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EXHIBIT 10.19
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LET'S TALK CELLULAR & WIRELESS, INC.,
MERGER SUB 1, INC.
MERGER SUB 2, INC.
TELEPHONE WAREHOUSE, INC.
NATIONAL CELLULAR, INCORPORATED
AND
TEXAS CELLULAR PARTNERS, L.P.
DATED AS OF JUNE 27, 1997
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of the
27th day of June, 1997, by and among LET'S TALK CELLULAR & WIRELESS, INC., a
Florida corporation f/k/a Let's Talk Cellular of America, Inc. ("LTC"), MERGER
SUB 1, INC., a Delaware corporation ("Merger Sub 1"), MERGER SUB 2, INC., a
Texas corporation ("Merger Sub 2" and collectively with Merger Sub 1, the
"Buyers"), TELEPHONE WAREHOUSE, INC., a Delaware corporation ("TWI"), NATIONAL
CELLULAR, INCORPORATED, a Texas corporation ("NCI") and TEXAS CELLULAR
PARTNERS, L.P., a Delaware limited partnership ("TCP"). Terms used herein and
not otherwise defined shall have the meanings set forth in Section 11.3 hereof.
WHEREAS, Merger Sub 1 desires to merge with and into TWI and TWI
desires that Merger Sub 1 be merged with and into TWI (the "TWI Merger"), so
that TWI will be the surviving corporation, all upon the terms and subject to
the conditions set forth herein and in accordance with the laws of the State of
Delaware;
WHEREAS, Merger Sub 2 desires to merge with and into NCI and NCI
desires that Merger Sub 2 be merged with and into NCI (the "NCI Merger" and
collectively with the TWI Merger, the "Mergers"), so that NCI will be the
surviving corporation, all upon the terms and subject to the conditions set
forth herein and in accordance with the laws of the State of Texas; and
WHEREAS, the parties hereto have previously executed an Agreement and
Plan of Merger on April 11, 1997 and now desire to amend and restate such
agreement to amend certain provisions thereof.
NOW, THEREFORE, in consideration of the representations and
warranties, covenants and agreements, and subject to the conditions contained
herein, the parties hereto agree as follows:
ARTICLE I
THE MERGERS
1.1 TWI Merger. At the Effective Time, (i) Merger Sub 1 shall be
merged with and into TWI on the terms and in accordance with the provisions
contained in this Agreement; (ii) the separate corporate existence of Merger
Sub 1 shall cease; (iii) the corporate existence of TWI shall continue under
the laws of the State of Delaware unaffected and unimpaired by the TWI Merger;
and (iv) TWI shall be the surviving corporation of the TWI Merger. At the
Effective Time, all of the assets and properties of Merger Sub 1, whether real,
personal or mixed, and whether tangible or intangible, and all of the
liabilities and obligations of Merger Sub 1, whether fixed or contingent, shall
vest in TWI as the surviving corporation, without any further action of either
Merger Sub 1 or TWI. From and after the Effective Time, TWI shall (i) possess
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rights, privileges, immunities, franchises (both public and private), assets
and properties whether real, personal or mixed, and (ii) shall be responsible
and liable for all of the liabilities and obligations of Merger Sub 1.
1.2 NCI Merger. At the Effective Time, (i) Merger Sub 2 shall be
merged with and into NCI on the terms and in accordance with the provisions
contained in this Agreement; (ii) the separate corporate existence of Merger
Sub 2 shall cease; (iii) the corporate existence of NCI shall continue under
the laws of the State of Texas unaffected and unimpaired by the NCI Merger; and
(iv) NCI shall be the surviving corporation of the NCI Merger. At the Effective
Time, all of the assets and properties of Merger Sub 2, whether real, personal
or mixed, and whether tangible or intangible, and all of the liabilities and
obligations of Merger Sub 2, whether fixed or contingent, shall vest in NCI as
the surviving corporation, without any further action of either Merger Sub 2 or
NCI. From and after the Effective Time, NCI shall (i) possess all of the
rights, privileges, immunities, franchises (both public and private), assets
and properties (whether real, personal or mixed and whether tangible or
intangible) of Merger Sub 2; and (ii) shall be responsible and liable for all
of the liabilities and obligations of Merger Sub 2.
1.3 Filing. As soon as practicable following fulfillment of the
conditions specified in Article VII and Article VIII hereof, and provided that
the Agreement has not been terminated and abandoned pursuant to Article X
hereof, (i) TWI and Merger Sub 1 will cause an executed counterpart of a
certificate of merger to be filed with the Secretary of State of Delaware, and
(ii) NCI and Merger Sub 2 will cause an executed counterpart of articles of
merger to be filed with the Secretary of the State of Texas.
1.4 Effective Time of the Mergers. The term "Effective Time" as
used herein is defined to mean the time that the filing of the certificate of
merger with the Secretary of State of Delaware (as to the TWI Merger) and the
filing of the articles of merger with the Secretary of State of Texas (as to
the NCI Merger) are completed.
1.5 Conversion of Shares. At the Effective Time, (i) each issued
and outstanding share of Common Stock of TWI shall be converted into 276.295
shares of Common Stock of LTC, (ii) each issued and outstanding share of
common stock of Merger Sub 1 shall be converted into one share common stock of
TWI, as the surviving corporation of the TWI Merger; (iii) each issued and
outstanding share of common stock of NCI shall be converted into 276.295 shares
of common stock of LTC, and (iv) each issued and outstanding share of common
stock of Merger Sub 2 shall be converted into one share of common stock of NCI,
as the surviving corporation of the NCI Merger.
1.6 Certificate of Incorporation and Bylaws. The certificate of
incorporation and bylaws of TWI in effect at the Effective Time shall be the
certificate of incorporation and bylaws of the surviving corporation of the TWI
Merger. The articles of incorporation and bylaws of NCI in effect at the
Effective Time shall be the articles of incorporation and bylaws of the
surviving corporation of the NCI Merger.
1.7 Officers and Directors. The officers of TWI in effect at the
Effective Time shall be the officers of the surviving corporation of the TWI
Merger. The directors of the surviving
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corporation of the TWI Merger shall be Nicholas Molina, Brett Beveridge and
Douglas Berman. The officers of NCI in effect at the Effective Time shall be
the officers and directors of the surviving corporation of the NCI Merger. The
directors of the surviving corporation of the NCI Merger shall be Nicholas
Molina, Brett Beveridge and Douglas Berman.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TCP, TWI AND NCI
TCP, TWI and NCI, jointly and severally, represent and warrant to the
Buyers as of the date hereof and as of the Closing Date:
2.1 Organization, Etc. Each of TWI and NCI is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to carry
on its business as it is now being conducted and proposed to be conducted, and
to own, operate and lease its properties and assets. Each of TWI and NCI is
duly qualified or licensed to do business and is in corporate and tax good
standing in every jurisdiction in which the conduct of its business or the
ownership or lease of its properties require it to be so qualified or licensed,
except where the failure to be so qualified or licensed would not have a
Material Adverse Effect.
2.2 Subsidiaries. Neither TWI nor NCI has any subsidiaries.
2.3 Stock Record Books. The stock record books of TWI and NCI
which have been delivered to LTC for inspection prior to the date hereof are
complete and correct in all material respects. The issued and outstanding
capital stock of each of TWI and NCI is 1,000 shares of Common Stock issued to
Texas Cellular Partners, L.P. There are no shares of capital stock of TWI or
NCI held in the treasury of TWI or NCI and no shares of capital stock of TWI or
NCI are currently reserved for issuance for any purpose or upon the occurrence
of any event or condition.
2.4 Title to Stock. All of the outstanding shares of capital
stock of TWI and NCI are owned by TCP free of all Liens and Contracts, except
for Liens in favor of NationsCredit Commercial Corporation and Mr. Ronald L.
Koonsman, and have been issued in compliance with all applicable securities
laws. Neither TWI nor NCI is a party to any outstanding Contract with any other
Person to purchase, redeem or otherwise acquire any outstanding capital stock
of TWI or NCI. Neither TWI nor NCI has redeemed any securities in violation of
any Contract or Regulation (including, without limitation, any state or federal
securities laws). All of the outstanding shares of the capital stock of TWI and
NCI are owned by TCP, are duly authorized, validly issued, fully paid and
nonassessable.
2.5 Authorization.
(a) TWI and NCI each have full power and authority to
enter into this Agreement and the agreements contemplated hereby and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement
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and all other agreements and transactions contemplated hereby have been duly
authorized by the respective boards of directors and shareholders of TWI and
NCI and no other corporate proceedings on their respective parts are necessary
to authorize this Agreement and the transactions contemplated hereby. This
Agreement and all other agreements contemplated hereby to be entered into by
TWI and NCI each constitutes a legal, valid and binding obligation of TWI and
NCI, enforceable against TWI and NCI in accordance with its terms.
(b) TCP is the sole owner of and has full right, power
and authority to sell the capital stock of TWI and NCI. TCP has full
partnership power and authority to enter into this Agreement and the agreements
contemplated hereby and to deliver the shares of outstanding capital stock of
TWI and NCI and the certificates evidencing such shares to LTC as provided for
herein, free and clear of all Liens, except for Liens in favor of NationsCredit
Commercial Corporation and Mr. Ronald L. Koonsman. This Agreement and all other
agreements contemplated hereby to be entered into by TCP each constitute a
legal, valid and binding obligation of TCP enforceable against TCP in
accordance with its terms.
2.6 Options and Rights. At the Closing Date there shall be no
outstanding Options with respect to TWI's or NCI's outstanding capital stock or
TCP's partnership interests, except the warrant issued to NationsCredit
Commercial Corporation. There are no existing Contracts or Options between TCP
on the one hand, and any other Person, on the other hand, regarding the shares
of outstanding capital stock of TWI and NCI, except as may relate to
NationsCredit Commercial Corporation and Mr. Ronald L. Koonsman.
2.7 No Violation. Except as set forth in Schedule 2.7 hereto, the
execution, delivery and performance by TCP, TWI and NCI of this Agreement, and
all other agreements contemplated hereby, and the fulfillment of and compliance
with the respective terms hereof and thereof by TCP, TWI and NCI, do not and
will not (a) conflict with or result in a breach of the terms, conditions or
provisions of, (b) constitute a default or event of default under (with due
notice, lapse of time or both), (c) result in the creation of any Lien upon
TWI's or NCI's capital stock or assets pursuant to, (d) give any third party
the right to accelerate any obligation under, (e) result in a violation of, or
(f) require any authorization, consent, approval, exemption or other action by,
notice to, or filing with any Authority pursuant to, the organizational
documents of TCP, TWI or NCI or any applicable Regulation (including, without
limitation, approvals pursuant to the Hart-Scott-Rodino Antitrust Improvements
Act of 1976), Order or any material Contract to which TCP, TWI or NCI or their
respective properties, partnership interests or capital stock are subject. Each
of TCP, TWI and NCI will comply with all applicable Regulations and Orders in
connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby.
2.8 Financial Statements. Attached as Schedule 2.8 hereto are
unaudited consolidated year-end balance sheets and statements of operations of
TCP for 1996 and audited year-end balance sheets and statements of operations
of TCP's predecessors as for each of the years 1995 and 1994. Such balance
sheets and the notes thereto have been prepared in accordance with GAAP (except
as stated therein or in the notes thereto) and fairly present the financial
position of TCP or its predecessors, as applicable, at the respective dates
thereof, and such statements of operations and the notes thereto (i) fairly
present the results of operations for the periods therein
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referred to, all in accordance with GAAP (except as stated therein or in the
notes thereto), and (ii) fairly present the financial condition of TCP at the
respective date of, and for the period covered by such statements.
2.9 Absence of Certain Changes. Since the date of TCP's most
recent financial statements, there has not been (a) any Material Adverse Change
in the business, operations, properties, assets, condition (financial or
otherwise) of TCP, TWI or NCI; (b) any damage, destruction or loss, whether
covered by insurance or not, having a Material Adverse Effect, with regard to
TWI's or NCI's property and business; (c) any declaration, setting aside or
payment of any dividend or distribution (whether in cash, stock or property) in
respect of TCP's partnership interests, or any redemption or other acquisition
of such partnership interests by TCP; (d) any entry into any material Contract
not in the ordinary course of business, including without limitation, any
borrowing or capital expenditure; or (e) any change by TCP in accounting
methods or principles.
2.10 Litigation. There is no Claim pending or, to the best
knowledge of TCP, TWI or NCI threatened against TWI or NCI which, if adversely
determined, would have a Material Adverse Effect on TWI or NCI, nor is there
any Order outstanding against TWI or NCI having, or which, insofar as can be
reasonably foreseen, in the future may have, a Material Adverse Effect on TWI
or NCI.
2.11 Compliance with Law. TWI and NCI are presently in material
compliance with regard to their respective operations, practices, real property
and other property, and all other aspects of its business, with all applicable
Regulations and Orders. There are no Claims pending, or threatened, nor has
TCP, TWI or NCI received any written notice, regarding any violations of any
Regulations and Orders enforced by any Authority which could reasonably be
expected to have a Material Adverse Effect.
2.12 Contracts.
(a) Except as set forth in Schedule 2.12 hereto, as of
the Closing Date, neither TWI nor NCI is a party to any written or oral:
(i) pension, profit sharing, stock option,
employee stock purchase or other plan providing for deferred
or other compensation to employees or any other employee
benefit plan, or any Contract with any labor union;
(ii) Contract relating to loans to officers,
directors, or Affiliates;
(iii) Contract relating to the borrowing of money
or the mortgaging, pledging or otherwise placing a Lien on
any asset of TWI or NCI;
(iv) Guarantee of any obligation;
(v) Contract under which TWI or NCI has advanced
or loaned any Person amounts in the aggregate exceeding
$10,000;
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(vi) Contract under which TWI or NCI is lessee of
or holds or operates any property, real or personal, owned by
any other party, except for any lease of real or personal
property under which the aggregate annual rental payments do
not exceed $25,000;
(vii) Contract pursuant to which TWI or NCI is
lessor of or permits any third party to hold or operate any
property, real or personal, owned or controlled by TWI or
NCI;
(viii) Contract or group of related Contracts with
the same party or group of affiliated parties the performance
of which involves annual consideration in excess of $25,000;
(ix) assignment, license, indemnification or
Contract with respect to any intangible property;
(x) Contract for the purchase, acquisition or
supply of inventory and other property and assets, whether
for resale or otherwise in excess of $25,000;
(xi) Contracts with independent agents, brokers,
dealers or distributors which provide for annual payments in
excess of $25,000;
(xii) employment or consulting Contracts;
(xiii) Contracts providing for "take or pay" or
similar unconditional purchase or payment obligations; or
(xiv) Contracts with Persons with which, directly
or indirectly, TCP also has a Contract.
(b) TWI and NCI have performed in all material respects
all obligations required to be performed by them and are not in default in any
respect under or in breach of nor in receipt of any claim of default or breach
under any material Contract to which TWI or NCI is subject (including without
limitation all performance bonds, warranty obligations or otherwise); no event
has occurred which with the passage of time or the giving of notice or both
would result in a default, breach or event of non-compliance under any material
Contract to which TWI or NCI is subject (including without limitation all
performance bonds, warranty obligations or otherwise); neither TWI nor NCI have
any present expectation or intention of not fully performing all such
obligations; neither TWI nor NCI have any knowledge of any breach or
anticipated breach by the other parties to any such Contract to which it is a
party.
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2.13 Title and Related Matters.
(a) Except as set forth in Schedule 2.13(a) hereto, TWI
and NCI have good and marketable title to all of their real and personal
property and other assets in TCP's financial statements provided pursuant to
Section 2.8 hereof or acquired after the date of such financial statements,
free and clear of all Liens, except Permitted Liens.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE BUYERS
The Buyers and LTC represent and warrant to TCP, TWI and NCI as
follows as of the date hereof and as of the Closing Date:
3.1 Corporate Organization, Etc. Each of the Buyers and LTC is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
authority to carry on its business as it is now being conducted and to own,
operate and lease its properties and assets. Each of the Buyers and LTC is
duly qualified or licensed to do business and is in corporate and tax good
standing in every jurisdiction in which the conduct of its business or the
ownership or lease of its properties require it to be so qualified or licensed,
except where the failure to be so qualified or licensed would not have a
Material Adverse Effect.
3.2 Subsidiaries and Affiliates. Each of the Buyers is a
wholly-owned subsidiary of LTC.
3.3 Authorization. Each of the Buyers and LTC has full corporate
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby and thereby. The Board of Directors of each of
the Buyers and LTC and the shareholders of each of the Buyers has duly
authorized the execution, delivery and performance of this Agreement and to
consummate the transactions contemplated hereby, and no other corporate
proceedings on their part are necessary to authorize this Agreement and the
transactions contemplated hereby and thereby. This Agreement constitutes the
legal, valid and binding obligation of each of the Buyers and LTC enforceable
against such Buyer and LTC in accordance with its terms.
3.4 No Violation. Except as set forth in Schedule 3.4 hereto, the
execution, delivery and performance by each of the Buyers and LTC of this
Agreement, and all other agreements contemplated hereby, and the fulfillment of
and compliance with the respective terms hereof and thereof by such Buyer and
LTC, do not and will not (a) conflict with or result in a breach of the terms,
conditions or provisions of, or (b) result in a violation of, or require any
authorization, consent, approval, exemption or other action by, or notice to,
or filing with any court or Authority pursuant to, the charter or bylaws of any
of the Buyers or LTC or, to the best knowledge of any of the Buyers and LTC,
any applicable Regulation (including, without limitation, approvals pursuant to
the Hart-Scott-Rodino Antitrust Improvements Act of 1976),
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Order or any material Contract to which any of the Buyers or LTC, or their
respective properties are subject. The Buyers and LTC will comply in all
material respects with all applicable Regulations and Orders in connection with
its execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
3.5 Financial Statements. Attached as Schedule 3.5 hereto are
audited consolidated year-end balance sheets and statements of operations,
shareholders' equity and cash flow of LTC as for each of the years ended July
31, 1996, 1995 and 1994 and an unaudited consolidated balance sheet for the six
month period commencing August 1, 1996 and ending January 31, 1997 and
unaudited consolidated statements of operations, shareholders' equity and cash
flow for the six month period then ended. Such balance sheets and the notes
thereto fairly present the financial position of LTC as applicable, at the
respective dates thereof, and such statements of operations, shareholders'
equity and cash flow and the notes thereto (i) fairly present the results of
operations for the periods therein referred to, all in accordance with GAAP
(except as stated therein or in the notes thereto), and (ii) fairly present the
financial condition of LTC at the respective date of, and for the period
covered by such statements.
3.6 Absence of Certain Changes. Since the date of LTC's most
recent financial statements, there has not been (a) any Material Adverse Change
in the business, operations, properties, assets, condition (financial or
otherwise) of LTC; (b) any damage, destruction or loss, whether covered by
insurance or not, having a Material Adverse Effect, with regard to LTC's
property and business; (c) any declaration, setting aside or payment of any
dividend or distribution (whether in cash, stock or property) in respect of
LTC's capital stock, or any redemption or other acquisition of such stock by
LTC; (d) any entry into any material Contract not in the ordinary course of
business, including without limitation, any borrowing or capital expenditure;
or (e) any change by LTC in accounting methods or principles.
3.7 Litigation. There is no Claim pending or, to the best
knowledge of LTC, threatened against LTC which, if adversely determined, would
have a Material Adverse Effect on LTC, nor is there any Order outstanding
against LTC having, or which, insofar as can be reasonably foreseen, in the
future may have, a Material Adverse Effect on LTC.
3.8 Compliance with Law. LTC is presently in material compliance
with regard to its operations, practices, real property and other property, and
all other aspects of its business, with all applicable Regulations and Orders.
There are no Claims pending, or threatened, nor has LTC received any written
notice, regarding any violations of any Regulations and Orders enforced by any
Authority which could reasonably be expected to have a Material Adverse Effect.
3.9 Contracts.
(a) Except as set forth in Schedule 3.9 hereto, as of the
Closing Date, LTC is not a party to any written or oral:
(i) pension, profit sharing, stock option,
employee stock purchase or other plan providing for deferred
or other compensation to employees or any other employee
benefit plan, or any Contract with any labor union;
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(ii) Contract relating to loans to officers,
directors, or Affiliates;
(iii) Contract relating to the borrowing of money
or the mortgaging, pledging or otherwise placing a Lien on
any asset of LTC;
(iv) Guarantee of any obligation;
(v) Contract under which LTC has advanced or
loaned any Person amounts in the aggregate exceeding $10,000;
(vi) Contract under which LTC is lessee of or
holds or operates any property, real or personal, owned by
any other party, except for any lease of real or personal
property under which the aggregate annual rental payments do
not exceed $25,000;
(vii) Contract pursuant to which LTC is lessor of
or permits any third party to hold or operate any property,
real or personal, owned or controlled by LTC;
(viii) Contract or group of related Contracts with
the same party or group of affiliated parties the performance
of which involves annual consideration in excess of $25,000;
(ix) assignment, license, indemnification or
Contract with respect to any intangible property;
(x) Contract for the purchase, acquisition or
supply of inventory and other property and assets, whether
for resale or otherwise in excess of $25,000;
(xi) Contracts with independent agents, brokers,
dealers or distributors which provide for annual payments in
excess of $25,000;
(xii) employment or consulting Contracts;
(xiii) Contracts providing for "take or pay" or
similar unconditional purchase or payment obligations; or
(xiv) Contracts with Persons with which, directly
or indirectly, a shareholder of LTC also has a Contract.
(b) LTC has performed in all material respects all
obligations required to be performed by it and is not in default in any respect
under or in breach of nor in receipt of any claim of default or breach under
any material Contract to which LTC is subject (including without limitation all
performance bonds, warranty obligations or otherwise); no event has occurred
which with the passage of time or the giving of notice or both would result in
a default, breach or event of non-compliance under any material Contract to
which LTC is subject (including without limitation all performance bonds,
warranty obligations or otherwise); LTC has no present
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expectation or intention of not fully performing all such obligations; LTC has
no knowledge of any breach or anticipated breach by the other parties to any
such Contract to which it is a party.
3.10 Title and Related Matters.
(a) Except as set forth in Schedule 3.10(a) hereto, LTC
has good and marketable title to all real and personal property and other
assets reflected in LTC's financial statements provided pursuant to Section 3.5
hereto or acquired after the date of such financial statements free and clear
of all Liens, except Permitted Liens.
ARTICLE IV
COVENANTS OF TCP, TWI AND NCI
Until the Closing Date, except as otherwise consented to or approved
by the Buyers in writing, TCP, TWI and NCI agree that they shall act, or
refrain from acting where required hereinafter, to comply with the following:
4.1 Regular Course of Business. TCP, TWI and NCI shall operate
their respective business diligently and in good faith, consistent with past
management practices; shall maintain all of its properties in customary repair,
order and condition, reasonable wear and tear excepted; shall maintain (except
for expiration due to lapse of time), all material leases and material
Contracts in effect which are in the best interests of their respective
businesses; shall comply in all material respects with the provisions of all
Regulations and Orders applicable to TCP, TWI and NCI and the conduct of their
respective businesses; and shall not cancel, release, waive or compromise any
debt, Claim or right in their respective favors having a value in the aggregate
in excess of $20,000 other than in connection with returns for credit or
replacement in the ordinary course of business. Neither TWI nor NCI shall
incur, assume or guarantee any Indebtedness not reflected in TCP's financial
statements, except in the ordinary course of business.
4.2 Amendments. No change or amendment shall be made in the
organizational documents of TWI or NCI. Neither TWI nor NCI shall merge into
or consolidate with any other Person or change the character of its business.
4.3 Capital Changes; Pledges. Neither TWI nor NCI shall issue or
sell any shares of capital stock or issue or sell any securities convertible
into, or Options to subscribe for any shares of capital stock and TCP shall not
pledge or otherwise encumber any of their capital stock except for the Liens in
favor of NationsCredit Commercial Corporation and Mr. Ronald L. Koonsman. In
addition, neither TWI nor NCI shall allow the transfer of any capital stock on
their respective transfer ledger or other books and records.
4.4 Dividends. Neither TWI nor NCI shall declare, pay or set
aside for payment any dividend or other distribution in respect of its
outstanding capital stock, nor shall TWI nor NCI, directly or indirectly,
redeem, purchase or otherwise acquire any of their capital stock.
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ARTICLE V
COVENANTS OF LTC
LTC hereby covenants and agrees with TCP and the Sellers that:
5.1 Regular Course of Business. LTC shall operate its business
diligently and in good faith, consistent with past management practices; shall
maintain all of its properties in customary repair, order and condition,
reasonable wear and tear excepted; shall maintain (except for expiration due to
lapse of time), all material leases and material Contracts in effect which are
in the best interests of its business; shall comply in all material respects
with the provisions of all Regulations and Orders applicable to LTC and the
conduct of its business; and shall not cancel, release, waive or compromise any
debt, Claim or right in its favor having a value in the aggregate in excess of
$20,000 other than in connection with returns for credit or replacement in the
ordinary course of business. LTC shall not incur, assume or guarantee any
Indebtedness not reflected on LTC's financial statements except in the ordinary
course of business.
5.2 Amendments. Except as required for the transactions
contemplated in this Agreement, no change or amendment shall be made in the
charter or bylaws of LTC. LTC shall not merge into or consolidate with any
other Person or change the character of its business.
5.3 Capital Changes; Pledges. LTC shall not issue or sell any
shares of its capital stock of any class or issue or sell any securities
convertible into, or Options to subscribe for any shares of its capital stock
and LTC shall not pledge or otherwise encumber any shares of its capital stock,
with the exception of shares of Common Stock issued upon the conversion of
LTC's Series A Convertible Preferred Stock. In addition, LTC shall not allow
the transfer of any shares of its capital stock on the stock transfer ledger or
other books and records.
5.4 Dividends. LTC shall not declare, pay or set aside for
payment any dividend or other distribution in respect of its capital stock, nor
shall LTC, directly or indirectly, redeem, purchase or otherwise acquire any
shares of its capital stock.
ARTICLE VI
OTHER AGREEMENTS
The parties further agree as follows:
6.1 Agreement to Defend. In the event any action, suit,
proceeding or investigation of the nature specified in Section 7.4 or Section
8.4 hereof is commenced all the parties hereto agree to cooperate and use their
best efforts to defend against and respond thereto.
6.2 Further Assurances. Subject to the terms and conditions of
this Agreement, the parties hereto shall use their best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and Regulations
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to consummate and make effective as promptly as possible the transactions
contemplated by this Agreement, and to cooperate with each other in connection
with the foregoing.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF LTC AND THE BUYERS
Each and every obligation of LTC and the Buyers under this Agreement
shall be subject to the satisfaction, on or before the Closing Date, of each of
the following conditions unless waived in writing by the Buyers:
7.1 Representations and Warranties; Performance. The
representations and warranties of TCP, TWI and NCI contained in Article II of
this Agreement shall be true and correct in all material respects when made and
on the Closing Date as though then made, except as expressly provided herein.
TCP, TWI and NCI shall have performed and complied in all material respects
with all agreements, covenants and conditions required by this Agreement to be
performed and complied with by them prior to the Closing Date. The general
partner of TCP and the president of each of TWI and NCI shall have delivered to
LTC certificates, dated the Closing Date, in the form designated Exhibit 7.1
hereto, certifying to the foregoing.
7.2 Consents and Approvals. TCP, TWI and NCI shall have obtained
any and all consents, approvals, qualifications, licenses or other
authorizations required by all applicable Regulations with respect to the
execution, delivery and performance of the Agreement.
7.3 No Material Adverse Change. There shall have been no Material
Adverse Change in the business or properties of TWI or NCI since the date of
this Agreement. LTC shall have received certificates, dated the Closing Date,
of the president and chief financial officer of each of TWI and NCI, in the
form of Exhibit 7.3 hereto, certifying to the foregoing.
7.4 No Proceeding or Litigation. No preliminary or permanent
injunction or other Order issued by a court of competent jurisdiction or by any
governmental agency, or any Regulation shall be in effect, which would prevent
the consummation of the transactions contemplated hereby.
7.5 Shareholders Agreement of LTC. The Shareholders Agreement of
LTC shall be amended and restated in the form of Exhibit 7.5 hereto.
7.6 Modification of Employment Agreements. The Employment
Agreements of Brett Beveridge and Nicholas Molina with LTC shall be amended and
restated in the form attached hereto as Exhibit 7.6.
7.7 Conversion of Preferred Stock. HIG Fund V, Inc., the owner of
100,000 shares of LTC's Series A Preferred Stock, shall have converted such
preferred stock into common stock of LTC and Articles III, IV and V of the
Series A Preferred Stock Purchase Agreement shall terminate upon the
consummation of the transactions contemplated hereby.
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7.8 Consulting Agreement. HIG Capital Management, Inc. shall have
executed and delivered to LTC and TWI the Consulting Agreement, in the form of
Exhibit 7.8 hereto.
7.9 Lenders' Consents. NationsCredit Commercial Corporation and
Mr. Ronald L. Koonsman (if required) shall have consented to the transactions
contemplated hereby.
7.10 Termination of Redemption Agreement. The Redemption Agreement
between LTC and HIG Fund V, Inc. shall have been terminated.
7.11 Grant of Options. LTC shall have granted to each of Messrs.
Molina and Beveridge options to purchase 27,721 shares of LTC's Common Stock,
such options to vest upon consummation of an initial public offering of LTC's
Common Stock.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF TCP, TWI AND NCI
Each and every obligation of TCP, TWI and NCI under this Agreement
shall be subject to the satisfaction, on or before the Closing Date, of each of
the following conditions unless waived in writing by TCP, TWI and NCI:
8.1 Representations and Warranties; Performance. The
representations and warranties of the Buyers contained in Article III of this
Agreement shall be true and correct in all material respects when made and on
the Closing Date as though then made, except as expressly provided herein. The
Buyers shall have performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed and complied with by it
prior to the Closing Date. The president of each of the Buyers shall have
delivered to TCP, TWI and NCI certificates, dated the Closing Date, in the form
designated Exhibit 8.1 hereto, certifying to the foregoing.
8.2 Consents and Approvals. The Buyers shall have obtained any
and all material consents, approvals, qualifications, licenses or other
authorizations required by all applicable Regulations with respect to the
execution, delivery and performance of the Agreement.
8.3 No Material Adverse Change. There shall have been no Material
Adverse Change in the business or properties of the Buyers since the date of
this Agreement. TCP, TWI and NCI shall have received certificates dated the
Closing Date, of the president and chief financial officer of each of the
Buyers, in the form of Exhibit 7.3 hereto, certifying to the foregoing.
8.4 No Proceeding or Litigation. No preliminary or permanent
injunction or other Order issued by a court of competent jurisdiction or by any
governmental agency, or any Regulation shall be in effect, which would prevent
the consummation of the transactions contemplated hereby.
8.5 Lenders Consents. NationsCredit Commercial Corporation and
Mr. Ronald L. Koonsman (if required) shall have consented to the transactions
contemplated hereby.
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8.6 Shareholders Agreement of LTC. The Shareholders Agreement of
LTC shall be amended and restated in the form of Exhibit 7.5 hereto.
8.7 Conversion of Preferred Stock. HIG Fund V, Inc. shall have
received 350,000 shares of LTC common stock upon conversion of the Series A
Preferred Stock.
8.8 Consulting Agreement. LTC and TWI shall have executed a new
consulting agreement with HIG Capital Management, Inc.
ARTICLE IX
CLOSING
9.1 Closing. Unless this Agreement shall have been terminated or
abandoned pursuant to the provisions of Article X hereof, a closing of the
transactions contemplated by this Agreement (the "Closing") shall be held on
June 27, 1997, or on such other date (the "Closing Date") designated by the
parties in the offices of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel,
P.A., 1221 Brickell Avenue, Miami, Florida 33131, provided that the Closing
shall not occur, in any event, after July 11, 1997.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1 Methods of Termination. This Agreement may be terminated and
the transactions herein contemplated may be abandoned at any time:
(a) by mutual consent of LTC, the Buyers, TCP, TWI and
NCI;
(b) by any of LTC the Buyers, TCP, TWI or NCI if this
Agreement is not consummated on or before July 11, 1997; provided that if any
party has breached or defaulted with respect to its respective obligations
under this Agreement on or before such date, such party may not terminate this
Agreement pursuant to this Section 10.1(b), and each other party to this
Agreement shall at its option enforce its rights against such breaching or
defaulting party and seek any remedies against such party, in either case as
provided hereunder and by applicable law;
(c) by any of LTC or the Buyers if as of the Closing Date
any of the conditions specified in Article VII hereof have not been satisfied
in any material respect or if TCP, TWI or NCI are otherwise in default in any
material respect under this Agreement; or
(d) by TCP, TWI or NCI if as of the Closing Date any of
the conditions specified in Article VIII hereof have not been satisfied in any
material respect or if any of LTC or the Buyers are otherwise in default in any
material respect under this Agreement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by written agreement
of the parties hereto, at any time prior to the Closing Date with respect to
any of the terms contained herein.
11.2 Waiver of Compliance; Consents. Any failure of any party
hereto to comply with any obligation, covenant, agreement or condition herein
may be waived in writing by the other parties hereto, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires
or permits consent by or on behalf of any party hereto, such consent shall be
given in writing.
11.3 Certain Definitions.
"Affiliate" means, with regard to any Person, (a) any Person,
directly or indirectly, controlled by, under common control of, or
controlling such Person, (b) any Person, directly or indirectly, in
which such Person holds, of record or beneficially, five percent or
more of the equity or voting securities, (c) any Person that holds,
of record or beneficially, five percent or more of the equity or
voting securities of such Person, (d) any Person that, through
Contract, relationship or otherwise, exerts a substantial influence
on the management of such person's affairs, (e) any Person that,
through Contract, relationship or otherwise, is influenced
substantially in the management of their affairs by such Person, or
(f) any director, officer, partner or individual holding a similar
position in respect of such Person.
"Authority" means any governmental, regulatory or
administrative body, agency, commission, board, arbitrator or
authority, any court or judicial authority, any public, private or
industry regulatory authority, whether international, national,
federal, state or local.
"Claim" means any action, claim, lawsuit, demand, suit,
inquiry, hearing, investigation, notice of a violation, litigation,
proceeding, arbitration, appeals or other dispute, whether civil,
criminal, administrative or otherwise.
"Closing" shall have the meaning set forth in Section 9.1.
"Closing Date" shall have the meaning set forth in Section
9.1.
"Contract" means any agreement, contract, commitment,
instrument or other binding arrangement or understanding, whether
written or oral.
"Effective Time" shall have the meaning set forth in Section
1.4.
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"GAAP" means generally-accepted accounting principles,
consistently applied, as in existence at the date hereof.
"Guarantee" means any guarantee or other contingent liability
(other than any endorsement for collection or deposit in the ordinary
course of business), direct or indirect with respect to any
obligations of another Person, through an agreement or otherwise,
including, without limitation, (a) any endorsement or discount with
recourse or undertaking substantially equivalent to or having
economic effect similar to a guarantee in respect of any such
obligations and (b) any Contract (i) to purchase, or to advance or
supply funds for the payment or purchase of, any such obligations,
(ii) to purchase, sell or lease property, products, materials or
supplies, or transportation or services, in respect of enabling such
other Person to pay any such obligation or to assure the owner
thereof against loss regardless of the delivery or nondelivery of the
property, products, materials or supplies or transportation or
services or (iii) to make any loan, advance or capital contribution
to or other investment in, or to otherwise provide funds to or for,
such other Person in respect of enabling such Person to satisfy an
obligation (including any liability for a dividend, stock liquidation
payment or expense) or to assure a minimum equity, working capital or
other balance sheet condition in respect of any such obligation.
"Indebtedness" with respect to any Person means any
obligation of such Person for borrowed money, but in any event shall
include (a) any obligation or liabilities incurred for all or any
part of the purchase price of property or other assets or for the
cost of property or other assets constructed or of improvements
thereto, other than accounts payable included in current liabilities
and incurred in respect of property purchased in the ordinary course
of business, (whether or not such Person has assumed or become liable
for the payment of such obligation) (whether accrued, absolute,
contingent, unliquidated or otherwise, known or unknown, whether due
or to become due), (b) the face amount of all letters of credit
issued for the account of such Person and all drafts drawn
thereunder, (c) obligations incurred for all or any part of the
purchase price of property or other assets or for the cost of
property or other assets constructed or of improvements thereto,
other than accounts payable included in current liabilities and
incurred in respect of property purchased in the ordinary course of
business (whether or not such Person has assumed or become liable for
the payment of such obligation) secured by Liens, (d) capitalized
lease obligations, and (e) all Guarantees of such Person.
"Lien" means any security interest, lien, mortgage, pledge,
hypothecation, encumbrance, Claim, easement, restriction on transfer
or otherwise, or interest of another Person of any kind or nature.
"Material Adverse Change" means any developments or changes
which would have a Material Adverse Effect.
"Material Adverse Effect" means any circumstances, state of
facts or matters which might reasonably be expected to have a
material adverse effect in respect of LTC's or TCP's, TWI's or NCI's
respective business, operations, properties, assets, condition
(financial or otherwise), results, plans, strategies or prospects.
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"Option" means any subscription, option, warrant, right,
security, Contract, commitment, understanding, outstanding or stock
appreciation, phantom stock option, profit participation or
arrangement by which with respect to any of the Buyers, LTC, TWI or
NCI such corporation is or may become bound to issue any additional
partnership interests or shares of its capital stock (as applicable)
or rights pursuant to which any Person has a right to purchase or
otherwise acquire shares of capital stock or (ii) with respect to a
Person, such Person is or may become bound to sell or allow another
Person to vote, encumber or control the disposition of any
partnership interests or capital stock or rights pursuant to which
any Person has a right to purchase or otherwise acquire, vote,
encumber or control the disposition of partnership interests of TCP
or shares of capital stock of any of the Buyers, LTC, TWI or NCI.
"Order" means any decree, order, judgment, injunction, rule,
lien, voting right, consent of or by an Authority.
"Permits" means all permits, licenses, registrations,
certificates, orders or approvals from any Authority or other Person
(including without limitation those relating to the occupancy or use
of owned or leased real property) issued to or held by any Buyer,
LTC, TCP, TWI or NCI.
"Permitted Liens" means (i) statutory Liens not yet
delinquent, (ii) such imperfections or irregularities of title,
Liens, easements, charges or encumbrances as do not materially
detract from or interfere with the present use of the properties or
assets subject thereto or affected thereby, otherwise impair present
business operations at such properties, or do not detract from the
value of such properties and assets, taken as a whole, (iii) Liens
reflected in TCP's or LTC's financial statements or the notes
thereto, (iv) the rights of customers of TWI, NCI or LTC with respect
to inventory or work in progress under orders or contracts entered
into by TWI, NCI or LTC in the ordinary course of business, (v)
mechanics', carriers', workers', repairmen's, warehousemen's, or
other similar Liens arising in the ordinary course of business in
respect of obligations not overdue or which are being contested in
good faith and covered by a bond in an amount at least equal to the
amount of the Lien, and (vi) deposits or pledges to secure workmen's
compensation, unemployment insurance, old age benefits or other
social security obligations in connection with, or to secure the
performance of, bids, tenders, trade contracts not for the payment of
money or leases, or to secure statutory obligations or surety or
appeal bonds or other pledges or deposits for purposes of like nature
in the ordinary course of business.
"Person" means any corporation, partnership, joint venture,
organization, entity, Authority or natural person.
"Regulation" means any rule, law, code, statute, regulation,
ordinance, requirement, announcement or other binding action of or by
an Authority.
11.4 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when
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delivered by hand or mailed, first class certified mail with postage paid or by
overnight receipted courier service:
(a) If to the Buyers to:
5200 N.W. 77th Court
Miami, Florida 33166
Attn: Nicholas Molina and Brett Beveridge
with a copy to:
Buchanan Ingersoll
NationsBank Tower
100 S.E. Second Street, Suite 2950
Miami, Florida 33131
Attention: John Schwartz
or to such other person or address as LTC and the Buyers shall furnish by
notice to TCP, TWI and NCI in writing.
(b) If to TCP, TWI or NCI, to:
1001 South Bayshore Drive, Suite 2708
Miami, Florida 33131
Attn: Anthony Tamer and
Douglas Berman
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Jorge L. Freeland, Esq.
or to such other person or address as TCP, TWI or NCI shall furnish by notice
to LTC and the Buyers in writing.
11.5 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
11.6 Governing Law. The Agreement shall be governed by the law of
the State of Florida as to all matters, including but not limited to matters of
validity, construction, effect and performance.
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11.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.8 Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.9 Entire Agreement. This Agreement, including the schedules and
exhibits hereto and the documents, certificates and instruments referred to
herein, embodies the entire agreement and understanding of the parties hereto
in respect of the mergers contemplated hereby.
11.10 Binding Effect. This Agreement shall not be construed so as
to confer any right or benefit upon any Person other than the signatories to
this Agreement and each of their respective successors and permitted assigns.
11.11 Injunctive Relief. The parties hereto agree that in the event
of a breach of any provision of this Agreement, the aggrieved party or parties
may be without an adequate remedy at law. The parties therefore agree that in
the event of a breach of any provision of this Agreement, the aggrieved party
or parties may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provision, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining any such relief, the aggrieved party
shall not be precluded from seeking or obtaining any other relief to which it
may be entitled.
11.12 Survival of Representations, Warranties and Covenants. Each
and every representation, warranty and covenant shall expire with, and be
terminated and extinguished by, the earlier to occur of the Closing or the
termination of this Agreement pursuant to Section 10.1 hereof or otherwise, and
thereafter neither the Buyers, LTC, TCP, TWI or NCI, nor any partner, officer,
director or principal thereof shall be under any liability whatsoever with
respect to such representation, warranty or covenant.
* * *
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IN WITNESS WHEREOF, the parties hereto have made and entered into
this Agreement the date first hereinabove set forth.
LET'S TALK CELLULAR & WIRELESS, INC.
By: /s/ Nicolas Molina
------------------------------------
Title: Chief Executive Officer
---------------------------------
MERGER SUB 1, INC.
By: /s/ Nicolas Molina
------------------------------------
Title: Chief Executive Officer
---------------------------------
MERGER SUB 2, INC.
By: /s/ Bucikas Molina
------------------------------------
Title: Chief Executive Officer
---------------------------------
TEXAS CELLULAR PARTNERS, L.P.
By: HIG Texan Cellular Company, its
managing general partner
By: /s/ Anthony Tamer
------------------------------------
Title: President
---------------------------------
TELEPHONE WAREHOUSE, INC.
By: /s/ Anthony Tamer
------------------------------------
Title: Vice President
---------------------------------
NATIONAL CELLULAR, INCORPORATED
By: /s/ Anthony Tamer
------------------------------------
Title: Vice President
---------------------------------
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