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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) June 22, 1994
MasTec, Inc.
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(Exact Name of Registrant as Specified in Charter)
Delaware 0-3797 59-1259279
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
8600 N.W. 36th Street, Miami, Florida 33166
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (305) 599-1800
N/A
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(Former Name or Former Address, if Changed Since Last Report)
Form 8-K
Item 2. Acquisition or Disposition of Assets.
(a) On June 22, 1994, MasTec, Inc. (the "Company")
acquired from Jack T. Clem and Eben J. Rieger all of the issued
and outstanding shares of Designed Traffic Installation Co.
("DTI"), a Florida corporation, consisting of 6,000 common
shares, for $1,000,000 in cash and a promissory note in the
amount of $2,244,417 (the "Acquisition"). The Company will pay
an additional contingent amount based on certain specific
percentages of net pretax earnings earned by DTI over the next
four years. In giving its approval to the Acquisition, the Board
determined that DTI's business fit into the Company's strategic
plan to provide comprehensive infrastructure services to
municipalities throughout South Florida. The consideration for
the acquisition was determined by the parties through arms'
length bargaining, and was paid out of working capital.
(b) After the Acquisition, DTI will continue to use its
fixed assets to install traffic control systems in South Florida.
Form 8-K
Item 7. Financial Statements and Exhibits.
(a) and (b) Financial Statements of Business Acquired and
Pro Forma Financial Information.
The financial statements and pro forma financial information
required by this Item are currently unavailable and will be filed
no later than 60 days after the date of this filing.
(c) Exhibits.
Number Title
------- -----------------------------------
2 Agreement among Jack T. Clem
and Eben J. Rieger and MasTec, Inc.,
dated June 15, 1994, and First
Addendum and Second Addendum.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
MasTec, Inc.
Date: June 7, 1994 By: /s/ Carlos A. Valdes
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Name: Carlos A. Valdes
Title: Sr. Vice President - Finance
(Principal Financial Officer)
EXHIBIT
AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 15th day
of June, 1994, by and among each of the individuals listed on
Schedule I hereto (each, a "Seller" and together "Sellers"), and
MasTec, Inc., a Delaware corporation with principal offices at
8600 N.W. 36th Street, Miami, Florida 33166. ("MasTec")
WHEREAS, Sellers own among them 6,000 shares of common
stock, par value ten dollars ($10.00) per share, of Designed
Traffic Installation Co., a Florida corporation ("DT"),
constituting 100% of the outstanding shares of capital stock of
DT ( the "Shares"); and
WHEREAS, MasTec desires to purchase, and Sellers desire
to sell, all of the Shares on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, the parties, intending to be legally
bound and in consideration of the mutual covenants and conditions
contained herein, agree as follows:
ARTICLE
SALE AND PURCHASE OF SHARES
Section Sale and Purchase of Shares. On the terms
and subject to the conditions set forth in this Agreement, and on
the basis of the representations and warranties made by MasTec
and Sellers contained herein, Sellers, jointly and severally,
agree to sell, assign and transfer to MasTec, and MasTec agrees
to purchase from Sellers, on the Closing Date (as defined in
Section 1.8) all of the Shares (the "Acquisition").
Section 1.2 Purchase Price. The purchase price
("Purchase Price") for the Shares is an amount equal to the sum
of the Fixed Amount (as defined in Section 1.3 and modified by
Section 1.6) plus the Contingent Amount (as defined in Section
1.4).
Section 1.3 Fixed Amount. The Fixed Amount portion
of the Purchase Price is a sum equal to (a) the net book value of
DT on the Closing Date plus (b) Five hundred ninety thousand
($590,000.). The net book value shall be determined by the
Sellers and MasTec in accordance with generally accepted
accounting principals applied on a consistent basis in accordance
with DT's past accounting practices ("GAP").
Section 1.4 Contingent Amount. The Contingent
Amount portion of the Purchase Price is equal to certain specific
percentages of the net pretax earnings of DT computed in
accordance with GAP (including a management fee equal to two
percent (2%) of gross revenue of DT to be paid by DT to MasTec
but excluding extraordinary items of income or expense) and
determined as follows:
For approximately six and one half (6 1/2) months
beginning June 20, 1994, and ending December 31, 1994 - Fifty-
six and 44/100 percent (56.44%) of earnings
For twelve (12) months ending December 31, 1995 -
Twenty percent (20%) of earnings
For twelve (12) months ending December 31, 1996 -
Fifteen percent (15%) of earnings
For twelve (12) months ending December 31, 1997 - Ten
percent (10%) of earnings
Section 1.5 Payment of Fixed Amount Portion of
the Purchase Price. The Fixed Amount of the Purchase Price shall
be paid by MasTec to the Sellers in the amounts set forth in
Schedule I as follows:
(a) On the Closing Date MasTec shall pay to Sellers
the sum of One million dollars ($1,000,000.) by cashier's check
or by wire transfer to Sellers' account
(b) On the Closing Date, MasTec shall deliver to
Sellers a promissory note (the "Note") in an initial face amount
of Two million two hundred forty-four thousand four hundred
seventeen dollars ($2,244,417.00), (calculated based upon the net
book value of DT as of December 31, 1993, plus the sum set forth
in paragraph 1.3(b) less one million dollars ($1,000,000.00).
The Note shall bear interest at the rate of seven percent (7%)
per annum and shall be payable in four (4) semi-annual
installments of principal and interest commencing six (6) months
after the Closing Date. The Note shall be subject to adjustment
as provided by Section 1.6 and shall be in the form attached as
Exhibit A.
Section 1.6 Post Closing Adjustment to Fixed
Amount Portion of the Purchase Price.
(a) As promptly as possible following the Closing
Date, MasTec shall cause an independent certified public
accountant (CPA) to conduct an audit of the books and records of
DT as of the Closing Date. Not less than ninety (90) days or
later than one hundred twenty (120) days after the Closing Date,
MasTec shall cause the CPA to deliver an audited balance sheet of
DT as of the Closing Date (the "Closing Balance Sheet") to each
of the parties of this Agreement. The Closing Balance Sheet
shall be prepared in accordance with GAP and shall be certified
without qualification by the CPA.
(b) The Closing Balance Sheet delivered pursuant to
paragraph (a) above shall be accompanied by a statement prepared
by the CPA setting forth the sum, if any, by which the net book
value of DT's assets, minus DT's liabilities, in each case as
shown on the Closing Balance Sheet (the "Net Adjusted Book
Value"), is greater than or less than the sum of One Million
dollars ($1,000,000.) plus the initial face amount of the Note (
the "Net Asset Adjustment").
(c) In the event that MasTec or Sellers dispute the
Closing Balance Sheet or the calculation of the Net Adjusted Book
value with the Net Asset Adjustment, the disputing party shall
notify the other party hereto in writing (the "Dispute Notice")
within ten (10) days of delivery of the Closing Balance Sheet
setting forth the amount, nature and basis of such dispute. The
Sellers and MasTec shall first use their best efforts to resolve
such dispute among themselves. If the parties are unable to
resolve the dispute within ten (10) business day after the
delivery of the Dispute Notice, the dispute shall be submitted to
the CPA for Sellers and the CPA for MasTec for resolution. The
CPAs shall use their best efforts to resolve the dispute within
seven (7) business days after submission. If the CPAs are unable
to agree upon a resolution within said seven (7) business day
period the dispute shall be submitted to the American Arbitration
Association for resolution. The determination of either the
CPAs, on one hand, or the American Arbitration Association, on
the other hand , as to the resolution of any dispute shall be
binding and conclusive upon all parties hereto. All
determinations pursuant to this paragraph 1.6 shall be in writing
and delivered to the parties hereto. Any award made pursuant to
this Subsection (c) may be entered in and enforced by any court
having jurisdiction thereover and the parties hereby consent and
commit themselves to the jurisdiction of the courts of the State
of Florida (as more specifically provided in Section 10.6) for
purposes of the enforcement of any such award.
(d) The fees and expenses of MasTec's CPA in
connection with the preparation of the Closing Balance Sheet
shall be paid as follows: i) The first Ten thousand dollars
($10,000.) by MasTec. ii) The next Ten thousand dollars
($10,000.) by the Sellers. iii) Any amount in excess of i. plus
ii. by MasTec. The fees and expenses of the Seller's CPA and
MasTec's CPA in connection with the resolution of disputes
pursuant to paragraph (c) above shall be paid by the party which
engaged the CPA. The fees and expenses of the American
Arbitration Association in connection with the resolution of
disputes pursuant to paragraph (c) above shall be shared equally
by the Sellers and MasTec.
(e) Immediately upon the expiration of the ten day
period for giving the Dispute Notice, if no Dispute Notice is
given, or immediately upon the resolution of disputes, if any,
pursuant to paragraph (c) above, the Purchase Price shall be
adjusted as follows (as so adjusted, the "Adjusted Purchase
Price"):
(i) the amount of the Net Asset Adjustment, if
positive, shall be added to, and if negative, shall be deducted
from, the Purchase Price.
(ii) The difference between the original Purchase Price
and the Adjusted Purchase Price shall be referred to herein as
the "Adjustment Amount".
(f) The Note shall be increased or decreased by the
Adjustment Amount on the date that the Adjusted Purchase Price
has been agreed upon by MasTec and Sellers or the date of
determination of the Adjusted Purchase Price pursuant to
subsection 1.6(c).
(g) Within ten (10) days following written request by
MasTec, Sellers shall pay to MasTec the amount of any account
receivable shown on the Closing Balance Sheet which has not been
collected by December 31, 1994, and which is neither an amount
owed under a public contract, nor secured by a payment bond or a
statutory construction lien right reasonably acceptable to
MasTec. In the event that any amount with respect to any such
uncollected amount is thereafter collected, such amount shall be
paid by MasTec to Sellers within ten (10) days following
collection.
Section 1.7 Payment of Contingent Amount of
Purchase Price. On or before March 31 for each year following
the end of the period for which Contingent Amounts are determined
MasTec shall cause its CPA to determine the sum due (Contingent
Amount Due) to Sellers and issue a report to Sellers and MasTec
setting forth the Contingent Amount due and the calculation of
said amount. (CPA's Contingent Amount Report) MasTec shall pay
to Sellers the Contingent Amount in accordance with their share
ownership due as determined by the CPA's Contingent Amount Report
within ten (10) business days of the issuance of the CPA's
Contingent Amount Report unless Sellers or MasTec dispute same.
If Sellers or MasTec dispute the Contingent Amount Due as set
forth as in the CPA's Contingent Amount Report, the parties shall
resolve said dispute in the manner set forth in paragraph 1.6 (c)
and (d). The payment shall be made within ten (10) business days
of the resolution of such dispute. Any payment due on any
Contingent Amount Due shall bear interest at the rate of seven
percent (7%) per annum commencing one hundred (100) days after
the end of the period for which such Contingent Amount Due is
calculated until such amount is paid to Sellers.
Section 1.8 Closing. The closing ("Closing") of the
Acquisition shall take place at the offices of Carlos & Abbott,
P.A. located at 999 Ponce de Leon Blvd., Suite 1150, Coral
Gables, Florida, at 10:00 A.M., on June 20, 1994 or at such other
date or time as the parties hereto shall mutually agree in
writing. The date of Closing shall hereinafter be referred to as
the "Closing Date."
ARTICLE
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, represent and warrant
to MasTec as of the date hereof and as of the Closing Date as
follows:
Section Organization. DT is a corporation duly
organized, validly existing and in good standing under the laws
of Florida and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its
business as now being conducted. Except as set forth in Section
2.1 of the disclosure schedule delivered by Sellers to MasTec
dated the date hereof (the "Disclosure Schedule"), DT is duly
qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such
qualification or licensing necessary. Sellers shall deliver to
MasTec accurate and complete copies of the Articles of
Incorporation and By-Laws of DT, as currently in effect.
Section Capitalization. The authorized capital stock
of DT consists solely of 10,000 shares of common stock. The
Shares constitute all of the issued and outstanding shares of
common stock of DT. All of the Shares are validly issued, fully
paid and nonassessable. Except as set forth in Section 2.2 of
the Disclosure Schedule, there are no preemptive rights,
subscriptions, options, warrants, puts, calls, rights,
exchangeable or convertible securities or other agreements or
commitments of any character obligating either DT to issue,
transfer, sell, purchase or redeem any of its securities. Each
Seller owns the number of DT Shares and set forth opposite his
name on Section 2.2 of the Disclosure Schedule free and clear of
all claims, liens, mortgages, pledges, security interests,
assessments, restrictions, encumbrances or charges of any kind
(collectively "Liens"). There are no voting trusts or other
agreements or understandings to which any Seller is a party or by
which any Seller is bound with respect to the voting of his
Shares except as set forth in Section 2.2 of the Disclosure
Schedule.
Section Subsidiaries and No Related Party
Transactions. DT has no subsidiaries or equity investments in
any corporation, association, partnership, joint venture or other
entity or person (collectively, "Person"). No Person related to,
or owned by either of the Sellers is a supplier to, or a customer
of, DT.
Section Authority Relative to this Agreement. Each
Seller has full power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered
by each Seller, and constitutes a valid and binding agreement of
each Seller, enforceable in accordance with its terms.
Section Consents and Approvals; No Violations.
Except as set forth in Section 2.5 of the Disclosure Schedule, no
filing with, and no permit, authorization, consent or approval
of, any court, or Federal, state, local or foreign
administrative, governmental or quasi-governmental body
("Governmental Entity"), is necessary in connection with the
execution and delivery by Sellers of this Agreement or the
consummation by Sellers of the transactions contemplated by this
Agreement. Except as set forth in Section 2.5 of the Disclosure
Schedule, neither the execution and delivery by Sellers of this
Agreement nor the consummation by Sellers of the transactions
contemplated hereby nor compliance by Sellers with any of the
provisions hereof will (i) conflict with or result in any breach
of any provision of the Articles of Incorporation or By-Laws of
DT, (ii) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or
acceleration) under or require consent under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to
which DT or any Seller is a party or by which either of them or
any of their properties or assets may be bound or (iii) subject
to making the filings and obtaining the permits, authorizations,
consents and approvals referred to in the preceding sentence,
violate any order, writ, injunction, decree, statute, treaty,
rule or regulation applicable to DT each Seller or any of their
properties or assets.
Section Financial Statements. Sellers have
heretofore furnished copies of the following financial
information of DT (collectively, the "Financial Statements") to
MasTec: (a) the audited balance sheets and statement of income,
statement of retained earnings, statement of cash flows,
(including the notes thereto) for DT as of and for the years
ending March 31, 1993 and the nine (9) months ending December 31,
1993. Except as set forth in Section 2.6 of the Disclosure
Schedule, each of the balance sheets (including the notes
thereto) included in the Financial Statements fairly presents the
financial position of DT, as of the respective dates thereof, and
the other related statements (including the notes thereto)
including therein fairly present the results of operations and
the changes in financial position of DT as the case may be, for
the respective fiscal years (or interim periods), except, in the
case of interim financial statements, for year-end audit
adjustments, consisting only of normal recurring accruals which
individually and in the aggregate are not material. Each of the
financial statements (including the notes thereto) included in
the Financial Statements has been prepared in accordance with
generally accepted accounting principles and practices
consistently applied during the periods involved, except as
otherwise noted therein. Except as set forth in the Section 2.6
of the Disclosure Schedule, DT maintained its books of account in
the usual, regular and ordinary manner in accordance with
generally accepted accounting principles applied on a consistent
basis. Except as set forth in Section 2.6 of the Disclosure
Schedule, since December 31, 1993, no material adverse change has
occurred in the assets or liabilities, condition, financial or
otherwise, or business or in the results of operations or
prospects of DT.
Section No Undisclosed Liabilities. Except as and to
the extent set forth in the audited balance sheets for the fiscal
year ended December 31, 1993 or included in the Financial
Statements, DT, as of December 31, 1993 had no material
liabilities required by generally accepted accounting principles
to be reflected on such balance sheets. Except as set forth in
Section 2.7 of the Disclosure Schedule, DT has not incurred any
liabilities (absolute, accrued, contingent or otherwise) since
December 31, 1993, except liabilities incurred in the ordinary
course of business consistent with past practice, or in
connection with effecting the transactions contemplated hereby.
Section No Default. Except as set forth in Section
2.8 of the Disclosure Schedule, DT is not in default or violation
(and no event has occurred which, with the giving of notice, the
lapse of time or the occurrence of any other event, would
constitute a default or violation) of any term, condition or
provision of (i) its Articles of Incorporation or By-Laws, (ii)
any note, bond, mortgage, indenture or other obligation to which
DT is a party or by which it or any of its properties or assets
may be bound or (iii) any order, writ, injunction, decree,
statute, rule or regulation applicable to DT.
Section Litigation. Except as set forth in Section
2.9 of the Disclosure Schedule, there is no action, suit,
administrative, judicial or arbitral proceeding, review or
investigation pending or, to the best knowledge of Sellers,
threatened, at law or in equity, or before any Governmental
Entity, which, if adversely determined, could involve a liability
to DT in excess of $25,000, or which could materially and
adversely affect the right or ability of DT to carry on its
business as now conducted or to consummate the transactions
contemplated hereby.
Section Compliance with Applicable Law. Except as
set forth in Section 2.10 of the Disclosure Schedule, neither of
the Sellers nor DT is in violation of, or has violated within the
last three years, any applicable provisions of any laws
(including, without limitation, the Federal and state securities
laws), statutes, ordinances or regulations in any material
respect or any term of any judgment, decree, injunction or order
outstanding against them, or any of them, which violation would
have a material adverse effect on the financial condition of DT.
Section Taxes.
statutor
statutory period of limitations applicable to any Tax Returns
required to be filed by DT.
None of Sellers has any tax liability which could
result in any lien hereafter being imposed on any of the
Shares.
As used in this Agreement, "Taxes" is defined to
include all taxes, charges, fees, levies or other assessments
imposed by any Federal, state, local or foreign Taxing
Authority, including, without limitation, income, capital,
excise, property, sales, transfer, employment, payroll,
withholding and franchise taxes and all interest, penalties or
additions attributable to or imposed on or with respect to
such assessments.
As used in this Agreement, "Tax Return" is defined
as any return, report, information return, or other document
(including any related or supporting information) filed or
required to be filed with any Federal, state, local, or
foreign Taxing Authority in connection with the determination,
assessment or collection of any Tax or the administration of
any laws, regulations or administrative requirements relating
to Taxes.
Section Employee Benefit Plans.
List of Plans. Set forth in Section 2.12 of the
Disclosure Schedule is a true and complete list of all
domestic and foreign: (i) "employee benefit plans," within
the meaning of Section 3(3) of the Employee Retirement Income
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder ("ERISA"); (ii) bonus,
stock option, stock purchase, restricted stock, incentive,
profit-sharing, deferred compensation, active, retiree or
former employee medical, life, disability or accident benefits
(whether or not insured), accrued leave, vacation, sick pay,
sick leave, supplemental retirement or unemployment benefit
plans, programs, arrangements or practices; and (iii)
employment, termination, and severance contracts or
agreements, whether or not any such plans, programs,
arrangements, contracts, agreements or practices (referred to
in clause (i), (ii) or (iii)) are in writing or are otherwise
exempt from the provisions of ERISA, established, maintained
or contributed to (or with respect to which an obligation to
contribute has been undertaken) by DT (including, for this
purpose and for the purpose of all of the representations in
this Section 2.12, all employers (whether or not incorporated)
which by reason of common control are treated together with DT
as a single employer within the meaning of Section 414 of the
Code) since September 2, 1974 ("Employee Benefit Plans").
Status of Plans. Except as set forth in
Section 2.12 of the Disclosure Schedule, each Employee Benefit
Plan has at all times been maintained and operated in substan
tial compliance with its terms and the requirements of all
applicable laws, including, without limitation, ERISA and the
Code. Except as set forth in Section 2.12 of the Disclosure
Schedule, no complete or partial termination of any Employee
Benefit Plan has occurred or is expected to occur and DT has
no commitment, or understanding to create, modify or terminate
any Employee Benefit Plan. Except as required by applicable
law, no condition or circumstance exists that would prevent
the amendment or termination of any Employee Benefit Plan. No
event has occurred and no condition or circumstance has
existed that could result in a material increase in the
benefits under or the expense of maintaining any Employee
Benefit Plan from the level of benefits or expense incurred
for the most current fiscal year thereof. Except as set forth
in Section 2.12 of the Disclosure Schedule, DT (i) is not or
has ever been a party to, contributed to, or had a legal
obligation with respect to a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, or (ii) is not a party to, or
maintains or contributes to, any employee benefit plan subject
to Title IV of ERISA and/or Section 412 of the Code.
Liabilities. No Employee Benefit Plan subject to
Section 412 or 418B of the Code or Section 302 of ERISA has
incurred any accumulated funding deficiency within the meaning
of Section 412 or 418B of the Code or Section 302 of ERISA,
respectively, or has applied for or obtained a waiver from the
IRS of any minimum funding requirement under Section 412 of
the Code. DT has not incurred any liability to the Pension
Benefit Guaranty Corporation ("PBGC") in connection with any
Employee Benefit Plan covering any employees or former
employees of DT, including any liability under Section 4069 or
4212(c) of ERISA or any penalty imposed under Section 4071 of
ERISA, or ceased operations at any facility or withdrawn from
any such Employee Benefit Plan in a manner which could subject
it to liability under Section 4062, 4063 or 4064 of ERISA, or
knows of any facts or circumstances that might give rise to
any liability of DT to the PBGC under Title IV of ERISA that
could reasonably be anticipated to result in any claims being
made against MasTec by the PBGC.
DT does not maintain any Employee Benefit Plan which is
a "group health plan" (as such term is defined in Section
5000(b)(1) of the Code) that has not been administered and
operated in all respects in compliance with the applicable
requirements of Section 601 of ERISA and Section 4980B(f) of the
Code and DT is not subject to any liability, including, without
limitation, additional contributions, fines, penalties or loss of
tax deduction as a result of such administration and operation.
DT maintains no Employee Benefit Plan (whether qualified or non
qualified within the meaning of Section 401(a) of the Code)
providing for retiree health and/or life benefits and having
unfunded liabilities. DT maintains no Employee Benefit Plan
which is an "employee welfare benefit plan" (as such term is
defined in Section 3(1) of ERISA) that has provided any
"disqualified benefit" (as such term is defined in Section
4976(b) of the Code) with respect to which an excise tax could be
imposed.
Except as set forth in Section 2.12 of the Disclosure
Schedule, DT has no unfunded liabilities pursuant to any Employee
Benefit Plan that is not intended to be qualified under Section
401(a) of the Code.
DT has not incurred any liability for any tax or excise
tax arising under Section 4977, 4978, 4978B, 4979, 4980 or 4980B
of the Code, and no event has occurred and no condition or
circumstance has existed that could give rise to any such
liability.
There are no actions, suits or claims pending, or, to
the best knowledge of Sellers, threatened, anticipated or
expected to be asserted against any Employee Benefit Plan or the
assets of any such plan (other than routine claims for benefits
and appeals of denied routine claims). No civil or criminal
action brought pursuant to the provisions of Title I, Subtitle B,
Part 5 of ERISA is pending, threatened, anticipated, or expected
to be asserted against DT or any fiduciary of any Employee
Benefit Plan, in any case with respect to any Employee Benefit
Plan. No Employee Benefit Plan has been the direct or indirect
subject of an audit, investigation or examination by any
governmental or quasi-governmental agency.
Contributions. Full payment has been made of all
amounts which DT is required, under applicable law or under
any Employee Benefit Plan or any agreement relating to any
Employee Benefit Plan to which DT is a party, to have paid as
contributions thereto as of the last day of the most recent
fiscal year of such Employee Benefit Plan ended prior to the
date hereof. All such contributions have been fully deducted
for income tax purposes and no such deduction has been
challenged or disallowed by any governmental entity, and no
event has occurred and no condition or circumstance has
existed that could give rise to any such challenge or
disallowance. Except as set forth in Section 2.12 of the
Disclosure Schedule, DT has made adequate provision for
reserves to meet contributions that have not been made because
they are not yet due under the terms of any Employee Benefit
Plan or related agreements. Benefits under all Employee
Benefit Plans are as represented and have not been increased
subsequent to the date as of which documents have been
provided.
Tax Qualification. Each Employee Benefit Plan
intended to be qualified under Section 401(a) of the Code has
been determined to be so qualified by the IRS. Except as set
forth in Section 2.12 of the Disclosure Schedule, each trust
established in connection with any Employee Benefit Plan which
is intended to be exempt from Federal income taxation under
Section 501(a) of the Code has been determined to be so exempt
by the IRS. Since the date of each most recent determination
referred to in this paragraph (e), no event has occurred and
no condition or circumstance has existed that resulted or is
likely to result in the revocation of any such determination
or that could adversely affect the qualified status of any
such Employee Benefit Plan or the exempt status of any such
trust.
Transactions. Neither DT nor any of its
directors, officers, employees or other Persons who partic
ipate in the operation of any Employee Benefit Plan or related
trust or funding vehicle, has engaged in any transaction with
respect to any Employee Benefit Plan or breached any
applicable fiduciary responsibilities or obligations under
Title I of ERISA that would subject any of them to a tax,
penalty or liability for prohibited transactions under ERISA
or the Code or would result in any claim being made under, by
or on behalf of any such Employee Benefit Plan by any Person
with standing to make such claim.
Triggering Events. The execution and delivery of
this Agreement and the consummation of the transactions con
templated hereby, do not constitute a triggering event under
any Employee Benefit Plan, policy, arrangement, statement,
commitment or agreement, whether or not legally enforceable,
which (either alone or upon the occurrence of any additional
or subsequent event) will or may result in any payment
(whether of severance pay or otherwise), acceleration, vesting
or increase in benefits to any employee or former employee or
director of DT. Except as set forth in Section 2.12 of the
Disclosure Schedule, no Employee Benefit Plan provides for the
payment of severance benefits upon the termination of an
employee's employment.
Documents. Sellers have, or by June 18, 1994,
shall have delivered, or caused to be delivered, to MasTec and
their counsel true and complete copies of all material
documents in connection with each Employee Benefit Plan,
including, without limitation (where applicable): (i) all
Employee Benefit Plans as in effect on the date hereof,
together with all amendments thereto, including, in the case
of any Employee Benefit Plan not set forth in writing, a
written description thereof; (ii) all current summary plan
descriptions, summaries of material modifications, and
material communications; (iii) all current trust agreements,
declarations of trust and other documents establishing other
funding arrangements (and all amendments thereto and the
latest financial statements thereof); (iv) the most recent
Internal Revenue Service determination letter obtained with
respect to each Employee Benefit Plan intended to be qualified
under Section 401(a) of the Code or exempt under Section
501(a) of the Code; (v) Form 5500 for each of the last three
years for each Employee Benefit Plan required to file such
Form; (vi) the most recently prepared financial statements;
and (vii) all contracts relating to each Employee Benefit
Plan, including, without limitation, service provider
agreements, insurance contracts, annuity contracts, investment
management agreements, subscription agreements, participation
agreements, and record keeping agreements.
Section Employee Relations. Except as set forth in
Section 2.13 of the Disclosure Schedule, DT is not a party to or
subject to any collective bargaining agreements. Except as set
forth in Section 2.13 of the Disclosure Schedule, no
representation question exists respecting the employees of DT.
No controversies, disputes or proceedings are pending or
threatened DT, on the one hand, and its employees (singly or
collectively), on the other hand. DT currently complies in all
material respects with the applicable laws, rules and regulations
relating to employment and employment practices and have not and
are not engaged in any unfair labor practice. Except as set
forth in Section 2.13 of the Disclosure Schedule, DT has not
received any notice alleging the failure to comply in any
material respect with any such laws, rules or regulations.
Section Material Agreements and Contracts. Section
2.14 of the Disclosure Schedule contains a true and complete list
of all written agreements, contracts, contract rights, guarantees
and commitments, and all amendments thereto, to which DT is a
party and not disclosed in any other section of the Disclosure
Schedule, which are material to the business of DT as presently
conducted or the performance of which by any party thereto will
involve consideration in an amount or fair market value in excess
of $25,000. Each such contract or agreement is in full force and
effect, and, to the best knowledge of Sellers, no party to any
such contract or other agreement is in default thereunder, nor
does any event, occurrence, condition or act exist which, with
the giving of notice, the lapse of time or the occurrence of any
other event or condition, would constitute a default thereunder.
Section Real Property; Leases. Section 2.15 of the
Disclosure Schedule lists all real property owned by DT (the
"Owned Real Property") or leased by DT as lessee or lessor (the
"Leased Real Property"). Except as set forth on Section 2.15, DT
has good and marketable title to the Owned Real Property free and
clear of all Liens other than such Liens as would not affect the
marketability of such title. All leases with respect to the
Leased Real Property are in full force and effect. Except as set
forth in Section 2.15 of the Disclosure Schedule, DT is in
compliance in all material respects with the terms of any such
lease and there exists no default under each such lease or event,
occurrence, condition or act which, with the giving of notice,
the lapse of time or the occurrence of any other event or
condition, would become a default under any such lease; and no
waiver or indulgence has been granted by the lessor under any
such lease. Except as set forth in Section 2.15 of the
Disclosure Schedule, DT has not received or been served with any
notice of condemnation or other taking by way of eminent domain
with respect to any of the Owned Real Property or Leased Real
Property. The current use by DT of the Owned Real Property and
the Leased Real Property complies in all material respects with
all applicable zoning laws and building ordinances. All buildings
and structures owned or leased by DT are in good operating
condition and in a state of good maintenance and repair, and are
adequate and suitable in all material respects for the purposes
for which they are presently used.
Section Title to and Condition of Certain Personal
Property. The personal property reflected in the balance sheet
of DT at December 31, 1993, comprise all of the personal property
owned by DT, and used in connection with the operation of their
businesses (the "Personal Property") as now conducted, except for
personal property sold or retired in the ordinary course of
business consistent with past practice. Except as set forth in
Section 2.16 of the Disclosure Schedule, DT has good and
marketable title to all Personal Property free and clear of all
liens. Except as set forth in Section 2.16 of the Disclosure
Schedule, all such Personal Property is in good operating
condition and in a state of good maintenance and repair, normal
wear and tear excepted, and is adequate and suitable for the
purposes for which it is presently used.
Section Insurance. Section 2.17 of the Disclosure
Schedule sets forth a true and complete list and brief
description of all policies of insurance (including all bonding
arrangements) owned or held by DT. Such policies, with respect
to their amounts and types of coverage, are adequate to insure
against all material risks to which DT is normally exposed in the
operation of its businesses and against which it is customary to
insure. Since December 31, 1993, there has not been any material
adverse change in the relationship between DT, on one hand, and
their respective insurers, on the other hand.
Section Environmental Matters. Except as disclosed
in Section 2.18 of the Disclosure Schedule, DT has not been
alleged to be in violation of, or has been subject to any
administrative or judicial proceeding pursuant to, any laws or
regulations governing the generation, use, collection, discharge
or disposal of Hazardous Materials (as defined below) either now
or at any time during the past three years. Except as disclosed
in Section 2.18 of the Disclosure Schedule, DT has complied in
all material respects with all Environmental Laws (as defined
below) except those Environmental Laws the noncompliance with
which would not have a material adverse effect on the financial
condition of DT. For purposes of this Section 2.18, "Hazardous
Materials" shall mean materials defined as "hazardous
substances", "hazardous wastes" or "solid wastes" in (i) the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9601-9657, and any amendments thereto
("CERCLA"), (ii) the Resource Conservation and Recovery Act, 42
U.S.C. 6901-6987 and any amendments thereto ("RCRA"), and
(iii) any similar Federal, state or local environmental statute
(together with CERCLA and RCRA, the "Environmental Laws").
Section Disclosure. Neither this Agreement, nor any
certificate delivered in accordance with the terms hereof nor any
document or statement in writing which is delivered by or on
behalf of Sellers to MasTec or any of their representatives or
agents in connection with the transactions contemplated hereby,
when taken as a whole, contains an untrue statement of a material
fact, or omits to state any material fact necessary to make the
statements contained herein or therein not misleading.
Section Finders' Fees. Other than London Capital
Corporation, there is no broker, finder or other intermediary
which has been retained by, or is authorized to act on behalf of,
DT or Sellers who might be entitled to any fee or commission from
any Person in connection with the transactions contemplated by
this Agreement. Sellers shall be liable for the payment of any
fee due to London Capital Corporation.
Section Licenses and Permits. DT has obtained and
maintains all licenses and permits required to be obtained or
maintained by DT to operate its businesses in any material
respect in the manner presently conducted. Section 2.21 of the
Disclosure Schedule contains a true and complete list of all
such permits .
Section Powers of Attorney and Suretyships. Section
2.22 of the Disclosure Schedule contains a true and complete list
showing (a) the names of all Persons holding powers of attorney
from DT and a summary statement of the material terms thereof and
(b) the names of all Persons standing in the position of surety
to, or otherwise holding rights of subrogation against, DT under
a performance, surety or other bond or similar instrument and a
summary statement of the material terms thereof.
Section Intellectual Property. Except as set forth
in Section 2.23 of the Disclosure Schedule, DT owns all right,
title and interest in the Intellectual Property (as defined
below) necessary to the operation of its business. To the extent
set forth in Section 2.23 of the Disclosure Schedule, each item
of Intellectual Property has been duly registered with, filed in,
or issued by the appropriate domestic or foreign governmental
agency, and each such registration, filing and issuance remains
in full force and effect. Except as set forth in Section 2.23 of
the Disclosure Schedule, no claim adverse to the interests of DT
in the Intellectual Property has been, to the best knowledge of
Sellers, threatened or asserted, and no Person has infringed or
otherwise violated DT's rights in any of the Intellectual
Property. For purposes of this Section 2.23, "Intellectual
Property" means domestic and foreign patents and patent
applications, registered and unregistered trademarks, service
marks, trade names, registered and unregistered copyrights,
computer programs, data bases, trade secrets and proprietary
information.
Section Best Efforts. Subject to the terms and
conditions of this Agreement, Sellers shall use their best
efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, the prompt
preparation and filing of all forms, registrations and notices
required to be filed by Sellers or DT to consummate the
transactions contemplated hereby and the taking of such actions
as are necessary to obtain any requisite approvals, consents,
orders, exemptions and waivers by any Governmental Entity or
other third party. Sellers shall promptly consult with MasTec
with respect to, provide any necessary information with respect
to and provide MasTec (or its counsel) copies of, all filings
made by Sellers with any Governmental Entity in connection with
this Agreement and the transactions contemplated hereby. From
and after the Closing Date, Sellers shall, from time to time,
execute and deliver such further instruments of conveyance,
assignment and transfer, and take or cause to be taken, such
other action for the more effective conveyance, assignment and
transfer of the Shares to MasTec and shall lend all reasonable
assistance to MasTec to carry out the intentions and purposes of
this Agreement.
Section Retention of Shares. Sellers shall not,
prior to the Closing Date, sell, assign, transfer, pledge,
encumber or otherwise dispose of any of the Shares (or any
interest therein) nor grant any options or similar rights with
respect to any of the Shares.
Section 2.26 Work in Process. Section 2.26 of the
Disclosure Schedule contains a true and complete list of the work
in process of DT as of the date set forth thereon, including the
name of the customer, cost and billings to date and the
percentage of completion of the work finished as of April 30,
1994.
Section 2.27 HSR Compliance. The total assets of DT
as set forth in its most recent regularly prepared balance sheet
plus the total assets of either Seller as set forth on his most
recent regularly prepared balance sheet or if such document does
not exist, on the Closing Date, shall be less than Ten Million
Dollars ($10,000,000.). For purposes of this Section 2.27 assets
are defined as set forth in the Hart-Scott Rodino Antitrust
Improvements Act of 1976 and the regulations promulgated
thereunder.
ARTICLE
REPRESENTATIONS AND WARRANTIES
OF MASTEC
MasTec represents and warrants to each Seller as of the
date hereof and as of the Closing Date as follows:
Section Organization. MasTec is a corporation duly
organized, validly existing and in good standing under the laws
of Delaware and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its
business as now being conducted. MasTec is duly qualified or
licensed and in good standing to do business in each jurisdiction
in which the character or location of the property owned, leased
or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary. MasTec has
heretofore delivered to Sellers accurate and complete copies of
the Certificate of Incorporation and By-Laws, as currently in
effect, of MasTec.
Section Authority Relative to this Agreement.
Subject to approval by the Board of Directors of MasTec, MasTec
has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby. Upon approval by the Board of Directors of MasTec, the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will be duly and validly
authorized by MasTec and no other corporate proceedings on the
part of MasTec will be necessary to authorize this Agreement or
to consummate the transactions so contemplated. Upon such
approval, this Agreement will be duly and validly executed and
delivered by MasTec and will constitute a valid and binding
agreement of MasTec, enforceable against it in accordance with
its terms.
Section Consents and Approvals; No Violations.
Except as set forth in Section 3.3 of the MasTec Disclosure
Schedule, no filing with, and no permit, authorization, consent
or approval of, any Governmental Entity, is necessary in
connection with the execution and delivery by MasTec of this
Agreement or the consummation by MasTec of the transactions
contemplated by this Agreement. Except as set forth in Section
3.3 of the MasTec Disclosure Schedule, neither the execution and
delivery of this Agreement by MasTec, nor the consummation by
MasTec of the transactions contemplated hereby nor compliance
with any of the provisions hereof or thereof will (i) conflict
with or result in any breach of any provision of the Certificate
of Incorporation or By-Laws of MasTec, (ii) result in a violation
or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under or require
consent under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, agreement or
other instrument or obligation to which MasTec is a party or by
which it or any of its properties or assets may be bound or (iii)
subject to making the filings and obtaining the permits,
authorizations, consents and approvals referred to in the
preceding sentence, violate any order, writ, injunction, decree,
statute, treaty, rule or regulation applicable to MasTec, or any
of its properties or assets.
Section 3.4 Investor Representations. MasTec
represents and warrants that it is purchasing the shares for
investment purposes and not with a view to the distribution
thereof. MasTec agrees that it will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any of the Shares (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of any of the
Shares), except in compliance with the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of
1934 (the "Exchange Act"), and the rules and regulations under
the Securities Act and the Exchange Act. MasTec represents that
it has acquired such information about DT, and has had an
opportunity to ask such questions of Sellers and DT's officers,
as it has deemed necessary in order to make an informed
investment decision concerning the Shares. MasTec further
represents that it has such knowledge, and the sophistication
necessary to use such knowledge, to make an informed investment
decision and that it has the ability to bear the economic risks
of its investment. Nothing set forth in this Section 3.4 shall
in any manner whatsoever effect MasTec's right to rely upon the
representations and warranties of Sellers set forth in this
Agreement or any Schedule or Exhibit provided by or on behalf of
Seller as part of the acquisition contemplated by this Agreement
or any certificate or document delivered to MasTec as part of
this Agreement including but not limited to MasTec's right to
seek indemnification, as provided in Article IX, for any
misrepresentation or breach of any warranty made by any Seller in
this Agreement .
ARTICLE
COVENANTS OF SELLERS
During the period from the date of this Agreement and
continuing until the Closing Date (except as otherwise
indicated), Sellers, jointly and severally, covenant to MasTec,
except as contemplated or permitted by this Agreement or as
MasTec shall otherwise consent in writing (which consent shall
not be unreasonably denied):
Section Conduct of Business. DT shall carry on its
businesses in the ordinary course consistent with past practice
and use its best efforts to preserve intact its present business
organization and preserve its relationships with its customers.
Section Dividends; Reclassification; and Redemptions.
Except as set forth in Section 4.2 of the Disclosure Schedule, DT
shall not (i) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of any of its capital stock, (ii)
split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock, or
(iii) repurchase, redeem or otherwise acquire any of its
securities.
Section Issuance of Securities. DT shall not
authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights
to purchase or otherwise) any stock of any class or any other
securities (including indebtedness having the right to vote) or
equity equivalents (including, without limitation, stock
appreciation rights), except upon the conversion or exercise of
options, warrants and other rights currently outstanding, or
amend any of the terms of any such securities or agreements in
effect on the date hereof.
Section Articles of Incorporation and By-Laws. DT
shall not amend its Articles of Incorporation or By-Laws.
Section Assets. DT shall not acquire, sell, lease,
encumber, transfer or dispose of any assets except in the
ordinary course of business consistent with past practice.
Section Indebtedness. Except as set forth in Section
4.6 of the Disclosure Schedule, DT shall not incur any
indebtedness for borrowed money or guarantee any indebtedness
except in the ordinary course of business in an aggregate amount
not to exceed $25,000. DT shall not issue or sell any debt
securities or warrants or rights to acquire any debt securities
of DT or guarantee (or become liable for) any debt of others or
make any loans, advances or capital contributions or mortgage,
pledge or otherwise encumber any material assets or create or
suffer any material lien thereupon except to secure permitted
indebtedness.
Section Payment of Liabilities. DT shall not pay,
discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, contingent or otherwise), other than the
payment, discharge or satisfaction in the ordinary course of
business consistent with past practice of liabilities (i)
reflected or reserved against in, or contemplated by, the
financial statements (or the notes thereto) of DT as of December
31, 1993, (ii) incurred in the ordinary course of business
consistent with past practice since December 31, 1993, or (iii)
incurred in connection with effecting the transactions
contemplated by this Agreement.
Section Accounting Practices. DT shall not change
any of the accounting principles or practices used by it (except
as required by generally accepted accounting principles).
Section Material Rights. DT shall not make or permit
any amendment or termination of any material contract, agreement
or license to which it is a party or by which its business may be
bound otherwise than in the ordinary course of business
consistent with past practice, or waive or release any material
rights, whether or not in the ordinary course of business.
Section Capital Expenditures. DT shall not make or
commit to make capital expenditures in the aggregate exceeding
$25,000.
Section Employee Benefit Plans. Except as set forth
in Section 4.11 of the Disclosure Schedule, DT shall not (i)
enter into, adopt, amend or terminate any employee benefit plan
or any agreement, arrangement, plan or policy between itself and
one or more of its directors, executive officers or employees,
except as may be required by applicable law or (ii) increase in
any manner the compensation or fringe benefits of any director,
officer or employee (other than increases made in the ordinary
course of business consistent with past practice) or pay any
benefit not required by any such plan or arrangement.
Section No Solicitations. Sellers shall immediately
cease and cause to be terminated any existing discussions or
negotiations with any third parties conducted prior to the date
hereof with respect to any merger, sale of a significant portion
of the assets, recapitalization, sale of shares of capital stock
or other extraordinary transaction (each, an "Acquisition
Transaction") involving DT. Sellers shall not, and shall use
their best efforts to ensure that none of their affiliates,
officers, directors, representatives or agents shall, directly or
indirectly, solicit, initiate or encourage (including by way of
furnishing information) any Person or group (including any third
parties referred to in the first sentence of this Section 4.12)
to pursue any Acquisition Transaction (other than the
transactions contemplated by this Agreement), provided that such
persons may participate in negotiations with or furnish
information to a third party (pursuant to a confidentiality
agreement in form acceptable to the Board of Directors of DT), if
the Board of Directors determines upon written opinion of counsel
that such actions are required pursuant to the exercise of the
Board's fiduciary duty under applicable law. Sellers shall
promptly advise MasTec of any such inquiries or proposals
initiated by others regarding an Acquisition Transaction.
Section Access to Information. During the period
prior to the Closing Date, upon reasonable notice, DT shall
afford to the officers, employees, accountants, counsel and other
advisers of MasTec (collectively "Representatives"), access,
during normal business hours, to the officers, employees,
accountants, counsel and other advisers of DT having knowledge of
the operation of their businesses and to properties, books,
contracts, commitments and records of DT; provided, however, that
in conducting such activities, MasTec and the MasTec Subsidiaries
shall not, and shall cause their Representatives not to, unduly
interfere with the business and employees of DT. During such
period, DT shall furnish promptly to MasTec and its
Representatives all information concerning their businesses,
properties and personnel as MasTec may reasonably request.
Sellers also shall deliver to MasTec for inspection and copying
by it and its Representatives, true and complete copies of all
documents listed or described in the Disclosure Schedule, and all
amendments, modifications, endorsements, and waivers thereof.
Section Books and Records. DT will maintain its
books of account and records in the ordinary course of business
consistent with past practice.
Section 4.15 Insurance. DT will use its best efforts
to maintain in full force and effect all polices of insurance now
held by it or otherwise naming it as a beneficiary or a loss
payee and shall inform MasTec of any notice of cancellation or
non-renewal of any insurance policy or binder.
Section Leases. DT will not enter into any real
property lease or any personal property leases pursuant to which
payments may be made by or to DT in an amount exceeding $25,000
in the aggregate.
Section Compliance with Applicable Laws. The
business of DT will be conducted in compliance with all
applicable laws, ordinances, rules, regulations, decrees and
orders of all Governmental Entities.
Section Inconsistent Actions. DT shall not take any
action that would or is reasonably likely to result in any of its
representations and warranties set forth in this Agreement being
untrue on the Closing Date.
Section Notification. Sellers shall promptly notify
MasTec in writing if any Seller becomes aware of any
misrepresentation, breach of warranty or non-fulfillment of any
covenant made by DT and shall have a period of ten business days
from the date on which such Seller became aware thereof to cure
such defect; provided, however, that in no event shall the period
for the cure of such defect extend beyond the Closing Date.
Section Retention of Shares. Sellers shall not,
prior to the Closing Date, sell, assign, transfer, pledge,
encumber or otherwise dispose of any of the Shares (or any
interest therein) nor grant any options or similar rights with
respect to any of the Shares.
Section Best Efforts. Subject to the terms and
conditions of this Agreement, Sellers shall use their best
efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, the prompt
preparation and filing of all forms, registrations and notices
required to be filed by Sellers or DT to consummate the
transactions contemplated hereby and the taking of such actions
as are necessary to obtain any requisite approvals, consents,
orders, exemptions and waivers by any Governmental Entity or
other third party. Sellers shall promptly consult with MasTec
with respect to, provide any necessary information with respect
to and provide MasTec (or its counsel) copies of, all filings
made by Sellers with any Governmental Entity in connection with
this Agreement and the transactions contemplated hereby. From
and after the Closing Date, Sellers shall, from time to time,
execute and deliver such further instruments of conveyance,
assignment and transfer, and take or cause to be taken, such
other action for the more effective conveyance, assignment and
transfer of the Shares to MasTec and shall lend all reasonable
assistance to MasTec to carry out the intentions and purposes of
this Agreement.
Section Confidentiality. DT shall use all non-public
information delivered by or on behalf of MasTec or any MasTec
Subsidiary to Sellers or any of Sellers' Representatives (as
defined in Section 4.13) solely for the purpose of evaluating the
Acquisition and shall not disclose such information to any other
Person or use such information for any other purpose, except as
required by applicable law or legal process, without the prior
written consent of MasTec. Sellers shall inform Sellers'
Representatives of the confidential nature of such information
and shall obtain the agreement of each such Sellers'
Representative to maintain and use such confidential information
in a manner consistent with the provisions of this Section 4.21.
If this Agreement is terminated, Sellers will, and will cause
Sellers' Representatives to, destroy or deliver to MasTec all
documents, work papers and other materials containing any non-
public information furnished by MasTec, any MasTec Subsidiary or
any of their Representatives, whether obtained before or after
the date of execution hereof.
ARTICLE
COVENANTS OF MASTEC
unreasona
unreasonably denied):
Section Notification. MasTec shall promptly notify
Sellers in writing if MasTec or any MasTec Subsidiary becomes
aware of any misrepresentation, breach of warranty or non-
fulfillment of any covenant made herein by MasTec or any MasTec
Subsidiary and shall have a period of ten business days from the
date on which MasTec or any MasTec Subsidiary became aware
thereof to cure such defect, provided however, that in no event
shall the period for the cure of such defect extend beyond the
Closing Date.
Section Best Efforts. Subject to the terms and
conditions of this Agreement, MasTec shall use its best efforts
to take, or cause to be taken, all actions, and to do, or cause
to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, the prompt
preparation and filing of all forms, registrations and notices
required to be filed by MasTec to consummate the transactions
contemplated hereby and the taking of such actions as are
necessary to obtain any requisite approvals, consents, orders,
exemptions and waivers by any Governmental Entity or other third
party. MasTec shall promptly consult with Sellers with respect
to, provide any necessary information with respect to and provide
Sellers (or their counsel) copies of, all filings made by MasTec
with any Governmental Entity in connection with this Agreement
and the transactions contemplated hereby. From and after the
Closing Date, MasTec shall, from time to time, execute and
deliver such further instruments of conveyance, assignment and
transfer, and take or cause to be taken, such other action for
the more effective conveyance, assignment and transfer of the
MasTec Shares to Sellers and shall lend all reasonable assistance
to Sellers in order to carry out the intentions and purposes of
this Agreement.
Section Confidentiality. MasTec and the MasTec
Subsidiaries shall use all non-public information delivered by or
on behalf of Sellers or DT to MasTec, any MasTec Subsidiary or
any of their Representatives solely for the purpose of evaluating
the Acquisition and shall not disclose such information to any
other Person or use such information for any other purpose,
except as required by applicable law or legal process, without
the prior written consent of Sellers. MasTec and the MasTec
Subsidiaries shall inform their Representatives of the
confidential nature of such information and shall obtain the
agreement of each such Representative to maintain and use such
confidential information in a manner consistent with the
provisions of this Section 5.3. If this Agreement is terminated,
MasTec and the MasTec Subsidiaries will, and will cause their
Representatives to, destroy or deliver to Sellers all documents,
work papers and other materials containing any non-public
information furnished by DT or any of their representatives,
whether obtained before or after the date of execution hereof.
Section 5.4 Termination of Pension and Profit
Sharing Plans. MasTec shall, after the Closing, terminate all
pension and profit sharing plans of DT. The cost of such
termination, including legal, accounting and administrative fees,
costs, filing fees with governmental agencies, and contributions
required to be made to the pension plan prior to termination but
after the Closing Date shall be borne by MasTec. Any
contribution for unfunded liabilities of the pension plan arising
prior to the Closing Date shall be paid by Sellers.
Section 5.5 Personal Liabilities of Sellers. MasTec
shall indemnify, defend and hold Sellers harmless from and
against any cost, expense or liability of any kind, which any
Seller became aware of after the Closing Date, and was not aware
of prior to the Closing Date, including attorneys' fees and
litigation costs, suffered or incurred by either Seller by reason
of any guaranty, indemnity or other undertaking by such Seller to
answer for or insure payment or performance of any obligations by
DT .
Section 5.6 Taxes. The parties believe there may
be certain additional Taxes due by DT for Federal Income Taxes
due for the year ending December 31, 1993. MasTec and Sellers
shall cooperate with each other to determine the amount, if any,
of such Taxes. Sellers shall be liable for the payment of all
such Taxes and shall reimburse DT upon the payment of such Taxes.
Section 5.7 Environmental Clean Up. On or before
December 31, 1994, Sellers, at their sole cost and expense, shall
cause the two (2) underground storage tanks located on the DT
Owned Real Property to be removed and to cause any Hazardous
Materials located on the DT Owned Real Property to be removed in
accordance with Federal, State and local Environmental Laws,
rules and regulations.
ARTICLE
CONDITIONS
cond
conditions, unless waived by the parties hereto:
This Agreement, the transactions contemplated
hereby shall have been duly approved by the Board of Directors
(and, to the extent required, a committee of the Board of
Directors) of MasTec;
No action or proceeding shall have been
instituted to restrain or prohibit any of the transactions
contemplated hereby;
(c) The consents required to be obtained by each party
(as set forth in Section 2.5 and Section 3.3) have been obtained.
Section Conditions of Obligations of MasTec. The
obligations of MasTec to consummate the Acquisition are further
subject to the satisfaction at or prior to the Closing Date of
the following conditions, unless waived by MasTec:
No claim entitling MasTec to indemnification
for misrepresentation or breach of warranty by Sellers, or any
of them, pursuant to Section 9.1(a) shall have arisen;
Each Seller shall have performed and complied
in all material respects with all agreements and covenants
required by this Agreement to have been performed or complied
with by such person at or prior to the Closing Date;
Sellers shall ahve made or caused to be made
all the deliveries to MasTec set forth in Section 7.1 hereof:
No bankruptcy, reorganization, arrangement or
insolvency proceedings or other proceedings for relief under
any bankruptcy or similar law or laws for the relief of
debtors shall have been instituted by or against any Seller or
DT, and none of them shall have applied for or consented to
the appointment of a custodian, trustee or receiver for
himself or itself; and
No material adverse change shall have occurred
in the assets or liabilities, condition, financial or
otherwise, or business or in the results of operations or
prospects of DT.
Section Conditions to Sellers' Obligations to
Consummate the Acquisition. The obligations of Sellers to
consummate the Acquisition are further subject to the
satisfaction at or prior to the Closing Date of the following
conditions, unless waived by Sellers:
No claim entitling any Seller to indemnification
for misrepresentation or breach of warranty by MasTec pursuant
to Section 9.1(b) shall have arisen;
MasTec shall have performed and complied in all
material respects with all agreements and covenants required
by this Agreement to have been performed or complied with by
it at or prior to the Closing Date;
MasTec shall have made or caused to be made all
the deliveries to Sellers set forth in Section 7.2 hereof;
ARTICLE
CLOSING DELIVERIES
Section Deliveries by Sellers. Prior to or on the
Closing Date, Sellers shall deliver or cause to be delivered to
MasTec the following, in form and substance reasonably
satisfactory to MasTec and its counsel:
Secretary's Certificate. A certificate, dated as
of the Closing Date, containing a copy of the Articles of
Incorporation and By-Laws of DT, together with all amendments
thereto, certified by the Secretary or Assistant Secretary of
each company, and a Certificate of Good Standing certified by
an appropriate state official of the State of Florida;
Seller's Certificate. A certificate, dated as of
the Closing Date, executed by each Seller certifying: (i) that
the representations and warranties of such Seller contained in
this Agreement are true and complete as of the Closing Date as
though made on and as of such date, except for changes
contemplated by this Agreement and (ii) that such Seller has,
in all material respects, performed all of his obligations and
complied with all of his covenants set forth in this Agreement
to be performed and complied with by him on or prior to the
Closing Date;
Share Certificates. Certificates evidencing the
Shares, together with appropriate stock powers executed in
blank; and
Opinion of Counsel. The opinion of Cummings,
Lawrence & Vezina, P.A., counsel for Sellers, dated as of the
Closing Date, substantially to the effect set forth in Exhibit
B attached hereto.
Section Deliveries by MasTec. Prior to or on the
Closing Date, MasTec shall deliver to Sellers the following, in
form and substance reasonably satisfactory to Sellers and their
counsel.
Officers' Certificate. A certificate, dated as of
the Closing Date, executed by the Chief Executive Officer and
Chief Financial Officer of MasTec certifying (i) that the
representations and warranties of MasTec contained in this
Agreement are true and complete as of the Closing Date as
though made on and as of such date, and (ii) that MasTec has,
in all material respects, performed all of its obligations and
complied with all of its covenants set forth in this Agreement
to be performed or complied with by it on or prior to the
Closing Date;
Cash to Close. Payment of One million
($1,000,000.) dollars by cashier's check or wire transfer.
Opinion of Counsel. The opinion of Carlos &
Abbott, P.A., independent special counsel to MasTec, dated as
of the Closing Date, substantially to the effect set forth in
Exhibit C attached hereto.
(d) The Note.
ARTICLE
TERMINATION AND AMENDMENT
Section Termination. This Agreement may be
terminated at any time prior to the Closing Date, whether before
or after approval of the matters presented in connection with the
Acquisition by the Directors of MasTec:
by mutual written consent of MasTec and
Sellers;
by MasTec on or prior to June 18, 1994, based
upon its financial and legal due diligence in its sole and
absolute discretion;
by MasTec or the Sellers if the Closing shall
not have occurred on or before June 30, 1994 (unless the
failure to consummate the Acquisition by such date shall have
resulted primarily from MasTec or Sellers breaching any
warranty or covenant in this Agreement);
Section Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 8.1 hereof,
this Agreement shall forthwith terminate without any liability on
the part of any party hereto or its affiliates, directors,
officers or stockholders, other than any liability of any party
then in breach pursuant to Section 9.4; provided, however that
the provisions of this Section 8.2 and Sections 10.5 through
10.9, and the confidentiality provisions of Section 4.21 and 5.3,
shall survive any such termination.
Section Extension; Waiver. At any time prior to the
Closing Date, the parties hereto may, to the extent legally
allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions
contained herein. No delay or failure on the part of any party
hereto in exercising any right, power or privilege under this
Agreement shall impair any such right, power or privilege or be
construed as a waiver of any default or any acquiescence thereto.
No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right, power or
privilege. No extension of time in which to perform and no
waiver shall be valid against any party hereto, unless made in
writing and signed by the party against whom enforcement of such
extension of time or waiver is sought, and then only to the
extent expressly specified therein.
ARTICLE
REMEDIES
Section Indemnification.
Indemnification by Sellers. Sellers, jointly and
severally, shall indemnify, defend and hold MasTec, each
MasTec Subsidiary and their respective officers, directors,
agents and representatives harmless from all claims, losses,
damages, costs and expenses incurred by any of them, directly
or indirectly, including, without limitation, all reasonable
legal fees incurred in investigating, litigating (at trial or
appellate level) or otherwise resolving any dispute
(collectively, "Damages"), arising out of or in connection
with any of the following:
any misrepresentation or
breach of any warranty made by any Seller
in this Agreement or any certificate or
document delivered to MasTec pursuant
hereto;
any breach of any covenant,
agreement or obligation to be performed by
any Seller contained in this Agreement; or
any transfer taxes payable
with respect to the transfer of the Shares
to MasTec pursuant hereto.
Indemnification by MasTec. MasTec shall
indemnify, defend and hold Sellers, DT and their respective
officers, directors, agents and representatives harmless from
all Damages incurred by any of them arising out of or in
connection with any of the following:
any misrepresentation or
breach of any warranty made by MasTec in
this Agreement or any certificate or
document delivered to Sellers pursuant
hereto; or
any breach of any covenant,
agreement or obligation to be performed by
MasTec contained in this Agreement.
Liability. Except for any liability arising
from Taxes or any liability arising from Employee Benefit
Plans, for purposes of this Section 10.1, Sellers shall be
deemed to have made a misrepresentation or to have breached a
warranty only if the Damages suffered by MasTec as a result
thereof shall exceed $10,000. For purposes of this Section
10.1, Sellers shall be deemed to have made a misrepresentation
or to have breached a warranty related to Taxes or Employee
Benefit Plans if the Damages suffered by MasTec as a result
thereof shall exceed One hundred dollars ($100.00) MasTec
shall be deemed to have made a misrepresentation or to have
breached a warranty only if the Damages suffered by Sellers
shall exceed $10,000. No claim for indemnification shall be
made under this Agreement for any cost or expense to the
extent such is reimbursed by any insurance coverage.
Survival of Obligations. The obligations of the
parties hereto to indemnify, defend and hold harmless pursuant
to this Article IX shall survive the Closing and shall
continue for as long as the representation, warranty,
covenant, agreement or obligation giving rise to the
obligation to indemnify shall survive pursuant hereto.
Section Third Party Claim Procedure. If a third
party (including, without limitation, a Governmental Entity)
asserts a claim against a party to this Agreement and
indemnification in respect of such claim is sought under the
provisions of this Article IX by such party against another party
to this Agreement, the indemnified party shall promptly (but not
later than 15 business days prior to the time when an answer or
other responsive pleading or notice with respect to the claim is
required) give written notice to the indemnifying party of such
claim. The indemnifying party shall have the right at its
election to take over the defense or settlement of such claim by
giving prompt written notice to the indemnified party at least
five business days prior to the time when an answer or other
responsive pleading or notice with respect thereto is required.
If the indemnifying party makes such election, it may conduct the
defense of such claim through counsel or representatives of its
choosing (subject to the indemnified party's approval of such
counsel or representatives, which approval shall not be
unreasonably withheld), shall be responsible for the expenses of
such defense, and shall be bound by the results of its defense or
settlement of claim to the extent it produces Damages to the
indemnified party. The indemnifying party shall not settle any
such claim without prior notice to and consultation with the
indemnified party and no such settlement involving any equitable
relief or which might have a material and adverse effect on the
indemnified party shall be agreed to without the written consent
of the indemnified party. So long as the indemnifying party is
diligently contesting any such claim in good faith, the
indemnified party may pay or settle such claim only at its own
expense. Within 20 business days after the receipt by the
indemnifying party of written request made by the indemnified
party at any time, the indemnifying party shall make financial
arrangements reasonably satisfactory to the indemnified party,
such as the posting of a bond or a letter of credit, to secure
the payment of its obligations under this Article IX in respect
of such claims. If the indemnifying party does not make such
election, or having made such election does not proceed
diligently to defend such claim, or does not continue diligently
to contest such claim, or does not make the financial
arrangements described in the immediately preceding sentence,
then the indemnified party may, upon 10 business days' written
notice and at the expense of the indemnifying party, take over
the defense of and proceed to handle such claim in its exclusive
discretion and the indemnifying party shall be bound by any
defense or settlement that the indemnified party may make in good
faith with respect to such claim. The parties shall cooperate in
defending such third party claims and the defending party shall
have access to records, information and personnel in control of
the other party or parties which are pertinent to the defense
thereof.
Section Remedies Cumulative. Except as otherwise
provided in Section 9.4 and elsewhere herein, the rights and
remedies expressly provided herein are cumulative and not
exclusive of any rights or remedies which the parties hereto may
otherwise have at law or in equity. Nothing herein shall be
construed to require any of the parties hereto to elect among
remedies.
and
and 6.3(d) shall not have been satisfied or waived or because
MasTec fails to close, MasTec shall pay the sum of $100,000 to
Sellers, provided that all of the conditions set forth in
Sections 6.1 and 6.2 shall have been satisfied or waived. If the
transactions contemplated hereby are not consummated because any
one or more of the conditions set forth in Sections 6.2(a),
6.2(b) and 6.2(c) and 6.2(d) shall not have been satisfied or
waived or because any Seller fails to close, Sellers, jointly and
severally, shall pay the sum of $100,000 to MasTec, provided that
all of the conditions set forth in Sections 6.1 and 6.3 shall
have been satisfied or waived. The parties hereto acknowledge
that their damages resulting from a failure to close in the
circumstances described in this Section 9.4 are impossible to
determine as of the date hereof and that the sum of $100,000 is a
reasonable estimate of such damages. In the event either party
fails to consummate the transactions contemplated hereby, the
other parties hereto shall have no rights or remedies on account
of any misrepresentation, or breach of warranty or covenant by
the defaulting party, other than as provided in this Section 9.4
and in Section 10.7.
Section 9.5 Payment of Indemnification Obligation.
In the event either party to this Agreement shall obtain against
the other a final arbitration award or judgement of any court
having jurisdiction over the parties hereto, the amount of such
award or judgement may be set off against any payments otherwise
due to such party in connection with this Agreement, the Note or
the transactions contemplated hereby. All indemnification by
MasTec, on the one hand, or the Sellers, on the other hand (to
the extent not satisfied in the manner specified in the preceding
sentence), shall be effected by payment of cash or delivery of a
cashiers' or certified check in the amount of the indemnification
liability.
ARTICLE
MISCELLANEOUS
Section Survival of Representations and Warranties.
All of the representations and warranties of the parties
contained herein shall survive the Closing (even if the other
parties knew or had reason to know of any misrepresentation or
breach of warranty at the time of Closing) and shall continue in
full force and effect until December 31, 1998.
a
addresses (or at such other address for a party as shall be
specified by like notice):
if to MasTec, to
MasTec, Inc.
Attn: Jorge Mas, President
Doral Financial Center
8600 N.W. 36 Street
Miami, FL 33166
Fax: (305) 599-1572
with copies to:
Eliot C. Abbott, Esq.
Carlos & Abbott, P.A.
999 Ponce de Leon Blvd.
Suite 1150
Coral Gables, FL 33134
Fax: (305) 443-8617
; and
if to any Seller, to the attention of such Seller
c/o
Designed Traffic Installation Co.
4345 N.E. 12th Terrace
Fort Lauderdale, FL 33334
Fax: (305) 561-3588
with copies to:
David J. Metcalf, Esq.
Cummings Lawrence & Vezina
1004 DeSoto Park Drive
Tallahassee, FL 32301
Fax: (904) 656-0329
Section Descriptive Headings. The descriptive
headings herein are inserted for convenience only and are not
intended to be part of or to affect the meaning or interpretation
of this Agreement.
Section Counterparts. This Agreement may be executed
in one or more counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof, each signed
by less than all, but together signed by all of the parties
hereto.
Section Entire Agreement; Assignment. This Agreement
(including the Schedules and Exhibits hereto) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof. This Agreement shall be
binding upon and inure to the benefit of the respective heirs,
executors, successors and assigns of the parties hereto,
provided, however, that this Agreement shall not be assigned by
any party without the prior written consent of the other parties
hereto.
Section Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State
of Florida without regard to any applicable principles of
conflicts of law. MasTec agrees to the irrevocable designation
of the Secretary of State of the State of Florida as its agent
upon whom process against it may be served. Each of Sellers
agrees to the irrevocable designation of David J. Metcalf as his
agent upon whom process against him may be served. Each of the
parties hereto agrees to personal jurisdiction in any action
brought under this Agreement in any court, Federal or State,
within the State of Florida having subject matter jurisdiction
over such action. The parties to this Agreement agree that any
suit, action, claim, counterclaim or proceeding arising out of or
relating to this Agreement shall be instituted or brought in the
United States District Court for the Southern District of
Florida, or, in the absence of jurisdiction, the state court
located in Dade County. Each party hereto waives any objection
which it may have now or hereafter to the laying of the venue of
any such suit, action, claim, counterclaim or proceeding, and
irrevocable submits to the jurisdiction of any such court in any
such suit, action, claim, counterclaim or proceeding.
Section Expenses. Except as otherwise provided in
Section 9.4, the Sellers shall bear all of their expenses, and
MasTec shall bear all of its expenses, incurred in the
negotiation, documentation and consummation of the transactions
contemplated by this Agreement, including, without limitation,
the fees and expenses of counsel, accountants and financial
advisers. Except as otherwise provided in Article IX, in the
event of litigation between the parties hereto as to any matter
arising under this Agreement or relating to the subject matter
hereof, the prevailing party shall be entitled to recover from
the other party or parties to the extent not recoverable under
Article IX all of its reasonable costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred in such
litigation (including appellate litigation).
Section Publicity. The parties hereto agree that
they will consult with each other concerning any proposed press
release or public announcement pertaining to the Acquisition and
shall not issue any press release or public announcement without
the prior consent of the other party; provided, that nothing
herein shall restrict any public announcement or other disclosure
which a party deems in good faith to be required to be made by
law or other applicable NASDAQ rule (in which case such party
shall advise the other party prior to making the disclosure).
Section Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person or persons any
rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
Section Construction. This Agreement has been
prepared jointly by, and is the product of extensive negotiations
between, the parties hereto, and, accordingly, shall not be
interpreted more strictly against any one party.
Section Disclosure Schedules. The parties hereto may
from time to time amend or supplement the information contained
in their respective disclosure schedules delivered pursuant
hereto at any time on or before June 18, 1994. Information
disclosed in one or more sections of a disclosure schedule
delivered pursuant hereto shall be deemed to be incorporated in
the other sections thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SELLERS:
/s/ Jack T. Clem
_____________________________
Name: Jack T. Clem
/s/ Eben J. Rieger
_____________________________ Name:
Eben J. Rieger
Attest: MASTEC, INC.
/s/ Jorge Mas
By: By:
Name: Name: Jorge Mas
Title: Title: President
SCHEDULE I
Jack T. Clem Three thousand (3,000) shares
Eben J. Rieger Three thousand (3,000) shares
AT CLOSING
Jack T. Clem Five hundred thousand dollars
($500,000.)
Eben J. Rieger Five hundred thousand dollars ($500,000.)
FIRST ADDENDUM TO AGREEMENT
THIS FIRST ADDENDUM TO AGREEMENT ("First Addendum") is made
as of the 17th day of June, 1994, by and among Jack T. Clem and
Eben J. Rieger ("Sellers") and MasTec, Inc., a Delaware
corporation (MasTec). All capitalized terms used but not defined
herein have the meanings specified in the Agreement (as defined
below).
WHEREAS, the parties hereto have executed and delivered the
Agreement dated as of June 15, 1994, pursuant to which MasTec has
agreed to purchase, and the Sellers have agreed to sell, the
Shares of Designed Traffic Installation, Co. (the "Agreement");
WHEREAS, the parties hereto wish to amend the Agreement as
set forth herein;
NOW THEREFORE, the parties, intending to be legally bound
and in consideration of the promises herein contained, agree as
follows:
1. Section 5.7 is omitted in its entirety
2. Section 4.22 is added and reads as follows:
Environmental Clean Up. On or before December 31,
1994, Sellers, at their sole cost and expense, shall cause the
two (2) underground storage tanks located on the DT Owned Real
Property to be removed and cause any Hazardous Materials located
on the DT Owned Real Property to be removed in accordance with
Federal, State and local Environmental Laws, rules and
regulations.
3. The reference in Section 9.4 to Section 6.3(d) is
hereby deleted.
4. Section 8.1 (b) is amended to read as follows:
By MasTec on or prior to June 20, 1994, based on its
financial and legal due diligence in its sole and absolute
discretion.
5. Section 10.11 is modified to read as follows:
Disclosure Schedules. The parties hereto may from time
to time amend or supplement the information contained in their
respective disclosure schedules delivered pursuant hereto at any
time on or before June 20, 1994. Information disclosed in one or
more sections of a disclosure schedule delivered pursuant hereto
shall be deemed to be incorporated in the other sections thereof.
6. Counterparts. This First Addendum may be executed in
one or more counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof, each signed
be less than all, but together signed by all of the parties
hereto.
7. Governing Law. This First Addendum shall be
governed and construed in accordance with the laws of the State
of Florida without regard to any applicable principles of
conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Addendum to Agreement as of June 17, 1994.
SELLERS:
/s/ Jack T. Clem
_____________________________
By: Jack T. Clem
/s/ Eben J. Rieger
_____________________________
By: Eben J. Rieger
MASTEC, INC.
/s/ Jorge Mas
_____________________________
By: Jorge Mas, President
SECOND ADDENDUM TO AGREEMENT
THIS SECOND ADDENDUM TO AGREEMENT ("Second Addendum") is
made as of the 20th day of June, 1994, by and among Jack T. Clem
and Eben J. Rieger ("Sellers") and MasTec, Inc., a Delaware
corporation (MasTec). All capitalized terms used but not defined
herein have the meanings specified in the Agreement (as defined
below).
WHEREAS, the parties hereto have executed and delivered the
Agreement dated as of June 15, 1994, pursuant to which MasTec has
agreed to purchase, and the Sellers have agreed to sell, the
Shares of Designed Traffic Installation, Co. (the "Agreement")
which was ammended by First Addendum dated June 17, 1994;
WHEREAS, the parties hereto wish to amend the Agreement as
set forth herein;
NOW THEREFORE, the parties, intending to be legally bound
and in consideration of the promises herein contained, agree as
follows:
1. Section 8.1 (b) is amended to read as follows:
By MasTec on or prior to June 22, 1994, based on its
financial and legal due diligence in its sole and absolute
discretion.
2. Section 10.11 is modified to read as follows:
Disclosure Schedules. The parties hereto may from time
to time amend or supplement the information contained in their
respective disclosure schedules delivered pursuant hereto at any
time on or before June 22, 1994. Information disclosed in one or
more sections of a disclosure schedule delivered pursuant hereto
shall be deemed to be incorporated in the other sections thereof.
3. Counterparts. This Second Addendum may be executed in
one or more counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof, each signed
be less than all, but together signed by all of the parties
hereto.
4. Governing Law. This Second Addendum shall be
governed and construed in accordance with the laws of the State
of Florida without regard to any applicable principles of
conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Second Addendum to Agreement as of June 20, 1994.
SELLERS:
/s/ Jack T. Clem
_____________________________
By: Jack T. Clem
/s/ Eben J. Rieger
_____________________________
By: Eben J. Rieger
MASTEC, INC.
/s/ Jorge Mas
_____________________________
By: Jorge Mas, President
The following exhibits and schedules have been omitted from this
filing. Items listed will be furnished to the Commission
supplementally upon request.
EXHIBITS
Exhibit A - Promissory Note
Exhibit B - Opinion of Seller's Counsel
Exhibit C - Opinion of Buyer's Counsel
DISCLOSURE
SCHEDULE
Schedule 2.1 - None
Schedule 2.2 - Listing of shareholders of DT
Schedule 2.5 - Requirement to comply within four (4) months
with Florida
Administrative Code Section 14-22.005(B)
Schedule 2.6 - None
Schedule 2.7 - Refinancing of DT's mortgage on its
headquarters in the amount of
$342,400
Schedule 2.8 - None
Schedule 2.9 - Style of pending DT litigation
Schedule 2.10 - None
Schedule 2.11 - Seller's obligation for 1993 taxes
Schedule 2.12 - List and status of Employee Benefit Plans
Schedule 2.13 - None
Schedule 2.14 - List of material agreements and contracts
Schedule 2.15 - List of Real Property owned and leased
Schedule 2.16 - List of encumbrances on personal property
Schedule 2.17 - List of policies of insurances
Schedule 2.18 - Status of Environmental matters
Schedule 2.21 - List of governmental permits
Schedule 2.22 - List of persons holding power of attorney and
suretyship from DT
Schedule 2.23 - None
Schedule 2.26 - List of work in process as of April 30, 1994
Schedule 3.3 - Approval by First Union National Bank of
Florida
Approval by the Board of Directors
Schedule 4.2 - None
Schedule 4.6 - None