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EXHIBIT 10.10
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made as of the 12th day of November,
1997 by and among Roy J. Moore of Arlington, Texas ("ROY"); Thomas F. "Fred"
Moore of Arlington, Texas ("FRED"); Carl J. Moore of Arlington, Texas ("CARL")
(collectively, the "MOORES") and FWT Acquisition, Inc., a Delaware corporation
("PURCHASER"), for the purposes of Articles V and VI and Sections 2.1 and 2.2
only, Baker Communications Fund, L.P., a Delaware limited partnership,
("BAKER"), FWT, Inc., a Texas corporation (the "COMPANY"). The Moores and
Purchaser are sometimes referred to collectively herein as the "SHAREHOLDERS".
PRELIMINARY STATEMENTS
The parties desire to enter into this Agreement to govern certain
aspects of their relationship in respect of the matters set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and for other good, valuable and binding
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties, the parties hereto intending to be legally bound hereby,
now agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I.
SHAREHOLDINGS AND GOVERNANCE
1.1. Shareholdings. As of the date hereof and after giving effect to
certain redemption and repurchase transactions regarding the Company's
outstanding capital stock completed on the date hereof, the issued and
outstanding shares of capital stock of the Company (collectively, the "SHARES"
and individually, the "SHARE") are as set forth in Schedule 1.1 attached
hereto.
1.2. Board of Directors of the Company. The board of directors of the Company
(the "BOARD") shall be those individuals elected in accordance with applicable
law. The initial Board shall be as follows:
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John C. Baker
Edward W. Scott
Lorenzo Bettino
Roy J. Moore
For so long as either (i) Roy is Chief Executive Officer of the Company or (ii)
the Moores collectively own not less than five percent (5%) of the Shares (the
"INITIAL PERIOD"), Purchaser agrees to vote its shares in favor of the election
of Roy to the Board and to cause Roy to be appointed to the Board's
compensation committee. Notwithstanding the foregoing, in the event that Roy's
employment with the Company is terminated for "cause" under the employment
agreement of even date herewith, Purchaser shall no longer be required to vote
its shares in favor of the election of Roy to the Board or to cause his
appointment to the compensation committee.
1.3. Officers of the Company. The officers of the Company shall be those
individuals designated by the board of directors from time to time subject to
the terms of certain Employment Agreements between the Company and those
individuals designated below. The initial senior executive officers of the
Company shall include:
Roy J. Moore President and Chief Executive Officer
Carl J. Moore Vice President
Thomas F. "Fred" Moore Vice President
1.4. Supermajority Vote of Directors. During the Initial Period, the Company
shall not enter into any contract, agreement or arrangement with any
Shareholder or any Affiliate of any Shareholder, whether in the ordinary course
of business or otherwise (a "RELATED PARTY TRANSACTION"), without the unanimous
consent of the Board, which consent shall not be unreasonably withheld or
delayed provided that the proposed Related Party Transaction is no less
favorable to the Company than could be obtained from a comparable unrelated
third party. In the event that any Board member fails to vote in favor of any
Related Party Transaction presented to the Board, the reasons for such "no
vote" or abstention shall be stated for the meeting record in reasonable detail
and shall be duly recorded in the minutes of such meeting. Notwithstanding any
other provision of this Agreement, in no event shall any of the following (or
any amendment or restatement or substitution arrangement relating to any of the
following) be deemed a Related Party Transaction: (i) the payment by the
Company of any fees or expenses to be paid by the Company pursuant to the
express terms of a Stock Purchase and Redemption Agreement; (ii) reasonable
fees and compensation paid to and indemnity provided on behalf of officers,
directors, employees or consultants of the Company as determined in good faith
by the Board; (iii) the two million dollar ($2,000,000) financial advisory
services fee payable to Baker Capital Corp. ("Baker Capital") or its
Affiliates; (iv) the ongoing oversight and monitoring fees payable to Baker
Capital or its Affiliates contemplated by the Financial Advisory Services
Agreement of even date herewith; and (v) any indemnity or expense reimbursement
of Baker Capital and/or its Affiliates pursuant to any such agreement or
arrangement. For purposes hereof the term "AFFILIATE" with respect to a Person
means
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any other Person that directly or indirectly controls, is controlled by, or is
under common control with such Person. For the purposes of this definition,
control means the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
Contract, or otherwise. Control shall be presumed by an individual that is a
director or executive officer, a Person, or a Person that beneficially owns
more than 10% of any class of securities of such Person having general voting
rights. For greater certainty, during the period after the Closing and prior
to the expiration of the Initial Period, Purchaser and Baker Communications
Fund, L.P. shall be considered Affiliates of Company for so long as Purchaser
controls Company.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Shareholders and Baker. Each
Shareholder and Baker, severally but not jointly, hereby represents and
warrants to each other and to the Company that the following are true, correct
and complete, as of the date hereof:
(a) Capacity of Individual Shareholder. Each Shareholder that is an
individual possesses the requisite legal capacity and the right to execute,
deliver, and perform this Agreement and the relevant documents pertaining
hereto, to which such Shareholder is a party, without obtaining any approval or
giving any notice.
(b) Capacity of Corporate Shareholder. Purchaser is a corporation
duly incorporated, validly existing, and in good standing under the laws of the
State of Delaware, and is qualified to transact business as a foreign
corporation in each jurisdiction where such qualification is required.
(c) Capacity of Baker. Baker is a limited partnership duly organized,
validly existing under the laws of the State of Delaware, and is qualified to
transact business in each jurisdiction where such qualification is required.
(d) Power and Authority. Each Shareholder and Baker possesses the
power and authority to execute, deliver, and perform this Agreement, without
obtaining any approval or giving any notice, other than any approvals and other
consents which it has properly obtained prior to the execution hereof.
(e) Execution, Delivery, and Enforceability. Each of the
Shareholders and Baker has duly executed and delivered this Agreement and this
Agreement constitutes a valid, legal, and binding obligation of each,
enforceable against it in accordance with its terms, subject to any Law
Affecting Creditors' Rights, as defined in the Stock Purchase and Redemption
Agreement of even date herewith among the Shareholders and the Company (the
"Purchase and Redemption Agreement").
2.2. Company's Representations and Warranties. Company hereby represents and
warrants to the Shareholders that the following are true, correct, and
complete, as of the date hereof:
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(a) Organization. Company is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Texas and
is qualified to transact business as a foreign corporation in each jurisdiction
where such qualification is required.
(b) Power and Authority. Company possesses the corporate power and
authority to execute, deliver, and perform this Agreement, without obtaining
any approval or giving any notice, other than the approval of the Board, which
it has properly obtained.
(c) Execution, Delivery, and Enforceability. Company has duly
authorized, executed, and delivered this Agreement, and this Agreement
constitutes a valid, legal, and binding obligation of Company, enforceable
against Company in accordance with its terms, subject to any Law Affecting
Creditors' Rights, as defined in the Purchase and Redemption Agreement.
(d) Consents. Company's execution, delivery, and performance of this
Agreement does not require Purchaser to obtain any approval or consent from any
person, make any filing with any person, or give any notice to any person,
other than any approvals and other consents which it has properly obtained
prior to the execution hereof.
ARTICLE III.
GENERAL MATTERS RELATING TO THE
HOLDING OF SHARES AND PERMITTED TRANSFERS
3.1. Restrictions on Pledges and Transfers. During the term of this
Agreement, none of the Shareholders shall sell, exchange, or otherwise
transfer, or in the case of the Moores, pledge (other than any pledge required
in connection with the consummation of the transactions contemplated by the
Purchase and Redemption Agreement) (collectively, a "TRANSFER") any Shares now
or hereafter held by such Shareholder except in accordance with this Agreement.
A purported Transfer of any Shares in violation of this Agreement shall not be
valid and the Company shall not register any such Transfer on the securities
register of the Company, nor shall any voting rights attaching to or relating
to such Shares be exercised, nor shall any purported exercise of such voting
rights be valid or effective, nor shall any dividend or distribution be paid or
made on such Shares.
3.2. Transfers by a Shareholder to a Related Party. A Shareholder (the
"TRANSFERRING SHAREHOLDER") may Transfer all or any of the Shares held by such
Shareholder to an Affiliate of such Shareholder (the "RELATED PARTY") provided
that:
(i) the Related Party is controlled by the Transferring Shareholder
or by the same person who controls the Transferring Shareholder;
and
(ii) the Related Party signs this Agreement and agrees to be bound by
the terms hereof, as if the Related Party were an original
signatory hereto.
3.3 Transfers to Members of Family Group. Any of the Moores may transfer all
or any of the Shares held by such Person to such Person's spouse and
descendants (whether natural or adopted) and to any trust created solely for
the benefit of such Person and/or such Person's spouse and/or
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descendants (such Person's spouse and descendants and any such trust is
hereinafter referred to as such Person's "FAMILY GROUP"); provided that the
Family Group member to whom such Transfer is made signs this Agreement and
agrees to be bound by the terms hereof, as if such Family Group member were an
original signatory hereto. Any Family Group member to whom any such Transfer
is made shall be entitled to all rights and benefits under this Agreement that
were available to the transferring Shareholder.
3.4. Pledge of Shares by Moores. Any of Roy, Carl or Fred may mortgage,
hypothecate, pledge or grant a security interest in his Shares as security for
a bona fide loan from a financial institution reasonably acceptable by
unanimous vote to the Board (a "PERMITTED LENDER"); provided that, the
Permitted Lender agrees to be bound by the terms of this Agreement as fully as
if the Permitted Lender were an original signatory hereto.
3.5. Notation on Share Certificates. All share certificates representing
Shares shall have the following statement conspicuously noted thereon:
The securities represented by this certificate have not been
registered under the Securities Act of 1933 or under any State
securities laws (the "Acts") and the securities may not be sold,
transferred or otherwise disposed of without registration under
the applicable Acts unless an exemption from registration is
available. By its acquisition of the securities represented
hereby, the holder agrees that it is acquiring such securities
for investment and not with a view to, or for sale in connection
with, the public distribution thereof. In addition, such shares
are subject to a Shareholders' Agreement dated the 12th of
November, 1997 between the parties thereto, as the same may be
amended from time to time, and such shares may not be dealt with
except in accordance with the provisions thereof.
Any certificates that may be issued in the future representing securities
issued by the Company which may be convertible into Shares or evidencing a
right to acquire Shares shall contain a statement substantially to the same
effect.
3.6. Rights of First Refusal. The Shareholders shall have the following
rights of first refusal:
(a) Moores to Give First Refusal Notice. If at any time any of the
Moores (a "SELLING SHAREHOLDER") has received and wishes to accept a bona fide
offer (the "OFFER") from a third party (the "OFFEROR") for all or part of its
Shares, it shall give notice thereof (the "FIRST REFUSAL NOTICE") to each of
the other Shareholders and the Company. The First Refusal Notice shall state
the number of Shares that the Selling Shareholder wishes to sell (the "OPTIONED
SHARES"), all material terms of the Offer, the name of the Offeror, and
certification from the Selling Shareholder affirming that the Offer is bona
fide and that the description thereof is true and correct, and that the Offeror
has stated that it will purchase the Optioned Shares if the rights of first
refusal herein described are not exercised.
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(b) Moores May Give Notice of Acceptance. Each of the Moores other
than the Selling Shareholder (the "NON-SELLING MOORES") shall have the right
exercisable by notice (a "MOORE ACCEPTANCE NOTICE") given to the Selling
Shareholder, the Company and the Purchaser within twenty (20) days after
receipt of the First Refusal Notice, to agree that it will purchase its ratable
portion of the Optioned Shares, or such greater amount in the event that the
other Non-Selling Moore does not elect to purchase its full ratable portion. If
a Non-Selling Moore does not submit a Moore Acceptance Notice within the twenty
(20) day period set forth in this Section, such Non-Selling Moore shall be
deemed to have rejected the offer to purchase any portion of the Optioned
Shares.
(c) Purchaser May Next Give Notice of Acceptance. In the event that
the Non-Selling Moores, or either of them, do not elect to purchase all of the
Optioned Shares, then Purchaser shall have the right, exercisable by notice
(the "PURCHASER ACCEPTANCE NOTICE") given to the Selling Shareholder, the
Company and the Non-Selling Moores within ten (10) days after receipt or lapse
of the Moore Acceptance Notice, to agree that it will purchase all but not less
than all of the remaining Optioned Shares. If no Purchaser Acceptance Notice
is submitted within the ten (10) day period set forth in this Section,
Purchaser shall be deemed to have rejected the offer to purchase any Optioned
Shares.
(d) Failure to Elect to Purchase All Optioned Shares. If all of the
Optioned Shares have not been accepted by the Non-Selling Moores and/or the
Purchaser prior to delivery or lapse of the last notice of acceptance
contemplated hereby, then any Moore Acceptance Notice or Purchaser Acceptance
Notice shall be void and of no effect, and the Selling Shareholder shall be
entitled to complete the proposed sale at any time in the ninety (90) day
period commencing on the date of the First Refusal Notice, but only upon the
terms which are substantially identical to, and in any event are no less
favorable in any material respect to, the Selling Shareholder than those set
forth in the First Refusal Notice. If no such sale is completed in such ninety
(90) day period, the provisions hereof shall apply again to any proposed sale
of the Optioned Shares.
(e) Closing of Right of First Refusal Purchase. If any Non-Selling
Moore and/or Purchaser exercises the right to purchase Optioned Shares as
provided herein, the purchase of such Optioned Shares shall be completed within
the ninety (90) day period commencing on the date of delivery of the First
Refusal Notice.
3.7. Procedure for Disclosing Confidential Information to Prospective
Purchaser of Shares. Prior to a public offering of securities of the Company (a
"PUBLIC OFFERING"), if any Shareholder wishes to make a permitted Transfer of
any of its Shares, the Selling Shareholder may only provide information related
to the Company to the prospective Purchaser if the prospective purchaser has
executed, entered into and delivered to the Company a confidentiality agreement
reasonably acceptable to the Board (excluding the Selling Shareholder, if
applicable).
3.8. Governmental Approvals. Notwithstanding any other provision of this
Agreement, if the approval of any governmental authority is required with
respect to the transfer of Shares pursuant to the provisions of this Agreement,
then the parties to the transaction, and the Company whether or not it is a
party, shall reasonably collaborate in the diligent prosecution of any
requisite application.
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The Selling Shareholder shall be responsible for the costs of any such
application arising from the transfer of Shares.
ARTICLE IV.
PREEMPTIVE RIGHTS, TAGALONG RIGHTS, CARRY ALONG OBLIGATIONS AND
REGISTRATION RIGHTS
4.1. Preemptive Rights. In the event that during the Rights Period (as
defined in Section 4.2 hereof) the Company proposes to issue (an "ISSUANCE")
additional shares of its capital stock other than pursuant to a duly authorized
option plan, each of the Shareholders shall have the preemptive right (upon the
same conditions applicable in the Issuance) to acquire additional shares of
such securities so as to prevent dilution of its percentage ownership interest
immediately prior to such Issuance. The parties acknowledge that
notwithstanding the foregoing, in no event shall the Company, without the
written consent of Purchaser, issue additional shares of its capital stock if
the result thereof would be to reduce the ownership interest of Purchaser in
the Company to less than eighty percent (80%).
4.2. Tagalong Rights. Except as otherwise expressly provided herein and for
so long as the Moores collectively own not less than five percent (5%) of the
issued and outstanding shares of the Company (the "RIGHTS PERIOD"):
(a) Other than pursuant to a public offering of its securities by
Purchaser, Purchaser shall not transfer to any party that is not a Related
Party of the Purchaser (the "TAG ALONG TRANSFEREE"), any of its Shares, unless
the terms and conditions of such Transfer to the Tag Along Transferee shall
also include an offer to purchase from each of the Moores a ratable portion of
their Shares at the same price per Share and on the same terms as the offer
made by the Tag Along Transferee to the Purchaser (the "TAG ALONG RIGHT").
(b) Each of the Moores shall be entitled to sell to the Tag Along
Transferee the number of Shares held by such person equaling the number derived
as follows:
(X) times (A divided by B)
where X equals the number of Shares then owned by such person, A equals the
total number of Shares to be transferred by Purchaser to the Tag Along
Transferee and B equals the total number of Shares then owned by Purchaser.
(c) Purchaser shall notify the Moores not less than twenty (20) days
prior to the date of any proposed Transfer of Shares subject to the Tag Along
Right. Such notice (the "TAG ALONG NOTICE") shall set forth: (i) the name and
address of the Tag Along Transferee, (ii) the number of Shares proposed to be
transferred thereto, (iii) the date on which such Transfer is proposed to be
effected, and (iv) the proposed amount and form of consideration and all terms
and conditions of payment offered by such Tag Along Transferee ("TAG ALONG
TERMS"). The Tag Along Notice shall also contain a certification from an
officer of Purchaser that the description of the terms of such
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transfer set forth in such Tag Along Notice is accurate, that such Transfer is
bona fide and that Purchaser has informed the applicable Tag Along Transferee
of the Tag Along Right.
(d) In order to exercise its Tag Along Right, any of Roy, Fred or
Carl must send written notice to Purchaser and the Company (the "EXERCISE
NOTICE"), within fifteen (15) days following the receipt of the Tag Along
Notice. The Exercise Notice shall state the number of Shares that such person
wishes to transfer to the Tag Along Transferee subject to the maximum number of
Shares calculated pursuant hereto.
(e) Upon delivery of its Exercise Notice, such person shall be
obligated to sell to the Tag Along Transferee on the Tag Along Terms the number
of Shares set forth in the Exercise Notice; provided, however, that Purchaser
shall not consummate the sale of any of its Shares to the Tag Along Transferee
if the Tag Along Transferee does not purchase all of the Shares referenced in
the Tag Along Notice and in the Exercise Notices applicable thereto. If after
the expiration of the ten (10) day period referred to above none of the Moores
shall have sent an Exercise Notice, then Purchaser shall have the right for a
ninety (90) day period from the date of the Tag Along Notice to transfer the
number of Shares referenced in the Tag Along Notice to the Tag Along Transferee
on the Tag Along Terms without further notice to the Moores.
4.3. Carry-Along Obligations. If at any time during the Rights Period,
Shareholders holding, in the aggregate, at least 80% of the outstanding Shares
of the Company approve a proposed sale of all of the Shares of the Company, and
the Company has, or such Shareholders have, obtained a fairness opinion from a
reasonably acceptable independent investment banking firm or valuation firm of
national standing as to the value of the Company (the "FAIR VALUE"), and the
proposed sale is within the range of Fair Value as set forth in such fairness
opinion, then all of the Shareholders of the Company shall agree to sell and
shall sell their Shares pursuant to any offer to purchase all, but not less
than all, of the Shares of the Company during a period not more than ninety
(90) days after the date of such fairness opinion for an amount on a per Share
basis not less than the Fair Value of such Shares as determined by such firm.
4.4. Participation by Shareholders in Public Offering by the Company. Each of
the Moores and the Purchaser shall have the registration rights set forth in
the Registration Rights Agreement by and among the Moores, Purchaser and the
Company of even date herewith, as the same may be amended from time to time.
4.5 Demand Right. At any time after the effective date of Purchaser's first
registration statement under the Securities Act of 1933 registering the
issuance or sale of its Common Stock, upon the written request of any Moore,
the Company will, at its sole expense, effect the registration of all of such
Moore's Shares under the Securities Act of 1933 and all applicable state 'blue
sky' laws. A registration requested pursuant to this Section 4.5 shall not be
deemed to have been effected (i) unless a registration statement with respect
thereto has become effective (unless a substantial cause of the failure of such
registration statement to become effective shall be attributable to a Moore
whose Shares were to have been included in such registration statement), (ii)
if after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Securities Exchange
Commission or other governmental agency or court for any reason, result in a
failure to consummate the offering of Shares offered
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thereby, (iii) if after a registration statement with respect thereto has
become effective, the offering of Shares offered thereby is not consummated due
to factors beyond the control of the Moores, including, without limitation in
the context of a proposed firm commitment underwriting, the fact that the
underwriters have advised the holders of such Shares that such Shares cannot
be sold at a net price equal to or above the net price anticipated at the time
of filing of the preliminary prospectus or (iv) if the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied (unless a substantial cause
of such conditions to closing not being satisfied shall be attributable to a
Moore whose Shares were included in such registration statement).
ARTICLE V.
CERTAIN TRANSACTIONS INVOLVING SECURITIES OF PURCHASER
5.1 Certain Purchaser Transactions. Purchaser and Baker hereby agree that
the following provisions shall be applicable during the Rights Period:
(a) Upstream Trigger. Purchaser and Baker hereby agree that each of
the following shall constitute an "Upstream Trigger": any sale, assignment,
transfer, conveyance or other disposition through merger, consolidation,
reorganization or otherwise (other than pursuant to a pledge to an unrelated
third party financial institution) by Baker of any of the Common Stock (herein
defined) of Purchaser held by it if, after giving effect to such transaction,
Baker ceases to own, directly or indirectly, at least seventy percent (70%) of
the sum of (a) number of shares of Common Stock owned by Baker on the date
hereof, plus (b) the number of shares of Common Stock issued to Baker (directly
or indirectly after the date hereof) (in each case as adjusted to give effect
to any stock dividends, stock splits and any contribution of outstanding Common
Stock into a smaller number of shares) (the "Base Number"). For purposes of
this Agreement, Common Stock of Purchaser shall mean its Common Stock, par
value $.01 per share, and any and all options, warrants, subscription rights
and other rights to purchase shares of such common stock as if exercised and
all securities convertible to such common stock as if converted.
(b) Trigger Notice. Baker hereby agrees to give the Moores not less
than twenty (20) days prior written notice of the proposed closing date (the
"Closing Date") of any transaction which would constitute an Upstream Trigger
(a "Trigger Notice") which Trigger Notice shall set forth in reasonable detail
the terms of the proposed transaction and shall include a certificate from a
duly authorized officer of the general partner of Baker stating that the
description of the proposed transaction contained therein is accurate and
complete in all material respects and that such transaction is a bona fide
transaction. Upon receipt of each Trigger Notice, each Moore shall have ten
(10) days in which to advise Baker in writing that it wishes to participate in
the Upstream Trigger transaction as proved herein ( a "Participation Notice").
If a Moore does not deliver to Baker a Participation Notice within such time
period he shall be deemed to have elected not to participate in such
transaction, but shall not have waived his right to participate in any future
transaction.
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(c) Required Purchase. To the extent Baker receives from any Moore a
Participation Notice, Baker shall be required to purchase from such Moore that
number of Shares held by such Moore determined in accordance with the following
formula:
A=(B-C)xD
For purposes of this Formula:
A= the number of Shares to be purchased from the Moore which
delivered the Exercise Notice.
B= 100 in the case of the first Upstream Trigger to occur
after the date of this Agreement. For each Upstream Trigger thereafter,
"B" shall equal the percentage of the Base Number of the shares of
Common Stock held, directly or indirectly, by Baker immediately prior to
such Upstream Trigger.
C= The percentage of the Base number of Shares of Common
Stock which will be held, directly or indirectly, by Baker immediately
after such Upstream Trigger.
D= The number of Shares held by such Moore on the date hereof
plus the number of Shares acquired by such Moore after the date hereof,
in each case adjusted to give effect to any stock dividends, stock
splits and contributions of outstanding Shares into a smaller number of
Shares.
Each purchase of shares of Common Stock shall be (a) for cash payable at
closing, (b) completed simultaneously with or prior to the consummation of the
transaction constituting the Upward Trigger, and (c) for a purchase price (i)
which is mutual acceptable to Baker and the exercising Moore, or (ii) in the
event Baker and the exercising Moore are unable to agree on such purchase price
within ten (10) days following delivery of the Participation Notice, such
purchase price shall be the fair market value of the Shares to be purchased
determined pursuant to the Appraisal set forth in this Agreement. The Closing
Date shall be extended until the fair market value has been finally determined
pursuant to the Appraisal Procedure.
(d) Definitions. As used in this Section 5.1 "Baker" shall be
deemed to include any Related Person with respect to Baker.
As used in this Section 5.1, "Appraisal Procedure" shall mean the following
procedure for determining fair market value of Shares: (a) upon the occurrence
of any Appraisal Event, Baker and the exercising Moore shall attempt to agree
on a mutually acceptable Qualified Appraiser to value the Shares, and if such
parties agree on a Qualified Appraiser with ten (10) days following delivery of
a Participation Notice such Qualified Appraiser shall, on or before twenty (20)
days following delivery of a Participation Notice, determine the Appraised
Value of the Shares, and such determination shall be binding upon Baker and the
exercising Moore: (b) in the event Baker and the exercising Moore are unable to
agree on a mutually acceptable Qualified Appraiser within ten (10) day period,
Baker and the exercising Moore shall each appoint a Qualified Appraiser to
value the Shares. Within a twenty (20) days following the date they are
appointed, the Qualified Appraisers
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appointed by Baker and the exercising Moore shall determine the Appraised Value
of the Shares. In the event the Appraised Value determined by Baker's
Qualified Appraiser is more than 95% of the Appraised Value determined by the
exercising Moore's Qualified Appraiser, the Appraised Value for purposes of
this Agreement shall be the average of the values determined by such appraisers
and such determination shall be binding upon Baker and the exercising Moore.
In the event the Appraised Value determined by Baker's Qualified Appraiser is
equal to or less than 95% of the value determined by the exercising Moore's
Qualified Appraiser, such appraisers shall in turn promptly appoint a third
Qualified Appraiser who shall, twenty (20) days following the date it is
appointed, determine the Appraised Value of the Shares. The value which is
neither the lowest not the highest of the values determined by the three
Qualified Appraisers shall be the Appraised Value of the Shares for purposes of
this Agreement and shall be binding upon Baker and the exercising Moore. In
the event either Baker or the exercising Moore fails to timely appoint a
Qualified Appraiser, such failing party will be; deemed to have waived its
rights to appoint a Qualified Appraiser, and the Qualified Appraiser appointed
by the other party shall determine the Appraised Value for purposes of this
Agreement which determination shall be binding upon Baker and the exercising
Moore. The costs of each Qualified Appraiser referred to herein shall be paid
by Baker.
ARTICLE VI.
GENERAL PROVISIONS
6.1. Term. This Agreement shall come into force and effect as of the date set
out on the first page of this Agreement and shall continue in force until the
earliest of:
(a) the date on which the Moores no longer hold any Shares of the
Company;
(b) the date of closing of a public offering or private placement of
equity securities of the Company, the proceeds of which to the Company are not
less than $20 million;
(c) the date on which this Agreement is terminated by written
agreement of all the Shareholders; and
(d) the date on which the Company ceases to exist.
6.2. Headings. The inclusion of headings in this Agreement is for
convenience of reference only and shall not affect the construction or
interpretation hereof.
6.3. Gender and Number. In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice versa and
words importing gender include all genders.
6.4. Invalidity of Provisions. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision by a court of competent jurisdiction
shall not affect the validity or enforceability of any other provision hereof.
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6.5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter of this Agreement. There
are no warranties, representations or agreements between the parties in
connection with such subject matter except as specifically set forth or
referred to in this Agreement.
6.6. Waiver, Amendment. This Agreement may be amended only by an instrument
in writing executed by each of the parties hereto. Except as expressly provided
in this Agreement, no waiver of this Agreement shall be binding unless executed
in writing by the party to be bound thereby. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision nor shall any waiver
of any provision of this Agreement constitute a continuing waiver unless
otherwise expressly provided.
6.7. Governing Law. This agreement and the obligations of the Shareholders,
will be governed by and construed in accordance with the laws of the State of
Texas, without regard to any conflicts-of-laws provision thereof that would
otherwise require the application of the law of any other jurisdiction.
6.8. Termination Not to Affect Rights or Obligations. A termination of this
Agreement shall not affect or prejudice any rights or obligations which have
accrued or arisen under this Agreement prior to the time of termination and
such rights and obligations shall survive the termination of this Agreement.
6.9. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by facsimile or other
means of electronic communication or by delivery as hereafter provided. Any
such notice or other communication, if sent by facsimile or other means of
electronic communication, shall be deemed to have been received on the business
day following the sending, or if delivered by hand, shall be deemed to have
been received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall also be governed by this Section. Notices and
other communications shall be addressed as follows:
(a) if Roy J. Moore:
3508 Orchid Court
Arlington, Texas 76016
Phone: (817) 561-0151
with a copy to:
Haynes & Boone, L.L.P.
201 Main Street
Fort Worth, Texas 76102
Attn: William D. Ratliff, III
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(b) if to Thomas F. "Fred" Moore:
5820 Bay Club Drive
Arlington, Texas 76013
Phone: (817) 457-1579
with a copy to:
Haynes & Boone, L.L.P.
201 Main Street
Fort Worth, Texas 76102
Attn: William D. Ratliff, III
(c) if to Carl R Moore:
4104 Flower Garden
Arlington, Texas 76016
Phone: (817) 483-6061
with a copy to:
Haynes & Boone, L.L.P.
201 Main Street
Fort Worth, Texas 76102
Attn: William D. Ratliff, III
(d) if to FWT, Inc.:
1901 East Loop 820 South
Fort Worth, Texas 761127899
Phone: (817) 457-3060
Fax: (817) 446-7095
Attn: Roy J. Moore and Edward W. Scott
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Attn: Gary M. Lawrence
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(e) if to FWT Acquisition, Inc.:
575 Madison Avenue
10th Floor
New York, NY 10022
Attn: Edward W. Scott
Phone: (212) 605-0577
Fax: (212) 486-6686
with a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Attn: Gary M. Lawrence
Any Shareholder may change the address to which such communications are to be
directed to it by giving notice to the board of directors in the manner
provided in this Section. All notices by telecopier shall be confirmed by the
sender promptly after transmission in writing by mail or personal delivery.
6.10. Assignment. Except as otherwise expressly provided in this Agreement,
this Agreement shall not be assignable by any of the parties hereto without the
prior written consent of the other parties.
6.11. Further Assurances. Each of the Shareholders shall vote and act at all
times as a Shareholder of the Company and in all other respects use reasonable
efforts (other than through expenditure of money) to take all such steps,
execute all such documents and do all such acts and things as may be reasonably
within its power to implement to their full extent the provisions of this
Agreement and to cause the Company to act in the manner contemplated by this
Agreement.
6.12. Counterparts. This Agreement may be signed in counterparts and each of
such counterparts shall constitute an original document and such counterparts,
taken together, shall constitute one and the same instrument, and any person
may execute and deliver this Agreement by an executed signature page
transmitted by facsimile machine.
6.13. Inurement. Subject to the provisions hereof, this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and legal personal representatives.
6.14. Schedules and Exhibits. Any schedules and exhibits referred to in this
Agreement are hereby incorporated herein for all purposes.
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IN WITNESS WHEREOF the parties have executed this Agreement.
---------------------------------------------
Roy J. Moore
---------------------------------------------
Thomas F. "Fred" Moore
---------------------------------------------
Carl R. Moore
FWT, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
FWT ACQUISITION, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
For the limited purposes set forth herein
and for no others,
BAKER COMMUNICATIONS FUND I, L.P.
By:
------------------------------------------
General Partner
By:
-----------------------------------
Its:
----------------------------------
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SCHEDULE 1.1
Number of
Shareholder Shares Owned
----------- ------------
FWT ACQUISITION INC. 108.9135
ROY J. MOORE 9.0761
THOMAS F. "FRED" MOORE 9.0761
CARL J. MOORE 9.0761