Amended and Restated Agreement and Plan of Reorganization among Alamosa PCS Holdings, Inc., Alamosa Holdings, Inc., Alamosa Sub I, Inc., and Roberts Wireless Communications, L.L.C.
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Plan of Reorganization Agreements
Summary
This agreement is between Alamosa PCS Holdings, Inc., Alamosa Holdings, Inc., Alamosa Sub I, Inc., Roberts Wireless Communications, L.L.C., and its members. It outlines the terms for merging the companies, including the process, consideration to be paid, and the steps required to complete the transaction. The agreement specifies the obligations of each party, the conditions that must be met before closing, and the procedures for exchanging shares. The merger is subject to approvals from shareholders and regulatory authorities, and includes provisions for tax and legal compliance.
EX-2.2 3 d81416ex2-2.txt AMENDED/RESTATED AGREEMENT-PLAN OF REORGANIZATION 1 EXHIBIT 2.2 AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION by and among ALAMOSA PCS HOLDINGS, INC. ALAMOSA HOLDINGS, INC. and ALAMOSA SUB I, INC. and ROBERTS WIRELESS COMMUNICATIONS, L.L.C. and MEMBERS OF ROBERTS WIRELESS COMMUNICATIONS, L.L.C. July 31, 2000 An Index of Defined Terms begins on Page vii 2 TABLE OF CONTENTS
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vii 9 INDEX OF DEFINED TERMS Page AAA........................................................................B-71 Accounts ..................................................................B-38 Accounts Receivable .......................................................B-38 Acquisition Proposal.......................................................B-24 Affiliate .................................................................B-51 Affiliate Letter ..........................................................B-24 Agreement ..................................................................B-1 Alliance Party ............................................................B-48 Analysis ..................................................................B-75 Approvals .................................................................B-16 Articles ..................................................................B-75 Asserted Liability ........................................................B-69 Associate .................................................................B-51 Breach ....................................................................B-63 Certificates of Merger......................................................B-4 Closing ...................................................................B-10 Closing Date ..............................................................B-10 Code .......................................................................B-2 Companies .................................................................B-32 Confidential Information...................................................B-75 Consulting Agreements......................................................B-25 Contracts .................................................................B-42 Copyrights ................................................................B-40 Credit Agreement ..........................................................B-44 Default ...................................................................B-44 Defense Costs .............................................................B-69 DGCL .......................................................................B-4 Disclosing Party ..........................................................B-75 Disclosure Schedules........................................................B-3 EDC .......................................................................B-16 Effective Time .............................................................B-4 Employee Benefit Plans.....................................................B-49 Employment Agreements......................................................B-25 Environmental Claim .......................................................B-53 Environmental Laws ........................................................B-52 Equipment Leases ..........................................................B-37 ERISA .....................................................................B-49 ERISA Affiliate ...........................................................B-50 Escrow Account .............................................................B-5 viii 10 Escrow Adjustment ................................................B-66 Escrow Agent ......................................................B-5 Escrow Agreement ..................................................B-5 Escrow Deposit ...................................................B-66 Escrow Funds ......................................................B-5 Event of Default .................................................B-44 Exchange Act .....................................................B-20 Exchange Agent ....................................................B-7 Exchange Fund .....................................................B-7 Exhibits ..........................................................B-3 Form S-1 .........................................................B-21 Form S-4 .........................................................B-20 GAAP .............................................................B-34 Good Standing Certificate.........................................B-11 HSR Act ..........................................................B-14 Indemnified Party ................................................B-69 Indemnifying Party ...............................................B-69 Indemnity Agreement ..............................................B-13 Intellectual Property.............................................B-40 Interim Loss Value ...............................................B-66 Interim Losses ...................................................B-66 Joint Venture Development Agreement...............................B-27 K.G. .............................................................B-25 Landlord Consents ................................................B-17 Leases ...........................................................B-24 Leased Premises ..................................................B-39 Lenders ..........................................................B-44 Letters ..........................................................B-73 Licenses .........................................................B-52 Liens ............................................................B-37 LLC ...............................................................B-1 LLC Financial Statements..........................................B-34 LLC Holdings ......................................................B-1 LLC Legal Requirements............................................B-51 LLC Material Adverse Change.......................................B-15 LLC Parties .......................................................B-1 LLC Parties Closing Certificate...................................B-11 LLC Parties Consents..............................................B-34 LLC Parties' Delegated Conditions.................................B-18 LLC Records ......................................................B-54 Lock-Up Agreement ................................................B-12 Losses ...........................................................B-64 M.R. .............................................................B-13 Management Agreement..............................................B-13 ix 11 Marks ...................................................................B-40 Master Lease Agreement...................................................B-25 Member Indemnified Claim.................................................B-64 Member Indemnitors ......................................................B-64 Members ..................................................................B-1 Members Meeting .........................................................B-23 Members' Releases .......................................................B-13 Members Required Vote....................................................B-32 Members' Interests .......................................................B-1 Members' Releases .......................................................B-13 Merger Sub ...............................................................B-1 Merger Sub Stock .........................................................B-2 Orders ..................................................................B-47 Outside Confidentiality Agreement........................................B-48 Parent Merger ............................................................B-1 Parent Surviving Corporation..............................................B-4 Patents .................................................................B-41 Paying Member Indemnitor.................................................B-65 Per Unit Cash Consideration...............................................B-5 Per Unit LLC Consideration................................................B-5 Permits .................................................................B-16 Permitted Liens .........................................................B-37 Personal Property .......................................................B-37 Policies ................................................................B-48 Prior Policies ..........................................................B-48 Proceedings .............................................................B-47 Projections .............................................................B-36 Proxy Statement .........................................................B-20 Public ...................................................................B-1 Public Consents .........................................................B-57 Public Legal Requirements................................................B-58 Public Loan Agreement....................................................B-12 Public Material Adverse Change...........................................B-15 Public Stock .............................................................B-6 Public Stockholders Meeting..............................................B-22 Public's, Superholdings' and Merger Sub's Delegated Conditions...........B-20 Real Estate Contracts....................................................B-39 Real Property ...........................................................B-38 Receiving Party .........................................................B-75 Related Agreements ......................................................B-12 Remaining Member Indemnitors.............................................B-65 Reorganization ...........................................................B-2 Representatives .........................................................B-60 Resale Agreement ........................................................B-27 S.R. ....................................................................B-13 x 12 SEC ......................................................................B-16 SEC Documents ............................................................B-57 SEC Filing Date ..........................................................B-20 Sections .................................................................B-75 Securities Act ...........................................................B-20 Services Agreement .......................................................B-12 Significant Customer......................................................B-48 Significant Supplier......................................................B-48 Sister Agreements .........................................................B-3 Sister Lockup ............................................................B-12 Sprint ...................................................................B-43 Sprint Management Agreement...............................................B-43 Subsidiaries .............................................................B-33 Subsidiary Merger .........................................................B-1 Subsidiary Merger Agreement................................................B-1 Subsidiary Surviving Corporation...........................................B-4 Superholdings .............................................................B-1 Superholdings Closing Certificate.........................................B-11 Superholdings Indemnitees.................................................B-65 Superholdings Indemnitors.................................................B-65 Superholdings Stock .......................................................B-2 Tax ......................................................................B-47 Tax Returns ..............................................................B-47 Taxes ....................................................................B-47 Technology Contracts......................................................B-40 Termination Date .........................................................B-30 Termination Fee ..........................................................B-67 Tower Closing Certificate.................................................B-11 Tower Company ............................................................B-11 Tower Leases .............................................................B-39 Trade Secrets ............................................................B-41 Transferrable Licenses....................................................B-52 xi 13 TABLE OF EXHIBITS
xii 14 AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Alamosa Sub I, Inc., a Delaware corporation and wholly-owned direct subsidiary of Superholdings ("Merger Sub"), and Roberts Wireless Communications, L.L.C., a Missouri limited liability company ("LLC"), and members of LLC (the "Members"). R E C I T A L S - - - - - - - - A. The Members own, in the aggregate, all of the issued and outstanding units of membership interests of LLC, consisting in the aggregate of 20,000 units (all of the authorized membership interests of LLC, whether or not owned by a Member, and any interest received with respect to or in exchange for any such interest (including, without limitation, units of LLC Holdings), being referred to as "Members' Interests"). LLC, LLC Holdings and the Members are sometimes collectively referred to herein as the "LLC Parties." B. The Board of Managers of LLC deems it advisable and in the best interests of its members that LLC and its members form a limited liability company to hold all of the Members' Interests of LLC ("LLC Holdings"), and that LLC Holdings, merge with and into Superholdings (the "Parent Merger") simultaneously with the merger of Merger Sub and Public (the "Subsidiary Merger"). The Parent Merger may include the merger of any other business entity with which Superholdings has agreed to merge, which mergers would take place immediately after the merger of LLC Holdings into Superholdings. In furtherance thereof, the Board of Directors of Superholdings and the Board of Managers of LLC Holdings have approved the Parent Merger, upon the terms and subject to the conditions set forth herein. In addition, the Members have agreed to vote in favor of the Parent Merger. C. The Board of Directors of Public have deemed it advisable and in the best interests of its stockholders to enter into the Agreement and Plan of Reorganization dated as of July 31, 2000 (the "Subsidiary Merger Agreement") by and among Merger Sub, Public and Superholdings and to consummate the Subsidiary Merger simultaneously with the consummation of the Parent Merger. In furtherance thereof, the Board of Directors of Public has approved the Subsidiary Merger Agreement and the Subsidiary Merger, upon the terms and subject to the conditions set forth herein. B-1 15 D. Similarly, the Board of Directors of Superholdings have deemed it advisable to enter into the Subsidiary Merger Agreement and to consummate the Subsidiary Merger simultaneously with the consummation of the Parent Merger. In furtherance thereof, the Board of Directors of Superholdings has approved the Subsidiary Merger Agreement and the Subsidiary Merger, upon the terms and subject to the conditions set forth herein. E. Further, the Board of Directors of Merger Sub have deemed it advisable and in the best interests of its stockholders to enter into the Subsidiary Merger Agreement and to consummate the Subsidiary Merger simultaneously with the consummation of the Parent Merger. In furtherance thereof, the Board of Directors of Merger Sub has approved the Subsidiary Merger Agreement and Subsidiary Merger, upon the terms and subject to the conditions set forth herein. The Parent Merger, the Subsidiary Merger and the other transactions contemplated herein, collectively referred to as the "Reorganization," and Sister Agreements consummated contemporaneously herewith are part of a single reorganization. F. As of the date hereof, there are no shares of common stock of Superholdings, par value $0.01 per share ("Superholdings Stock"), issued and outstanding and as of the date hereof, Superholdings holds of record all of the issued and outstanding shares of common stock of Merger Sub, par value $0.01 per share ("Merger Sub Stock"). G. The Board of Directors of Public has determined that in order to complete the Parent Merger in a tax-efficient manner, such acquisition should be structured as a transaction described in Section 351(a) of the Internal Revenue Code of 1986, as amended (the "Code") (all citations to the Code, or to the Treasury Regulations promulgated thereunder, shall include any amendments or any substitute or successor provisions thereto), which will require Public to form a new holding company. The parties desire that the Parent Merger, except as provided in Sections 1.2(a)(ii) (Cash) and 1.8(b) (Cash Payments) herein, qualifies as a transaction described in Section 351(a) of the Code. H. The parties desire that the Subsidiary Merger qualify as a transaction described in Sections 351(a) and 368(a)(1)(A) of the Code by virtue of Section 368(a)(2)(E) of the Code. It is contemplated that the Subsidiary Merger will be completed substantially simultaneously with the merger or consolidation of Superholdings or one or more of its subsidiaries with or into one or more business entities (including, without limitation, the Parent Merger) in a transaction of the type described in Section 351(a) of the Code. I. For financial accounting purposes, Public and Superholdings may determine that B-2 16 Superholdings' merger with LLC will be accounted for as a pooling of interests transaction. J. Public, Superholdings, Merger Sub and the LLC Parties acknowledge that they have received adequate consideration for entering into, and have relied upon the promises, covenants, representations and warranties contained in, this Agreement, and that they will be benefitted by the transactions contemplated herein. K. The LLC Parties have delivered to Superholdings certain disclosure schedules of even date herewith referred to herein. Public, Superholdings and Merger Sub have delivered to the LLC Parties certain disclosure schedules of even date herewith referred to herein. Any such disclosure schedules are referred to herein as "Disclosure Schedules." The Disclosure Schedules and the Exhibits (herein so called) referred to herein are a part of this Agreement. L. Public, Superholdings and Merger Sub may enter into other agreements (the "Sister Agreements") pursuant to which other business entities join in the Parent Merger. A G R E E M E N T - - - - - - - - - Based on the recitals set forth above and the representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound, agree as follows: ARTICLE 1 Mergers ------- 1.1 The Mergers. (a) The Mergers. Upon the terms and subject to the conditions set forth in this Agreement: (i) Parent Surviving Corporation. Not later than August 7, 2000, LLC and its members shall form LLC Holdings, which at such time shall hold all of the Members' Interests of LLC. At the Effective Time, LLC Holdings will merge with and into Superholdings in accordance with the terms set forth herein (one or more other parties, if any, that Public and Superholdings agree to be constituents in the Parent Merger, pursuant to the terms of a Sister Agreement may merge into Superholdings immediately following the merger of LLC Holdings into Superholdings). From and after B-3 17 the Effective Time, the separate existence of LLC Holdings and such other constituents shall cease to exist. Superholdings shall continue as the surviving corporation in the Parent Merger (the "Parent Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware. (LLC shall continue as a subsidiary of Superholdings.) (ii) Subsidiary Surviving Corporation. Simultaneously with the Parent Merger, Merger Sub will merge with and into Public, in accordance with the terms set forth herein and the terms of the Subsidiary Merger Agreement. From and after the Effective Time, the separate corporate existence of Merger Sub shall cease to exist. Public shall continue as the surviving corporation in the Subsidiary Merger (the "Subsidiary Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware. At the sole discretion of the Board of Directors of Public, as an alternative structure to the Subsidiary Merger, Public may merge directly with and into Superholdings, and Superholdings shall continue as the surviving corporation and shall continue to be governed by the laws of the State of Delaware. (b) Consummation of the Mergers. The Parent Merger and the Subsidiary Merger shall be consummated by filing Certificates of Merger (herein so called) with the secretaries of state of the State of Delaware and State of Missouri, together with all other documents, notices and filings required by the Delaware General Corporation Law ("DGCL") and the Missouri Limited Liability Company Act. (c) Effective Time of the Mergers. The Certificates of Merger shall provide that the Parent Merger and the Subsidiary Merger shall be effective as of the date and time set forth in the Certificates of Merger filed with the Secretary of State of the State of Delaware (the "Effective Time"). (d) Effect of the Mergers. At the Effective Time, the effect of the Parent Merger shall be as provided in Section 264 of the DGCL and other applicable provisions of the DGCL and Sections 347.700 through 347.735 of the Missouri Limited Liability Company Act and other applicable provisions of such act, and the effect of the Subsidiary Merger shall be as provided in Sections 259 and 261 of the DGCL. (e) The Surviving Corporations' Certificates of Incorporation; Bylaws; Directors and Officers. The certificates of incorporation and bylaws of Superholdings and Public, in each case as in effect at the Effective Time, shall be the certificates of incorporation and bylaws of Parent Surviving Corporation and Subsidiary Surviving Corporation, respectively. At the Effective Time, the Board of Directors and officers of each of Parent Surviving Corporation and Subsidiary Surviving Corporation shall be composed of the directors and officers of Superholdings and Public serving immediately before the Effective Time, respectively, to hold office until their respective successors are duly elected or appointed and qualified. The rights and obligations of the current members of LLC, whether as members of LLC or LLC Holdings, (i) under their respective operating agreements, limited liability company agreements, or similar B-4 18 agreements, including without limitation the obligations to make capital contributions and (ii) with respect to Members' Interests shall terminate. 1.2 Terms of the Merger. (a) Consideration for the Parent Merger. Each unit of the Members' Interests that are units of LLC Holdings (which the members of LLC shall have received in exchange for their units of LLC) issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Parent Merger and without any action on the part of the holder thereof, be converted into, as specified by and pursuant to the terms of this Section 1.2(a), into the following: (i) Superholdings Stock. The right to receive a number of duly authorized, validly issued, fully paid and nonassessable shares of Superholdings Stock, along with any dividends or distributions thereon after the Effective Time, equal to the Per Unit LLC Consideration. "Per Unit LLC Consideration" shall be equal to 675 shares of Superholdings Stock per unit of the Members' Interests of LLC Holdings; provided, that, the aggregate number of shares of Superholdings Stock that shall be issued in connection with the Parent Merger pursuant to this Section 1.2(a) for all of such Members' Interests outstanding shall be equal to 13,500,000 shares. (ii) Cash. The right to receive cash equal up to $200.00 per unit of Members' Interests of LLC Holdings, without any interest thereon (the "Per Unit Cash Consideration"); provided, that, the aggregate amount of Per Unit Cash Consideration shall be determined pursuant to Section 4.16 (Asset Transfers) and not exceed $4,000,000. (iii) Adjustment of Cash. The amount of Per Unit Cash Consideration shall be subject to adjustment as provided below and shall be reduced by the amount of any transfer Taxes owed as a result of the formation of LLC Holdings or LLC's or LLC Holdings' participation in the Parent Merger, although no such taxes are anticipated. (b) Right to Withhold. (i) Escrow. At the Closing, Superholdings shall have the right to withhold from the aggregate amount of the Per Unit LLC Consideration the amounts of any Interim Losses, as described in further detail in Section 10.2(d) (Form of Payment; Interim Losses). The aggregate amount of all such amounts withheld at any time is defined herein as the "Escrow Funds." An escrow agent (the "Escrow Agent") shall keep the Escrow Funds in a separate escrow account, maintained on behalf of the Members (the "Escrow Account"), subject to the terms of the Escrow Agreement (the "Escrow Agreement") substantially in the form attached as the Exhibit to this Section 1.2(b). (ii) Debt of Members. At the Closing, Public, Superholdings and B-5 19 Merger Sub shall have the right to withhold from the aggregate amount of the Per Unit Cash Consideration, the amounts, including interest, then owing from the Members to Public pursuant to any outstanding borrowings. (c) Consideration Subject to Agreements. The consideration to be paid pursuant to the Parent Merger pursuant to Section 1.2(a) (Consideration for the Parent Merger) shall be subject to the terms of the Escrow Agreement, Lock-Up Agreement, and the Indemnity Agreement and, to the extent applicable, Affiliate Letters. Superholdings shall retain possession of such consideration until the later of (i) the expiration of the Lock-Up Agreement or (ii) the resolutions of all claims for Losses that arise pursuant to Section 10.2(a) (Indemnification of Superholdings), unless the person or entity and, if applicable, its direct and indirect owners, entitled to receive such consideration execute a Lock-Up Agreement, and an Indemnity Agreement, and to the extent applicable, Affiliate Letters, whereupon Superholdings shall release such consideration. (d) Antidilution. In the event of any stock dividend, stock split, reclassification, recapitalization, combination or exchange of shares with respect to, or rights issued in respect of, Public Stock on or after the date hereof and prior to the Effective Time, the Per Unit LLC Consideration shall be adjusted accordingly. (e) Sister Agreements. The Sister Agreements, if any, shall set forth the consideration to be paid to the other parties to the Parent Merger. (f) Conversion of Public Stock. Each share of common stock of Public, par value $0.01 (the "Public Stock"), issued and outstanding immediately prior to the Effective Time together with the related rights distributed to holders of Public Stock pursuant to the Rights Agreement, dated as of January 31, 2000, between Public and ChaseMellon Shareholder Services, L.L.C., as Rights Agent (other than shares of Public Stock held in Public's treasury) shall, at the Effective Time, by virtue of the Subsidiary Merger and without any action on the part of the holder thereof, be converted into, as specified and pursuant to the terms of this Section 1.2(f), the right to receive one duly authorized, validly issued, fully paid and nonassessable share of Superholdings Stock, along with any dividends or distributions thereon after the Effective Time pursuant to the terms of the Subsidiary Merger Agreement in the form attached as the Exhibit to this Section 1.2(f), which agreement shall not be amended in a manner adverse to the LLC Parties without the consent of the Members. (g) Conversion of Merger Sub Stock. Each share of Merger Sub Stock issued and outstanding immediately prior to the Effective Time (other than shares of Merger Sub Stock held in Merger Sub's treasury) shall, at the Effective Time, by virtue of the Subsidiary Merger and without any action on the part of the holder thereof, be converted into one duly authorized, validly issued, fully paid nonassessable share of stock of the Subsidiary Surviving Corporation. (h) Treasury Stock. All shares of Public Stock and Merger Sub Stock that are owned by Public or Merger Sub, respectively, as treasury stock shall, at the Effective Time, be canceled and retired and shall cease to exist, and no shares of Superholdings Stock or other B-6 20 consideration shall be delivered or owing in exchange therefor. (i) Rights as Holders. On or after the Effective Time, holders of Members' Interests shall cease to have any rights as members of LLC and LLC Holdings, except the right to receive the consideration set forth herein in Section 1.2(a) (Consideration for the Parent Merger) with respect to Members' Interests held by them, and such Members' Interests shall be extinguished. On and after the Effective Time, holders of certificates which immediately prior to the Effective Time represented issued and outstanding shares of Public Stock shall cease to have any rights as stockholders of Public, except the right to receive the consideration set forth herein in Section 1.2(f) (Conversion of Public Stock) with respect to each share held by them. The merger consideration paid upon the surrender for exchange of units of Members' Interests or shares of Public Stock in accordance with the terms of this Agreement shall be deemed, when paid or issued hereunder, to have been paid or issued, as the case may be, in full satisfaction of all rights and obligations pertaining to the Members' Interests or shares theretofore represented by such unit of Members' Interests or shares of Public Stock. 1.3 Stock Options. (a) [Intentionally deleted]. (b) [Intentionally deleted]. (c) [Intentionally deleted]. 1.4 Exchange Agent. Prior to or concurrently with the Effective Time, Superholdings shall enter into an agreement with such bank or trust company as may be designated by Superholdings (the "Exchange Agent"), which shall provide that Superholdings shall deposit with the Exchange Agent as of the Effective Time, for the benefit of the holders of units of Members' Interests, for exchange in accordance with this Agreement, through the Exchange Agent, (a) certificates representing the shares of Superholdings Stock, (b) any dividends or distributions with respect thereto with a record date after the Effective Time, (c) any cash payable in lieu of any fractional shares of Superholdings Stock and (d) the aggregate Per Unit Cash Consideration (collectively, the "Exchange Fund") issuable pursuant to this Agreement in exchange for outstanding units of Members' Interests. 1.5 Exchange Procedure. After the Effective Time, each holder of Members' Interests shall surrender the certificates representing same or, if the Members' Interests are not certificated, deliver a release of members' interest, in a form, duly endorsed or executed as the Parent Surviving Corporation may reasonably require, to the Exchange Agent, together with a Lock-Up Agreement, Members' Release and an Indemnity Agreement. Subject to Sections 1.2(b) (Right to Withhold), 1.2(c) (Consideration Subject to Agreements) and 1.12 (Tax Withholding), at the time of such surrender or delivery, the merger consideration applicable to such Members' Interests shall be delivered to such holder. The merger consideration shall be deemed, when paid or issued hereunder, to have been paid or issued, as the case may be, in full satisfaction of all rights and obligations pertaining to the surrendered units. No interest shall be B-7 21 paid or accrued on any cash payable upon the surrender of any unit of Members' Interests. If cash payment is to be made, or shares of Superholdings Stock issued, to a person other than the person who surrendered the units of Members' Interests, it shall be a condition of payment that the units of Members' Interests so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of the surrendered units of Members' Interests, or established to the satisfaction of Superholdings that such taxes have been paid or are not applicable. 1.6 Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to Superholdings Stock shall be paid to the holder of any unsurrendered units of Members' Interests with respect to the shares of Superholdings Stock issuable upon the surrender of such units of Members' Interests pursuant to Section 1.5 (Exchange Procedure) and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.8 (No Fractional Shares) and all such dividends, other distributions and cash in lieu of fractional shares of Superholdings Stock shall be paid by Superholdings to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such units of Members' Interests pursuant to Section 1.5 (Exchange Procedure). Subject to the effect of applicable escheat or similar laws and subject to Sections 1.2(b) (Right to Withhold), 1.2(c) (Consideration Subject to Agreements) and 1.12 (Tax Withholding), following the surrender of any such units of Members' Interests pursuant to Section 1.5 (Exchange Procedure) there shall be paid to the holder of the units of Members' Interests, (i) any such dividends or other distributions, without any interest thereon, which theretofore had become payable (with a record date or payment date prior to the surrender of units of Members' Interests) with respect to shares of Superholdings Stock represented by such units of Members' Interests and (ii) the amount of any cash payable in lieu of a fractional share of Superholdings Stock to which such holder is entitled pursuant to Sections 1.8(a) (No Certificates) and 1.8(b) (Cash Payments). No holder of unsurrendered units of Members' Interests shall be entitled, until the surrender of such units, to vote the shares of Superholdings Stock into which the shares of Members' Interests represented thereby shall have been converted. 1.7 Cancellation and Retirement of Units. As of the Effective Time, all units of Members' Interests of LLC Holdings issued and outstanding immediately prior to the Effective Time shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist. 1.8 No Fractional Shares. (a) No Certificates. No certificates representing fractional shares of Superholdings Stock shall be issued upon the surrender for exchange of units of Members' Interests which have been converted pursuant to this Agreement, and such fractional share interests shall not entitle the owner thereof to vote or to have any rights of a stockholder of Superholdings. (b) Cash Payments. In lieu of any such fractional shares, each holder of units B-8 22 who would otherwise have been entitled to a fraction of a share of Superholdings Stock upon surrender of units for exchange pursuant to this Article 1 will be paid an amount in cash (without interest), rounded to the nearest cent, determined by multiplying (i) the per share closing price on The Nasdaq Stock Market of Superholdings Stock on the date on which the Effective Time occurs (or, if Superholdings Stock does not trade on The Nasdaq Stock Market on such date, the first date of trading of Superholdings Stock on The Nasdaq Stock Market after the Effective Time) by (ii) the fractional interest to which such holder otherwise would be entitled. Such amount in cash shall be deemed to be substituted for any such fractional share and to constitute a portion of the merger consideration with respect to the related units. 1.9 Investment of Exchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Superholdings, in (a) direct obligations of the United States of America, (b) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (c) commercial paper rated the highest quality by either Moody's Investors Services, Inc. or Standard & Poor's Corporation, or (d) certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $500.0 million. Any net earnings with respect to the Exchange Fund shall be the property of and paid over to Superholdings as and when requested by Superholdings. 1.10 Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of units of Members' Interests for 180 days after the Effective Time shall be delivered to Superholdings, upon demand, and any holders of units of Members' Interests that have not theretofore complied with this Article 1 shall thereafter look only to Superholdings, and only as general creditors thereof, for payment of their claim for any merger consideration, any cash in lieu of fractional shares of Superholdings Stock and any dividends or distributions with respect to Superholdings Stock, as provided herein. 1.11 No Liability. None of Public, Superholdings, Merger Sub, Parent Surviving Corporation, Subsidiary Surviving Corporation or the Exchange Agent shall be liable to any person in respect of any payments or distributions payable from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any units of Members' Interests shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such earlier date on which any merger consideration in respect of such units of Members' Interests would otherwise escheat to or become the property of any governmental entity); any amounts payable in respect of such units of Members' Interests shall, to the extent permitted by applicable law, become the property of Superholdings, free and clear of all claims or interest of any person previously entitled thereto. 1.12 Tax Withholding. Superholdings shall be entitled to deduct and withhold, or cause to be deducted or withheld, from the consideration otherwise payable pursuant to this Agreement to any holder of options or units of Members' Interests such amounts, if any, as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of applicable state, local or foreign tax law. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all B-9 23 purposes of this Agreement as having been paid to such holders in respect of which such deduction and withholding was made. ARTICLE 2 Closing the Transaction ----------------------- 2.1 Closing. On the third business day after the satisfaction or written waiver of the conditions (other than execution, filing or delivery of agreements, certificates, legal opinions or other instruments to be delivered at Closing) contained (a) herein, (b) in the Subsidiary Merger Agreement and (c) at the option of Superholdings and Public, any Sister Agreements that have not been validly terminated in accordance with their terms, or as otherwise agreed by the parties hereto, and unless this Agreement has been terminated pursuant to the provisions of Article 5 (Termination), the consummation of the transactions provided for herein and in such other agreements (the "Closing") shall take place at the offices of Haynes and Boone, LLP, counsel to Superholdings, Public and Merger Sub, located at 1600 N. Collins Blvd., Suite 2000, Richardson, Texas 75080, at 10:00 a.m., local time, or at such other place or by such other means as the parties hereto may agree; provided, however, that if the conditions (other than execution, filing or delivery of agreements, certificates, legal opinions or other instruments to be delivered at Closing) contained herein and in the Subsidiary Merger Agreement are satisfied or waived in writing, then Superholdings and Public may not delay the Closing beyond March 31, 2001 (or April 30, 2001 if the termination date of this Agreement or any Sister Agreement has been extended in accordance with its terms to allow a party to cure any matter under this Agreement or such Sister Agreement) in order to achieve satisfaction or waiver of the conditions contained in a Sister Agreement; provided, further, that if (i) the closing of a Sister Agreement occurs prior to March 31, 2001 and (ii) the conditions contained herein are satisfied or waived in writing, then the Closing of this Agreement shall also occur on the closing date of such Sister Agreement. The time and date of the Closing are referred to herein as the "Closing Date." 2.2 LLC Parties' Deliveries at Closing to Superholdings. At the Closing, the LLC Parties shall deliver, or cause to be delivered, to Superholdings the following items: (a) Closing Certificate. The LLC Parties shall jointly deliver to Superholdings a closing certificate executed by each of the LLC Parties (the "LLC Parties Closing Certificate") in the form attached as the Exhibit to this Section 2.2(a). (b) Consents and Approvals. The LLC Parties jointly shall deliver copies of all LLC Parties' Consents that have been obtained, and all Approvals obtained by the LLC Parties. (c) Proceedings and Documents. The LLC Parties shall deliver copies, certified or otherwise identified to Superholdings' reasonable satisfaction, of all company documents that Superholdings shall reasonably request, including resolutions of the Board of B-10 24 Managers of LLC Holdings and resolutions of the members of LLC Holdings, dated on or before the date hereof to authorize this Agreement, the Related Agreements and the transactions and other acts contemplated either by this Agreement or the Related Agreements. (d) Good Standing Certificates. LLC Holdings shall deliver certificates, issued within 10 days of the date of the Closing, (i) from the Secretary of State of Missouri, evidencing that LLC, LLC Holdings and the Subsidiaries are validly existing under the laws of their jurisdictions of organization and (ii) from each state listed on the Disclosure Schedule to Section 6.1(a) (Organization and Good Standing) evidencing that LLC, LLC Holdings and the Subsidiaries are qualified to do business as foreign entities (each, a "Good Standing Certificate") in each such state. (e) Opinions of LLC Parties' Counsel. The LLC Parties shall deliver an opinion of Armstrong Teasdale LLP, counsel to the LLC Parties, dated as of the Closing Date, in form and substance reasonably satisfactory to Superholdings regarding the matters set forth in the Exhibit to this Section 2.2(e). (f) Tower Closing Certificate. The LLC Parties shall cause Roberts Tower Company, a Missouri corporation owned and operated by the Members ("Tower Company"), to deliver to Superholdings a closing certificate executed by Tower Company (the "Tower Closing Certificate"), in the form attached as the Exhibit to this Section 2.2(f), regarding environmental liabilities. (g) Other Instruments. Such other instruments, documents or information that Superholdings reasonably requests in order to more effectively consummate the transactions contemplated hereby. 2.3 Superholdings' and Public's Deliveries at Closing to LLC. At the Closing, Superholdings and Public shall deliver the following items to the Members: (a) Closing Certificate. Superholdings shall deliver to the Members a closing certificate executed by Superholdings (the "Superholdings Closing Certificate") in the form attached as the Exhibit to this Section 2.3(a). (b) Proceedings and Documents. Superholdings, Public and Merger Sub shall deliver copies, certified or otherwise, identified to LLC Holdings' reasonable satisfaction, of all company documents that LLC Holdings shall reasonably request, including resolutions of their respective boards of directors, dated on or before the date hereof to authorize this Agreement, the Related Agreements and the transactions and other acts contemplated either by this Agreement or the Related Agreements. (c) Consents and Approvals. Public and Superholdings jointly shall deliver copies of all of the Public Consents that have been obtained, and all Approvals obtained by Public and Superholdings. B-11 25 (d) Opinion of Public's, Superholdings' and Merger Sub's Counsel. Superholdings shall deliver an opinion of Haynes and Boone, LLP, dated as of the Closing Date, in form and substance reasonably satisfactory to LLC Holdings regarding the matters set forth in the Exhibit to this Section 2.3(d). (e) Other Instruments. Such other instruments, documents or information that LLC Holdings reasonably requests in order to more effectively consummate the transactions contemplated hereby. 2.4 Related Agreements. The parties, as appropriate, shall execute and deliver the following documents. All agreements, documents or instruments executed among Public, Superholdings and Merger Sub on the one hand, and any of the LLC Parties on the other, pursuant to this Agreement or the transactions contemplated hereby are referred to as the "Related Agreements." Without limitation, the Related Agreements include: (a) Prior to Closing. The following documents, which shall be executed prior to Closing: (i) Services Agreement. On the date hereof, the parties will execute a services agreement substantially in the form attached as the Exhibit to this Section 2.4(a)(i) (the "Services Agreement"), which Services Agreement shall become effective as provided therein on the date the condition contained in Section 3.1(c) (HSR Act) has been satisfied, until the earlier of the Closing Date or the Termination Date. (ii) Public Loan Agreement. Public shall loan funds to LLC, pursuant to a loan agreement (the "Public Loan Agreement") which shall be executed simultaneously with this Agreement in the form attached as the Exhibit to this Section 2.4(a)(ii). (b) At Closing. The following documents, which shall be executed at the Closing: (i) Lock-Up Agreement. Each member of LLC Holdings will enter into a Lock-Up Agreement (herein so called) in the form attached as the Exhibit to this Section 2.4(b)(i) with Superholdings, which agreement shall prohibit the sale or other disposition of their holdings of Superholdings Stock until September 30, 2001, without the prior written consent of Superholdings. Notwithstanding the foregoing, the members shall have the right to pledge up to 40% of their Superholdings Stock as collateral for margin loans. If Superholdings enters into a lock-up agreement (a "Sister Lock-Up") having a shorter term with any person who receives at least 25% of the Superholdings Stock issued pursuant to a Sister Agreement, then any Member who executes a Lock-Up Agreement may substitute such Lock-up Agreement in its entirety for a lock-up agreement having the same terms as this Sister Lock-Up Agreement. (ii) Indemnity Agreement. Each member of LLC Holdings and its B-12 26 direct and indirect owners will enter into an indemnity agreement with Superholdings, pursuant to which agreement each member shall agree to be bound by the provisions of Article 10 (Indemnification) ("Indemnity Agreement"), in the form attached hereto as the exhibit to this Section 2.4(b)(ii) and its direct and indirect owners shall be so bound to the extent that they receive any distribution of any merger consideration or proceeds thereof. (iii) Members' Releases. The members of LLC Holdings shall execute and deliver releases (the "Members' Releases") which release any and all claims held or to be held by the Members against LLC, LLC Holdings and their successors, assigns, officers, directors, employees and agents, but excluding any claims the members may have to unpaid compensation and benefits, in the form attached hereto as the Exhibit to this Section 2.4(b)(iii). (iv) Affiliate Letters. If applicable, the members of LLC Holdings shall deliver Affiliate Letters. (v) Master Lease Agreement. The Master Lease Agreement described in Section 4.15 (Master Lease Agreement). (vi) Joint Venture Development Agreement. The Joint Venture Development Agreement described in Section 4.17 (Joint Venture Development Agreement). (vii) Closing Certificates. The LLC Parties Closing Certificate and the Superholdings Closing Certificate. (viii) Escrow Agreement. Superholdings, the Members and the Escrow Agent shall, if there are Interim Losses, execute the Escrow Agreement in the form attached as the Exhibit to Section 1.2(b) (Right to Withhold), with such changes as the Escrow Agent may reasonably request. (c) At Closing if Completed. The following documents shall be delivered at the Closing if they are completed by the Closing. (i) Leases. The Leases described in Section 4.9 (Leases). (ii) Consulting Agreements. The Consulting Agreements with Michael V. Roberts ("M.R.") and Steven C. Roberts ("S.R.") described in Section 4.13 (Consulting Agreements). ARTICLE 3 Conditions To Consummating The Transaction 3.1 Joint Conditions. The obligations of Public, Superholdings, Merger Sub and the LLC Parties to consummate the transactions provided for in this Agreement and the Related Agreements are subject to the satisfaction, at or prior to the Closing Date, of the following B-13 27 conditions: (a) Public Stockholder Approval. The issuance of the shares of Superholdings' common stock pursuant to the Parent Merger shall have been approved by the affirmative vote of the holders of the requisite number of shares of capital stock of Public in the manner required pursuant to the rules of The Nasdaq Stock Market. (b) LLC Members Approval. This Agreement shall have been adopted by the affirmative vote of the holders of the requisite number of units of Members' Interests of LLC and LLC Holdings in the manner required pursuant to LLC's and LLC Holdings' organizational documents, LLC agreement, the Missouri Limited Liability Company Act and other applicable law. (c) HSR Act. The waiting period prescribed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder (the "HSR Act") shall have expired or early termination of the waiting period under the HSR Act shall have been granted. (d) Nasdaq Listing. The Superholdings Stock issuable to the LLC Parties and to Public's stockholders shall have been approved for listing on The Nasdaq Stock Market, subject to official notice of issuance. (e) Merger. The secretaries of state of the State of Delaware and the State of Missouri shall have accepted for filing the Certificates of Merger for the Parent Merger and the Subsidiary Merger. (f) Subsidiary Merger. All conditions to the consummation of the Subsidiary Merger, set forth in Section 3.1 of the Subsidiary Merger Agreement, shall have been satisfied, including the adoption of the Subsidiary Merger Agreement by the requisite vote of the stockholders of Public pursuant to Public's certificate of incorporation and bylaws and applicable law; provided, however, that the condition precedent of the Subsidiary Merger Agreement which states that all conditions precedent to the consummation of at least this Agreement or a Sister Agreement shall have been satisfied or duly waived, need not be satisfied or duly waived. 3.2 Public's, Superholdings' and Merger Sub's Conditions. The obligations of Public, Superholdings and Merger Sub to consummate the transactions contemplated by this Agreement and the Related Agreements are subject to the satisfaction or waiver by Public, Superholdings and Merger Sub, at or prior to the Closing Date, of the following conditions: (a) LLC Parties' Representations True. The LLC Parties' representations and warranties made in this Agreement or any Related Agreement shall be true and correct in all respects at the Closing Date, except as affected by the transactions contemplated hereby and except as will not constitute an LLC Material Adverse Change, and the LLC Parties shall have delivered the LLC Parties' Closing Certificate which shall so indicate. Notwithstanding the foregoing, this condition shall be deemed to have been satisfied even though an LLC Material B-14 28 Adverse Change has occurred, unless the LLC Material Adverse Change (i) occurred on or prior to the date of this Agreement, (ii) was caused after the date of this Agreement by the actions of the Members, the Board of Managers of LLC or LLC Holdings, or any agent of LLC or LLC Holdings, which agent is not under the supervision of Public pursuant to the Services Agreement or (iii) was caused by the failure of any of the persons identified in clause (ii) to take actions that (A) would be taken in the ordinary course of LLC's and LLC Holdings' business in the exercise of reasonable judgment and (B) have not been delegated to Public under the Services Agreement. "LLC Material Adverse Change" means any change, effect, event or occurrence that would reasonably be expected to (i) result in liabilities to Superholdings (on a consolidated basis) at or after the Closing of at least $40 million, (ii) result in a reduction of cash flow or increased losses, of Superholdings (on a consolidated basis) at or after the Closing, discounted at 10%, having a net present value of at least $40 million or (iii) materially impair or delay the ability of Public, Superholdings, Merger Sub or the LLC Parties to consummate the transactions contemplated hereby. "Public Material Adverse Change" means any change, effect, event or occurrence that would reasonably be expected to (i) result in liabilities to Superholdings (on a consolidated basis) at or after the Closing of at least $190 million, (ii) result in a reduction of cash flow, or increased losses, of Superholdings (on a consolidated basis) at or after the Closing, discounted at 10%, having a net present value of at least $190 million or (iii) materially impair the ability of Public, Superholdings or Merger Sub to consummate the transactions contemplated hereby including, without limitation, failure to deliver the merger consideration described herein. (b) LLC Parties' Compliance with Agreement. The LLC Parties, in all respects, shall have performed each agreement, and shall have complied with each covenant, to be performed or complied with by them, or any of them, on or prior to the Closing Date under this Agreement or any Related Agreement except as will not constitute an LLC Material Adverse Change, and the LLC Parties shall have delivered the LLC Parties' Closing Certificate which shall indicate that no LLC Material Adverse Change has occurred. Notwithstanding the foregoing, this condition shall be deemed to have been satisfied even though an LLC Material Adverse Change has occurred, unless the LLC Material Adverse Change (i) occurred on or prior to the date of this Agreement, (ii) was caused after the date of this Agreement by the actions of the Members, the Board of Managers of LLC or LLC Holdings, or any agent of LLC or LLC Holdings, which agent is not under the supervision of Public pursuant to the Services Agreement or (iii) was caused by the failure of any of the persons identified in clause (ii) to take actions that (A) would be taken in the ordinary course of LLC's and LLC Holdings' business in the exercise of reasonable judgment and (B) have not been delegated to Public under the Services Agreement. The LLC Parties shall have delivered the LLC Parties Closing Certificate which shall so indicate. (c) LLC Parties Consents. The LLC Parties shall have obtained the LLC Parties Consents except for those LLC Parties Consents that, if not obtained, would not constitute an LLC Material Adverse Change. Without limitation, the failure to obtain the B-15 29 following LLC Parties Consents wouldconstitute an LLC Material Adverse Change: (i) Sprint; (ii) Lucent Technologies Inc. and its assignees under the Credit Agreement and (iii) Lucent Technologies, Inc. under the PCS Procurement and Services Contract dated March 26, 1999. (d) Public Consents. Public shall have obtained the Public Consents except for those Public Consents that, if not obtained, would not constitute a Public Material Adverse Change. Without limitation, the failure to obtain the consent of Export Development Corporation ("EDC") would constitute a Public Material Adverse Change. (e) Permits. Superholdings shall have obtained all governmental licenses and permits, or binding commitments, if any, from governmental authorities to issue, transfer or consent to a change of control with respect to, all governmental licenses and permits necessary to enable Superholdings to conduct the business of LLC after the Closing as previously, and as presently proposed to be, conducted (the "Permits"), except for those Permits that, if not obtained, would not constitute an LLC Material Adverse Change. (f) LLC Members Approval. This Agreement shall have been adopted by the affirmative vote of the holders of the requisite number of units of Members' Interests of LLC and LLC Holdings in the manner required pursuant to LLC's and LLC Holdings' organizational documents, LLC agreements, the Missouri Limited Liability Company Act and other applicable law. (g) Form S-4. The Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Securities and Exchange Commission (the "SEC"). (h) No Litigation. No action, suit or proceeding (other than such an action, suit or proceeding directly or indirectly instituted by a party hereto) shall be threatened or pending, and no preliminary or permanent injunction, order, decree or ruling shall be in effect, seeking to restrain or prohibit, or to obtain damages or other relief in connection with, the execution and delivery of this Agreement, any Related Agreement or the consummation of the transactions contemplated by any of the foregoing except as would not constitute an LLC Material Adverse Change. The LLC Parties shall have delivered the LLC Parties Closing Certificate, which shall so indicate with respect to the LLC Parties. (i) Approvals. All authorizations, consents and approvals, if any, of and filings, if any, with any governmental authority that are required to (i) validly execute, deliver and perform this Agreement or the Related Agreements, (ii) to consummate the transactions provided for in this Agreement or the Related Agreements or (iii) to enable Superholdings to operate the business of LLC after the Closing in substantially the same manner as such business was conducted before the Closing (collectively, "Approvals"), shall have been obtained or made except for those Approvals that, if not obtained, would not constitute an LLC Material Adverse Change. Without limitation, the failure to obtain the Approval described in Section 3.1(c) (HSR Act) would constitute an LLC Material Adverse Change. B-16 30 (j) Members Obligations. The Members shall have repaid to LLC all amounts, if any, owed by the Members to LLC other than unpaid capital contributions called and payable after the date hereof. (k) Related Agreements. The LLC Parties shall have entered into the Related Agreements. (l) Landlord Consents. The Members shall have delivered to Superholdings landlord subordination agreements, landlord consents (to include consents to access to the property and right to remove equipment), landlord waivers, landlord consents to subleases, landlord agreements to assign leases in favor of any lender of LLC and to assign or sublease leases to Superholdings or any Affiliate of Superholdings, and mortgage holder non-disturbance agreements in forms reasonably acceptable to Superholdings ("Landlord Consents") for all tower properties they or their affiliates own that are leased to LLC and shall use their reasonable best efforts to obtain Landlord Consents for all tower properties that LLC leases. The Landlord Consents shall relate to any financings or refinancings of Superholdings or its affiliates. 3.3 LLC Parties' Conditions to Closing. The obligations of the LLC Parties to consummate the transactions contemplated by this Agreement and the Related Agreements are subject to the satisfaction or waiver in writing by the LLC Parties, at or prior to the Closing Date, of the following conditions: (a) Public's, Superholdings' and Merger Sub's Representations True. The representations and warranties made by Public, Superholdings and Merger Sub herein shall be true and correct in all respects at the Closing Date, except as affected by the transactions contemplated hereby and except as will not constitute a Public Material Adverse Change and Superholdings shall have delivered the Superholdings Closing Certificate which shall so indicate. (b) Public's Superholdings' and Merger Sub's Compliance with Agreement. Each of Public, Superholdings and Merger Sub, in all respects, shall have performed each agreement, and complied with each covenant to be performed or complied with by it on or prior to the Closing Date under this Agreement or any Related Agreement, except as will not constitute a Public Material Adverse Change and Superholdings shall have delivered the Superholdings Closing Certificate which shall indicate that no Public Material Adverse Change has occurred. (c) No Litigation. No action, suit or proceeding (other than such an action, suit or proceeding directly or indirectly instituted by a party hereto) shall be threatened or pending, and no preliminary or permanent injunction, order, decree or ruling shall be in effect, seeking to restrain or prohibit, or to obtain damages or other relief in connection with, the execution and delivery of this Agreement, any Related Agreement or the consummation of the transactions contemplated by any of the foregoing except as would not constitute a Public Material Adverse Change. Superholdings shall have delivered the Superholdings Closing Certificate, which shall so indicate with respect to Superholdings, Public and Merger Sub. B-17 31 (d) Public Consents. Public shall have obtained the Public Consents except for those Public Consents that, if not obtained, would not constitute a Public Material Adverse Change or constitute a Public Material Adverse Change. Without limitation, the failure to obtain the consent of EDC would constitute a Public Material Adverse Change. (e) Approvals. All Approvals to be obtained by Public shall have been obtained or made except for those Approvals that, if not obtained, would not constitute a Public Material Adverse Change. The Approval described in Section 3.1(c) (HSR Act) shall have been obtained. ARTICLE 4 Covenants Regarding Consummation of the Transaction 4.1 Satisfaction of Conditions to Closing. (a) Joint Responsibilities. Each party shall use his, her or its reasonable best efforts to satisfy the conditions to the obligations of the parties hereunder, and to consummate and make effective as promptly as practicable the transactions provided for herein including: (i) Defending the Agreement. Defending lawsuits or other legal proceedings challenging this Agreement or any Related Agreement or the consummation of the transactions provided for in this Agreement or any Related Agreement; (ii) Lifting Injunctions. Using reasonable best efforts to lift or rescind any injunction, restraining order or other order adversely affecting the ability of the parties to consummate the transactions provided for in this Agreement or any Related Agreement; (iii) Other Actions. Taking such other reasonable actions that are necessary, appropriate or advisable, unless responsibility for taking such actions has been delegated to certain parties pursuant to Sections 4.1(b) (LLC Parties' Responsibilities) or 4.1(c) Public's, Superholdings' and Merger Sub's Responsibilities), including without limitation using reasonable best efforts to obtain all Approvals, and all consents of third parties to contracts as are necessary for the consummation of the Reorganization. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, each party and its officers and directors shall use their reasonable best efforts to take all such action. (b) LLC Parties' Responsibilities. (i) LLC Parties' Delegated Conditions. The LLC Parties shall have the responsibility for satisfying the following conditions ("LLC Parties' Delegated Conditions"), for which the LLC Parties shall have the obligations set forth in this Section 4.1(b)(i). Public, Superholdings and Merger Sub shall reasonably cooperate and assist with the LLC Parties in B-18 32 connection with the following: (A) Section 3.2(a) (LLC Parties' Representations True), for which the LLC Parties' obligation shall be as follows: (x) the LLC Parties shall take no action that will cause any of their representations or warranties to be or remain untrue or incorrect in any material respect and (y) the LLC Parties shall not omit any action that any of them would take in the ordinary course of prudent business, which omission will cause any of their representations or warranties to be or remain untrue or incorrect in any material respect, provided that the LLC Parties shall not be required to take any action for which Public has assumed responsibility under the Services Agreement; and (B) Section 3.2(b) (LLC Parties' Compliance with Agreement), for which the LLC Parties shall have the obligations set forth elsewhere herein. (ii) HSR Act Filings. The LLC Parties shall make their HSR Act filings, if required, in compliance with such act as soon as possible after thedate of this Agreement and provide any additional information that the Federal Trade Commission or the Justice Department requests as promptly as practicable, and perform all other acts required of them under the HSR Act in order to satisfy the condition contained in Section 3.1(c) (HSR Act), in all cases in coordination with Public and Superholdings. The LLC Parties shall provide to Public and Superholdings the information with respect to the LLC Parties required by such filings or other filings to be made by Public or Superholdings under the HSR Act as is reasonably requested by Public or Superholdings as soon as possible, but no later than two business days after the date of such request. The LLC Parties shall pay the HSR Act filing fee, if any, relating to any filing requirement arising out of the LLC Parties' participation in the Parent Merger. (iii) LLC Parties' Consents. The LLC Parties shall use their reasonable best efforts to obtain the LLC Parties Consents. (c) Public's, Superholdings' and Merger Sub's Responsibilities. (i) Public's, Superholdings' and Merger Sub's Delegated Conditions. Public, Superholdings and Merger Sub shall have the responsibility for satisfying the following conditions ("Public's, Superholdings' and Merger Sub's Delegated Conditions"), for which Public, Superholdings and Merger Sub shall have the obligations set forth in this Section 4.1(c)(i). The LLC Parties shall reasonably cooperate with and assist Public, Superholdings and Merger Sub in connection with the following: (A) Section 3.3(a) (Public's, Superholdings' and Merger Sub's Representations True), for which Public's, Superholdings' and Merger Sub's obligation shall be as follows: (x) Public, Superholdings and Merger Sub shall take no action that will cause any of their representations and warranties to be or remain untrue or incorrect in any material respect and (y) Public, Superholdings and Merger Sub shall not omit any action that they would take in B-19 33 the ordinary course of prudent business, which omission will cause any of their representations and warranties to be or remain untrue or incorrect in any material respect; and (B) Section 3.3(b) (Public's, Superholdings' and Merger Sub's Compliance with Agreement), for which Public, Superholdings and Merger Sub shall have the obligations set forth elsewhere herein. (ii) HSR Act Filings. Public, Superholdings and Merger Sub shall make their HSR Act filings, if required, in compliance with such act as soon as possible after the date of this Agreement and provide any additional information that the Federal Trade Commission or the Justice Department requests as promptly as practicable, and perform all other acts required of them under the HSR Act in order to satisfy the condition contained in Section 3.1(c) (HSR Act); provided, however, that in no event shall Public, Superholdings or Merger Sub or any of their subsidiaries be required to divest, hold separate, offer for sale, abandon, limit its operation of or take similar action with respect to any assets or any business interest in connection with any Approval (including, without limitation under the HSR Act). Public shall pay the HSR Act filing fee relating to any filing requirement arising out of its participation in the Subsidiary Merger. (iii) Public's and Superholdings' Consents and Permits. Public and Superholdings shall use their reasonable best efforts to obtain the Public Consents and the Permits. 4.2 Preparation of the Proxy Statement, Form S-4 and Form S-1. (a) Preparation. Public and Superholdings shall prepare and file with the SEC as promptly as practicable, but no later than October 10, 2000 (the "SEC Filing Date") in accordance with the Securities Act of 1933, as amended (the "Securities Act"), on behalf of Superholdings, the Form S-4. Public and Superholdings shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Public and Superholdings shall keep the LLC Parties advised of the status of the filing and effectiveness of the Form S-4. (b) Proxy Statement and Form S-4. Public, Superholdings and, if requested by Public, LLC Holdings shall jointly prepare for inclusion in the registration statement on Form S-4 to be filed with the SEC by Public and Superholdings, on behalf of Superholdings, in connection with the issuance by Superholdings of shares of Superholdings Stock in the Reorganization (the "Form S-4") a proxy statement (the "Proxy Statement"), in accordance with the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations under the Exchange Act, with respect to the Reorganization, it being understood that Public and Superholdings may, in their sole discretion, include in the S-4 any shares of Superholdings Stock to be issued pursuant to any Sister Agreements and may include in the Proxy Statement any matters to be voted upon pursuant to any Sister Agreement. Public, Superholdings and LLC Holdings shall cooperate with each other in the preparation of the Proxy Statement. Public, Superholdings and LLC Holdings shall use reasonable best efforts to respond B-20 34 promptly to any comments made by the SEC with respect to theProxy Statement and to cause the Form S-4 to be declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC. Public and Superholdings shall use reasonable best efforts to cause the Proxy Statement to be mailed to the members of LLC Holdings (if applicable) and the Public stockholders, as determined by Public, at the earliest practicable date after the Form S-4 is declared effective by the SEC. The LLC Parties shall as promptly as practicable provide any information reasonably requested by Public or Superholdings or their respective counsel in connection with the preparation of the Proxy Statement and the S-4 and any amendments or supplements thereto. (c) Form S-1. If the shares of Superholdings Stock to be received by the members in the Reorganization are not registered on the Form S-4, then Public, Superholdings and LLC shall jointly prepare a registration statement on Form S-1 (or other appropriate form) to be filed with the SEC by Superholdings by July 31, 2001 in connection with the resale by the members of the shares of Superholdings Stock the LLC Parties receive pursuant to the terms of the Reorganization (the "Form S-1") in accordance with the Securities Act, it being understood that Public and Superholdings may, in their sole discretion, include in the Form S-1 any shares of Superholdings Stock issued pursuant to any Sister Agreement and not registered on the Form S-4. Public, Superholdings and LLC shall use reasonable best efforts to respond promptly to any comments made by the SEC with respect to the Form S-1 and to cause the Form S-1 to be declared effective under the Securities Act by October 1, 2001, or as promptly thereafter as practicable. If a Form S-1 is declared effective under the Securities Act, then Superholdings shall use reasonable best efforts to prepare and file such amendments and supplements to the Form S-1 and the prospectus used in connection therewith as may be necessary to keep the Form S-1 effective for a period of not less than one year from the later of the first day that the Form S-1 is declared effective or October 1, 2001; provided, however, that if the Superholdings Stock that the LLC Parties receive pursuant to the Reorganization becomes freely tradeable pursuant to Rule 144(k) of the Securities Act prior to the termination of the effective period, then Superholdings shall have no further obligation to keep the Form S-1 effective; provided, further, that, if in connection with a Sister Agreement, Superholdings agrees to registration rights of Superholdings Stock that are more beneficial than the registration rights contained herein, then the Members may substitute in their entirety the more beneficial registration rights for the registration rights in this Section 4.2(c). If the shares of Superholdings Stock to be received by the members in the Reorganization are registered on the Form S-4, then Public and Superholdings may satisfy their obligations under this Section 4.2(c) by filing a post-effective amendment to the Form S-4 in lieu of filing the Form S-1. (d) Public's and Superholdings' Actions. Public and Superholdings shall, as promptly as practicable, take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Superholdings Stock in connection with the Parent Merger, and LLC and LLC Holdings shall furnish all information concerning LLC, LLC Holdings and the Members as may be reasonably requested in connection with any such action. Public and Superholdings shall keep the LLC Parties advised of the status of any actions taken under any applicable state securities laws. B-21 35 4.3 Accountants' Letters. (a) From LLC Holdings. LLC Holdings shall use its reasonable best efforts to cause to be delivered to Public and Superholdings a letter of Melman, Alton & Co., the LLC Parties' independent certified public accountants, dated a date within two business days before the date on which the Form S-4 or Form S-1 shall become effective, and a letter of Melman, Alton & Co. dated a date within two business days before the Closing Date, each addressed to Public and Superholdings, in form and substance reasonably satisfactory to Public and Superholdings and customary in scope and substance for letters delivered by independent accountants in connection with similar such registration statements and permitting the use of the accountant's report in subsequent filings by Public or Superholdings under the Securities Act or Exchange Act. The LLC Parties shall use their reasonable efforts to cause to be delivered to Public and Superholdings a letter of Melman, Alton & Co. consenting to the inclusion of its report on LLC's audited financial statements in the Form S-4 and the Form S-1 and any other filings required by the Securities Act or Exchange Act. (b) From Public and Superholdings. Public and Superholdings shall each use its reasonable best efforts to cause to be delivered to LLC Holdings a letter of PricewaterhouseCoopers, LLP, Public's and Superholdings' independent certified public accountants, dated a date within two business days before the date on which the Form S-4 or Form S-1 registering shares of Superholdings Stock received by the Members of LLC Holdings, or anyamendment, shall become effective, or any supplement is filed, and a letter of PricewaterhouseCoopers, LLP, dated a date within two business days before the Closing Date, each addressed to LLC Holdings and the Members and customary in scope and substance for letters delivered by independent public accountants in connection with similar such registration statements. 4.4 Public Stockholders Meeting. Public shall take all action necessary, in accordance with the DGCL, the Exchange Act and other applicable law and its certificate of incorporation and bylaws, to convene and hold a special meeting of the stockholders of Public (the "Public Stockholders Meeting") as promptly as practicable after the date hereof for the purpose of considering and voting upon the Subsidiary Merger Agreement and the issuance of shares of Superholdings Stock pursuant to the Parent Merger. 4.5 Votes and Recommendations. The Board of Directors of Public shall (a) recommend that the stockholders of Public vote in favor of the adoption of the Subsidiary Merger Agreement and the issuance of shares of Superholdings Stock pursuant to this Agreement at the Public Stockholders Meetings, (b) cause such recommendation to be included in the Proxy Statement, (c) solicit proxies in favor of the adoption of the Subsidiary Merger Agreement and the issuance of shares of Superholdings Stock pursuant to this Agreement and (d) use reasonable best efforts to obtain the required votes of the stockholders of Public. B-22 36 4.6 LLC Members Meeting; LLC Holdings. If requested by Public, LLC and LLC Holdings shall take all action necessary, in accordance with the Missouri Limited Liability Company Act, the Exchange Act, other applicable law and its organizational documents, to convene and hold a special meeting of the members of LLC and LLC Holdings (the "Members Meeting") as promptly as practicable after the date hereof for the purpose of considering and voting upon this Agreement and to solicit proxies pursuant to the Proxy Statement in connection therewith. The Boards of Managers of LLC and LLC Holdings shall (a) recommend that the holders of the Members' Interests vote in favor of the adoption of this Agreement at the Members Meeting, (b) cause such recommendation to be included in the Proxy Statement, (c) solicit proxies in favor of the adoption of this Agreement and (d) use reasonable best efforts to obtain the Members Required Vote. 4.7 Public Announcements. The LLC Parties shall not issue any press release with respect to the transactions contemplated hereby. Public, Superholdings and Merger Sub may issue press releases with respect to the transactions contemplated hereby but, if practicable, shall allow LLC to review, and shall consult with LLC before issuing, any press release. 4.8 No Solicitation; Acquisition Proposals. (a) No Solicitation. During the period from and including the date of this Agreement to and including the Effective Time, the LLC Parties shall not, and shall not authorize or permit any Subsidiary, or any of its or their Affiliates, officers, directors, employees, agents or representatives (including without limitation any investment banker, financial advisor, attorney or accountant retained by the LLC Parties or any Subsidiary), to, directly or indirectly, initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries, any expression of interest or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal. (b) Approval. During the period from and including the date of this Agreement to and including the Effective Time, neither the Board of Managers of LLC or LLC Holdings nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Public, Superholdings or Merger Sub, the approval or recommendation of this Agreement or the transactions contemplated hereby. (c) Voting Agreement. Not later than August 7, 2000, the Members shall approve this Agreement. If requested by Public, the Members shall from time to time (i) vote, or consent, their Members' Interests in favor of the Parent Merger and against any Acquisition Proposal whether or not at a members meeting, (ii) take all reasonable actions in support of or to consummate as promptly as practicable the transactions contemplated hereby, (iii) take no action that will impede or impair the consummation of the transactions contemplated hereby, (iv) not grant to any other person or entity a proxy or other right to vote any Members' Interests, (v) not B-23 37 transfer or dispose of or agree to transfer or dispose of any Members' Interests and (vi) not exercise dissenters', appraisal or other rights to receive cash or other consideration instead of Superholdings Stock. In conjunction with the approval of this Agreement by LLC and its members, the Members shall cause LLC Holdings to (i) be formed, (ii) issue one unit of Members' Interests in LLC Holdings in exchange for one unit of Members' Interests in LLC, (iii) approve this Agreement and (iv) obtain its members' approval of this Agreement. (d) Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions provided for in this Agreement) involving LLC or LLC Holdings: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of LLC or LLC Holdings and its Subsidiaries, taken as a whole, or any substantial portion of its assets or business, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for any of the outstanding Members' Interests or the filing of a registration statement under the Securities Act in connection therewith; (iv) issuance of any Members' Interests; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. 4.9 Leases. Superholdings and the Members, through one or more entities controlled by them, shall use their reasonable best good faith efforts to, within two weeks after the date hereof, enter into leases (the "Leases") by LLC of the assets described on the Disclosure Schedule to this Section, which shall include, among other things, the St. Louis office and certain of the assets transferred to the Members pursuant to Section 4.16 (Asset Transfers). The Leases shall provide that LLC will pay $1,400 per month for the initial terms of the Leases for towers within the LLC footprint as of June 30, 2000, with such tower rents commencing on the Sprint network ready date, will provide a return based on dollars invested in the switch and retail locations that is consistent with comparable lease rates within the respective markets (which will be on a triple-net basis if leases in the market are triple-net leases) and shall otherwise be on terms reasonably satisfactory to Superholdings that are similar to other comparable leases to which either Public or LLC are parties with nonaffiliates; provided, however, that the failure to enter into the Leases, for any reason, shall not be a breach of this Agreement. 4.10 Affiliates and Certain Members. If requested by Public, prior to the Closing Date, LLC shall deliver to Public and Superholdings a letter identifying all persons who are, at the time the Parent Merger is submitted for approval to the members of LLC or LLC Holdings, "affiliates" of LLC or LLC Holdings for purposes of Rule 145 under the Securities Act. If requested by Public, on or prior to the Closing Date, LLC shall cause each such person to deliver to Public and Superholdings a written agreement (an "Affiliate Letter"). The certificates representing Superholdings Stock received by such affiliates in the Parent Merger shall bear a customary legend regarding applicable Securities Act restrictions. B-24 38 4.11 Pooling of Interests. If requested by Public or Superholdings, the parties shall use their reasonable best efforts to cause the Reorganization to be accounted for as a pooling of interests under Opinion 16 of the Accounting Principles Board and applicable SEC rules and regulations, and to cause such accounting treatment to be accepted by each of the parties' independent certified public accountants and by the SEC. None of the parties shall knowingly take any action that would cause such accounting treatment to be unattainable. 4.12 Employment Agreements. Each party shall use his or its reasonable best efforts to cause Superholdings or any of its Subsidiaries and each of Randy Talley and Suzanne Mears to execute and deliver at Closing an employment agreement (collectively, the "Employment Agreements"), reasonably acceptable to Superholdings; provided, however, that the failure to enter into any Employment Agreement, for any reason, shall not be a breach of this Agreement. The Employment Agreements will provide, among other things, that the employees will be eligible for compensation, benefits, and stock options under Superholdings' guidelines and policies, which shall be substantially identical to Public's guidelines and policies existing on the date hereof for similarly situated employees. Benefits will include Superholdings' matching of the employees' contributions under Superholdings' 401(k) plan, if applicable, and consistent with Superholdings' employment practices. Benefits for each employee will also include credit for eligibility and vesting purposes for all past services of such employee with LLC. 4.13 Consulting Agreements. Superholdings, or Public, as applicable, and the Members shall use their reasonable best efforts to enter into, and shall use their reasonable best efforts to cause the Members and Kay Gabbert ("K.G."). to enter into, five-year consulting agreements (collectively, the "Consulting Agreements") reasonably acceptable to Superholdings, or Public, as applicable; provided, however, that the failure to enter into any Consulting Agreement, for any reason, shall not be a breach of this Agreement. The Members' Consulting Agreements will be with Public and will provide, among other things, that the Members will each receive annual compensation of $125,000, to be paid monthly, and will be reimbursed for reasonable, approved expenses incurred by them while conducting business for Superholdings. K.G.'s Consulting Agreement will be with Public and will provide, among other things, that it will be effective as of July 1, 2000, that she will receive monthly compensation of $1,000, and that she will receive options for 40,000 shares of Public common stock vesting over five years (beginning with July 1, 2000) at an exercise price of 90% of the market value of Public common stock on July 1, 2000. At the Closing, Superholdings shall offer K. G. a five-year consulting agreement with annual compensation of $100,000 payable monthly. 4.14 Reissuance of LLC Audited Financial Statements. The LLC Parties shall cause LLC's and LLC Holdings' audited financial statements that are required to be included in the Form S-1 and, if necessary, Form S-4, to be reissued in accordance with GAAP and in a form reasonably acceptable to Superholdings. 4.15 Master Lease Agreement. Superholdings and the Members through one or more entities controlled by them shall use their reasonable best good faith efforts to enter into a master lease agreement (the "Master Lease Agreement") reasonably acceptable to Superholdings providing for the first right to negotiate tower space leases on a "build-to-suit" basis within B-25 39 Superholdings' present and future territory with terms similar to Public's current leases for towers. The Master Lease Agreement will provide, among other things, that (i) the Master Lease Agreement will have a five-year term, will not terminate during that term if Superholdings retains its Sprint PCS affiliation, and will be subject to five-year extensions if agreed by all parties thereto, (ii) the Master Lease Agreement will be subject to performance criteria, (iii) Public is currently a party to contracts for certain tower space and that, to prevent a violation of existing contracts, new contracts with the Members will have to be negotiated after the Phase I build-out under the existing contracts is complete and (iv) the Master Lease Agreement will extend to any acquisitions by Superholdings. The Master Lease Agreement will also provide that from time to time as Superholdings determines that it requires additional tower sites, it will notify Tower Company and provide Tower Company with information concerning the proposed locations of such sites, the technical requirements and any available search rings. After Tower Company has been provided with such information, Superholdings shall grant Tower Company the exclusive right for a period of 30 days to negotiate with Superholdings for Tower Company to provide such tower sites. Superholdings agrees that during such 30-day period it will negotiate with Tower Company in good faith for Tower Company to provide such tower sites. After such 30 day period, Superholdings may obtain such tower sites from third parties; provided, that, if Superholdings has not entered into an agreement to obtain such tower sites within 12 months after such notice to Tower Company, Superholdings shall again comply with the foregoing notice and negotiation procedure. Superholdings and the Members shall use their reasonable best efforts to agree upon the final form of the Master Lease Agreement within two weeks of the date of this Agreement. 4.16 Asset Transfers. Prior to the Closing Date, LLC shall transfer to the Members or, at the election of the Members, Tower Company or other entities controlled by them the assets listed on the Disclosure Schedule to this Section 4.16, which shall consist, among other things, of certain real estate, towers, Nortel base stations, and retail store sites that were funded directly or indirectly with capital contributions by the Members. The total fair market value of the assets transferred plus the cash received by the Members pursuant to Section 1.2 (a)(ii) (Cash) hereof shall not exceed $12,000,000 or such other amount equal to the Members' actual capital investment that the parties shall agree upon, and the maximum amount of cash shall not exceed $4,000,000. If any assets of LLC or LLC Holdings other than those listed on the Disclosure Schedule to this Section 4.16 are transferred to the members or Tower Company, then the aggregate cost of such assets shall be deducted from the amount of cash to be received by the Members pursuant to Section 1.2(a)(ii) (Cash) hereof. Upon execution of this Agreement or as soon thereafter as practicable, LLC shall submit to Public a proposed fair market value of the transferred assets. If the parties cannot agree on the fair market value of the transferred assets within 30 days of the date hereof, then the fair market value will be determined by an independent third party appraiser selected by Public and subject to LLC's approval (which approval shall not be unreasonably withheld). Public shall bear the cost of such appraisal, unless the value determined by the appraiser is more than 10% greater than the value originally proposed by LLC, whereupon LLC shall bear such costs. 4.17 Joint Venture Development Agreement. Superholdings and the Members or an B-26 40 entity controlled by them will use their reasonable best good faith efforts to enter into a joint venture development agreement (the "Joint Venture Development Agreement") reasonably acceptable to Superholdings providing for the formation of international joint ventures on a non-exclusive basis. The Joint Venture Development Agreement will provide, among other things, that (i) entry by Superholdings into any specific joint venture will be conditioned upon and subject to Superholdings' approval of a business plan for the joint venture, (ii) Superholdings will finance all costs of any joint venture into which it enters and (iii) each joint venture will be owned 50% by the Members and 50% by Superholdings, provided that Superholdings will be the manager of the joint venture. 4.18 Resale Agreement. Superholdings and its subsidiaries and the Members or an entity controlled by them will use their reasonable best good faith efforts to enter into a resale agreement (the "Resale Agreement") reasonably acceptable to Superholdings and its subsidiaries permitting the Members or their controlled entities to buy air time at a discount for resale on a basis no less favorable than any other similar agreement Superholdings may have; provided, however, that the failure to enter into any Resale Agreement, for any reason, shall not be a breach of this Agreement. 4.19 Stock Options. At the Closing Superholdings will cause stock options to purchase a total of 75,000 shares of Superholdings Common Stock to be issued to the employees and consultants of LLC listed on a list to be provided by the Members prior to Closing with an exercise price of 90% of the market value of Superholdings common stock on the date of grant and other terms as specified on such list. 4.20 Other Assets. Prior to the Closing LLC will assign to the Members LLC's FCC F Block licenses, the contract rights LLC has to the Cause of Action described on the Schedule to this Section 4.20 (the "Cause of Action") and all Proceedings. The Members will be entitled to all damages recovered with respect to the Cause of Action and the Proceedings and will assume all liabilities and obligations with respect to the Cause of Action and the Proceedings, including the costs and liabilities with respect to any counterclaims filed with respect to the Cause of Action or the Proceedings. After the Closing, Superholdings shall cooperate with the Members in the prosecution of the Cause of Action by making employees available as witnesses and providing documents, provided that the Members shall bear all expenses related thereto. 4.21 Fee for Consent of Senior Lender. If the Closing fails to occur due to a Breach by one or more of the LLC Parties, then Superholdings, Public and Merger Sub shall be entitled to receive from the LLC Parties in addition to any other remedies pursuant to this Agreement, at law or in equity, an amount equal to the consent fee paid under the Credit Agreement to obtain consent to the Parent Merger. If the Closing fails to occur due to a Breach by Superholdings, Public or Merger Sub, then Section 10.2 (e) (Termination Fee) shall apply. If the Closing fails to occur for any other reason, then each of the LLC Parties, on one hand, and Superholdings, Public and Merger Sub, on the other, shall be entitled to receive an amount equal to one half of the consent fee paid under the Credit Agreement to obtain consent to the Parent Merger. 4.22 Sprint Payments by Members. The Members shall pay when due all penalties B-27 41 owed to Sprint pursuant to Addendum VII to the Sprint Management Agreement except as provided in Section 4.23 (Superholdings Sprint Payments). 4.23 Superholdings Sprint Payments. At the Closing, Superholdings shall make the following payments to Sprint: (a) if the date of a Hard Launch or the actual Full Buildout Date in any A Market or B Market (as such terms are defined in the Sprint Management Agreement) is on or after the 6th day and on or before the 60th day after the Contractual Launch Date or the Full Buildout Date as set forth in Exhibit 2.1 to Addendum VII (as such terms are defined in the Sprint Management Agreement), respectively, Superholdings shall deliver to Sprint either (1) the number of shares of Superholdings Stock equal to the product of (i) the number of shares of Superholdings Stock LLC owes Sprint pursuant to Addendum VII multiplied by (ii) 0.25; or (2) an amount of cash equal to the product of (i) the cash amount LLC owes Spring pursuant to Addendum VII multiplied by (ii) 0.25; (b) if the date of a Hard Launch or the actual Full Buildout Date in any A Market or B Market is on or after the 61st day and on or before the 120th day after the Contractual Launch Date or the Full Buildout Date as set forth in Exhibit 2.1 to Addendum VII, respectively, Superholdings shall deliver to Sprint either (1) the number of shares of Superholdings Stock equal to the product of (i) the number of shares of Superholdings Stock LLC owes Sprint pursuant to Addendum VII multiplied by (ii) 0.5; or (2) an amount of cash equal to the product of (i) the cash amount LLC owes Sprint pursuant to Addendum VII multiplied by (ii) 0.5; and (c) if the date of a Hard Launch or the actual Full Buildout Date in any A Market or B Market is after the 120th day after the Contractual Launch Date or the Full Buildout Date as set forth in Exhibit 2.1 to Addendum VII, respectively, Superholdings shall deliver to Sprint either (1) the number of shares of Superholdings Stock LLC owes Sprint pursuant to Addendum VII; or (2) the cash amount LLC owes Sprint pursuant to Addendum VII. 4.24 Legends. The Members consent to the placement of a legend on the shares of Superholdings Stock to be issued to each of the LLC Parties in the Reorganization, which legend shall be substantially as follows: "THESE SECURITIES ARE NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE DISTRIBUTED FOR VALUE, NOR MAY THESE SECURITIES BE TRANSFERRED ON THE BOOKS OF SUPERHOLDINGS, IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUPERHOLDINGS HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO SUPERHOLDINGS AND ITS COUNSEL, THAT SUCH REGISTRATION IS B-28 42 NOT REQUIRED." 4.25 Directors. At the Effective Time, M.R. and S.R. shall be appointed to the Superholdings Board of Directors at the Closing Date as class III and class II directors, respectively, with M.R. nominated to serve as vice-chairman of the Board. Class II directors of Superholdings will stand for election at the annual meeting of Superholdings stockholders to be held in 2002. Class III directors of Superholdings will stand for election at the annual meeting of Superholdings stockholders to be held in 2003. ARTICLE 5 Termination 5.1 Reasons for Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval thereof by the stockholders of Public, Superholdings or Merger Sub or by the members of the LLC or LLC Holdings, only by following the termination procedures set forth in this Article, for the following reasons: (a) By Mutual Consent. By the mutual written consent of Public, Superholdings, LLC and LLC Holdings, duly authorized by the Boards of Directors of Public, Superholdings and by LLC's and LLC Holdings' Board of Managers. (b) By Public or Superholdings. By Public or Superholdings after compliance with the procedure set forth in this Article 5, if (i) any of the LLC Parties' representations or warranties contained herein is or becomes or, when executed any Related Agreement would be, untrue or incorrect in any respect, except as will not constitute an LLC Material Adverse Change, (ii) any of the LLC Parties fails to perform any of his, her or its covenants or agreements contained herein, or would be in breach of his or its covenants upon execution of any Related Agreement, in any respect, except as will not constitute an LLC Material Adverse Change, or (iii) any of Public's, Superholdings' or Merger Sub's conditions to the consummation of the transactions provided for herein shall have become impossible to satisfy. Notwithstanding the foregoing, Public or Superholdings may only terminate this Agreement pursuant to clauses (i) or (ii) above even though an LLC Material Adverse Change has occurred, if the LLC Material Adverse Change (A) occurred on or prior to the date of this Agreement, (B) was caused after the date of this Agreement by the actions of the Members, the Board of Managers of LLC or LLC Holdings, or any agent of LLC or LLC Holdings, which agent is not under the supervision of Public or any of its Affiliates pursuant to the Services Agreement or (C) was caused by the failure of any of the persons identified in clause (B) to take actions that (x) would be taken in the ordinary course of LLC's and LLC Holdings' business in the exercise of reasonable judgment and (y) have not been delegated to Public under the Services Agreement. (c) By LLC. By LLC, after compliance with the procedure set forth in this Article 5, if (i) any of Public's, Superholdings' or Merger Sub's representations or warranties contained herein is or becomes or, when executed any Related Agreement would be, untrue or B-29 43 incorrect in any material respect, except as will not constitute a Public Material Adverse Change, (ii) Public, Superholdings or Merger Sub fails to perform its covenants or agreements contained herein, or would be in breach of its respective covenants upon execution of any Related Agreement, in any respect, except as will not have a Public Material Adverse Change at or after the Closing, or (iii) any of LLC's conditions to the consummation of the transactions provided for herein shall become impossible to satisfy. (d) Drop Dead Date. By any of Public, Superholdings or the LLC if the Effective Time shall not have occurred on or before March 31, 2001 (the "Termination Date"), otherwise than as a result of any material breach of any provision of this Agreement by the party seeking to effect such termination; provided, however, that the Termination Date shall be extended by the number of days, if any, to cure any curable matter that is the subject of a notice under Section 5.3 (Public and Superholdings Termination Procedure) or Section 5.4 (LLC's Termination Procedure). (e) Prohibition of the Reorganization. By any of Public, Superholdings or LLC if any federal or state court of competent jurisdiction or other governmental entity shall have issued an order, decree or ruling, or taken any other action permanently restraining, enjoining or otherwise prohibiting the Reorganization and such order, decree, ruling or other action shall have become final and non-appealable, provided that neither party may terminate this Agreement pursuant to this Section 5.1(e) if it has not complied with its obligations under Section 4.1(a) (Joint Responsibilities). provided, however, except pursuant to Section 5.1(d) (Drop Dead Date), the right to terminate this Agreement under this Section 5.1 shall not be available to any party (i) that is in material breach of its obligations hereunder or (ii) whose failure to fulfill its obligations or to comply withits covenants under this Agreement has been the cause of, or resulted in, the failure to satisfy any condition to the obligations of either party hereunder. 5.2 Notice of Problems. Each party will promptly give written notice to the other parties when any of them becomes aware of the occurrence or failure to occur, or the impending or threatened occurrence or failure to occur, of any fact or event that would cause or constitute, or would be likely to cause or constitute (i) any of its representations or warranties contained herein being or becoming untrue or incorrect, (ii) its failure to perform any of its covenants or agreements contained herein or (iii) any of its Delegated Conditions, or any condition to the obligation of the parties contained in Section 3.1 (Joint Conditions), being or becoming impossible to satisfy. No such notice shall affect the representations, warranties, covenants, agreements or conditions of the parties hereunder, or prevent any party from relying on the representations and warranties contained herein. 5.3 Public and Superholdings Termination Procedure. If, pursuant to the Services Agreement, the chief financial officer of Public becomes aware of circumstances that lead him to conclude that the LLC Parties are in Breach of this Agreement or any Related Agreement, then B-30 44 the chief financial officer shall deliver a notice to the LLC Parties of such Breach, specifying the factual basis therefor in reasonable detail. Furthermore, if Public or Superholdings discovers, by reason of a notice given pursuant hereto or otherwise, circumstances that would give it the right to terminate this Agreement pursuant to Section 5.1(b) (By Public or Superholdings) (other than pursuant to clause (iv) thereof), then Public or Superholdings may deliver a notice to the LLC Parties of such circumstances, specifying the factual basis therefor in reasonable detail. The LLC Parties shall have the right to cure any such matter within 20 business days following the date of delivery of such notice. If such circumstances create a termination right pursuant to clauses (i), (ii), or (iii) of Section 5.1(b) (By Public or Superholdings), then after such notice and the LLC Parties' failure to cure, either of Public or Superholdings may terminate this Agreement by giving a notice of termination to the LLC Parties. If the circumstance described in clause (iv) of Section 5.1(b) (By Public or Superholdings) occurs, Public or Superholdings may terminate this Agreement by giving written notice of termination to the LLC Parties. 5.4 LLC's Termination Procedure. If LLC discovers by reason of a notice given pursuant hereto or otherwise, circumstances that would give it the right to terminate this Agreement pursuant to Section 5.1(c) (By LLC), then LLC shall deliver a notice to Public, Superholdings and Merger Sub of such circumstances, specifying the factual basis therefor in reasonable detail. Public, Superholdings and Merger Sub shall have the right to cure any such matter within 20 business days following the date of delivery of such notice. Upon such notice and upon Public's, Superholdings' or Merger Sub's failure to cure, LLC may terminate this Agreement by giving a notice of termination to Public, Superholdings and Merger Sub. 5.5 Effect of Termination. Upon termination hereof pursuant to this Article 5, no party shall have any liability or continuing obligation to another party arising out of this Agreement, or out of actions taken in connection herewith, except that Article 10 (Indemnification) and Article 11 (Miscellaneous) shall survive termination hereof. Notwithstanding the foregoing, termination hereof shall not relieve any party from its liability for (i) the failure, prior to termination, of such party to perform or comply with its covenants or agreements or (ii) the representations or warranties made by such party being untrue or incorrect when made. In addition to the foregoing, (a) if LLC terminates this Agreement because the issuance of the shares of Superholdings Stock pursuant to the Parent Merger or the adoption of the Subsidiary Merger Agreement shall not have been adopted by the holders of the requisite number of shares of capital stock of Public (including, without limitation, pursuant to Section 4.4 (Public Stockholders Meeting)) in the manner required pursuant to Public's certificate of incorporation and bylaws, the DGCL, or the rules of The Nasdaq Stock Market, as applicable, or other applicable law, when all other conditions to Closing are satisfied or waived, then Public shall pay a termination fee of $7.5 million to the LLC Parties, and (b) if Public terminates this Agreement because it was not adopted by the requisite number of members interests of LLC Holdings (including, without limitation, pursuant to Section 4.6 (LLC Members Meeting; LLC Holdings)) in the manner required pursuant to LLC Holdings' organizational documents, the Missouri Limited Liability Company Act and other applicable law, if such approval is necessary, when all other conditions to Closing are satisfied or waived, then the LLC Parties shall pay a B-31 45 termination fee of $7.5 million to Public. ARTICLE 6 Representations and Warranties of LLC and the Members In this Article 6, LLC, LLC Holdings and the Subsidiaries are referred to collectively as the "Companies." The Companies (solely prior to Closing and with the understanding that the representations and warranties by or concerning LLC Holdings shall become effective on the date LLC Holdings enters into this Agreement) and the Members, jointly and severally, represent and warrant to Public, Superholdings and Merger Sub that except as set specifically forth on the Disclosure Schedules (which exceptions shall relate only to the Sections specifically identified in such Disclosure Schedules): 6.1 LLC; Entry Into Agreements. (a) Organization and Good Standing. Each of the Companies is a limited liability company duly organized and validly existing under the laws of the State of Missouri and is in good standing under such laws. Each of the Companies has all requisite power and authority to own, lease and operate all properties and assets owned or leased by it and to conduct its business as previously and currently conducted by it. Each of the Companies is qualified to do business and is in good standing in each jurisdiction in which it is required to be so qualified, except where the lack of such qualification would not have a material adverse effect on such Company. The Disclosure Schedule to this Section 6.1(a) lists all jurisdictions in which any Company is qualified to do business as a foreign corporation and indicates which of the Companies is so qualified in each such jurisdiction. (b) Validity and Authorization; Power and Authority. Each of the Companies has full power and authority to consummate the Parent Merger and to execute, deliver and perform this Agreement, the Related Agreements and the other instruments called for hereby or thereby to which it is a party. The only vote of the holders (the "Members Required Vote") of the Members' Interests that is necessary to approve this Agreement, the Related Agreements, the Parent Merger, and the transactions contemplated hereby is the affirmative vote of the holders of 100% of the Members' Interests. No other action by the LLC Parties is necessary to approve this Agreement, the Related Agreements, the Parent Merger, and the transactions contemplated hereby or thereby. This Agreement, the Related Agreements and the other instruments called for hereby or thereby to which it is a party have been duly authorized, executed and delivered by each of the Companies and upon obtaining the Members Required Vote, will constitute (or, in the case of Related Agreements or instruments called for hereby or thereby, to be executed by such Company at or before the Closing, upon execution will constitute) the legal, valid and binding obligation of such Company, enforceable against such Company in accordance with its terms. B-32 46 The Members have full requisite power and authority (or if natural persons, capacity) to execute, deliver and perform this Agreement, the Related Agreements and the other instruments called for hereby or thereby to which the Members are a party. This Agreement has been duly executed and delivered by the Members and constitutes (or, in the case of Related Agreements or instruments called for hereby, to be executed by the Members at or before the Closing, will constitute) the legal, valid and binding obligation of the Members, enforceable against the Members in accordance with its terms. The Disclosure Schedule to this Section 6.1(b) sets forth (i) the identity of all of the Members and (ii) their respective ownership of units of Members' Interests, including fully-paid units and subscribed, but unpaid, units. The consent or vote of the Members in favor of the transactions contemplated by this Agreement and the Related Agreements was or will be duly obtained pursuant to the organizational documents of LLC and LLC Holdings and all applicable state law. (c) Subsidiaries. Except as set forth in the Disclosure Schedule to this Section 6.1(c), no Company owns a majority of the capital stock or other equity interests entitled to vote generally in the election of the board of directors, board of managers, general partners or similar governing body of, directly or indirectly, any other corporation, partnership, association or other business entity and no Company is a party to any agreement relating to the acquisition or disposition of such an interest (such scheduled entities, the "Subsidiaries"). The Subsidiaries are duly organized and validly existing under the laws of their states of organization and are in good standing under such laws. The Subsidiaries have all requisite power and authority to own, lease and operate all properties and assets owned or leased by them and to conduct their business as previously and currently conducted by them. The Subsidiaries are qualified to do business and are in good standing in each jurisdiction in which they are required to be so qualified, except where the lack of such qualification would not have a material adverse effect on the Subsidiaries. The Disclosure Schedule to this Section 6.1(c) lists all jurisdictions in which the Subsidiaries are respectively qualified to do business as a foreign entity. LLC has good, valid and marketable title to all of the issued and outstanding equity interests of each of the Subsidiaries, free and clear of any Liens. (d) No Conflict. Except as set forth in the Disclosure Schedule to this Section 6.1(d), neither the execution, delivery or performance of this Agreement or the Related Agreements, nor the consummation of the Parent Merger or the transactions contemplated hereby or thereby will (i) result in any violation of the terms of, (ii) contravene or conflict with, (iii) accelerate the performance of the obligations required under, (iv) constitute a default under, (v) give any right of termination or cancellation under, (vi) give any right to make any change in any of the liabilities or obligations under, the certificate of incorporation or similar organizational documents, bylaws, regulations or operating agreement of any Company, as appropriate, any Order, or any agreement, contract, note, bond, debenture, indenture, mortgage, deed of trust, lease, license, judgment, decree, order, law, rule or regulation or other restriction applicable to any Company or any Member or to which any Company or any Member is a party or by which any Company or any Member or their respective property or assets are bound or affected or (vii) B-33 47 result in a material adverse effect on any Company. Neither the execution, delivery and performance of this Agreement or the Related Agreements, nor the consummation of the transactions contemplated hereby or thereby will result in the creation of any Lien upon any of the properties or assets of any Company or the Members' Interests. No Member shall have the right to assert dissenters' or appraisal rights under applicable state law or otherwise have the right to demand cash or other payment for Members' Interests in the Parent Merger, other than the consideration provided in Section 1.2 (Terms of the Merger). (e) LLC Parties Consents Required. The Disclosure Schedule to this Section 6.1(e) lists all material consents, approvals or authorizations of third parties required in connection with each party's (other than Public's, Superholdings' and Merger Sub's) valid execution, delivery or performance of this Agreement and the Related Agreements or the consummation of the Parent Merger or the Subsidiary Merger or any of the transactions contemplated hereby or thereby on the part of any of them (collectively, the "LLC Parties Consents"), including but not limited to the consents required under the Contracts and consents required in connection with the Approvals to be obtained by the LLC Parties and Licenses. The Members have taken, or on or prior to Closing the Members shall have taken, all other limited liability company actions necessary for the consummation by the Companies of the transactions contemplated by this Agreement and the Related Agreements. (f) State Takeover Statutes. No state takeover statute is applicable to any Company in connection with this Agreement, the Parent Merger or the other transactions contemplated hereby. 6.2 Financial Information. (a) Financial Statements; Books and Records. Included in the Disclosure Schedule to this Section 6.2(a) are true and correct copies of (i) the audited consolidated balance sheets for LLC and the Subsidiaries at December 31, 1999 and the related statement of profit and loss and cash flows for the periods then ended, (ii) the unaudited consolidated balance sheet for the Subsidiaries at March 31, 2000 and the related statement of profit and loss for the three-month period then ended prepared internally by LLC and (iii) when delivered pursuant hereto, similar financial statements for each additional month ending after the date hereof (collectively, the "LLC Financial Statements"). The LLC Financial Statements fairly present the financial position of LLC and the Subsidiaries as of the dates thereof and the results of LLC's and the Subsidiaries' operations and cash flows for the periods then ended, in accordance with GAAP, except for the variances from GAAP set forth in the notes to the LLC Financial Statements, subject, in the case of the LLC Financial Statements listed in items (ii) and (iii) of the immediately-preceding paragraph, to normal recurring period-end adjustments and absence of notes and a statement of cash flows. LLC maintains a standard system of accounting, including without limitation internal controls, established and administered in accordance with GAAP, except for the variances from GAAP set B-34 48 forth in the notes to the LLC Financial Statements. LLC's books and records (including without limitation all financial records, business records, minute books, ownership transfer records, customers lists, referral source lists and records pertaining to services or products delivered to customers) (i) are complete and correct in all material respects and all transactions to which LLC is or has been a party are accurately reflected therein, (ii) reflect all discounts, returns and allowances granted by LLC with respect to the periods covered thereby, (iii) have been maintained in accordance with customary and sound business practices in LLC's industry, (iv) form the basis for the LLC Financial Statements and (v) accurately reflect the assets, liabilities, financial position, results of operations and cash flows of LLC. LLC's management information systems are adequate for the preservation of relevant information and the preparation of accurate reports. "GAAP" shall mean those generally accepted accounting principles and practices which are used in the United States and recognized as such by the American Institute of Certified Public Accountants acting through its Accounting Principles Board or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof and which are consistently applied for all periods, so as to properly reflect the financial position, results of operations and operating cash flow on a consolidated basis of the party, except that any accounting principle or practice required to be changed by the Accounting Principles Board or Financial Accounting Standards Board (or other appropriate board or committee) in order to continue as a generally accepted accounting principle or practice may be so changed for periods for which such change is applicable. (b) Conduct of Business. Except as specifically contemplated herein, since March 31, 2000, no Company has (i) changed its authorized or issued members' interests; granted any option or right to purchase members' interests; issued any security convertible into members' interests; granted any registration rights; purchased, redeemed, retired or otherwise acquired any members' interests; or declared or paid any distribution or payment in respect of members' interests; (ii) amended its organizational documents or regulations or operating agreement; (iii) sold or transferred (other than in the ordinary course of business) any assets with a fair market value in excess of $50,000 individually, or $100,000 in the aggregate; (iv) mortgaged, pledged or subjected to any Lien or other encumbrance any assets; (v) except as set forth in the LLC Financial Statements, incurred or become subject to any debt, liability (including indemnification, guaranty and repurchase obligations) or lease obligation, other than current liabilities incurred in the ordinary course of business that do not exceed $50,000 individually, or $100,000 in the aggregate; (vi) incurred obligations or entered into contracts outside of the ordinary course of business or providing aggregate payments in excess of $100,000; (vii) suffered any damage, destruction or loss of any assets in the aggregate in excess of $100,000; (viii) experienced any equipment malfunction that materially interferes with the conduct of its business; (ix) waived or relinquished any rights or canceled or compromised any debt or claim owing to it, in either case without adequate consideration or not in the ordinary course of business, in excess of $100,000 in the aggregate; (x) made any change in its accounting methods or practices or increased any reserves for Taxes; (xi) made any material change in its billing and collection practices and procedures; (xii) paid any bonuses or made any increase in B-35 49 the compensation, commissions or benefits payable or to become payable to any of its officers, directors, employees, consultants or agents over the amounts paid or payable as of such date, or entered into or terminated any employment, consulting, deferred compensation, severance or bonus agreement with any of such parties, or made any loan, or commitment to loan, monies to any such parties, other than customary cash travel advances which do not exceed $100,000 in the aggregate at any time; (xiii) declared or made any dividend, payment or distribution to its or LLC's members other than ordinary employment compensation; (xiv) entered into any transaction with any of its or LLC's Affiliates (including without limitation by paying, distributing or transferring any funds or assets to the members of LLC, whether in their capacity as members of LLC or in any other capacity, other than the payment of employment compensation to members of LLC who are employees); (xv) made any capital expenditures except as set forth in the budget model attached as the Disclosure Schedule to this Section 6.2(b); (xvi) acquired any business or business operations or (xvii) agreed to do any of the foregoing. (c) No Material Adverse Effect. Except as contemplated by this Agreement, since the date of the most recent LLC Financial Statements delivered prior to the date hereof, each Company has conducted its business only in the ordinary course consistent with past practice and there has been no event or occurrence that has caused a material adverse effect on such Company other than (i) operating losses in the ordinary course of business, (ii) economic conditions affecting the U.S. economy generally or the telecommunications industry generally or (iii) delays in completing LLC's buildout for which LLC may incur a penalty under Addendum VII to the Sprint Management Agreement. (d) Projections. The forecasts and projections (the "Projections") attached as the Disclosure Schedule to this Section 6.2(d) have been prepared on the basis of the assumptions set forth therein and are arithmetically correct. As of the date of this Agreement, all of the estimates and assumptions upon which the Projections are based were and are believed by each Company to be reasonable, and no Company has reason to believe that the Projections or the assumptions underlying the Projections, taken as a whole, would be required to be revised negatively in any material respect. 6.3 Members' Interests. (a) Capitalization. The authorized and issued and outstanding equity interests of each Company are as set forth in the Disclosure Schedule to this Section 6.3(a). There are no other equity interests of any Company either authorized or outstanding. All of the issued and outstanding units have been duly authorized and validly issued, are fully paid and nonassessable and are free and clear of any preemptive rights. No certificates have been issued to represent the Members' Interests or the equity interests of any Company. There are no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, issued by, or binding upon, any Company for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities. The Disclosure Schedule to this Section 6.3(a) identifies the holders of all of the equity interests of each Company. (b) Capitalization of LLC Holdings. Upon formation, the Members' Interests B-36 50 of LLC Holdings shall consist of 20,000 units. There will be no other equity interests of LLC Holdings either authorized or outstanding. All of the issued and outstanding units will be duly authorized and validly issued, fully paid and nonassessable and free and clear of any preemptive rights. No certificates will be issued to represent the Members' Interests of LLC Holdings. There will be no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, issued by, or binding upon, LLC Holdings for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities. The Disclosure Schedule to this Section 6.3(b) identifies the holders of all of the Members' Interests of LLC Holdings. The formation of LLC Holdings and its acquisition of LLC as contemplated hereby will result in LLC Holdings becoming the sole owner of LLC, holding its interest in LLC free and clear of Liens other than a pledge under the Credit Agreement. (c) Ownership and Transfer by Members. Each Member represents that it has good, valid and marketable title to the units of Members' Interests owned by it, free and clear of any Liens other than the pledge under the Credit Agreement. Each Member represents that it is not a party to any contract, agreement or understanding (other than this Agreement) relating to the issuance, sale, redemption, purchase, repurchase, acquisition or other transfer or voting of any units of Members' Interests or any other equity security of any Company, other than LLC's operating agreement. There is no plan or intention on the part of any Member to sell, exchange, transfer or otherwise dispose of any Members' Interests to be received by such Member. Consummation of the transactions contemplated by this Agreement will result in Superholdings becoming the sole owner of LLC Holdings and LLC, holding its interests in LLC Holdings and LLC free and clear of Liens. 6.4 Assets. (a) Personal Property. (i) Title. Except asset transfers to the Members contemplated hereby, LLC or a Subsidiary is the sole owner of the assets reflected in the LLC Financial Statements and has good and marketable title to all such assets that are personalty (the "Personal Property") (other than the leased Personal Property described below), in each case free and clear of all Liens, except for (A) liens for non-delinquent taxes and assessments, (B) liens of lessors arising under statute (C) other claims and encumbrances, charges or statutory liens that do not materially detract from the value of, or impair the use or transfer of, such Personal Property, (D) inchoate statutory liens for amounts not yet payable and (E) the liens securing indebtedness under the Credit Agreement ("Permitted Liens"). For purposes hereof, "Liens" shall mean security interests, liens (choate or inchoate), encumbrances, mortgages, pledges, equities, charges, assessments, easements, covenants, restrictions, reservations, defects in title, encroachments and other burdens, whether arising by contract or under law. With respect to any Personal Property that is leased, LLC or the applicable Subsidiary is in compliance in all material respects with each such lease and is the sole holder of a valid and subsisting leasehold interest, free and clear of any Liens, other than Permitted Liens. The Disclosure Schedule to this Section 6.4(a)(i) lists all lease agreements, service agreements or other agreements related to leased Personal Property (the "Equipment Leases"). B-37 51 (ii) Inventory. LLC maintains an inventory of telephones and accessories as required under LLC's agreements with Sprint, which inventory is reflected as required by GAAP in the LLC Financial Statements and covered by the manufacturers' applicable warranties. (iii) Facilities and Equipment. All buildings, facilities, offices, improvements on real estate, fixtures, machinery, equipment, computer hardware and software, vehicles and other properties, owned or leased by the Company for the conduct of its business (A) have been maintained in accordance with maintenance practices that are standard for such Company's industry, are prudent, and are in compliance in all material respects with all applicable laws and regulations and (B) are adequate and sufficient for all business operations conducted by such Company and are in condition and repair adequate and sufficient for all business operations conducted by such Company and comply in all material respects with all contractual obligations of such Company. (iv) Notes and Accounts Receivable. Except as set forth on the Disclosure Schedule to this Section 6.4(a)(iv), all notes payable to, and accounts receivable of, each Company (the "Accounts Receivable") were created in the ordinary course of business and have been collected or are collectible in the amounts thereof reflected in the books and records of such Company, net of reserves or contractual allowances reflected in the LLC Financial Statements. For purposes of this Agreement and the Related Agreements, Accounts Receivable shall be deemed to be uncollectible if payment is not collected through the utilization of ordinary collection efforts on the ninetieth day after the applicable payment date. Payments to each Company in respect of Accounts Receivable are deposited, upon receipt, directly into such Company's Accounts and such amounts can only be withdrawn therefrom by such Company or its duly authorized agents. To each Company's knowledge, none of the Accounts Receivable is or was subject to any counterclaim or set off. All of such Accounts Receivable arose out of bona fide, arms-length transactions. (v) Bank Accounts. The Disclosure Schedule to this Section 6.4(a)(v) sets forth the names and locations of all banks, trust companies, savings and loan associations and other financial institutions at which any Company maintains accounts of any nature (collectively, the "Accounts"), the numbers of such accounts and the names of all persons authorized to draw thereon or to make withdrawals therefrom. (b) Real Property. (i) Fee Simple. The Disclosure Schedule to this Section 6.4(b)(i) sets forth a summary description of each parcel of real property and the use thereof owned by any Company and identifies which Company owns such real property, including but not limited to those properties reflected on the LLC Financial Statements, (the "Real Property"). Except as set forth in the Disclosure Schedule to this Section 6.4(b)(i), such Company has good and marketable title in fee simple absolute to all Real Property, and to the buildings, structures and improvements thereon, in each case free and clear of all Liens other than Permitted Liens. B-38 52 Except for such leases and tenancies as are particularly described in the Disclosure Schedule to this Section 6.4(b)(i), such Company has not granted any leases on, and there are no tenancies of, the Real Property or any part thereof. (ii) Leases; Easements and Other Interests. The Disclosure Schedule to this Section 6.4(b)(ii) sets forth a summary description of the nature of each Company's use of the land, premises, buildings, structures and improvements held by lease or license. The interests described above are collectively referred to herein as the "Leased Premises" and the leases and licenses described above and the leases and tenancies described in the Disclosure Schedule to Section 6.4(b)(i) (Fee Simple) are collectively referred to herein as the "Real Estate Contracts." The Company identified as such in the Disclosure Schedule to this Section 6.4(b)(ii) is the sole holder of valid and subsisting leasehold interests in the Leased Premises free and clear of any Liens, other than Permitted Liens except, in the case of Tower Leases, subject to the co- location rights of other tenants. All lease or rental payments and other amounts due and payable in connection with the Leased Premises are current, there are no defaults by such Company with respect thereto or, to the Companies' knowledge, by any other party thereto and no event has occurred that with the passing of time or the giving of notice or both would constitute a default (x) by such Company thereunder or (y), to the Companies' knowledge, by any other party thereunder. All options in favor of such Company to purchase any of the Leased Premises, if any, are in full force and effect and are described in the Disclosure Schedule to this Section 6.4(b)(ii). Such Company is in possession of the Leased Premises and has the right to quiet enjoyment of the Leased Premises for the full term of the related Real Estate Contract and any renewal option related thereto. No Real Estate Contract is terminable as a result of the transactions contemplated herein, and no leasehold or other interest of such Company in such real property is subject or subordinate to any Lien, other than Permitted Liens. (iii) Tower Leases. With respect to leases or licenses of tower space to which LLC is a party (the "Tower Leases"), (A) to LLC's knowledge, there are no applications, ordinances, petitions, resolutions or other matters pending before any governmental agency having jurisdiction to act on zoning changes that would prohibit or make nonconforming the use of any of the Leased Premises by LLC in any material respect, (B) LLC has good and valid easement rights providing reasonable access and utilities to and from the Leased Premises under the Tower Leases, (C) LLC has not voluntarily granted any, and is not a party to any agreement providing for, and LLC has no knowledge of, any easements, conditions, restrictions, reservations, rights or options that would materially adversely affect the use of any of the Leased Premises under the Tower Leases for the same purposes and uses as such Leased Premises have been used by LLC, except for Permitted Liens. (iv) Eminent Domain. Neither the whole nor any portion of any Real Property or Leased Premises has been condemned, taken by right of eminent domain, requisitioned or otherwise taken by any public authority and no Company has received written notice from any governmental body with power of eminent domain of any pending or threatened taking by eminent domain, requisition or condemnation. B-39 53 (v) Ingress and Egress. Each Company has all easements and rights of ingress and egress necessary for utilities and services and for all operations of its business in the manner and to the extent previously conducted by it. (vi) Improvements. None of the improvements included in the Real Property or Leased Premises (A) are in violation in any material respect of any building line or use or occupancy restriction, limitation, condition or covenant of record or any zoning or building law, code or ordinance or public utility or other easement or (B) encroaches on the property rights of any other person or entity. Each facility located on the Real Property or Leased Premises currently is served by gas, electricity, water, sewage and waste disposal and rail and other utilities adequate to operate such facility, and none of the utility companies serving any such facility has threatened any Company with any reduction in service. Such utilities either enter the Real Property and Leased Premises through adjoining public streets or, if they pass through adjoining private land, do so in accordance with valid, permanent public or private easements which, following the Closing, will inure to the benefit of Superholdings, its successors and assigns. All of said utilities are installed and operating and all installation and connection charges have been paid for in full. (vii) Leased Premises Taxes. To the extent any Company is liable for payment therefor, there is no Tax assessment pending or, to the Companies' knowledge, threatened, with respect to any portion of the Leased Premises, except for ad valorem taxes for the calendar year 2000. (c) Intellectual Property. (i) Intellectual Property. The term "Intellectual Property" shall include all fictitious business names, trade names, registered and unregistered trademarks, service marks and applications owned, used or licensed by any Company (collectively, "Marks"), all patents and patent applications (if any) owned, used or licensed by any Company (collectively, "Patents"), all registered and unregistered copyrights (if any) in both published works and unpublished works owned, used or licensed by any Company (collectively, "Copyrights"), and all know-how, inventions, trade secrets, confidential information, software, technical information, process technology, plans, drawings and blue prints owned, used or licensed by any Company as licensee or licensor (collectively, "Trade Secrets"). The Intellectual Property also includes all such rights and assets of any Company under all contracts to which any Company is a party or by which any Company is bound relating to the Intellectual Property including, without limitation, contracts by which any Company licenses Intellectual Property to third parties and contracts by which any third party licenses to, or otherwise permits the use of its intellectual property by, any Company (collectively, "Technology Contracts"). Each Company is, and to the Companies' knowledge, each other party to the Technology Contracts is, in compliance with all Technology Contracts, is not currently in default thereunder, and no event has occurred that with the passing of time or the giving of notice or both would constitute a default thereunder. (ii) Ownership. Except with respect to Intellectual Property licensed B-40 54 by a Company from a third party pursuant to a Technology Contract, one or more of the Companies is the owner of all right, title and interest in and to the Intellectual Property free and clear of all Liens other than Permitted Liens. The Intellectual Property includes all such property necessary for the operation of the respective businesses of the Companies (A) as they currently are proposed to be, and have been, conducted and (B) without violating or infringing upon the rights of any third party. Without limiting the foregoing, each Company is properly licensed to use all computer software (and copies thereof) used by it. No current or former employee of any Company has any rights to any Intellectual Property. No right, license or consent of, or payment to, any third party will be required after consummation of the transactions contemplated hereby for the continued use of the Intellectual Property by LLC and the Subsidiaries. (iii) Technology Contracts. The Disclosure Schedule to this Section 6.4(c)(iii) contains an accurate and complete list of all of the Technology Contracts, including all of the parties to each Technology Contract. (iv) Trademarks. The Disclosure Schedule to this Section 6.4(c)(iv) contains an accurate and complete list of all Marks for which registration has been obtained or for which application to registration has been filed, including application and registration dates and numbers, and jurisdiction thereof, and all other Marks, as well as which Company owns each Mark. No Mark is infringed or has been challenged or threatened in any way, and the Companies are not aware of any potentially interfering mark or application therefor of any third party. None of the Marks infringe or are, or have been, alleged to infringe any business name, trade name, trademark, service mark or other right of any third party. (v) Patents. The Disclosure Schedule to this Section 6.4(c)(v) contains an accurate and complete list of all Patents, including application and issuance dates and numbers, jurisdictions thereof, and which Company holds each Patent. All the Patents are currently in compliance with formal legal requirements (including payment of filing, examination and maintenance fees), are valid and enforceable, and are not subject to any maintenance fees or Taxes or actions falling due within one year from the date hereof. No Patent has been or is now involved in any interference, reissue, reexamination or opposition proceeding. To the Companies' knowledge after due inquiry, there is no potentially interfering patent or patent application of any third party. No Patent is infringed or, to the best of the Companies' knowledge, has been challenged or threatened in any way. None of any Company's goods or services, nor any processes or know-how used by any Company, infringe or are alleged to infringe any patent or other right of any third party. (vi) Copyrights. The Disclosure Schedule to this Section 6.4(c)(vi) contains an accurate and complete list of all registered Copyrights, including application and registration dates and numbers, jurisdictions thereof and which Company holds each Copyright. None of the Copyrights infringe or are, or have been, alleged to infringe any copyright or any other right of any third party. (vii) Trade Secrets. The Disclosure Schedule to this Section 6.4(c)(vii) contains an accurate and complete listing and summary description of each Trade Secret and B-41 55 which Company owns each Trade Secret. With respect to each Trade Secret the documentation relating to such Trade Secret is current, accurate and sufficient in detail and content to identify and explain it, and to allow its full and proper use without reliance on the special knowledge or memory of any individual. The Companies have taken all reasonable precautions to protect the secrecy, confidentiality and value of the Trade Secrets. The Trade Secrets are not part of the public knowledge or literature, nor have they been used, divulged, or appropriated for the benefit of any third party. No Trade Secret is subject to any adverse claim nor has any Trade Secret been challenged or, to the Companies' knowledge, threatened in any way. None of the Trade Secrets infringe or are alleged to infringe any right of any third party. (d) Contracts. (i) Definition. The Disclosure Schedule to this Section 6.4(d)(i) lists as of May 31, 2000 all agreements, contracts, notes, bonds, debentures, indentures, mortgages, deeds of trust, leases, licenses, obligations, promises, settlements, repurchase obligations (including, but not limited to, repurchase obligations pertaining to whole loan sales, securitizations, pooling and servicing agreements and other such agreements and understandings (whether written or oral and whether express or implied) (together with the Equipment Leases, the Real Estate Contracts and the Technology Contracts, the "Contracts")) that are material to the business of any Company, including without limitation all of the foregoing (A) that provide for future payments, claims or obligations to or from any Company of $25,000 or more per year or $100,000 or more over the term thereof or (B) that are (1) collective bargaining agreements or other agreements with any labor union, (2) joint venture agreements, partnership agreements or other agreements involving a sharing of profits, losses, costs or liabilities, (3) agreements containing covenants that in any way purport to restrict the business activity of any Company or limit the freedom of any Company to engage in any line of business or to compete with any other person, (4) standard forms of agreements providing for payments to or for any person based on sales, originations, closings, purchases or profits (other than direct payments for goods), (5) powers of attorney, (6) agreements providing for the payment of special or consequential damages in excess of $100,000 by any Company, (7) agreements relating to capital expenditures in excess of $200,00 by any Company, (8) warranties regarding products or services, guarantees or other similar undertakings by any Company in excess of $100,000, exclusive of manufacturers' warranties on telephones and accessories (9) agreements involving indemnification for obligations of third parties, (10) employment, secrecy, proprietary information, noncompetition, restrictive covenant, or confidentiality agreements with key employees, (11) requirements or output contracts, (12) business alliance or joint marketing agreements, (13) agreements with Sprint, Sprint Spectrum or Sprint PCS or any of their affiliates, (14) documents related to debt for borrowed money or (15) amendments, modifications or supplements to any of the foregoing. As used herein, the term "Contracts" also shall be deemed to refer to all agreements between any Company, on the one hand, and any Member, any affiliate of any Member, or any director or executive officer of any Company, on the other hand. (ii) Sprint Agreements. LLC has complied in all material respects with B-42 56 the following agreements with Sprint Corporation ("Sprint") (which agreements are included in the definition of "Contracts," set forth above): (A) Sprint PCS Management Agreement, dated as of June 8, 1998, by and between Sprint Spectrum, LP, SprintCom, Inc. and LLC, as amended by addenda dated June 8, 1998, October 6, 1998, January 21, 1999, September 1, 1999, February 17, 2000 and May 5, 2000 and July 27, 2000 (collectively, the "Sprint Management Agreement"). (B) Sprint Spectrum Service Mark and Trademark License Agreement dated June 8, 1998, by and between Sprint Spectrum LP and LLC. (C) Sprint Service Mark and Trademark License Agreement, dated as of June 8, 1998, by and between Sprint Communications Company, LP and LLC. (D) Sprint PCS Services Agreement, dated as of June 8, 1998 by and between Sprint Spectrum, LP and LLC. (E) Interim Network Operating Agreement between Sprint Spectrum, LP and LLC, dated January 21, 1999, as amended on August 27, 1999, September 8, 1999 and February 17, 2000. (F) Asset Purchase Agreement, dated October 6, 1998, between Sprint Spectrum, LP and LLC, as amended on July 21, 1999 and September 6, 1999. (G) Build-out. The LLC Parties' build-out of the Service Area Network in the Service Area, as such terms are defined pursuant to the Build-out Plan approved by Sprint, is currently on schedule. As of the date hereof, no Company has failed to meet any contract date except as has been waived or modified in writing. (H) Sprint PCS Technical Program Requirements. LLC has complied with all Sprint PCS Technical Program Requirements, as defined in the Sprint Management Agreement, in all material respects except as have been waived or modified in writing. (I) Sprint PCS Program Requirements. LLC has complied with all Sprint PCS Program Requirements, as defined in the Sprint Management Agreement, in all material respects except as have been waived or modified in writing. (J) Sprint PCS Customer Service Standards. LLC has complied with all Sprint PCS Customer Service Standards, as defined in the Sprint Management Agreement, in all material respects except as have been waived or modified in writing. (K) Sprint PCS Insurance Requirements. LLC has complied with the Sprint PCS Insurance Requirements, as defined in the Sprint Management Agreement, in all material respects except as have been waived or modified in writing. B-43 57 (L) Sprint Management Agreement. No Event of Termination (as defined therein) has occurred under the Sprint Management Agreement. (iii) LLC Credit Agreement. (A) As of the date hereof, the Credit Agreement (the "Credit Agreement") by and among LLC, as borrower, and Lucent Technologies, Inc., as administrative agent and a lender, and the other lenders referred to in the Credit Agreement (collectively, the "Lenders") and all other Loan Documents (as that term is defined in the Credit Agreement), are in full force and effect, without any amendments, and no Default (as that term is defined in the Credit Agreement) (a "Default") exists and no Event of Default (as that term is defined in the Credit Agreement) (an "Event of Default") has occurred or is continuing under the Credit Agreement, nor has any Company received any notice from any Lender alleging that a Default or an Event of Default has occurred or is continuing, except as listed and explained on the Disclosure Schedule to this Section 6.4(d)(iii)(A). (B) As of the date hereof, the LLC has borrowed the full amount of the Commitment (as that term is defined in the Credit Agreement) under the Credit Agreement. The amount borrowed by LLC and outstanding under the Credit Agreement is $56,000,000.00 exclusive of accrued interest. (C) As of the date hereof, LLC has not been required to make any mandatory repayments under the Credit Agreement, except as listed on the Disclosure Schedule to this Section 6.4(d)(iii)(C). (D) The transactions contemplated herein will not cause an Event of Default, or otherwise cause LLC to violate any covenant or warranty of LLC under the Credit Agreement. LLC has obtained all consents required to be obtained (from any party whatsoever) under the Credit Agreement, with respect to the transactions contemplated herein. LLC has attached copies of all necessary consents as the Disclosure Schedule to this Section 6.4(d)(iii)(D). (E) All representations and warranties made to the Lenders under the Credit Agreement are true and correct as of the date hereof, except as listed and explained on the Disclosure Schedule to this Section 6.4(d)(iii)(E). (iv) Legally Binding. All of the Contracts are legal, valid and binding on the parties thereto, are in full force and effect and represent legitimate transactions; no Company is in violation of or default under any of the Contracts in any material respect and, to the Companies' knowledge, no other party to any Contract is in material violation or default thereunder; no event, occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the happening of any further event or condition, would become a material violation or default by any Company or any other party thereto, under any Contract; there are no outstanding, and to the Companies' knowledge, no threatened, disputes or disagreements with B-44 58 respect to any of the Contracts; no Company has released any material rights under any Contract; no Company is subject to any legal obligations to renegotiate, nor is there any right to renegotiate, any Contract; and no Company is subject to any liability, or claim therefor, for or with respect to price adjustment under any Contract with the United States Government or any agency thereof, including any liability for defective pricing. (v) Material Contracts. The Contracts constitute all of the material contracts, leases and agreements necessary for the conduct of the businesses of the Companies in the manner and to the extent conducted respectively by them. All rights of the Companies under the Contracts will be enforceable by Superholdings, LLC or a Subsidiary after the Closing without the consent or agreement of any other party. (vi) Copies. The Companies have delivered or made available to Public true and complete copies of each Contract, including all amendments thereto and waivers thereunder. There are no unwritten amendments to, or waivers under, any Contract. (e) Necessary Assets. Each Company owns or has the right to use all assets, rights, and properties necessary for the conduct of its business in the manner and to the extent currently conducted including, without limitation, all items of property located on the Real Property. 6.5 Liabilities. (a) No Liabilities. Except for the obligations of the Members or their affiliates to distribute assets contemplated hereby, no Company has any debt, guaranty, liability or obligation of any nature to any Member or an Associate or Affiliate of such Member; no Company has any interest-bearing debt, liability or obligation or any guaranty of any nature in excess of $50,000 individually or $100,000 in the aggregate, in each case, whether accrued, absolute, contingent or otherwise, whether due or to become due, and whether known or unknown, and there is no basis for the assertion against it of any such debt, guaranty, liability or obligation except to the extent set forth or reserved against in full in the LLC Financial Statements. The current liabilities of the Companies incurred in the ordinary course of business (excluding current maturities of interest-bearing debt and accounts payable for fixed-asset purchases) do not exceed $400,000. (b) Tax Matters. (i) Filings. Each Company has filed or will timely file all Tax Returns that it was, is or will be required to file on its behalf and on behalf of any other party. All such Tax Returns were, are and will be correct and complete in all respects. All Taxes due and owing by any Company (whether or not shown on any Tax Return, whether known or unknown, asserted or unasserted) have been paid. No Company is a party to any tax sharing or other agreement that will require any payment with respect to Taxes. No Company currently is B-45 59 the beneficiary of any extension of time within which to file any Tax Return except that LLC has extended the due date of its 1999 Federal income tax return. No Company has waived any statute of limitations in respect of Taxes or has agreed to any extension of time with respect to a Tax assessment or deficiency or the collection of Taxes. (ii) Additional Taxes. No Company expects any taxing authority or other governmental unit to assess any additional Taxes. No taxing authority or other governmental unit has proposed or threatened any assessment, deficiency, adjustment, dispute or claim concerning any Tax Return or any Tax liability of any Company. There is no unpaid assessment, deficiency or adjustment concerning any Tax Return or Tax liability of any Company. To the Companies' knowledge, none of the Tax Returns of any Company has been selected for or is now under audit or examination by any taxing authority or other governmental unit. There are no suits, actions, proceedings or investigations pending or, to the Companies' knowledge, threatened against any Company with respect to any Taxes. (iii) Withholdings. Each Company has withheld and timely deposited or paid all Taxes required to have been withheld and deposited or paid in connection with amounts paid or owing to any employee, independent contractor, creditor, Members or other third party. (iv) Specific Code Provisions. No Company has made any payments, is obligated to make any payments, or is a party to any agreement that under any circumstances could obligate it to make any payments that would be characterized as "excess parachute payments" under Section 280G of the Code. None of the assets of any Company (A) is property which is required to be treated as being owned by any other person pursuant to the so-called "safe harbor lease" provisions of former Section 168(f)(8) of the Code; (B) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code; or (C) is "tax-exempt use property" within the meaning of Section 168(h) of the Code. No Company (x) is a party to any Tax allocation or sharing agreement; (y) has been a member of an affiliated group filing a consolidated federal income Tax Return; or (z) has liability for the Taxes of any person under Treasury Regulations Section 1.1502-6 or any similar provision of state, local, or foreign law, as a member of a consolidated group, transferee or successor, by contract, or otherwise. No Company has agreed to make, nor is any Company required to make, any adjustment under Section 481(e) by reason of a change in accounting method or otherwise. Neither the Members nor any Company is a person other than a United States person within the meaning of the Code and the transaction contemplated herein is not subject to the withholding provisions of Section 3406 of the Code or subchapter A of Chapter 3 of the Code. (v) Unpaid Taxes. The unpaid Taxes of the Companies, including all Taxes not yet due for any and all periods through the Closing Date, whether known or unknown, asserted or unasserted (A) do not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax basis in assets and liabilities) included in LLC Financial Statements and (B) do not exceed those reserves as adjusted for the passage of time through the Closing Date. B-46 60 As used herein, the term "Taxes" means all federal, state, local, foreign and other governmental net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, and the term "Tax" means any one of the foregoing Taxes, and the term "Tax Returns" means all returns, declarations, reports, statements and other documents required to be filed in respect of Taxes. (c) Litigation. (i) Proceedings. There is no pending or, to the Companies' knowledge, threatened, action, arbitration, audit, charge, complaint, demand, hearing, investigation, litigation or suit (whether civil, criminal, administrative (including, without limitation, Equal Employment Opportunity Commission, Department of Labor or Office of Federal Contract Compliance, National Labor Relations Board, and similar state or federal agencies), investigative or informal) (A) that has been received or commenced by or against any Company or that otherwise relates to or may affect the Parent Merger, the Subsidiary Merger, the LLC Parties, the Members' Interests, this Agreement, any Related Agreement or the transactions contemplated herein or therein or (B) that has been received or commenced by or against any Member and that relates to the LLC Parties or that otherwise relates to or may affect the Parent Merger, the Subsidiary Merger, the LLC Parties, the Members' Interests, this Agreement, any Related Agreement or the transactions contemplated herein or therein (collectively, the "Proceedings") nor is there any basis therefor. (ii) Orders. There is no award, decision, injunction, judgment, order, ruling, subpoena, writ or verdict of any court, arbitrator or government agency or instrumentality (A) to which the Parent Merger, the Subsidiary Merger, the LLC Parties, the Members' Interests, this Agreement, any Related Agreement or the transactions contemplated herein or therein is subject or by which any of the foregoing may be affected or (B) to which any Member is subject and that relates to or affects the Parent Merger, the Subsidiary Merger, the LLC Parties, the Members' Interests, this Agreement, any Related Agreement or the transactions contemplated herein and therein (collectively, the "Orders"). (iii) Disclosure Schedule. The Disclosure Schedule to this Section 6.5(c)(iii) sets forth a brief description of each Proceeding pending or, to the Companies' knowledge, threatened, at the date hereof. (d) Employee Liabilities. The Disclosure Schedule to this Section 6.5(d) accurately lists as of the date set forth therein, (i) the hire date of and year-to-date compensation paid to each current employee of each Company (specifying as to each such employee the respective amounts of base salary, bonus and commissions paid to such employee) (ii) all written employee policies of each Company and (iii) all accrued and unpaid commissions, bonus payments and vacation pay due to employees of each Company as of May 31, 2000. B-47 61 (e) Warranties. There are no warranties with respect to the quality or absence of defects of its products or services that any Company has sold or performed which are in force as of the date hereof except as are described in the Disclosure Schedule to this Section 6.5(e). (f) Products Liability. The Company has no liability for products or services sold or distributed by it except such as for which the manufacturers are exclusively liable. 6.6 Business. (a) Customers and Suppliers. No Company has been informed in writing of any intention or indication of intention by a Significant Customer, a Significant Supplier or an Alliance Party to terminate its business relationship with any Company or to limit its business relationship with any Company in any respect. As used herein, (i) "Significant Customer" means any customer or referral source (including without limitation consultants), responsible for in excess of $100,000 of sales of any Company, measured in terms of dollar sales volume for the twelve months ended May 31, 2000; (ii) "Significant Supplier" means any supplier responsible for over $250,00 in sales to any Company (measured by dollar value of goods purchased) for the twelve month period ended May 31, 2000 and (iii) "Alliance Party" means any party with which any Company had a joint venture, joint marketing or joint sales relationship during the twelve month period ended May 31, 2000. (b) Insurance. Each Company maintains insurance policies on its assets, and upon its business and operations, against loss or damage, risks, hazards and liabilities of the kinds customarily insured against by entities similarly situated and engaged in the same or similar businesses in adequate amounts under valid and enforceable policies (the "Policies"), with insurers the Companies reasonably believe to be financially sound and reputable. The premiums due and owing with respect to the Policies have been paid, premiums not yet due have been adequately accrued for, and no Company has received any notice of cancellation or of intention not to renew any such Policy. The Disclosure Schedule to this Section 6.6(b) contains a list of the Policies, copies of which have been provided to Public and the holder of each of the Policies. The Disclosure Schedule to this Section 6.6(b) sets forth a list of each other insurance policy or insurance contract relating to any Company or the business of any Company pursuant to which any Company is or may hereafter be entitled to assert claims for insurance coverage (the "Prior Policies"). The covered Company or Companies have timely pursued all rights to recover (if any) under the Policies and the Prior Policies. (c) Employees. No officer, employee or independent contractor of any Company is in violation of any term of any contract, proprietary information agreement, noncompetition agreement, or any other agreement or any restrictive covenant or any other common law obligation to a former employer relating to the right of any such person to be engaged by such Company or to the use of trade secrets or proprietary information of others (an "Outside Confidentiality Agreement"), and the engagement of such persons by such Company B-48 62 before or after the Closing does not and will not subject any Company, Superholdings or Public to any liability with respect thereto. There are neither pending, nor to the Companies' knowledge, threatened, any Proceedings with respect to any Outside Confidentiality Agreement. The Disclosure Schedule to this Section 6.6(c) lists every Outside Confidentiality Agreement to which any Company's officers or technical staff are a party, and all others about which the Companies have knowledge. There is no labor strike, dispute, slowdown, picketing or stoppage pending or, to the Companies' knowledge, threatened against or directly affecting any Company, nor has any Company experienced any of the foregoing since its formation. No Company is subject to any collective bargaining agreement. No union representation question exists and, to the Companies' knowledge, there has been no union organization effort respecting the employees of any Company. No Company is delinquent in payments to any of its employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed by them or amounts required to be reimbursed to such employees. The Disclosure Schedule to this Section 6.6(c) lists every retired employee entitled to receive compensation from any Company or to participate in any benefit plan of any Company. The books and records of each Company accurately reflect all changes in compensation since such Company's formation. There are no employment agreements with any past or former employees of any Company which provide or create a right to continued employment or compensation. All employees of each Company are, and have been, employed for an indefinite period and are, and have been, terminable at will, with or without cause, and without cost to any Company for severance obligations, or any other liability, except for payment of accrued salaries or wages and vacation pay. No employee or former employee has any right to be rehired by any Company prior to the hiring of a person not previously employed by such Company. To the Companies' knowledge, no officer, director or key employee intends to terminate employment with any Company. (d) Worker's Compensation. Each Company subscribes to, or is otherwise insured under, the worker's compensation or similar statute in every state in which it owns or leases real estate or has employees. The Disclosure Schedule to this Section 6.6(d) lists all material claims filed by employees of any Company in respect of employment-related injury or illness since its formation. No Company has received any report or notice from the Occupational Safety and Health Administration. (e) ERISA. The Disclosure Schedule to this Section 6.6(e) lists each employee benefit plan, program, arrangement and contract (including each "employee benefit plan" as defined in Section 3(3) of Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any bonus, deferred compensation, stock bonus, stock, purchase, restricted stock, stock option, employment, termination, stay agreement or bonus, value appreciation, change in control and severance plan, program, arrangement or contract that any Company maintains or ever has maintained, or to which any Company contributes, ever has contributed or ever has been required to contribute (collectively, the "Employee Benefit Plans"). Each Employee Benefit Plan (and each related trust, insurance contract or fund) complies in form B-49 63 and in operation in all material respects with the applicable requirements of all laws, rules and regulations governing or applying to such Employee Benefit Plan, including without limitation ERISA and the Code, and each such Plan has been operated in accordance with its terms in all material respects, except as will not have an adverse effect on any Company, Superholdings or Public. No liability has been incurred and there exists no condition or circumstance which could result in any liability to any Company under ERISA, the Code or any other applicable law, other than liability for benefits due under the appropriate Employee Benefit Plan. All contributions (including all employer and employee salary reduction contributions) which are due have been paid in a timely manner to each such Employee Benefit Plan. No Company has engaged in or permitted to occur and, to the Companies' knowledge, no other party has engaged in or permitted to occur, any transaction prohibited by ERISA Title I ss. 406 or any "prohibited transaction" under Code ss. 4975(c) or any breach of fiduciary duty under ERISA with respect to any Employee Benefit Plan, except for any transactions which are exempt under ERISA Title I ss. 408 or Code ss. 4975. All filings required by ERISA and the Code as to each Employee Benefit Plan have been timely filed, and all notices and disclosures to participants required by either ERISA or the Code, including all notices required under ERISA Title I ss. 601 et seq. and Code ss. 4980B, have been timely provided. Each Company has complied with all of the provisions of Parts 6 and 7 of Title I of ERISA and Code ss. 4980B. The Companies have delivered or made available to Public correct and complete copies of the plan documents or contracts and summary plan descriptions, where applicable, the most recent Form 5500 Annual Report, where applicable, all related trust agreements, insurance contracts and other funding agreements which implement each Employee Benefit Plan, and such other documents requested by Public with respect to each Employee Benefit Plan. No Company has ever sponsored or has any liability under any employee pension benefit plan as defined in ERISA Section 3(3). No action, suit, proceeding, hearing or investigation with respect to the administration or the investment of the assets of any Employee Benefit Plan is pending or, to the Companies' knowledge, threatened, except for routine claims for benefits under such plans. The Disclosure Schedule to this Section 6.6(e) lists all contracts with third-party administrators, insurers, actuaries, investment managers, consultants and other independent contractors that relate to any Employee Benefit Plan. No Company has or has ever had any ERISA Affiliates other than the Companies. "ERISA Affiliate" shall mean any person that, together with any Company, is or at any time within the six-year period preceding the date of this Agreement would be treated as a single employer under Code ss. 414. No Employee Pension Benefit Plan is or has ever been subject to Title IV of ERISA or Code ss. 412. No employee of any Company will be entitled to any additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the transactions contemplated by this Agreement. No Person is entitled to receive any additional payment from any Company or any other party in the event that the excise tax of Code ss. 4999 is imposed on that Person. B-50 64 (f) Conflicts of Interest. (i) Affiliated Transactions. Except as contemplated by this Agreement, since its formation, there have not been, nor are there presently pending, any transactions between any Company and any member holding more than 1% of the equity interests in any Company, or an "Associate" or "Affiliate" (as such terms are defined in Rule 405 promulgated pursuant to the Securities Act) of any Company or any such member, or any transaction with any Company in which any of the foregoing persons or entities has a direct or indirect financial interest other than public companies in which such person has less than a 1% interest. (ii) Ownership in Competitive Entities. Except as set forth on the Disclosure Schedule to this Section 6.6(f)(ii), the Members (and their respective spouses and relatives) do not, and to the best knowledge of the Members, none of the Companies' officers, directors, employees, contractors or consultants (or any of their respective spouses or relatives), directly or indirectly, own any interest in any entity that is a competitor, customer or supplier of, or has any existing contractual relationship with, any Company other than public companies in which such person has less than a 1% interest. (g) LLC Legal Requirements. (i) Compliance with Laws. No Company has violated any term of any judgment, writ, decree, order, law, statute, rule or regulation to which it is subject or a party, or by which its business or assets are bound or affected (collectively, "LLC Legal Requirements"), except as would not have a material adverse effect on any Company, Superholdings or Public. No Company has received notice of any actual, alleged or potential violation of an LLC Legal Requirement. No Company is a public utility holding company, as defined in the Public Utility Holding Company Act of 1935, as amended. No Company is an investment company, as defined in the Investment Company Act of 1940, as amended. (ii) Certain Acts. Neither any of the LLC Parties nor any of their former or current officers, directors, employees, agents or representatives has made or agreed to make, directly or indirectly, with respect to the businesses or assets of any Company, any (A) bribes or kickbacks, illegal political contributions, payments from corporate funds not recorded on the books and records of such Company, or funds to governmental officials (or any such official's family members or affiliates) for the purpose of affecting their action or the action of the government they represent, to obtain favorable treatment in securing business or licenses or to obtain special concessions, or illegal payments from corporate funds to obtain or retain business or (B) payments from corporate funds to governmental officials for the purpose of affecting their action or the action of the government they represent, to obtain favorable treatment in securing business or licenses or to obtain special concessions. Without limiting the generality of the foregoing, none of the foregoing persons or entities has made or agreed to make, directly or indirectly, (whether or not said payment is lawful) any payment to obtain, or with respect to, sales other than usual and regular compensation to its employees and sales representatives with respect to such sales. B-51 65 (iii) Licenses. Each Company has all governmental licenses, permits, approvals, authorizations, exemptions, classifications, registrations and certificates, and all consents or agreements with governmental authorities (collectively, "Licenses") necessary to conduct its business in the manner and to the extent that it has been conducted. All of the Licences and the parties thereto are listed on the Disclosure Schedule to this Section 6.6(g)(iii). The Disclosure Schedule to this Section 6.6(g)(iii) also lists every license that is in effect or has been applied for or is pending and identifies all Licenses and applications for Licenses (collectively, "Transferrable Licenses") that will be unimpaired as a result of the Parent Merger and describes any action to be taken such that the Transferrable Licenses will be enforceable by LLC, Superholdings or a Subsidiary after the Closing. The Companies have delivered to Public true and complete copies of all of the Licenses. All Licenses are in full force and effect. No event has occurred that may constitute or result in a violation of a License, or result in the revocation, suspension, modification or nonrenewal of any License. No LLC Party has received any notice of any actual, alleged or potential violation, revocation, suspension, modification or nonrenewal of any License. (h) Environmental Matters. (i) Compliance. Each Company is in compliance in all material respects with all applicable Environmental Laws and no Company has received any written communication from any person that alleges that any Company is not in compliance with any Environmental Law. As used herein, "Environmental Laws" mean all laws or orders relating to the regulation or protection of human health, safety or the environment (including, without limitation, ambient air, soil, surface water, ground water, wetlands, land or subsurface strata), including, without limitation, laws and regulations relating to releases or threatened releases of hazardous materials or pollutants, archaeological or historical sites or surveys, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, recycling, handling, discharge, removal or remediation of hazardous materials or pollutants, the National Historic Preservation Act, and the National Environmental Policy Act of 1969. (ii) Environmental Claims. There is no Environmental Claim pending or, to the Companies' knowledge, threatened (A) against any Company, (B) against any person or entity whose liability for any Environmental Claim any Company has or may have retained or assumed either contractually or by operation of law or (C) with respect to any real or personal property or operations which are now or have been previously owned, leased, operated or managed, in whole or in part, by any Company, or any real property to which any Company has transported any hazardous materials or pollutants. (iii) Permits. No Company is required under any Environmental Law to apply for or maintain any permit or authorization with respect to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, recycling, handling or discharge of any hazardous materials or pollutants. B-52 66 (iv) Pollutants. None of the Real Property or Leased Property (including without limitation the soils, surface water or groundwater thereof) are or have been impacted by the presence of hazardous materials or pollutants. As used herein, "Environmental Claim" means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, Liens, investigations, proceedings or notices of non-compliance or violation (written or oral) by any person or entity (including any governmental authority), alleging potential liability (including, without limitation, potential liability for enforcement, investigatory costs, cleanup costs, governmental response costs, removal costs, remedial costs, natural resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from (A) the presence, or release or threatened release into the environment of any hazardous material or pollutant at any location; or (B) any violation, or alleged violation, of any Environmental Law, and including, without limitation, any and all claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with the presence or release of any hazardous materials or pollutants. (v) Underground and Above Ground Storage Tanks. Except as set forth on the Disclosure Schedule to this Section 6.6(h)(v), there are no underground storage tanks or above ground storage tanks located on any of the Real Property or Leased Premises or on any property located adjacent to any Real Property or Leased Premises and no underground storage tanks or above ground storage tanks have ever been located on the Real Property or Leased Premises or on any property located adjacent to any Real Property or Leased Premises. (vi) Environmental Assessments. Except as set forth on the Disclosure Schedule to this Section 6.6(h)(vi), environmental assessments have been performed on all real properties which are now or have been previously owned, leased, operated or managed by any Company, and such assessments have been provided to Superholdings. (i) Build-out Plan. The technical aspects of the build-out plan attached as the Disclosure Schedule to this Section 6.6(i) have been approved by Sprint. The Disclosure Schedule to this Section 6.6(i) sets forth the extent of LLC's progress in the completion of the build-out and network launch at the date hereof. 6.7 Other. (a) Certain Information. None of the information supplied or to be supplied by the LLC Parties in written form specifically for inclusion or incorporation by reference in, or which may be deemed to be incorporated by reference in, the Form S-4 or the Form S-1 will, at the time the Form S-4 or Form S-1, as applicable, is filed with the SEC, at any time that such form is amended or supplemented and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. None of the information supplied or to be supplied by the LLC Parties in written form specifically for B-53 67 inclusion or incorporation by reference in, or which may be deemed to be incorporated by reference in, the Proxy Statement will, at the time it is filed with the SEC, at any time that it is amended or supplemented, at the time it is mailed to the holders of Public Stock and at the time of the Public Stockholders Meeting and, if it is mailed to the Members, at the time it is mailed to the Members and at the time of the Members Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. (b) Documents Delivered. The written responses, documents, copies and information delivered by the LLC Parties pursuant to requests by Public or pursuant to the terms of this Agreement are true, complete and correct in all respects. The ownership transfer records of each Company (the "LLC Records") that have been made available to Public, Superholdings, Merger Sub or their agents are complete in all material respects. At the Closing, all of the LLC Records will be in the possession of LLC. (c) No Brokers Fees; No Commissions. All negotiations relative hereto and the transactions contemplated hereby have been carried on by the Companies directly with Public and Merger Sub without any act by any Company that would give rise to any claim against any Company, Public, Superholdings, Merger Sub or their respective Affiliates for a brokerage commission, finder's fee or other similar payment. (d) Advice. Each Company has received and the Members have had the opportunity to receive advice from their own accounting, financial, tax, legal and other advisors regarding the Reorganization. The LLC Parties have received no advice, agreement or representation from, and are not relying in any way upon, Public, Superholdings, Merger Sub,Parent Surviving Corporation, Subsidiary Surviving Corporation or any of their agents or advisors with regard to advice on the Reorganization. (e) Disclosure. None of the representations or warranties of the LLC Parties contained in this Agreement, the Related Agreements the Disclosure Schedules, or any other document delivered pursuant hereto or thereto, none of the information contained in this Agreement, the Related Agreements or the Disclosures Schedules, and none of the other information or documents furnished or to be furnished to Superholdings, Public or their agents by the LLC Parties or provided pursuant to the terms of this Agreement, the Related Agreements or the Disclosure Schedules, contained, contains or will contain on the date such agreement, document or information was delivered, or on the Closing Date, any untrue statement of a material fact or omits or will omit to state a material fact herein or therein necessary in order to make the statements contained herein or therein not misleading. 6.8 Investment Representations. (a) The Members understand and acknowledge that the Superholdings Stock is being offered and sold under the exemptions from registration provided for in Section 4(2) of the Securities Act, including Regulation D promulgated thereunder, and that Superholdings' reliance upon such exemption is based in part upon the Members' representations, warranties and B-54 68 agreements contained in this Agreement. (b) The Members have carefully read this Agreement and, to the extent believed necessary, have discussed the representations, warranties and agreements which the Members make by signing it and the applicable limitations upon the Members' resale of the shares of Superholdings Stock with the Members' counsel. (c) The Superholdings Stock to be issued to such Members in the Reorganization is being acquired by the Members solely for the Members' own account, for investment purposes only, and is not being acquired for resale, resyndication, distribution, subdivision of fractionalization thereof, except pursuant to an effective registration under the Securities Act or in a transaction exempt from registration under the Securities Act. The Members have no contract or arrangement with any person to sell, transfer or pledge to any person the shares of Superholdings Stock or any part thereof, any interest herein or any rights thereto, and the Members have no present plans to enter into any such contract or arrangement. (d) Each of the Members understands that it may not sell or otherwise transfer its shares of Superholdings Stock unless such sale or other transfer is registered under the Securities Act and the applicable state securities laws or unless the sale or other transfer is exempt from the registration requirements under the Securities Act and such other securities laws, and that, as a result, the Members must bear the economic risk of the investment for an indefinite period of time. The Members understand that Superholdings may require the Members to furnish an opinion of counsel satisfactory to Superholdings that such sale or transfer is so exempt. (e) Each of the Members is able (i) to bear the economic risk of an investment in Superholdings Stock, (ii) to hold the shares of Superholdings Stock indefinitely, and (iii) to afford a complete loss of this investment. Each of the Members has adequate means of providing for current needs and has no present need for liquidity in this investment. (f) Each of the Members is an "accredited investor" as that term is defined under Rule 501(a) of Regulation D, as amended, under the Securities Act and possesses such knowledge and experience in financial and business matters so that each of the Members is capable of evaluating the merits and risks of an investment in Superholdings Stock, and of making an informed investment decision. (g) Each of the Members confirms that, in making the decision to acquire the shares of Superholdings Stock in the Reorganization, the Members have relied solely upon independent investigations made by each of the Members and/or by its representatives, including each of the Members' own professional tax and other advisors and that the Members and such representatives and advisors have been given the opportunity to ask questions of, and to receive answers from, Superholdings concerning this Agreement and the terms and conditions of the Reorganization, and to obtain any information requested by Members concerning Superholdings from such person, to the extent such persons possessed such information or could acquire it without unreasonable effort or expense, necessary for each of the Members to make an informed B-55 69 investment in Superholdings Stock. ARTICLE 7 Representations and Warranties of Public, Superholdings and Merger Sub Public, Superholdings and Merger Sub, jointly and severally, represent and warrant to the LLC Parties that except as set specifically forth on the Disclosure Schedules (which exception shall relate only to the Sections specifically identified in such Disclosure Schedules): 7.1 Entry Into Agreements. (a) Organization and Good Standing. Public, Superholdings and Merger Sub are corporations duly organized and validly existing under the laws of the State of Delaware and are in good standing under such laws. Superholdings owns, beneficially and of record, all of the issued and outstanding shares of capital stock of Merger Sub. (b) Corporate Power and Authority; Validity and Authorization. Each of Public, Superholdings and Merger Sub has full corporate power and authority to execute, deliver and perform this Agreement and the Related Agreements to which it is a party. This Agreement has been duly authorized, executed and delivered by Public, Superholdings and Merger Sub, and is enforceable against Superholdings and Merger Sub, and upon approval by the Public stockholders will be enforceable against Public, in accordance with its terms. When the Related Agreements to which each of Public, Superholdings and Merger Sub is a party are delivered at the Closing, such agreements will have been duly authorized, executed and delivered by Public, Superholdings and Merger Sub, and will constitute the legal, valid and binding obligations of Public, Superholdings and Merger Sub, enforceable against Public, Superholdings and Merger Sub in accordance with their terms. 7.2 Conflicts and Consents. (a) No Conflict. The execution, delivery and performance of this Agreement and the Related Agreements, and the consummation of the transactions contemplated hereby and thereby will not result in any violation of the terms of and will not contravene, conflict with, accelerate the performance of the obligations required under, or constitute a default under, the certificate of incorporation or bylaws of Public, Superholdings or Merger Sub, or any material agreement, judgment, decree, order, law, rule or regulation or other restriction applicable to any of them, or to which any of them is a party or by which Public, Superholdings or Merger Sub or their property or assets is bound, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of Public, Superholdings or Merger Sub. B-56 70 (b) Consents Obtained. Other than the approvals referred to in Section 3.1(a) (Stockholder Approval) and Section 3.1(c) (HSR Act), the Permits and the consents listed on the Disclosure Schedule to this Section 7.2(b) (the "Public Consents"), no material consents, approvals or authorizations of third parties are required in connection with Public's, Superholdings' and Merger Sub's valid execution, delivery, or performance of this Agreement and the Related Agreements or the consummation of any of the transactions contemplated hereby or thereby on the part of such party. 7.3 No Brokers Fees; No Commissions. All negotiations relative hereto and the transactions contemplated hereby have been carried on by Public and Merger Sub directly with the LLC Parties without any act by Public or Merger Sub that would give rise to any claim against the LLC Parties or their Affiliates for a brokerage commission, finder's fee or other similar payment. 7.4 Superholdings Stock. The shares of Superholdings Stock, when issued, sold and delivered in accordance with the terms hereof will be duly and validly issued, fully paid and nonassessable and issued free and clear of any Liens. 7.5 SEC Documents. Public has heretofore delivered or made available to the LLC Parties Public's Prospectus dated February 3, 2000 and all reports required to be filed by Public under Sections 13(a), 14(a), 14(c) and 15(d) with the SEC on or after February 3, 2000 (the "SEC Documents"). As of their respective dates, each of the SEC Documents complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC applicable to such reports and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The audited consolidated financial statements and unaudited consolidated financial statements of Public included in the SEC Documents fairly present the financial position of Public as of the dates of such financial statements and the results of Public's operations and cash flows for the periods then ended, in accordance with GAAP, except for the variances from GAAP set forth in the notes thereto. 7.6 No Material Adverse Effect. Since the date of the most recent filing by Public under the Exchange Act prior to the date hereof, there has been no event or occurrence that has caused or is reasonably expected to cause a material adverse effect on Public other than (i) operating losses in the ordinary course of business or (ii) economic conditions affecting the U.S. economy generally or the telecommunications industry generally. 7.7 Capitalization. The authorized capital stock of Public consists (i) of 95,000,000 shares of Public Stock, of which 61,354,606 shares were issued and outstanding as of April 20, 2000 and (ii) 5,000,000 shares of preferred stock, par value $.01 per share, of which no shares were issued and outstanding as of April 20, 2000. All of the issued and outstanding shares of Public Stock have been duly authorized and validly issued, are fully paid and nonassessable and are free and clear of any preemptive rights. As of March 31, 2000, there were no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, B-57 71 issued by, or binding upon, Public for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities, other than stock that may be issued pursuant to stock option plans or agreements described in the SEC Documents and obligations under the Sister Agreements. 7.8 Capitalization of Superholdings. The authorized capital stock of Superholdings immediately prior to the Closing will consist (i) of at least 290,000,000 shares of Superholdings Stock, and (ii) at least 10,000,000 shares of preferred stock. All of the issued and outstanding shares of Superholdings Stock will be duly authorized and validly issued, fully paid and nonassessable and will be free and clear of any preemptive rights. On the date of this Agreement, there are no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, issued by, or binding upon, Superholdings for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities, other than stock that may be issued pursuant to the stock option plans and agreements of Public described above (after consummation of the Subsidiary Merger) or pursuant to the Sister Agreements. 7.9 No Liabilities. At the date of this Agreement, Public has no debt, guaranty, liability or obligation of any nature in excess of $5,000,000, whether accrued, absolute, contingent or otherwise, whether due or to become due, and whether known or unknown, and there is no basis for the assertion against it of any such debt, guaranty, liability or obligation except (i) to the extent set forth or reserved against in full in Public's audited consolidated financial statements and unaudited consolidated financial statements included in the SEC Documents and (ii) liabilities incurred in the ordinary course of business since March 31, 2000. 7.10 Compliance with Laws. Public has not violated any term of any judgment, writ, decree, order, law, statute, rule or regulation to which it is subject or a party, or by which the business or assets of Public are bound or affected (collectively, "Public Legal Requirements"), except as would not have a material adverse effect on Public. Public has not received notice of any actual, alleged or potential violation of a Public Legal Requirement. 7.11 Certain Information. None of the information supplied or to be supplied by Public, Superholdings or Merger Sub in written form specifically for inclusion or incorporation by reference in, or which may be deemed to be incorporated by reference in, the Form S-4 or the Form S-1 will, at the time the Form S-4 or Form S-1, as applicable, is filed with the SEC, at any time that such form is amended or supplemented and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. None of the information supplied or to be supplied by Public, Superholdings or Merger Sub in written form specifically for inclusion or incorporation by reference in, or which may be deemed to be incorporated by reference in, the Proxy Statement will, at the time it is filed with the SEC, at any time that it is amended or supplemented, at the time it is mailed to the holders of Public Stock and at the time of the Public Stockholders Meeting and, if it is mailed to the Members, at the time it is mailed to the Members and at the time of the Members Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or B-58 72 necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, except that no representation or warranty is made by Public, Superholdings or Merger Sub with respect to statements made or incorporated by reference therein based on information supplied by the LLC Parties or other parties to Sister Agreements specifically for inclusion therein. 7.12 Litigation. There are no suits, actions or proceedings pending against Public or any of its subsidiaries or, to the knowledge of Public, threatened against Public or any of its subsidiaries, at law or in equity, or before any federal or state commission, board, agency or instrumentality, that are likely to have, individually or in the aggregate, a material adverse effect on Public. There are no outstanding judgments, decrees, injunctions, awards or orders against Public or any of its subsidiaries that are likely to have, individually or in the aggregate, a material adverse effect on Public. 7.13 Disclosure. None of the representations or warranties of Public, Superholdings or Merger Sub contained in this Agreement, the Related Agreements or the Disclosure Schedules contains any untrue statement of a material fact or omits to state a material fact herein or therein necessary in order to make the statements contained herein or therein not misleading in any material respect. 7.14 Reorganization. Neither Public, Superholdings nor Merger Sub has knowingly taken, or knowingly failed to take, any action that would reasonably result in the Parent Merger not qualifying as a transaction described in Section 351(a) of the Code. ARTICLE 8 Covenants of the Parties During the periods from the date of this Agreement and continuing until the Effective Time, the parties agree that: 8.1 Services Agreement. On the date hereof, the parties will execute the Services Agreement. The Services Agreement sets forth the terms pursuant to which Public will manage the LLC's business after HSR Act approval has been obtained and until the earlier of the Closing Date or the Termination Date. 8.2 Conduct of Business of LLC Pending Closing. Unless otherwise expressly contemplated hereby including, without limitation, pursuant to the terms of the Services Agreement or approved in writing by Public and Superholdings, each of LLC, LLC Holdings and the Subsidiaries shall conduct their respective businesses and operations only in, and each of LLC, LLC Holdings and the Subsidiaries shall not take any action except in, the ordinary course of their respective businesses and consistent with their respective past practices. In the conduct B-59 73 of their respective businesses, each of LLC, LLC Holdings and the Subsidiaries shall comply with the covenants set forth in Section 4.1(b) (LLC Parties' Responsibilities). The LLC Parties shall use reasonable best efforts to: (a) maintain LLC's, LLC Holdings' and the Subsidiaries' respective rights and franchises and preserve their respective relationships with customers, suppliers and others having business dealings with them with the objective of minimization of the impairment of their respective ongoing businesses; (b) preserve, protect and maintain for Public and Superholdings the good will of LLC's, LLC Holdings' and the Subsidiaries' respective employees; and (c) to keep available to Public and Superholdings the present officers and employees of LLC, LLC Holdings, and the Subsidiaries. The LLC Parties shall consult with Public and Superholdings on strategies for maintaining and preserving LLC's, LLC Holdings' and the Subsidiaries' respective businesses and effecting an orderly transition to Public and Superholdings' ownership of such businesses. 8.3 Access to Information and Employees. The LLC Parties shall permit, upon reasonable notice during normal business hours, Public and their Representatives to visit and inspect any of the properties of LLC, LLC Holdings and the Subsidiaries, including books and records, and to discuss the affairs, finances and accounts of LLC, LLC Holdings and the Subsidiaries, and Public's and Superholdings' prospects, plans and intentions with LLC's, LLC Holdings' and the Subsidiaries' respective officers, employees, brokers and independent public accountants, as often as any such person may deem necessary or desirable and reasonably request. The LLC Parties shall furnish to Public copies of any Phase 1 or other environmental reports relating to the Real Property or the Leased Premises that are created after the date of this Agreement. The LLC Parties shall permit Public to conduct, subject to the rights of the lessors thereof, at Public's sole discretion, environmental investigations and analyses of the Real Property. In this Agreement, "Representatives" means, collectively, a party's directors, officers, employees, stockholders or members (as the case may be), partners, financial parties in interest, agents, advisors, attorneys, accountants, consultants, Affiliates, Associates, financing sources and representatives of any such source, representatives, and any person or entity being considered for any such role. 8.4 Financial Statements. The LLC Parties shall deliver to Public and Superholdings not later than the 15th business day of each succeeding month, financial statements of the kind described in Section 6.2 (Financial Information) for the month ended July 31, 2000 and each subsequent month before the Closing. 8.5 Payment of Indebtedness of Related Persons. The Members will cause all B-60 74 indebtedness that any of the Members or any of LLC's, LLC Holdings' or the Subsidiaries' Affiliates owes to LLC, LLC Holdings or any Subsidiary to be paid in full prior to Closing (other than travel advances in the ordinary course of business not to exceed $10,000 in the aggregate). 8.6 Records of LLC. On or prior to the Closing Date, the LLC Parties shall transfer or cause to be transferred to LLC any files, books, records or other documents relating to the business of LLC, LLC Holdings or any Subsidiary that are the property of LLC, LLC Holdings or any Subsidiary and that are possessed by any LLC Party or any Affiliate of any LLC Party and that are not otherwise possessed by LLC. The LLC Parties may make and retain copies (at their expense) of any such files, books, records and documents transferred to LLC. 8.7 Employee Benefit Plans. LLC shall maintain in accordance with all legal requirements the Employee Benefit Plans and prior to Closing shall not take any action to terminate or discontinue any such plan without Public's and Superholdings' prior written consent. 8.8 Tower Payables. The LLC Parties shall cause Tower Company to assume all existing and future tower payables of LLC and LLC Holdings and shall cause LLC, LLC Holdings, and Tower Company to inform all vendors to invoice Tower Company for all such tower payables incurred after June 30, 2000. ARTICLE 9 Post-Closing Agreements The Members and Superholdings covenant and agree that after the Closing: 9.1 Further Actions. Superholdings shall have the right to act in the name and on the behalf of LLC and LLC Holdings, including, without limitation, with respect to the execution and performance of such further instruments of transfer and conveyance, documents and certificates as may be reasonably requested by Superholdings in order to more effectively convey and transfer to Superholdings all of the Members' Interests and businesses of LLC, LLC Holdings and the Subsidiaries, to aid and assist in reducing to possession or exercising rights with respect to same, or to consummate any of the transactions contemplated hereby. The Members shall as promptly as practical after receipt deliver to Superholdings any cash, checks, mail, packages, notices and other similar communications of or to LLC, LLC Holdings or the Subsidiaries that any of them receives. The Members shall endorse in favor of Superholdings any checks or other instruments of payment that by their terms are payable to the Members but that are property of LLC, LLC Holdings or the Subsidiaries. 9.2 Cooperation. The Members shall use reasonable best efforts to aid Superholdings in establishing itself as the new owner and operator of the businesses of LLC, LLC Holdings and the Subsidiaries and, in connection therewith, shall use reasonable best efforts to maintain LLC's, LLC Holdings' and the Subsidiaries' goodwill and reputation with all suppliers, B-61 75 customers, distributors, creditors and others having business relations with LLC, LLC Holdings or the Subsidiaries and in the business community generally. The Members shall cooperate, at Superholdings' expense, and shall cause their Representatives to cooperate, with Superholdings in connection with Superholdings' preparation and filing under the Securities Act or Exchange Act of any registration statement for which the assistance of the LLC Parties or their respective Representatives is reasonably required. 9.3 Tax Returns. The Members shall file on behalf of LLC (and, if necessary, on behalf of any other LLC Party), all tax returns for the fiscal year ended December 31, 2000, by not later than the unextended due date, and all tax returns for the short period by not later than the unextended due date and shall provide copies of such returns to Superholdings immediately after the filing of such returns. 9.4 Access to Information; Confidentiality. The Members and Superholdings shall afford to the other and their respective Representatives reasonable access to their respective books and records in order to prepare tax returns within 30 days after the end of the reporting period therefor and other governmental filings within reasonable time to permit the timely filing thereof. 9.5 [Intentionally deleted]. 9.6 Name. After the Closing, M.R. and S.R. shall have the right to conduct business under the name "Roberts Wireless Communications" and all derivatives thereof. 9.7 Tower Payables. The Members shall cause Tower Company to assume all existing and future tower payables of LLC and LLC Holdings not otherwise assumed pursuant to Section 8.8 (Tower Payables) and shall cause Tower Company to inform all vendors to invoice Tower Company for all such tower payables incurred after June 30, 2000. 9.8 Reorganization. Following the Closing, Superholdings will not knowingly take or knowingly permit any of its subsidiaries or Affiliates to take any action or knowingly fail to take any action that would reasonably cause the Parent Merger not to qualify as a transaction described in Section 351(a) of the Code. 9.9 Insurance. Public and Superholdings acknowledge that LLC's insurance coverage and health insurance are provided under blanket policies covering other affiliates of LLC not included in this transaction and that such coverages will be terminated with respect to LLC and LLC Holdings at Closing. Accordingly, Superholdings will be responsible for providing replacement coverage effective at the Closing, provided that LLC's coverages shall apply with respect to insured events occurring prior to the Closing. ARTICLE 10 B-62 76 Indemnification 10.1 Survival; Etc. (a) Contents of this Agreement. The representations, warranties, covenants and agreements made in Superholdings Closing Certificate, LLC Parties Closing Certificate, and any Disclosure Schedule shall be deemed representations, warranties, covenants and agreements made herein. (b) No Effect on Liability. None of (i) the consummation of the transactions contemplated by this Agreement or the Related Agreements, (ii) the delay or omission of any party to exercise any of its rights under this Agreement or any Related Agreement or (iii) any investigation or disclosure that any party makes, any notice or certificate that any party gives, or any knowledge that any party obtains as a result thereof, or otherwise, shall (A) affect the liability of the parties to one another for Breaches of this Agreement or any Related Agreement or (B) prevent any party from relying on the representations or warranties contained in this Agreement or any Related Agreement. As used herein, a party's "Breach" shall mean any representation or warranty being untrue when made by such party, any breach of any of such party's covenants or agreements or any other claim that may be asserted against such party arising from the document in question or the transactions contemplated thereby. (c) Survival. The representations and warranties of Public, Superholdings, Merger Sub and the Members made in this Agreement or any Related Agreement shall survive the Closing, subject to the limitations set forth in Section 10.1(d) (Commencing Actions). The representations and warranties of LLC, LLC Holdings and Subsidiaries made herein shall be extinguished at the Closing and LLC, LLC Holdings and Subsidiaries shall each have no liability thereafter for Breach hereof. Effective at the Closing, the Members waive and release any claim for Breach of this Agreement or any Related Agreement by LLC, LLC Holdings or the Subsidiaries, including without limitation any claim for indemnification or contribution. (d) Commencing Actions. If the Closing occurs, then any action against any party hereto for Breaches of this Agreement (other than breaches of covenants or agreements) occurring on or prior to the time of the Closing that is not commenced prior to the Closing pursuant to Section 10.7 (Dispute Resolution) or withheld against pursuant to Section 10.2(d) (Form of Payment; Interim Losses) shall be deemed waived, and no person shall have any remedy against any party for any such Breaches; provided, however, (i) if any Indemnified Party is subject to Losses for Breaches in Sections 6.1(b) (Validity and Authorization; Power and Authority), 6.3 (Members' Interests), 7.1(b) (Corporate Power and Authority; Validity and Authorization) or 7.4 (Superholdings Stock) such Indemnified Party may commence an action against the Indemnifying Party to recover such Losses at any time that such Indemnified Party is subject to Losses with respect thereto and shall not be barred by the first clause of this Section and (ii) if any Superholdings Indemnitee is subject to Losses for Breaches in Section 6.5(b) (Tax Matters), such Superholdings Indemnitee may commence an action against the Members to B-63 77 recover such Losses for one year after the Closing Date and shall not be barred by the first clause of this Section; provided, further, that any such Indemnified Party shall use reasonable best efforts to obtain for itself and for the Indemnifying Party the benefit of any statute of limitations applicable as against any third party. (e) Materiality. In determining whether (i) a party's representations and warranties are true and correct in any respect, (ii) a party has performed any of his, her or its covenants or agreements contained herein or (iii) a Breach of this Agreement or any Related Agreement has occurred, such representations, warranties, covenants, agreements and Breaches shall be deemed to not include any qualification or limitation with respect to materiality (whether by reference to a "Material Adverse Change," "material adverse effect" or otherwise). The terms "material," "material adverse effect" and similar terms (other than Public Material Adverse Change and LLC Material Adverse Change) shall be construed in the customary manner, but in any event shall mean changes, effects, events, occurrences, and other matters substantially less in magnitude than a Public Material Adverse Change in the case of Public, Superholdings or Merger Sub or an LLC Material Adverse Change in the case of the LLC Parties. 10.2 Indemnities. (a) Indemnification of Superholdings. Subject to the other provisions of this Article, before the Closing the LLC Parties jointly and severally, and after the Closing, the members of LLC Holdings jointly and severally (collectively, as applicable, the "Member Indemnitors"), shall defend, indemnify and hold Superholdings and its Affiliates, and their respective directors, officers, employees, stockholders or members (as the case may be), agents, advisors, attorneys, accountants, consultants and affiliates (collectively, the "Superholdings Indemnitees"), harmless from and against, and promptly reimburse Superholdings Indemnitees for, any loss, expense, damage, deficiency, liability, claim or obligation, including investigative costs, costs of defense, settlement costs (subject to approval as provided below) and attorneys' and accountants' fees (collectively, "Losses") that any Superholdings Indemnitee suffers or incurs or to which any Superholdings Indemnitee becomes subject, which Losses arise out of or in connection with (i) any Breach by any of the LLC Parties of this Agreement, (ii) any claim asserted by any third party that, assuming the truth thereof, would constitute a Breach by any of the LLC Parties of this Agreement, (iii) the Cause of Action and all Proceedings or (iv) all matters listed in the LLC Parties Closing Certificate. The amount of the Losses payable by such Member Indemnitors shall bear interest from the date the Losses are incurred at a rate of interest per annum that shall, from day to day, equal the lesser of (x) the variable rate of interest published in the "Money Rates" section of the Wall Street Journal (or the comparable section of such newspaper) as the prime rate of interest on corporate loans at large United States money center commercial banks and (y) the maximum rate allowed under applicable law. Each Member Indemnitor agrees that any liability for indemnification (a "Member Indemnified Claim") under this Section 10.2(a) shall be borne by the Member Indemnitors jointly and severally regardless of which Member Indemnitor is required to make any payments B-64 78 to a Superholdings Indemnitee for a Member Indemnified Claim pursuant to this Section 10.2(a). If any Member Indemnitor ("Paying Member Indemnitor") is required to pay or is held liable for any amount with respect to a Member Indemnified Claim, each of the other Member Indemnitors (the "Remaining Member Indemnitors") shall be liable to the Paying Member Indemnitor for, and shall contribute to and hold the Paying Member Indemnitor harmless from and against, an amount equal to such Remaining Member Indemnitor's pro rata share of such liability (based upon the aggregate dollar value of the Per Unit LLC Consideration and the Per Unit Cash Consideration received by such Remaining Member Indemnitor pursuant to the Parent Merger), as adjusted to account for a default by any Member Indemnitor in meeting its obligations hereunder. Such amount shall be paid within five days of the date any Paying Member Indemnitor is held liable for, or is required to pay, a Member Indemnified Claim. (b) Indemnification of the Members. Subject to the other provisions of this Article before the Closing, Public, and after the Closing, Superholdings, (the "Superholdings Indemnitors") shall defend, indemnify and hold the Members harmless from and against, and promptly reimburse them for, any Losses that the Members incur or to which the Members become subject, which Losses arise out of or in connection with (i) any Breach by Public, Superholdings or Merger Sub of this Agreement or (ii) any claim asserted by any third party that, assuming the truth thereof, would constitute a Breach by Public, Superholdings or Merger Sub of this Agreement. The amount of the Losses payable by the Superholdings Indemnitors shall bear interest from the date the Losses are incurred at a rate of interest per annum that shall, from day to day, equal the lesser of (x) the variable rate of interest published in the "Money Rates" section of the Wall Street Journal (or the comparable section of such newspaper) as the prime rate of interest on corporate loans at large United States money center commercial banks and (y) the maximum rate allowed under applicable law. (c) Contribution. If the indemnification provided for in this Section 10.2 is unavailable to an indemnified party under Sections 10.2(a) (Indemnification of Superholdings) or 10.2(b) (Indemnification of the Members) (other than by reason of exceptions provided in this Article 10) in respect of any Losses, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the LLC Parties (for Losses arising prior to the Closing) or the Members (for Losses arising after Closing), on the one hand, and of Public (for Losses arising prior to the Closing) or Superholdings (for Losses arising after the Closing), on the other hand, in connection with the Breaches which resulted in such Losses, as well as any other relevant equitable considerations. The LLC Parties, Public and Superholdings agree that it would not be just and equitable if contribution pursuant to this Section 10.2(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 10.2(c), no person guilty of fraudulent misrepresentation shall be entitled to contribution from B-65 79 any person who was not guilty of such fraudulent misrepresentation. (d) Form of Payment; Interim Losses. (i) Escrow Deposit. Subject to the provisions of this Section 10.2(d), at the Closing, Superholdings may, after notice to the Members specifying the factual basis therefor in reasonable detail, collectively withhold from the aggregate amount of the Per Unit LLC Consideration a number of shares of Superholdings Stock representing up to $40 million in value (using the average of the last reported sales prices as reported by The Nasdaq Stock Market for Public Stock for the 10 days preceding the Closing Date) (the "Escrow Deposit") to satisfy Losses for which claims of indemnity may have arisen at or prior to the Closing Date for which Superholdings claims indemnity pursuant to this Agreement ("Interim Losses"). (ii) Interim Loss Value. In order to quantify the actual value of the Interim Losses, after the Closing a national accounting firm, independent of the parties hereto and selected by Superholdings, shall attempt to estimate the amount of Interim Losses (the "Interim Loss Value"). If such accounting firm is able to reasonably estimate the amount of each claim comprising the Interim Loss Value, as a fixed amount or as a range of amounts, then the amount withheld shall equal the estimated fixed amount(s) and/or the maximum amount of such estimated range(s) of amounts for each claim comprising the Interim Loss Value. If such accounting firm is unable, for any reason whatsoever, to reasonably estimate the amount of any claim comprising the Interim Loss Value, as a fixed amount or as a range of amounts, then Superholdings shall have no right to withhold any amount with respect to such claim. (iii) Escrow Adjustment. On the third business day following the date on which the amount of the Interim Loss Value has been determined pursuant to Section 10.2(d)(ii)(Interim Loss Value), the difference, if any, between the Interim Loss Value and the Escrow Deposit (the "Escrow Adjustment") shall be paid in shares of Superholdings Stock (using the average of the last reported sales prices as reported by The Nasdaq Stock Market for Public Stock for the 10 days preceding the Closing Date) as follows: (A) If the amount of the Interim Loss Value is less than the Escrow Deposit, then the Escrow Agent shall pay and cause to be paid to the Members the Escrow Adjustment, as provided in the Escrow Agreement. (B) If the amount of the Interim Loss Value is greater than the Escrow Deposit, then the Members shall pay and cause to be paid to the Escrow Agent the Escrow Adjustment, as provided in the Escrow Agreement. (iv) Resolution of Claims. The Escrow Agent shall hold the Escrow Funds in the Escrow Account until final resolution of the matters giving rise to the Losses or potential Losses as well as other Losses that Superholdings subsequently asserts, and then deliver the Escrow Funds in accordance with such resolution, as provided in the Escrow Agreement. B-66 80 After such final resolution, the Escrow Agent shall deliver to Superholdings the Superholdings Stock, together with any dividends or other distributions with respect thereto, in satisfaction of any liability in accordance with Section 10.2(d)(v) (Satisfaction of Liability). After the distribution to Superholdings, the Escrow Agent will release the remaining balance of the Escrow Funds not subject to further claims to the Members, as provided in the Escrow Agreement. (v) Satisfaction of Liability. After Closing, any party may satisfy its liability under this Article 10 by (A) delivering shares of Superholdings Stock valued at the average of the last reported sale prices as reported by The Nasdaq Stock Market for the 10 days preceding the date of delivery, together with any dividends or other distributions with respect thereto or (B) cash payments, at the sole option of such party. If a Member satisfies its liability by cash payment instead of Superholdings Stock, then the Escrow Agent shall release to such Member the shares of Superholdings Stock as determined pursuant to Section 1.2(a)(i) (Superholdings Stock), valued at the average of the last reported sale prices as reported by The Nasdaq Stock Market for the 10 days preceding the date of delivery, together with any dividends or other distributions with respect thereto; provided, however, that Superholdings and the Members must provide the Escrow Agent with the proper instruments, as detailed in the Escrow Agreement, as a condition to the Escrow Agent making any distribution of the Escrow Funds. (e) Termination Fee. If the Closing fails to occur due to a Breach by Superholdings, Public or Merger Sub, then the LLC Parties shall be entitled to receive an aggregate of (i) the total amount of management fees paid to Public under the Services Agreement plus (ii) any consent fee paid to obtain consent to the Parent Merger under the Credit Agreement in immediately available funds (the "Termination Fee") from either Superholdings or Public. Notwithstanding any other provisions of this Agreement, the receipt of the Termination Fee shall be the sole and exclusive remedy available to the LLC Parties for any failure of the Closing due to Breach by Superholdings, Public, or Merger Sub, and the LLC Parties hereby waive their rights to any other remedies, whether at law or in equity, for such failure caused by such Breach. 10.3 Limitations on Indemnities. (a) Basket. (i) Member Indemnitors. Notwithstanding anything to the contrary in this Article, after the Closing, the Member Indemnitors shall not have any obligation to indemnify the Superholdings Indemnitees for Losses arising from a Breach of this Agreement at or prior to the Closing until the indemnifiable Losses incurred by the Superholdings Indemnitees or to which the Superholdings Indemnitees become subject, arising from a Breach of this Agreement at or prior to the Closing, exceed $1.0 million, at which time the Member Indemnitors shall indemnify the Superholdings Indemnitees pursuant to this Article 10 for the full amount of the Losses; provided, however, that the Member Indemnitors shall indemnify the Superholdings Indemnitees for the full amount of all Losses incurred by the Superholdings Indemnitees related to a Breach of (i) Section 6.4(a)(iv) hereof (Notes and Accounts Receivable), (ii) Section 6.5(b) (Tax Matters) related to sales tax on asset purchase transactions with Sprint or B-67 81 its Affiliates, (iii) this Agreement relating to or resulting from the failure by any Company to perform archaeological studies or surveys with respect to cellular tower sites without regard to whether such Losses exceed such dollar amount, or (iv) Section 4.22 (Sprint Payments). (ii) Superholdings Indemnitors. Notwithstanding anything to the contrary in this Article, the Superholdings Indemnitors shall not have any obligation to indemnify the Members for Losses arising from a Breach of this Agreement at or prior to the Closing until the indemnifiable Losses incurred by the Members or to which the Members become subject, arising from a Breach of this Agreement at or prior to the Closing, exceed $1.0 million, at which time the Superholdings Indemnitors shall indemnify the Members pursuant to this Article 10 for the full amount of the Losses. (b) Cap. After the Closing, no Indemnifying Party shall incur any liability for Losses pursuant to this Article in excess of the aggregate dollar value (with appropriate reductions for amounts received by such Indemnifying Party pursuant to Section 10.2(c) (Contribution)) of the Per Unit LLC Consideration (with each share of Superholdings Stock valued at the average of the last reported sale prices of a share of Public Stock as reported by The Nasdaq Stock Market for the ten (10) days preceding the Closing Date) and the Per Unit Cash Consideration paid or received, as the case may be, by such Indemnifying Party pursuant to the Parent Merger; provided however, that no Member Indemnitor shall have any liability for Losses after he has satisfied Losses by delivering to Indemnified Parties (i) the number of shares of Superholdings Stock he received as his aggregate Per Unit LLC Consideration and (ii) cash in an amount equal to his aggregate Per Unit Cash Consideration. (c) Services Agreement. Notwithstanding anything to the contrary in this Article 10, the Member Indemnitors shall not have any obligation to indemnify the Superholdings Indemnitees for Losses to the extent such Losses have been caused primarily by the actions of Public or any of its Affiliates under the Services Agreement or by the failure of Public to or any of its Affiliates take actions under the Services Agreement that would reasonably be taken in the ordinary course of LLC's business. (d) Damages. Losses recoverable for breach of this Agreement shall be limited to actual damages, and no party shall recover consequential, punitive, lost opportunity or special damages of any nature, regardless of the nature of such party's claim or such party's theory of liability. (e) Exclusivity. In the absence of fraud, the indemnification provisions of this Article 10 shall be the exclusive remedy for any loss, expense, damage, deficiency, liability, claim or obligation, including investigative costs, costs of defense, settlement costs (subject to consent as provided in Section 10.4(b) (Defense Costs)) and attorneys' and accountants' fees in connection with this Agreement or any Breach hereof. (f) Indemnification of Escrow Agent. Regarding Section 7 (Indemnification of Escrow Agent) of the Escrow Agreement, (i) the Superholdings Indemnitors' liability pursuant to Section 7 of the Escrow Agreement shall not exceed 50% of the aggregate loss, liability or B-68 82 expenses incurred by the Escrow Agent and (ii) the Member Indemnitors' aggregate liability pursuant to Section 7 of the Escrow Agreement shall not exceed 50% of the aggregate loss, liability or expenses incurred by the Escrow Agent; provided, that, each Member Indemnitors' liability pursuant to Section 7 of the Escrow Agreement shall not exceed, and shall be in proportion to, the aggregate dollar value of the Per Unit LLC Consideration (with each share of Superholdings Stock valued at the average of the last reported sale prices of a share of Public Stock as reported by The Nasdaq Stock Market for the ten (10) days preceding the Closing Date) and the Per Unit Cash Consideration received by such Member Indemnitor pursuant to the Parent Merger. 10.4 Notice and Opportunity to Defend. (a) Notice, Etc. If any party (the "Indemnified Party") receives notice of any third-party claim or commencement of any third-party action or proceeding (an "Asserted Liability") with respect to which any other party (an "Indemnifying Party") is obligated to provide indemnification pursuant to Section 10.2(a) (Indemnification of Superholdings ) or Section 10.2(b) (Indemnification of the Members), the Indemnified Party shall promptly give all Indemnifying Parties notice thereof. The Indemnified Party's failure so to notify an Indemnifying Party shall not cause the Indemnified Party to lose its right to indemnification under this Article 10, except to the extent that such failure materially prejudices the Indemnifying Party's ability to defend against an Asserted Liability that such Indemnifying Party has the right to defend against hereunder (and except as otherwise set forth in this Article 10). Such notice shall describe the Asserted Liability in reasonable detail, and if practicable shall indicate the amount (which may be estimated) of the Losses that have been or may be asserted by the Indemnified Party. Each of the Indemnifying Parties may defend against an Asserted Liability on behalf of the Indemnified Party utilizing counsel reasonably acceptable to the Indemnified Party, unless (i) the Indemnified Party reasonably objects to the assumption of such defense on the grounds that counsel for such Indemnifying Party cannot represent both the Indemnified Party and such Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest or because there may be defenses available to the Indemnified Party that are not available to such Indemnifying Party, (ii) such Indemnifying Party is not capable (by reason of insufficient financial capacity, bankruptcy, receivership, liquidation, managerial deadlock, managerial neglect or similar events) of maintaining a reasonable defense of such action or proceeding, or (iii) the action or proceeding seeks injunctive or other equitable relief against the Indemnified Party. (b) Defense Costs. If any Indemnifying Party defends an Asserted Liability, it shall do so at its own expense and shall not be responsible for the costs of defense, investigative costs, attorney's fees or other expenses incurred to defend the Asserted Liability (collectively, "Defense Costs") of the Indemnified Party (which may continue to defend, at its own expense). Notwithstanding the foregoing, if the person or entity asserting the Asserted Liability against the Indemnified Party claims or seeks amounts in excess of the amount set forth in Section 10.3(b) (Cap), then the Indemnifying Party shall remain liable for the Defense Costs incurred by the Indemnified Party. If the Indemnified Party assumes the defense of an Asserted Liability by reason of clauses (i), (ii) or (iii) of subsection (a) above, or because the Indemnifying Party has B-69 83 not elected to assume the defense, then such Indemnifying Party shall indemnify the Indemnified Party for its Defense Costs; provided, however, the Indemnifying Parties shall not be liable for the costs of more than one counsel for all Indemnified Parties in any one jurisdiction. An Indemnifying Party may settle any Asserted Liability only with the consent of the Indemnified Party, which consent shall not be unreasonably withheld. (c) Third Party Claims. The parties shall cooperate with each other with respect to the defense of any claims or litigation made or commenced by third parties subsequent to the Closing Date arising out of or in connection with the transactions contemplated by this Agreement or any Related Agreement and with respect to which indemnification is not available (for any reason) under this Article 10, provided that the party requesting cooperation shall reimburse the other party for the other party's reasonable out-of-pocket costs and expenses of furnishing such cooperation. 10.5 Delays or Omissions, Etc. Except as provided in Section 10.1 (Survival; Etc.) and Section 10.4(a) (Notice, Etc.), no delay or omission to exercise any right, power or remedy inuring to any party upon any breach or default of any party under this Agreement or any Related Agreement shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Neither the exercise of nor the failure to exercise any remedy under this Agreement or any Related Agreement will constitute an election of remedies or limit in any manner enforcement of any remedies. All remedies either under this Agreement or any Related Agreement or by law or otherwise afforded to the parties shall be cumulative and not alternative. 10.6 Governing Law; Attorneys' Fees. This Agreement and the Related Agreements shall be governed by, construed, interpreted and applied in accordance with the laws of the State of Texas, without giving effect to any conflict of laws rules that would refer the matter to the laws of another jurisdiction. Subject to Section 10.7 (Dispute Resolution), each party hereto hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of Kansas, Kansas City Division and, if such court does not have jurisdiction, of the courts of the State of Kansas in Wyandotte County, for the purposes of any action arising out of this Agreement or any of the Related Agreements, or the subject matter hereof or thereof, brought by any other party hereto or thereto. Subject to Section 10.7 (Dispute Resolution), to the extent permitted by applicable law, each party hereby waives and agrees not to assert, by way of motion, as a defense or otherwise in any such action, any claim (i) that it is not subject to the jurisdiction of the above-named courts, (ii) that the action is brought in an inconvenient forum, (iii) that it is immune from any legal process with respect to itself or its property, (iv) that the venue of the suit, action or proceeding is B-70 84 improper or (v) that this Agreement or any Related Agreement, or the subject matter hereof or thereof, may not be enforced in or by such courts. The prevailing party in any action or proceeding relating to this Agreement or any Related Agreement shall be entitled to recover reasonable attorneys' fees and other costs from the non-prevailing parties, in addition to any other relief to which such prevailing party may be entitled. 10.7 Dispute Resolution. (a) Arbitration. All disputes and controversies of every kind and nature between the parties hereto arising out of or in connection with this Agreement (including without limitation this Article 10) or the Related Agreements as to the construction, validity, interpretation or meaning, performance, non-performance, enforcement, operation, or breach, shall be submitted to arbitration pursuant to the following procedures: (i) Notice. After a dispute or controversy arises, either party may, in a written notice delivered to the other party, demand such arbitration. Such notice shall designate the name of the arbitrator (who shall be an impartial person) appointed by the party demanding arbitration, together with a statement of the matter in controversy. (ii) AAA. Within 30 days after receipt of such demand, the other party shall, in a written notice delivered to the party demanding arbitration, name such party's arbitrator (who shall be an impartial person). If such party fails to name an arbitrator, then the second arbitrator shall be named by the American Arbitration Association (the "AAA"). The two arbitrators so selected shall name a third arbitrator (who shall be an impartial person) within 30 days, or in lieu of such agreement on a third arbitrator by the two arbitrators so appointed, the third arbitrator shall be appointed by the AAA. If any arbitrator appointed hereunder shall die, resign, refuse, or become unable to act before an arbitration decision is rendered, then the vacancy shall be filled by the methods set forth in this Section 10.7(a)(ii) for the original appointment of such arbitrator. (iii) Costs. Each party shall bear its own arbitration costs and expenses. The arbitration hearing shall be held in Kansas City, Kansas at a location designated by a majority of the arbitrators. The Commercial Arbitration Rules of the American Arbitration Association shall govern at such hearing and the substantive laws of the State of Texas (excluding conflict of laws provisions) shall apply. (iv) Hearing. The arbitration hearing shall be concluded within ten days unless otherwise ordered by the arbitrators and the written award thereon shall be made within 15 days after the close of submission of evidence. An award rendered by a majority of the arbitrators appointed pursuant hereto shall be final and binding on all parties to the proceeding, shall resolve the question of costs of the arbitrators and all related matters, and judgment on such award may be entered and enforced by either party in any court of competent jurisdiction. B-71 85 (v) Complete Defense. Except as set forth in Section 10.7(b) (Emergency Relief), the parties stipulate that the provisions of this Section 10.7 shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising out of this Agreement or any of the Related Agreements. The arbitration provisions hereof shall, with respect to such controversy or dispute, survive the termination or expiration of this Agreement or the Related Agreements. Except in response to a subpoena or other legal process or disclosure to professional advisors, lenders and investors, neither any party hereto nor the arbitrators may disclose the existence or results of any arbitration hereunder without the prior written consent of the other party; nor will any party hereto disclose to any third party any confidential information disclosed by any other party hereto in the course of an arbitration hereunder without the prior written consent of such other party. Notwithstanding the foregoing, the parties acknowledge that Public or Superholdings may disclose the existence or results of an arbitration hereunder, as well as information otherwise required to be disclosed by deposition, subpoena or other court or governmental action in connection with Public's or Superholdings' obligations under the Exchange Act and the rules and regulations promulgated thereunder and in connection with Public's or Superholdings' registration of offerings of securities under the Securities Act and the rules and regulations promulgated thereunder, other laws, regulations or stock exchange requirements. (b) Emergency Relief. Notwithstanding anything in this Section 10.7 to the contrary and subject to the provisions of Section 10.6 (Governing Law; Attorneys' Fees), either party may seek from a court any provisional remedy that may be necessary to protect any rights or property of such party pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. (c) Definition of Parties. For purposes of this Section 10.7 only, prior to the Closing, the LLC Parties shall be considered one "party" and Public, Superholdings and Merger Sub shall be considered one "party" and, after the Closing, the Members shall be considered one "party" and Public, Superholdings and LLC shall be considered one "party". ARTICLE 11 Miscellaneous 11.1 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon, the permitted assigns, successors, heirs, executors and administrators of the parties hereto. This Agreement may not be assigned without the written consent of Public, Superholdings and the LLC Parties and any attempted assignment without such consent shall be null and void; provided, however, each of Public, Superholdings and Merger Sub may assign any of its rights and obligations hereunder to one of its Affiliates; provided further, that the LLC Parties may assign their rights to the lenders as collateral under the Credit Agreement; provided further, that any assignment hereunder shall not relieve any party of any obligations or liabilities B-72 86 hereunder. 11.2 Entire Agreement. This Agreement (including the Disclosure Schedules and Exhibits hereto), the other documents delivered pursuant hereto and referenced herein constitute the full and entire understanding and agreement between the parties hereto and supersede any other agreement, written or oral, with regard to the subject matter hereof. This Agreement supersedes those certain letters dated May 11, 2000, as amended, among certain of the parties hereto (the "Letters") and hereby supercedes and replaces in its entirety that certain previous Agreement and Plan of Reorganization by and among Public, Superholdings, Merger Sub, LLC and Members dated as of July 31, 2000. 11.3 Amendment. Subject to any applicable provisions of the DGCL, at any time prior to the Effective Time, the parties hereto may modify or amend this Agreement by written agreement executed and delivered by duly authorized officers of the respective parties; provided, however, that after adoption of this Agreement at the Public Stockholders Meeting, and, if necessary, the Members Meeting, no amendment shall be made which would reduce the amount or change the type of consideration into which shares of Public Stock or Members' Interests shall be converted upon consummation of the Reorganization. This Agreement may not be modified or amended except by written agreement executed and delivered by each of the respective parties hereto. Notwithstanding the foregoing, the merger consideration that the LLC Holdings' members shall receive can be adjusted if all of the members of LLC Holdings approve of any such changes. 11.4 Extension; Waiver. At any time prior to the Effective Time, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties of the other parties contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) subject to Section 11.3 (Amendment), waive compliance with any of the agreements or conditions of the other parties contained in this Agreement. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights. 11.5 Notices, Etc. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by certified or registered mail, postage prepaid with return receipt requested, telecopy (with hard copy delivered by overnight courier service), or delivered by hand, messenger or overnight courier service, and shall be deemed given when received at the addresses or telecopy numbers of the parties set forth below, or at such other address or telecopy number furnished in writing to the other parties hereto: If to LLC, LLC Holdings Roberts Wireless Communications, L.L.C. 1408 North Kingshighway, Suite 300 Saint Louis, Missouri 63113 Attention: Michael V. Roberts B-73 87 ###-###-#### (fax) with copies to: Joseph S. von Kaenel, Esq. Armstrong Teasdale LLP One Metropolitan Square, Suite 2600 Saint Louis, Missouri 63102 ###-###-#### (fax) If to Public or Merger Sub: Alamosa PCS Holdings, Inc. 5225 S. Loop 289 Suite 120 Lubbock, Texas 79424 Attention: David E. Sharbutt, Chief Executive Officer ###-###-#### (fax) with copies to: Haynes and Boone, LLP 1600 North Collins Boulevard, Suite 2000 Richardson, Texas 75080 Attention: William S. Kleinman ###-###-#### (fax) 11.6 Third Party Beneficiary, Etc. Except as otherwise specifically hereinabove provided, there shall be no third party beneficiary hereof. Neither the availability of, nor any limit on, any remedy hereunder limits the remedies of any party hereto against third parties. 11.7 Reformation; Severability. In case any provision hereof shall be invalid, illegal or unenforceable, such provision shall be reformed to best effectuate the intent of the parties and permit enforcement hereof, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If such provision is not capable of reformation, it shall be severed from this Agreement and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 11.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. Any counterpart may be delivered by facsimile and shall be treated as an original, provided that attachment thereof shall constitute the representation and warranty of the person delivering such signature that such person has full power and authority to attach such signature and to deliver this Agreement. 11.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs hereof are for B-74 88 convenience of reference only and are not to be considered in construing this Agreement. References to "Articles" and "Sections" herein are references to articles and sections of this Agreement, respectively. The words "herein," "hereof," "hereto" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. 11.10 Confidentiality. (a) Confidential Information. As used herein, "Confidential Information" means confidential business information regarding any party hereto or its Affiliates, including, without limitation, marketing lists used by LLC or any information identifying the source of, and the process used by LLC to obtain, such marketing lists; customer lists and files; prices and costs; business and financial records; information relating to personnel contracts; stock ownership; liabilities; litigation and the terms of this Agreement or any Related Agreement and any written analysis or other document reflecting such information that a party hereto prepared (an "Analysis"). For purposes of this Section 11.10, the party or parties disclosing Confidential Information are referred to collectively as the "Disclosing Party" and the party or parties receiving Confidential Information are referred to collectively as the "Receiving Party." However, "Confidential Information" shall not include: (i) any information properly obtained and already in the possession of the Receiving Party, prior to the execution of the letter agreement, dated May 11, 2000, as amended, or information available to the Receiving Party from public records or from other sources in accordance with law, (ii) any information that is in the public domain or subsequently enters the public domain otherwise than through disclosure by the Receiving Party or any of the Receiving Party's Representatives, (iii) any information that is independently developed by or on behalf of the Receiving Party without reference to the Confidential Information, (iv) any information that is acquired from a person (other than Public, Superholdings, Merger Sub or the LLC Parties) not known by the Receiving Party to be providing such information in breach of a confidentiality obligation, or (v) information the release of which has been approved in writing by the Disclosing Party; provided, that, further information received by Public, Superholdings or Merger Sub shall cease to be Confidential Information after the Closing. (b) Disclosure. The LLC Parties, on the one hand, and Public, Superholdings, and Merger Sub, collectively on the other, will treat the Confidential Information disclosed by the other as confidential, will use the Confidential Information only in connection with their B-75 89 evaluation of the transactions hereunder, and will not disclose it to others, except that each party shall have the right to communicate the information to any of such party's Representatives; provided, that, such Representative is informed that the Confidential Information is confidential and such Representative agrees to be bound by the terms of this Section 11.10. The parties shall be liable for any breach of this Section 11.10 by any of their Representatives. The parties acknowledge that Public and Superholdings may disclose Confidential Information in connection with Public's and Superholdings' obligations under the Exchange Act and the rules and regulations promulgated thereunder, and in connection with Public's and Superholdings' registration of offerings of securities under the Securities Act, and the rules and regulations promulgated thereunder; provided, however, that prior to any such disclosure of Confidential Information, Public or Superholdings shall provide LLC with the opportunity to review and comment, if practicable, upon the disclosure. Any such disclosures of Confidential Information by Public or Superholdings shall not be a breach or violation of this Section 11.10. Each of the LLC Parties acknowledge that (a) it is aware that the United States securities laws prohibit any person who has material, nonpublic information about a company from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell those securities and (b) it is familiar with the Exchange Act and the rules and regulations promulgated thereunder, and agrees that it will neither use, nor cause any third party to use, any Confidential Information in contravention of the Exchange Act or any such rules and regulations, including Rules 10b-5 and 14e-3. If any Receiving Party becomes legally compelled by deposition, subpoena or other court or governmental action to disclose any of the Confidential Information, then such Receiving Party will give the Disclosing Party prompt notice to that effect, and will cooperate with the Disclosing Party if the Disclosing Party seeks to obtain a protective order concerning the Confidential Information. The Receiving Party will disclose only such Confidential Information as its counsel shall advise is legally required. The parties acknowledge that remedies at law may be inadequate to protect against breach of this Section 11.10. Each party hereby agrees in advance to the granting of injunctive relief in the non-breaching party's or parties' favor without proof of actual damages as a remedy for breach of this Section 11.10. Upon termination of this Agreement pursuant to the provisions of Article 5 (Termination), the Receiving Party will, at the Disclosing Party's request, return to the Disclosing Party or destroy all originals, copies, extracts or other reproductions of the Confidential Information that the Disclosing Party provides, and destroy any Analysis. 11.11 Expenses. Except as otherwise expressly provided herein, each party hereto will bear its respective expenses (third-party or otherwise) incurred in connection with the preparation, execution and performance of this Agreement, the Related Agreements and the transactions contemplated herein or therein, including without limitation all fees and expenses of B-76 90 agents, representatives, counsel and accountants. The LLC Parties shall not utilize assets of LLC to pay such expenses. Notwithstanding the foregoing, LLC may pay up to $400,000 for the expenses it incurs in connection with this Agreement for its accountants, attorneys, and fairness opinions plus any filing fees of the LLC Parties required under the HSR Act. 11.12 Responsibility for Superholdings and Merger Sub. Public shall be directly responsible for assuring that Superholdings and Merger Sub perform all of their obligations hereunder. 11.13 Knowledge. Statements herein based on the knowledge of LLC or LLC Holdings or words of similar import shall mean only the actual knowledge after due inquiry of S.R., M.R. or K.G. * * * * * B-77 91 This Agreement has been executed and delivered as of the date first written above. Roberts Wireless Communications, L.L.C.: --------------------------------------- By: /s/ Michael V. Roberts -------------------------- Its: Member The Members: ----------- /s/ Steven C. Roberts --------------------- Steven C. Roberts /s/ Michael V. Roberts ---------------------- Michael V. Roberts Alamosa PCS Holdings, Inc.: -------------------------- By: /s/ David E. Sharbutt ------------------------- Name: David E. Sharbutt Title: Chief Executive Officer Alamosa Holdings, Inc.: ---------------------- By: /s/ David E. Sharbutt ------------------------- Name: David E. Sharbutt Title: President Alamosa Sub I, Inc.: ------------------- By: /s/ David E. Sharbutt ------------------------- Name: David E. Sharbutt Title: President B-78 92 EXHIBIT 1.2(b) ESCROW AGREEMENT This Escrow Agreement (the "Escrow Agreement") is dated _____________________, 2000 by and among Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Steven C. Roberts and Michael V. Roberts (collectively, the "Members") and _______________ the ("Escrow Agent"). RECITALS A. The parties are entering into this Escrow Agreement pursuant to Section 1.2(b) of that certain Agreement and Plan of Reorganization (the "Agreement") dated as of July 31, 2000. B. All capitalized terms used herein and not otherwise defined in this Escrow Agreement will have the meanings assigned to them in the Agreement. AGREEMENT In consideration of the mutual covenants and agreements herein contained and in the Agreement, the parties hereby agree as follows: 1. Creation of Escrow Account; Delivery of Funds. An escrow account designated by Superholdings (the "Escrow Account") has been established by the Escrow Agent. Superholdings has delivered to the Escrow Agent ________ shares of Superholdings Stock (the "Escrow Deposit"), and corresponding stock powers, to be held in the Escrow Account, and the Escrow Agent acknowledges receipt of the Escrow Deposit pursuant to the terms and conditions of this Escrow Agreement. 2. Escrow Adjustment. The Members may deposit additional shares of Superholdings Stock with the Escrow Agent pursuant to the terms of the Agreement (the "Escrow Adjustment") after the date hereof. The aggregate of the Escrow Deposit and the Escrow Adjustment shall be defined as the "Escrow Funds." 3. Holding Period. The Escrow Agent shall hold the Escrow Funds until instructed pursuant to (a) instruments delivered to the Escrow Agent, signed by the Members and Superholdings (each of whom covenant to deliver such instruments to effectuate the terms of the Agreement) authorizing the Escrow Agent to distribute all or part of the Escrow Funds in the manner described in the instruments or (b) a final arbitration decision, pursuant to the terms of Section 10.7 of the Agreement. The distribution of Escrow Funds shall be made no later than two business days after receipt by the Escrow Agent of such instruments or a copy of such arbitration decision. 4. Termination of Escrow. This Escrow Agreement shall terminate upon the distribution of all Escrow Funds pursuant to the terms hereof. 5. Duties and Responsibilities of Escrow Agent. 5.1 Escrow Funds. By signing this Escrow Agreement, the Escrow Agent agrees to hold and dispose of any and all Escrow Funds delivered to it in accordance with the terms of the Escrow Agreement. B-79 93 5.2 Attachment; Orders. If any property subject hereto is at any time attached, garnished or levied upon under any arbitration or court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any arbitration or court order, or in case any order, judgment or decree shall be made or entered by any arbitrator or court affecting such property or any part thereof, then and in any of such events, the Escrow Agent is authorized to rely upon and comply with any such order, writ, judgment or decree which is deemed by any legal counsel of the Escrow Agent's own choosing to be binding upon it; and if the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated. 5.3 No Liabilities. The Escrow Agent shall not be personally liable for any act taken or omitted hereunder if taken or omitted by it in good faith and without gross negligence or wilful misconduct. The Escrow Agent also shall be fully protected in relying upon any written notice, demand, certificate or document that it believes in good faith to be genuine and effective. 5.4 Documents. The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form, execution, validity or genuineness of documents now or hereafter deposited hereunder, or of any endorsement thereon, or for any lack of endorsement thereon, nor shall it be responsible or liable in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any such document or endorsement, or this Escrow Agreement. 5.5 Instruments. The Escrow Agent shall follow all reasonable instructions contained within instruments executed by the Members and Superholdings. 6. Fees and Expenses of Escrow Agent. The Escrow Agent's fees for performance of its duties hereunder are described in Exhibit A. The Escrow Agent's fees, and any reimbursements owed to the Escrow Agent for out-of-pocket expenses incurred by it in connection with the performance of such duties, shall be paid by Superholdings. 7. Indemnification of Escrow Agent. Superholdings and the Members covenant and agree to jointly and severally indemnify the Escrow Agent and hold it harmless against any loss, liability or expenses arising out of or in connection with the performance of its duties hereunder, including but not limited to, reasonable legal and other fees and expenses, and including specifically, but without limitation, any legal or other expenses with respect to any action for interpleader by the Escrow Agent, except that the Escrow Agent shall not be indemnified against any such loss, liability or expense arising out of its gross negligence or wilful misconduct. The Escrow Agent shall be under no obligation to institute or defend any action, suit or legal proceeding in connection herewith, unless first indemnified and held harmless to its satisfaction in accordance with the foregoing. 8. Miscellaneous. 8.1. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by certified or registered mail, postage prepaid with return receipt requested, telecopy (with hard copy delivered by overnight courier service), or delivered by hand, messenger or overnight courier service, and shall be deemed given when received at the addresses or telecopy numbers of the parties set forth below, or at such other address or telecopy number furnished in writing to the other parties hereto: B-80 94 If to Superholdings: Alamosa Holdings, Inc. 4403 Brownfield Highway Lubbock, Texas 79407 Attention: David E. Sharbutt, Chief Executive Officer ###-###-#### (fax) with copies to: Haynes and Boone, LLP 1600 North Collins Boulevard, Suite 2000 Richardson, Texas 75080 Attention: William S. Kleinman ###-###-#### (fax) If to the Members: Roberts Wireless Communications 1408 North Kingshighway, Suite 300 Saint Louis, Missouri 63113 Attention: Michael V. Roberts ###-###-#### (fax) with copies to: Joseph S. von Kaenel, Esq. Armstrong Teasdale LLP One Metropolitan Square, Suite 2600 Saint Louis, Missouri ###-###-#### (fax) If to Escrow Agent: Attention: (fax) with copies to: Attention: (fax) 8.2 Assignment. Neither this Escrow Agreement nor any of the parties' rights hereunder shall be assignable without the prior written consent of the other parties. 8.3 Governing Law. This Escrow Agreement shall be construed in accordance with the laws of the State of Texas, regardless of the choice of law provisions of that state or any other jurisdiction. 8.4 Entire Escrow Agreement; Amendments. This Escrow Agreement constitutes the complete agreement of the parties with respect to the subject matter hereof. The waiver, amendment B-81 95 or modification of any provision of this Escrow Agreement or any right, power or remedy hereunder, shall be effective if (but only if) in writing and signed by each of the parties hereto. 8.5 Power and Authority. Each of the parties represents and warrants that such party has full power and authority to execute, deliver and perform this Escrow Agreement and to take any and all actions necessary with respect to the Escrow Funds. 8.6 Counterparts. This Escrow Agreement may be executed in one or more counterparts with all such counterparts constituting one and the same instrument. * * * * * B-82 96 The parties hereto have executed and delivered this Escrow Agreement as of the day and year first set forth above. ALAMOSA HOLDINGS, INC.: By: Name: Title: MEMBERS: Steven C. Roberts Michael V. Roberts ESCROW AGENT: By: Name: Title: B-83 97 EXHIBIT 2.2(a) LLC PARTIES CLOSING CERTIFICATE This LLC Parties Closing Certificate (the "Certificate") is delivered pursuant to Section 2.2(a) (Closing Certificate) of that certain Agreement and Plan of Reorganization (the "Agreement") entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Alamosa Sub I, Inc., a Delaware corporation and wholly-owned direct subsidiary of Superholdings ("Merger Sub"), and Roberts Wireless Communications, L.L.C., a Missouri limited liability company ("LLC"), and members of LLC (the "Members"). LLC (prior to Closing), LLC Holdings (when formed but prior to Closing) and the Members are sometimes collectively referred to herein as the "LLC Parties". All capitalized terms used herein and not otherwise defined in this Certificate will have the meanings assigned to them in the Agreement. The undersigned hereby certify, and represent and warrant to Public, Superholdings and Merger Sub as follows: 1. Representations and Warranties. Except as set forth on the Schedule to this Certificate, the LLC Parties' representations and warranties made in the Agreement or any Related Agreement were true and correct in all respects at the Closing Date, except as affected by the transactions contemplated by the Agreement and except as did not and will not constitute an LLC Material Adverse Change. 2. Covenants. Except as set forth on the Schedule to this Certificate, the LLC Parties, in all respects, have performed each agreement, and have complied with each covenant, to be performed or complied with by them, or any of them, on or prior to the Closing Date under the Agreement or any Related Agreement except as has not constituted and will not constitute an LLC Material Adverse Change. 3. No Litigation. Except as set forth on the Schedule to this Certificate, no action, suit or proceeding (other than such an action, suit or proceeding directly or indirectly instituted by a party to the Agreement) is threatened or pending, and no preliminary or permanent injunction, order, decree or ruling is in effect, seeking to restrain or prohibit, or to obtain damages or other relief in connection with, the execution and delivery of the Agreement, any Related Agreement or the consummation of the transactions contemplated by any of the foregoing, except as has not constituted and will not constitute an LLC Material Adverse Change. 4. No LLC Material Adverse Change. No LLC Material Adverse Change has occurred. * * * * * B-84 98 SCHEDULE: B-85 99 Executed as of _______________ ____, 2000. Roberts Wireless Communications, L.L.C. By: Name: Title: The Members: Name: Steven C. Roberts Name: Michael V. Roberts B-86 100 EXHIBIT 2.2(e) Form of Opinion of LLC Parties' Counsel 1. Each of the Companies is a limited liability company duly organized and validly existing under the laws of the State of Missouri. Each of the Companies has all requisite power and authority to own, lease and operate all properties and assets owned or leased by it and to conduct its business as previously and currently conducted by it. Each of the Companies is qualified to do business in each jurisdiction in which it is required to be so qualified, except where the lack of such qualification would not have a material adverse effect on such Company. 2. Each of the Companies has full power and authority to consummate the Parent Merger and to execute, deliver and perform the Agreement, the Related Agreements and the other instruments called for therein to which it is a party. 3. The Agreement and the Related Agreements have been duly authorized, executed and delivered by each of the Companies and, upon obtaining the Members Required Vote, will constitute (or, in the case of Related Agreements or instruments called for by the Agreement or the Related Agreements, to be executed by such Company at or before the Closing, upon execution will constitute) the legal, valid and binding obligation of such Company, enforceable against such Company in accordance with their terms. 4. Each of the Members has full requisite power and authority (or if a natural person, capacity) to execute, deliver and perform the Agreement, the Related Agreements and the other instruments called for therein to which such Member is a party. The Agreement, the Related Agreements and the other instruments called for therein to which such Member is a party have been duly executed and delivered by each of the Members and constitute (or, in the case of Related Agreements or instruments called for in the Agreement, to be executed by the Member at or before the Closing, will constitute) the legal, valid and binding obligation of the Member, enforceable against the Member in accordance with their terms. 5. Each of the Companies is the holder of record of all of the issued and outstanding shares of capital stock or interests, as appropriate, of its Subsidiaries free and clear of any Liens. 6. The Members' Interests of LLC consist of 20,000 units and no preferred units. There are no other equity interests of LLC either authorized or outstanding. All of the issued and outstanding units have been duly authorized and validly issued, are fully paid and nonassessable and are free and clear of any preemptive rights. No certificates have been issued to represent the Members' Interests in LLC. There are no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, issued by, or binding upon, LLC for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities. B-87 101 7. Each Member is the holder of record of the units set forth in the Agreement. To our knowledge, no Member is a party to any contract, agreement or understanding (other than the Agreement) relating to the issuance, sale, redemption, purchase, repurchase, acquisition or other transfer or voting of any units of Members' Interests or any other equity security of any Company, other than LLC's operating agreement. 8. The Members' Interests of LLC Holdings consists of 20,000 units and no preferred units. There are no other equity interests of LLC Holdings either authorized or outstanding pursuant to LLC's certificate of formation or organizational agreements. All of the issued and outstanding units are duly authorized and validly issued, fully paid and nonassessable and free and clear of any preemptive rights. No certificates were issued to represent the Members' Interests in LLC Holdings. There are no outstanding preemptive, conversion or other rights, or other options, warrants or agreements granted by, issued by, or binding upon, LLC Holdings for the issuance, sale, purchase, repurchase, redemption, acquisition or other transfer of its equity securities pursuant to LLC's certificate of formation or organizational agreements. 9. The formation of LLC Holdings transferred all of the Members' Interests of LLC to LLC Holdings free and clear of Liens. Consummation of the transactions contemplated by the Agreement will transfer to Superholdings all of the Members' Interests of LLC Holdings free and clear of Liens. 10. The transactions contemplated by the Agreement do not conflict with any provisions of the Contracts (as such term is defined in Section 6.4(d)(i) (Definition) of the Agreement), except as listed on the exhibit hereto. Except as specified on the Disclosure Schedule to Section 6.1(e) (LLC Parties Consents Required), the transactions contemplated by the Agreement do not require any consents. Notwithstanding the foregoing, the consents of Sprint, DLJ and Lucent are sufficient such that the Sprint, DLJ and Lucent contracts do not otherwise conflict with the transactions contemplated by the Agreement. 11. To our knowledge, there are no Proceedings or Orders. 12. No state takeover statute is applicable to any Company in connection with the Agreement, the Parent Merger or the other transactions contemplated thereby. B-88 102 EXHIBIT 2.2(f) TOWER CLOSING CERTIFICATE This Tower Closing Certificate (the "Certificate") is delivered pursuant to Section 2.2(f) (Tower Closing Certificate) of that certain Agreement and Plan of Reorganization (the "Agreement") entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Alamosa Sub I, Inc., a Delaware corporation and wholly-owned direct subsidiary of Superholdings ("Merger Sub"), and Roberts Wireless Communications, L.L.C., a Missouri limited liability company ("LLC"), and members of LLC (the "Members"). LLC (prior to Closing), LLC Holdings (when formed but prior to Closing) and the Members are sometimes collectively referred to herein as the "LLC Parties." All capitalized terms used herein and not otherwise defined in this Certificate will have the meanings assigned to them in the Agreement. The undersigned hereby certifies, represents and warrants to Public, Superholdings and Merger Sub as follows: 1. Representations and Warranties. The undersigned hereby makes the LLC Parties' representations and warranties made in Section 6.6(h) (Environmental Matters) of the Agreement as if the undersigned were one of the LLC Parties on the date of the Agreement and had entered into the Agreement on such date. 2. Liabilities. The undersigned hereby acknowledges and expressly assumes all liabilities of the LLC Parties with respect to the foregoing representations and warranties including, but not limited to, the indemnification and other obligations of any or all of the LLC Parties contained in Article 10 (Indemnification) of the Agreement, with the further express acknowledgment that if any Indemnified Party is subject to Losses for Breaches in this Certificate, such Indemnified Party may commence an action against the undersigned to recover such Losses at any time that such Indemnified Party is subject to Losses with respect thereto and shall not be barred by the first clause of Section 10.1(d) (Commencing Actions) of the Agreement. * * * * * B-89 103 Executed as of _________________________, 2000. ROBERTS TOWER COMPANY: By: Name: Title: B-90 104 EXHIBIT 2.3(a) SUPERHOLDINGS CLOSING CERTIFICATE This Superholdings Closing Certificate (the "Certificate") is delivered pursuant to Section 2.3(a) (Closing Certificate) of that certain Agreement and Plan of Reorganization (the "Agreement") entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Alamosa Sub I, Inc., a Delaware corporation and wholly-owned direct subsidiary of Superholdings ("Merger Sub"), and Roberts Wireless Communications, L.L.C., a Missouri limited liability company ("LLC"), and members of LLC (the "Members"). LLC (prior to Closing), LLC Holdings (when formed but prior to Closing) and the Members are sometimes collectively referred to herein as the "LLC Parties." All capitalized terms used herein and not otherwise defined in this Certificate will have the meanings assigned to them in the Agreement. The undersigned hereby certify, and represent and warrant to the LLC Parties as follows: 1. Representations and Warranties. Except as set forth on the Schedule to this Certificate, the representations and warranties made in the Agreement by Superholdings, Public and Merger Sub were true and correct in all respects at the Closing Date, except as affected by the transactions contemplated by the Agreement or except as did not have a Public Material Adverse Change at the Closing and will not have a Public Material Adverse Change after the Closing. 2. Covenants. Except as set forth on the Schedule to this Certificate, each of Superholdings, Public and Merger Sub, in all respects, have performed each agreement, and have complied with each covenant to be performed or complied with by it on or prior to the Closing Date under the Agreement or any Related Agreement, except as has had a Public Material Adverse Change at the Closing and will not have a Public Material Adverse Change after the Closing. 3. No Litigation. Except as set forth on the Schedule to this Certificate, no action, suit or proceeding (other than such an action, suit or proceeding directly or indirectly instituted by a party to the Agreement) is threatened or pending, and no preliminary or permanent injunction, order, decree or ruling is in effect, seeking to restrain or prohibit, or to obtain damages or other relief in connection with, the execution and delivery of the Agreement, any Related Agreement or the consummation of the transactions contemplated by any of the foregoing, except as has not constituted and will not constitute an LLC Material Adverse Change. 4. No Public Material Adverse Change. No Public Material Adverse Change has occurred. * * * * * B-91 105 Executed as of _______________ ____, 2000. Alamosa Holdings, Inc: By: Name: Title: Alamosa PCS Holdings, Inc: By: Name: Title: Alamosa Sub I, Inc.: By: Name: Title: B-92 106 EXHIBIT 2.3(d) Form of Opinion of Public's, Superholdings' and Merger Sub's Counsel 1. Each of Public, Superholdings and Merger Sub is a corporation duly and validly existing under the laws of the State of Delaware and is in good standing under such laws. Superholdings owns, beneficially and of record, all of the issued and outstanding shares of capital stock of Merger Sub. 2. Each of Public, Superholdings and Merger Sub has full corporate power and authority to execute, deliver and perform the Agreement and the Related Agreements. The Agreement has been duly authorized, executed and delivered by each of Public, Superholdings and Merger Sub. Upon approval by their respective stockholders, the Agreement will be enforceable against Public, Superholdings and Merger Sub, in accordance with its terms. 3. When the Related Agreements to which each of Public, Superholdings and Merger Sub is a party are delivered at the Closing, and upon approval of the Related Agreements by the respective stockholders of Public, Superholdings and Merger Sub, such agreements will have been duly authorized, executed and delivered by Public, Superholdings and Merger Sub, and will constitute the legal, valid and binding obligations of Public, Superholdings and Merger Sub, enforceable against Public, Superholdings and Merger Sub in accordance with their terms. 4. The authorized capital stock of Public consists (i) of 95,000,000 shares of Public Stock, of which 61,354,606 shares were issued and outstanding as of April 20, 2000 and (ii) 5,000,000 shares of preferred stock, par value $.01 per share, of which no shares were issued and outstanding as of April 20, 2000. All of the issued and outstanding shares of Public Stock have been duly authorized and validly issued, are fully paid and nonassessable and are free and clear of any preemptive rights. 5. The authorized capital stock of Superholdings immediately prior to the Closing will consist (i) of at least 290,000,000 shares of Superholdings Stock and (ii) at least 10,000,000 shares of preferred stock, par value $0.01 per share. All of the issued and outstanding shares of Superholdings Stock will have been duly authorized and validly issued, fully paid and nonassessable and free and clear of any preemptive rights. 6. The shares of Superholdings Stock, when issued, sold and delivered in accordance with the terms of the Agreement will be duly and validly issued, fully paid and nonassessable and issued free and clear of any Liens. B-93 107 EXHIBIT 2.4(b)(i), (ii), (iii) MEMBER AGREEMENT This Member Agreement (the "Member Agreement") is delivered pursuant to Sections 1.2(c) (Consideration Subject to Agreements), 2.4(b)(i) (Lock-Up Agreement), 2.4(b)(ii) (Indemnity Agreement) 2.4(b)(iii) (Members' Releases) and 10.2 (Indemnities) of that certain Agreement and Plan of Reorganization (the "Agreement") entered into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation ("Superholdings"), Alamosa Sub I, Inc., a Delaware corporation and wholly-owned direct subsidiary of Superholdings ("Merger Sub"), and Roberts Wireless Communications, L.L.C., a Missouri limited liability company ("LLC"), and members of LLC (the "Members"). All capitalized terms used herein and not otherwise defined in this Certificate will have the meanings assigned to them in the Agreement. The parties hereto agree as follows: 1. Lock-Up. Each of the undersigned hereby covenants to Public and Superholdings that before September 30, 2001, the undersigned will not, without the prior written consent of Superholdings, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) of the undersigned's holdings of Superholdings Stock) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any Superholdings Stock, or any securities convertible into, or exercisable or exchangeable for, Superholdings Stock, or publicly announce an intention to effect any such transaction, other than (a) shares of Superholdings Stock disposed of as bona fide gifts to persons who also enter into lock-up agreements in the form hereof and (b) shares of Superholdings Stock acquired other than pursuant to the Reorganization. This Section 1 of this Member Agreement is the "Lock-Up Agreement" referred to in the Agreement. 2. Registration Provisions. (a) Certain Information. The undersigned Member hereby covenants to provide to Public and Superholdings the information required by the Form S-1, as provided by Section 4.2(c) (Form S-1) of the Agreement, as is reasonably requested by Public or Superholdings as soon as possible, but no later than five business days after the date of such request. In addition, the undersigned Member hereby covenants that none of the information supplied or to be supplied by the undersigned Member specifically for inclusion in the Form S-1 will, at the time the Form S-1 is filed with the SEC, at any time that such form is amended or supplemented and at the time it becomes effective or remains in effect under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Notwithstanding the foregoing, if the undersigned Member becomes aware, at any time, of any untrue statement of a material fact or omission of any material fact required to be stated in the Form S-1 (or other appropriate B-94 108 registration statement form), then the undersigned Member shall promptly notify Public and Superholdings of such untrue statement, pursuant to Section 11.5 (Notices, Etc.) of the Agreement. (b) Blackout. The undersigned member hereby agrees that if Superholdings furnishes to the undersigned member a notice signed by the President of Superholdings stating that Superholdings has determined in good faith that it would be seriously detrimental to Superholdings and its stockholders for the Form S-1 to be filed (or remain in effect) and it is therefore essential to defer the filing of such Form S-1 (or temporarily suspend the effectiveness of such registration statement or use of the related prospectus) (a "Blackout Notice"), then Superholdings shall have the right (i) immediately to defer such filing for a period of not more than sixty (60) days beyond the date by which such Form S-1 was otherwise planned to be filed or (ii) suspend such effectiveness for a period of not more than sixty (60) days (any such deferral or suspension period of up to sixty (60) days, a "Blackout Period"). The undersigned member agrees to cease any disposition during such Blackout Period of the Superholdings Stock received by the undersigned member in connection with the Reorganization. Superholdings may not utilize any of its rights under this Section 2 of this Member Agreement to defer the filing of the Form S-1 (or suspend the effectiveness of the Form S-1) more than twice in any twelve (12) month period. 3. Indemnity. Each of the undersigned hereby agrees to be bound by all of the provisions of Article 10 of the Agreement (Indemnification), and the direct and indirect owners of the undersigned's Members' Interests (who are signatories below) shall also be so bound to the extent that they receive any merger consideration or proceeds thereof. This Section 2 of this Member Agreement is the "Indemnity Agreement" referred to in the Agreement. 4. Intent to Sell. The undersigned hereby agrees that it has no plan or intention to sell, exchange, transfer or otherwise dispose of any of the Superholdings Stock received by such undersigned member in connection with the Reorganization. 5. Releases. Superholdings hereby releases on its own behalf any and all claims held or to be held by Superholdings against LLC, LLC Holdings, and their successors, assigns, officers, directors, employees and agents, after the Closing. Each of the undersigned hereby releases any and all claims held or to be held by the undersigned member against LLC, LLC Holdings, and their successors, assigns, officers, directors, employees and agents, but excluding any claims each of the undersigned may have to unpaid compensation and benefits. Each of the undersigned hereby agrees to be released from any obligation under the operating agreements of LLC or LLC Holdings. This Section 5 of this Member Agreement is the "Members Releases" referred to in the Agreement. 6. Consideration. Each of the undersigned hereby acknowledges that the consideration received by him pursuant to the Agreement represents the amount of consideration he is entitled to receive under the operating agreements of LLC and LLC Holdings and satisfies B-95 109 in full any and all claims held or to be held by him with respect to his membership interests in LLC and LLC Holdings. 7. Deliveries. Each of the undersigned shall deliver their respective holdings of Superholdings Stock, and corresponding stock powers, to the Escrow Agent, if applicable, in accordance with the Escrow Agreement and Section 10.2 (Indemnities) of the Agreement. Executed as of _______________ ____, 2000. * * * * * B-96 110 ALAMOSA HOLDINGS, INC. By: Name: Title: THE MEMBERS: Name: Steven C. Roberts Name: Michael V. Roberts B-97
