimes collectively referred to as the "PARTIES," and
individually referred to as a "PARTY."
PRELIMINARY STATEMENTS
A. Each of the Moores, the Seller and FWT, Inc., a Texas corporation (the
"COMPANY") are parties to that certain Stock Purchase and Redemption Agreement,
dated as of November 12, 1997, among the Moores, the Seller and certain other
parties (the "I997 PURCHASE AGREEMENT").
B. In connection with the 1997 Purchase Agreement, the Parties entered
into that certain Escrow Agreement, dated as of November 12, 1997 (the "ESCROW
AGREEMENT").
C. Each of the Moores and the Seller have determined a mutually acceptable
distribution of the Escrow Assets (the "RELEASED AMOUNT") in settlement of their
respective obligations under the 1997 Purchase Agreement and in consideration of
the transactions set forth in that certain Stock Purchase, Settlement and
Release Agreement, dated as of the Closing Date, among the Moores, the Seller,
the Company, and Baker Communications Fund, L.P. (the "STOCK PURCHASE
AGREEMENT").
D. Each of the Moores and the Seller desire to instruct the Escrow Agent
to make such distribution of the Released Amount and terminate the Escrow
Agreement.
E. Capitalized terms used in this Agreement, but not otherwise defined,
will have the meanings ascribed in the Escrow Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing preliminary statements
and the terms and conditions of this Agreement, and other good, valuable and
binding consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound hereby, now agree as
follows:
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ARTICLE I.
ADJUSTMENTS UNDER THE 1997 PURCHASE AGREEMENT;
TERMINATION OF ESCROW ACCOUNT AND AGREEMENT
Section 1.1 AGGREGATE CONSIDERATION AND ADJUSTMENTS. The Parties hereby
agree that all of the Parties' respective obligations resulting from or
contained in Article II of the 1997 Purchase Agreement will be satisfied in full
upon the execution and delivery of this Agreement and distribution of the
Released Amount in accordance with the instructions contained herein.
Section 1.2 EFFECT OF DISTRIBUTION OF THE RELEASED AMOUNT: TERMINATION OF
THE ESCROW AGREEMENT. Upon distribution of the Released Amount as provided
herein, the Escrow Account will be deemed closed and the Escrow Agreement will
be deemed terminated; PROVIDED, however, that any additional funds, including
earnings on the Released Amount, received in the Escrow Account after the
Closing Date shall be paid in accordance with Section 2.1 hereof; provided,
further, that the terms of Section 3.5 of the Escrow Agreement will survive.
ARTICLE II.
INSTRUCTIONS TO ESCROW AGENT
Section 2.1 DISTRIBUTION OF THE RELEASED AMOUNT. In consideration of the
settlement of their respective obligations under the 1997 Purchase Agreement and
in consideration of the other transactions set forth in the Stock Purchase
Agreement, each of the Moores and the Seller hereby jointly instruct the Escrow
Agent to distribute the Released Amount, and any additional funds, including
earnings on the Released Amount, received in the Escrow Account after the
Closing Date to the account of the Moores as set forth on Schedule I hereto.
Section 2.2 ESCROW FEES. Any and all fees payable pursuant to the terms of
the Escrow Agreement will be satisfied immediately prior to the distribution
described in Section 2.1 above.
ARTICLE III. MISCELLANEOUS
Section 3.1 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will for all purposes be deemed to be an original
and all of which when taken together will constitute the same agreement. Any
Party may execute and deliver this Agreement by an executed signature page
transmitted by a facsimile machine. If a Party transmits its signature page by a
facsimile machine, such Party will 'promptly thereafter deliver an originally
executed signature page to the other Parties, provided that any failure to
deliver such an originally executed signature page will not affect the validity,
legality or enforceability of this Agreement.
Section 3.2 HEADINGS. The captions and headings used in this Agreement are
inserted for convenience only and will not be deemed to constitute part of this
Agreement or to affect the construction or interpretation hereof.
Section 3.3 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement will
create or confer upon any Person, other than the Parties or their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities, except as expressly provided herein.
Section 3.4 NOTICES. Unless otherwise provided herein, any notice,
request, instruction, consent or other document required or permitted to be
given pursuant to this Agreement will be in writing and delivered personally, by
facsimile or by a nationally recognized overnight courier service to the address
or location listed on Schedule II for each Party, or at such other address or
location for a Party as will be specified in writing by that Party. Any notice,
request, instruction, consent or other document delivered as provided herein
will be deemed effectively given on the day after the dispatch of such notice.
Section 3.5 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such jurisdiction.
Section 3.6 ENTIRE AGREEMENT. This Agreement constitutes the sole
understanding of the Parties with respect
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to the matters contemplated hereby and supersedes and renders null and void all
prior agreements and understandings, written and oral, between the Parties with
respect to such matters. No Party will be liable or bound to the other Parties
in any manner by any promises, conditions, representations, warranties or
covenants except as specifically set forth herein.
Section 3.7 AMENDMENT. Except as otherwise specifically provided for in
this Agreement, no amendment, modification or alteration of the terms or
provisions of this Agreement, including any schedules or exhibits, will be
binding unless the same will be in writing and duly executed by the Party
against whom such amendment, modification or alteration is sought to be
enforced.
[SIGNATURES ON THE NEXT PAGE]
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IN WITNESS WHEREOF, each Party has executed and delivered, or has caused a
duly authorized Person to execute and deliver, this Agreement to be effective as
of the Closing Date.
MOORES: /S/ T.W. MOORE
T.W. Moore
/S/ BETTY MORE
Betty Moore
/S/ ROY J. MOORE
Roy J. Moore
/S/ THOMAS F. "FRED" MOORE
Thomas F. "Fred" Moore
/S/ CARL R. MOORE
Carl R. Moore
SELLER: FWT ACQUISITION, INC.
By: /S/ JOHN C. BAKER
John C. Baker
Chairman of the Board and President
ESCROW AGENT: U.S. TRUST COMPANY OF TEXAS, N.A.
By: ________________________
Name: ________________________
Title: ________________________
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SCHEDULE I
Wire Instructions
SELLERS DISTRIBUTION PERCENTAGE
T.W. Moore 25.25%
Wire Instructions: Banc One
Dallas, Texas
ABA No. 111000614
Credit to the account of: T.W. Moore and Betty Moore
Account No.: 1180654491
Betty J. Moore 25.25%
Wire Instructions: Banc One
Dallas, Texas
ABA No. 111000614
Credit to the account of: T.W. Moore and Betty Moore
Account No.: 1180654491
Roy J. Moore 16.5%
Wire Instructions: Banc One
Arlington, Texas
ABA No. 111000614
Credit to the account of Roy J. Moore
Account No.: 1570666360
Carl R. Moore 16.5%
Wire Instructions: Bank of New York
ABA No. 021000018
Credit to: Paine Webber, Inc. RMA
Account No.: 8900114088
FFC: Carl Reagan Moore/Special Account
Account: FW-41012-10
Thomas F. Moore 16.5%
Wire Instructions: Bank of New York
ABA No. 021000018
Credit to: Paine Webber, Inc. RMA
Account No.: 8900114088
FFC: Fred Moore and Cheryl Moore
Account: FW-40100-10
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SCHEDULE III
TERMS OF LOAN TO THE COMPANY
[Attached]
COMPANY
FWT, Inc.
1901 East Loop 820 South
Fort Worth, Texas 76112-7899
MOORES
T.W. Moore
5901 Bay Club Drive
Arlington, TX 76013
Betty J. Moore:
5901 Bay Club Drive
Arlington, TX 76013
Roy J. Moore
3508 Orchid Court
Arlington. TX 76016
Carl R. Moore
4104 Flower Garden
Arlington, TX 76016
Thomas F. Moore
5820 Bay Club Drive
Arlington, TX 76013
SELLER
FWT Acquisition, Inc.
540 Madison Avenue, 29th Floor
New York, NY 10022
ESCROW AGENT
U.S. Trust Company of Texas
2001 Ross Avenue
Suite 2700
Dallas, TX 75201-2936
Attn: Melissa Scott
214.754-1236
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LOAN TO FWT, INC
TERM SHEET
(1) Amount: $7,000,000
(2) Lender; Brocko, Inc, a Texas corporation
(3) Interest Rate: 8.0% per annum
(4) Prepayment penalty: None
(5) Payments: Principal and interest at maturity
(6) Maturity Date: 180 days
(7) Collateral: First lien deed of trust on all real estate owned
by FWT, Inc. and first security interest in all
personal assets of FWT, Inc.
(8) Conditions to Loan: (a) Consent of Banker's Trust and trustee for
the bondholders
(b) Mortgagee title policy in the amount of the
loan in favor of the lender reflecting that
the lien of the deed of trust is a first and
prior lien
(c) FWT to pay all attorneys fees and the
premium on the mortgagee policy of title
insurance
(d) Full release of funds in escrow account of U.S.
Trust Company of Texas to T.W. Moore, Betty
Moore, Roy Moore, Carl Moore and Fred Moore
(e) Approval of terms of loan and of full
release of all funds in the escrow account
at U.S. Trust company of Texas to T.W.
Moore, Betty Moore, Roy Moore, Carl Moore
and Fred Moore by FWT Inc. FWT Acquisition,
Inc., the trustee for the bondholders, BT
Alex Brown, SBC Warburg Dillon Read, Inc.
and Smith Barney, Inc.
(f) Capital expenditures in excess of $100,000
in the aggregate must be approved in advance
in writing by Lender
(g) Hazard insurance in the amount of the loan
reflecting Lender as mortgagee
(h) Lender must be satisfied as to amount and
status of all claims against FWT, Inc.
(i) Amount owned under contracts between FWT,
Inc. and each of Roy Moore, Carl Moore and
Fred Moore to be paid through Aril 1, 1999,
(not to exceed $175,000) in consideration
for services to be rendered.
(9) Repayment of the loan not subject to offset or claims of recoupment.
(10) Right to accelerate maturity date if a financial restructuring of FWT,
Inc. and an agreement with respect to releases has not been agreed to by
the advisors to the bondholders committee, FWT, Inc. FWT Acquisition,
Inc., Baker Communications Fund, L.P., BT Alex Brown, SBC Warburg Dillon
Read, Inc. and Smith Barney, Inc. by May 14, 1999.
(11) Expiration of Commitment: April 8, 1999 at 10:00 a.m.
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