Membership Interests Contribution Agreement

Exhibit 10.28


MEMBERSHIP INTERESTS CONTRIBUTION AGREEMENT


BY AND AMONG


INTEGRATED SITE DEVELOPMENT, INC.


AND


JOE L. FINLEY, III, CAROLINE M. FINLEY, FINLEY FAMILY LIMITED PARTNERSHIP,
THE CENTRAL ARKANSAS OPPORTUNITY FOUNDATION, TELESITE SERVICES, LLC AND
METROSITE MANAGEMENT, LLC


DATED


MAY 12, 1997


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MEMBERSHIP INTERESTS CONTRIBUTION AGREEMENT


THIS MEMBERSHIP INTERESTS CONTRIBUTION AGREEMENT (together with the Schedules and Exhibits hereto, the "Agreement"), dated May 12, 1997, is entered into by and among Integrated Site Development, Inc., a Delaware corporation ("ISD"), and Joe L. Finley, III ("Finley"), Caroline M. Finley ("Caroline Finley") Finley Family Limited Partnership, an Arkansas limited partnership (the "Partnership"), The Central Arkansas Opportunity Foundation, a charitable trust organized under the laws of the State of Arkansas ("CAOF") (Finely, the Partnership, and CAOF are collectively referred to as, the "Members") and Telesite Services, LLC, an Arkansas limited liability company ("Telesite"), and Metrosite Management, LLC, an Arkansas limited liability company ("Metrosite").


WHEREAS, the Partnership and CAOF are the owners of all of the membership interests, and are the sole members, of Telesite;


WHEREAS, Telesite is engaged in site acquisition, marketing, and consulting for the telecommunications industry (the "Telesite Business");


WHEREAS, Telesite and Finley are the owners of all of the membership interests, and are the sole members, of Metrosite;


WHEREAS, Metrosite is engaged in marketing and management of governmental and public properties of the telecommunications industry (the "Metrosite Business");


WHEREAS, Finley and Caroline Finley are husband and wife;


WHEREAS, pursuant to Section 351 of the Internal Revenue Code of 1986, as amended (the "Code"), the Members desire to contribute and transfer all of their membership interests in Telesite (the "Telesite Interests") to ISD in exchange for shares of the Common Stock, par value $0.001 per share, of ISD (the "ISD Common Stock") and certain other consideration as provided herein;


WHEREAS, pursuant to Section 351 of the Code, the Members desire to cause Telesite to, and Finley desires to, contribute and transfer all of their and his, as the case may be, membership interests in Metrosite (the "Metrosite Interests") to ISD in exchange for shares of ISD Common Stock and certain other consideration as provided herein; and


WHEREAS, the foregoing contributions and transfers are part of a single plan pursuant to Section 351 of the Code in which: (i) the foregoing contributions and transfers will be made; (ii) Stephen H. Clark ("Clark") and Robert M. Long ("Long") will contribute and transfer all of the shares of the capital stock of US Towers, Inc., a Delaware corporation ("US Towers") to ISD in exchange for shares of ISD Common Stock; (iii) Whitney Equity Partners, L.P., a Delaware limited partnership ("Whitney"), Kitty Hawk Capital Limited Partnership, III, a Delaware limited partnership ("Kitty Hawk") will contribute and transfer cash to ISD in exchange for shares of 8% Series A Cumulative Convertible Redeemable Preferred Stock, par


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value $0.001 per share, of ISD; and (iv) PCX Corporation, a Delaware corporation ("PCX"), has agreed to contribute its warrant to purchase 1,500 shares of the Common Stock, par value $0.001 per share, of US Towers (the "PCX Warrant") to ISD in exchange for a warrant to purchase 150,000 shares of ISD Common Stock (the "ISD Warrant").


NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations, and warranties set forth herein, the parties agree as follows:


ARTICLE I
DEFINITIONS


In addition to the other terms defined herein, the following definitions will apply throughout this Agreement:


1.1 ACM's. The term "ACM's" has the meaning set forth in Section 5.19(b).


1.2 Affiliate. The term "Affiliate" has the meaning set forth in Rule 405 of the Securities Act of 1933, as amended.


1.3 Claims. The term "Claims" has the meaning set forth in Section 5.15.


1.4 Closing. The term "Closing" has the meaning set forth in Section 12.1.


1.5 Closing Date. The term "Closing Date" has the meaning set forth in Section 12.1.


1.6 Consideration. The term "Consideration" has the meaning set forth in Section 3.1.


1.7 Effective Time. The term "Effective Time" has the meaning set forth in Section 12.1.


1.8 Environmental Laws. The term "Environmental Laws" has the meaning set forth in Section 5.19.


1.9 ERISA. The term "ERISA" means the Employee Retirement Income Security Act of 1974, as amended.


1.10 Hazardous Materials. The term "Hazardous Materials" has the meaning set forth in Section 5.19(b).


1.11 Indemnified Party. The term "Indemnified Party" has the meaning set forth in Section 13.3.


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1.12 Indemnity Obligor. The term "Indemnity Obligor" has the meaning set forth in Section 13.3.


1.13 ISD Agreements. The term "ISD Agreements" means all agreements, documents and other instruments executed and delivered by ISD in connection with the consummation of the transaction contemplated by this Agreement.


1.14 Loss. The term "Loss" has the meaning set forth in Section 13.1.


1.15 Member Agreements. The term "Member Agreements" means all agreements, documents and other instruments executed and delivered by the Members in connection with the consummation of the transactions contemplated by this Agreement.


1.16 Metrosite Assets. The term "Metrosite Assets" means all of the properties and assets of Metrosite, including, without limitation, the Metrosite Intellectual Property, the Metrosite Inventory, the Metrosite Receivables, and the Metrosite Tangible Personal Property.


1.17 Metrosite Contracts. The term "Metrosite Contracts" has the meaning set forth in Section 6.11.


1.18 [Intentionally Omitted]


1.19 Metrosite Intellectual Property. The term "Metrosite Intellectual Property" has the meaning set forth in Section 6.13.


1.20 Metrosite Inventory. The term "Metrosite Inventory" has the meaning set forth in Section 6.10.


1.21 Metrosite Leased Real Property. The term "Metrosite Leased Real Property" has the meaning set forth in Section 6.8.


1.22 Metrosite Liens. The term "Metrosite Liens" has the meaning set forth in Section 6.7.


1.23 [Intentionally Omitted]


1.24 Metrosite Marks. The term "Metrosite Marks" has the meaning set forth in Section 6.13.


1.25 Metrosite Permits. The term "Metrosite Permits" has the meaning set forth in Section 6.17.


1.26 Metrosite Real Property Leases. The term "Metrosite Real Property Leases" has the meaning set forth in Section 6.8.


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1.27 Metrosite Receivables. The term "Metrosite Receivables" has the meaning set forth in Section 6.12.


1.28 Metrosite Required Consents. The term "Metrosite Required Consents" has the meaning set forth in Section 6.4.


1.29 Metrosite Tangible Personal Property. The term "Metrosite Tangible Personal Property" has the meaning set forth in Section 6.9.


1.30 Metrosite Tax Returns. The term "Metrosite Tax Returns" has the meaning set forth in Section 6.18.


1.31 [Intentionally Omitted]


1.32 PBGC. The term "PBGC" means the Pension Benefit Guaranty Corporation.


1.33 Person. The term "person" means any individual, firm, corporation, limited liability company, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, governmental authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.


1.34 Plans. The term "Plans" has the meaning set forth in Section 5.22(b)(i).


1.35 Promissory Note. The term "Promissory Note" has the meaning set forth in Section 3.2.


1.36 Real Estate Lease. The term "Real Estate Lease" means the Real Estate Lease, dated as of the Closing Date, between Telesite and the Partnership in substantially the form attached as Exhibit A.


1.37 Representatives. The term "Representatives" has the meaning set forth in Section 8.2.


1.38 Rules. The term "Rules" has the meaning set forth in Section 5.16.


1.39 Stockholders' Agreement. The term "Stockholders' Agreement" means the Stockholders' Agreement, dated as of the Closing Date, between ISD, Clark, Long, the Partnership, PCX and Whitney in substantially the form attached as Exhibit B.


1.40 Stock Restriction Agreement. The term "Stock Restriction Agreement" means the Stock Restriction Agreement, dated as of the Closing Date, between ISD and the Partnership in substantially the form attached as Exhibit C.


1.41 Taxes. The term "Taxes" has the meaning set forth in Section 5.18.


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1.42 Telesite Agreements. The term "Telesite Agreements" means all agreements, documents and other instruments executed and delivered by Telesite in connection with the consummation of the transactions contemplated by this Agreement.


1.43 Telesite Assets. The term "Telesite Assets" means all of the properties and assets of Telesite, including, without limitation, the Telesite Intellectual Property, the Telesite Inventory, the Telesite Receivables, the Telesite Tangible Personal Property, the Telesite Contracts, the Telesite Leased Real Property, and the Telesite Real Property Leases.


1.44 Telesite Contracts. The term "Telesite Contracts" has the meaning set forth in Section 5.11.


1.45 Telesite Excluded Real Property. The term "Telesite Excluded Real Property" means the real property owned by Telesite and described on Exhibit D attached hereto.


1.46 Telesite Financial Statements. The term "Telesite Financial Statements" has the meaning set forth in Section 5.5.


1.47 Telesite Intellectual Property. The term "Telesite Intellectual Property" has the meaning set forth in Section 5.13.


1.48 Telesite Inventory. The term "Telesite Inventory" has the meaning set forth in Section 5.10.


1.49 Telesite Leased Real Property. The term "Telesite Leased Real Property" has the meaning set forth in Section 5.8.


1.50 Telesite Liens. The Term "Telesite Liens" has the meaning set forth in Section 5.7.


1.51 Telesite March 1997 Balance Sheet. The term "Telesite March 1997 Balance Sheet" has the meaning set forth in Section 5.5.


1.52 Telesite Marks. The term "Telesite Marks" has the meaning set forth in Section 5.13.


1.53 Telesite Permits. The term "Telesite Permits" has the meaning set forth in Section 5.17.


1.54 Telesite Permitted Liens. The term "Telesite Permitted Liens" has the meaning set forth in Section 5.7.


1.55 Telesite Real Property Leases. The term "Telesite Real Property Leases" has the meaning set forth in Section 5.8.


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1.56 Telesite Receivables. The term "Telesite Receivables" has the meaning set forth in Section 5.12.


1.57 Telesite Required Consents. The term "Telesite Required Consents" has the meaning set forth in Section 5.4.


1.58 Telesite Tangible Personal Property. The term "Telesite Tangible Personal Property" has the meaning set forth in Section 5.9.


1.59 Telesite Tax Returns. The term "Telesite Tax Returns" has the meaning set forth in Section 5.18.


1.60 Whitney Letter of Intent. The term "Whitney Letter of Intent" means the Letter of Intent, dated March 27, 1997, between Whitney and US Towers, a copy of which is attached as Exhibit E.


ARTICLE II
CONTRIBUTION OF MEMBERSHIP INTERESTS


2.1 Contribution of Telesite Interests. The Members agree to contribute, transfer and deliver to ISD, at the Closing, all of the Telesite Interests owned by them in exchange for the Consideration.


2.2 Contribution of Metrosite Interests. The Members agree to cause Telesite to, and Finley agrees to, contribute, transfer and deliver to ISD, at the Closing, all of the Metrosite Interests owned by them or him, as the case may be, in exchange for the Consideration.


2.3 Intent of Contributions. The parties agree that the intent of the contributions and transfers of the Telesite Interests and the Metrosite Interests to ISD pursuant to this Agreement will constitute a transfer of property to a controlled corporation in accordance with the provisions of Section 351 of the Code.


ARTICLE III
CONSIDERATION


3.1 Consideration. The aggregate consideration (the "Consideration") for the Telesite Interests and the Metrosite Interests will be an amount equal to an aggregate of $7,262,000 and 490,517 shares of ISD Common Stock.


3.2 Payment of Consideration. At the Closing, the Consideration will be satisfied and paid by ISD as follows: (a) ISD will wire transfer immediately available funds in the aggregate amount of $2,000,000.00 to the bank account designated by CAOF and $2,850,000.00 to the bank account designated by the Partnership, (b) ISD will make and deliver to the Partnership a


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promissory note, payable to the Partnership, in the aggregate principal amount of $2,412,000.00, which will bear interest at the rate of seven percent (7%) per annum and will be in the form attached hereto as Exhibit F (the "Promissory Note") and (c) subject to the terms and conditions of the Stockholders' Agreement and the Stock Restriction Agreement, ISD will issue to the Partnership a certificate or certificates evidencing 490,517 shares of the ISD Common Stock.


ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING MEMBERS


The Members and Caroline Finley jointly and severally represent and warrant to ISD as follows:


4.1 Authority. Each of the Members and Caroline Finley has all requisite power and authority to execute and deliver this Agreement and the Member Agreements and to perform the transactions contemplated hereby and thereby. The execution, delivery, and performance of this Agreement and the Member Agreements by the Partnership has been duly and validly authorized by all necessary partnership and partner action. The execution, delivery, and performance of this Agreement and the Member Agreements by CAOF has been duly and validly authorized by all necessary trust and trustee action. This Agreement and the Member Agreements have been, or with respect to the Member Agreement to be executed at the Closing, will be duly executed and delivered by the Members and Caroline Finley and each constitutes, or will constitute when executed and delivered, a valid and binding obligation of the Members and Caroline Finley, enforceable against the Members and Caroline Finley, as the case may be, in accordance with its terms.


4.2 Telesite Interests. The Partnership and CAOF are the sole beneficial and record owners of the Telesite Interests in the percentages set forth on Schedule 4.2, free and clear of all liens, encumbrances, claims, security interests, mortgages, restrictions or pledges of any nature. There are no outstanding subscriptions, options, warrants, calls, puts or other agreements or instruments which may entitle or obligate Telesite or any other person to acquire any membership interest in Telesite.


4.3 Metrosite Interests. Finley and Telsite are the sole beneficial and record owners of the Metrosite Interests in the percentages set forth on Schedule 4.3, free and clear of all liens, encumbrances, claims, security interests, mortgages, restrictions or pledges of any nature. There are no outstanding subscriptions, options, warrants, calls, puts or other agreements or instruments which may entitle or obligate Metrosite or any other person to acquire any membership interest in Metrosite.


4.4 Securities Matters. The Partnership seeks to acquire the shares of ISD Common Stock issued to it for its own account and beneficial interest for investment purpose only and not with the view to the resale, assignment, transfer or distribution thereof, except in accordance with applicable federal and state securities laws. The Partnership acknowledges and agrees that, as the owner of the shares of ISD Common Stock, it must bear the economic risks of investment in


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ISD for an indefinite period of time, as the securities have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state, and therefore cannot be sold unless registered thereunder or unless, in the opinion of counsel satisfactory to ISD, an exemption from registration is available. The Partnership acknowledges and agrees that the shares of ISD Common Stock issued to it will be subject to certain restrictions on transfer as set forth in the Stockholders' Agreement and that the certificates evidencing such shares will bear legends referring to such restrictions. The Partnership has such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of an investment in the ISD and that they are able to bear the economic risks for such investment. The Partnership is sophisticated and knowledgable investors, as well as accredited investors (as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act). The Partnership acknowledges that it and its representatives (a) has had adequate opportunity to ask for and receive any information from ISD and its officers that the Partnership believes to be material or relevant to their investment hereunder and (b) has had a due diligence investigation conducted by its legal counsel and other professional advisors.


4.5 Stock Purchase Agreement. The representations and warranties made by Telesite and Metrosite in the Stock Purchase Agreement, dated as of the Closing Date, by and among ISD, US Towers, Telesite, Metrosite and Whitney are true and correct.


ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING TELESITE


The Members, Caroline Finley and Telesite jointly and severally represent and warrant to ISD as follows:


5.1 Organization and Good Standing: Governing Documents. Telesite is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Arkansas. Telesite has all requisite power and authority to own, operate and lease the Telesite Assets and to conduct the operations of the Telesite Business as presently conducted. Telesite is duly qualified to conduct business as a foreign limited liability company and is in good standing in all jurisdictions in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, and such jurisdictions are listed on Schedule 5.1. Telesite has previously delivered to ISD true and complete copies of its Articles of Organization and Operating Agreement, including all amendments thereto. Except as set forth on Schedule 5.1, Telesite does not, directly or indirectly, own or control or have any capital, equity, partnership, participation or other interest in any corporation, partnership, limited liability company, joint venture or other business association or entity.


5.2 Authority. Telesite has all requisite power and authority to execute and deliver this Agreement and the Telesite Agreements and to perform the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Telesite Agreements have been duly and validly authorized by all necessary action on the part of Telesite,


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its managers and the Members. This Agreement has been and the Telesite Agreements have been, or, with respect to the Telesite Agreements to be executed at the Closing, will be duly executed and delivered by Telesite and each constitutes or will constitute when executed and delivered a valid and binding obligation of Telesite, enforceable against Telesite in accordance with its terms.


5.3 No Conflict or Breach. The execution, delivery and performance of this Agreement does not and will not:


(a) conflict with the Articles of Organization or Operating Agreement of Telesite;


(b) violate any law, statute, judgment, order, decree or regulation of any legislative body, court, administrative agency, governmental authority or arbitrator applicable to or relating to Telesite or the Telesite Assets;


(c) conflict with, constitute a default under, result in a breach or acceleration of or, except as set forth on Schedule 5.3, require notice to or the consent of any third party under any contract, agreement, commitment, mortgage, note, license or other instrument or obligation to which Telesite is party or by which it is bound or by which the Telesite Assets are affected; or


(d) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever on any of the Telesite Assets.


5.4 Consents and Approvals. Schedule 5.4 describes (a) each consent, approval, authorization, registration or filing with any federal, state or local judicial or governmental authority or administrative agency and (b) each consent, approval, authorization of or notice to any other third party, which is required in connection with the valid execution and delivery of this Agreement or the consummation of the transactions contemplated herein or therein (the items described in clauses (a) and (b), collectively, the "Telesite Required Consents").


5.5 Financial Statements. Telesite has previously delivered to ISD true and complete copies of (a) its unaudited Consolidated Income Statement for the fiscal year ended December 31, 1995, unauditied Consolidated Balance Sheet as of December 31, 1995, audited Consolidated Income Statement for the fiscal year ended December 31, 1996, and audited Consolidated Balance Sheet as of December 31, 1996, and the related statement of operations, members' equity and cash flows for such fiscal years then ended, including the footnotes thereto, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants reviewing or auditing, as the case may be, such financial statements and (b) the interim unaudited Consolidated Balance Sheet (the "Telesite March 1997 Balance Sheet") and the related consolidated statement of operations, member's equity and cash flows prepared for the quarter ended March 31, 1997. The documents described in clauses (a), and (b), collectively, the "Telesite Financial Statements":


(a) are true, complete and correct;


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(b) are in accordance with the books and records of Telesite;


(c) present fairly the assets, liabilities and financial condition of Telesite as of the respective dates thereof, and the results of operations for the periods then ending; and


(d) have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved.


Telesite has no liability or obligation, whether accrued, absolute, or contingent that is not reflected or reserved against in the Telesite March 1997 Balance Sheet, except for those that are not required by generally accepted accounting principles to be included therein. Any items of income or expense which are unusual or of a nonrecurring nature are separately disclosed in the Telesite Financial Statements.


Telesite has not received from any of its certified public accountants letters to the management of Telesite other than the auditors' opinion letter accompanying the Telesite Financial Statements.


5.6 Books and Records. The books and records of Telesite relating to the Telesite Business and the Telesite Assets are true, accurate and complete in all material respects.


5.7 Title to and Sufficiency of Assets. Telesite has good and marketable title to all of the Telesite Assets, free and clear of any liens, encumbrances, claims, security interests, mortgages, restrictions or pledges of any nature (collectively, "Telesite Liens"), other than the Telesite Liens described on Schedule 5.7. All Telesite Liens that will not be removed at or prior to the Closing are set forth on Schedule 5.7 (the "Telesite Permitted Liens"). Except for the Telesite Excluded Real Property, the Telesite Assets constitute all of the assets, tangible and intangible, of any nature whatsoever, required to operate the Telesite Business in the manner presently operated by Telesite.


5.8 Leased Real Property. Schedule 5.8 contains a true and correct description of all real property leased by Telesite and used or useful in connection with the Telesite Business (the "Telesite Leased Real Property"). Telesite has previously delivered to ISD true and complete copies of each of the leases, including all amendments thereto, for such leased real property (the "Telesite Real Property Leases"). Each of the Telesite Real Property Leases is valid, binding and enforceable in accordance with its terms and is in full force and effect, and there are no offsets or defenses by either landlord or tenant thereunder. There are no existing defaults, and no events or circumstances have occurred which, with or without notice of lapse of time or both, would constitute defaults, under any of the Telesite Real Property Leases. The execution, delivery and performance of this Agreement does not and will not, with respect to any such Telesite Real Property Lease: (i) permit the landlord to accelerate the rent or cause the lease terms to be renegotiated, (ii) constitute a default thereunder or (iii) require the consent of the landlord or any third party.


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5.9 Tangible Personal Property. Set forth on Schedule 5.9 is a list of all machinery, equipment, tools, furniture, office equipment, supplies, materials, vehicles and other items of tangible personal property of every kind owned by Telesite and used or useful in connection with the Telesite Business (wherever located and whether or not carried on Telesite's books) (the "Telesite Tangible Personal Property"). Each item of Telesite Tangible Personal Property, and each item of tangible personal property leased under the Telesite Contracts, is in good operating order, condition and ordinary wear and tear excepted, is suitable for immediate use in the ordinary course of business of the Telesite Business, is free from defects, is merchantable and is of a quality and quantity presently usable in the ordinary course of business of the Telesite Business. No item of Telesite Tangible Personal Property is in need of repair or replacement other than as part of routine maintenance in the ordinary cou ...