EXHIBIT 2.2
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is made as of July
23, 2003, by and among TSI Telecommunication Holdings, LLC, a Delaware limited
liability company (the "Company") and the Persons listed on the signature page
attached hereto under the heading "Exchanging Parties" (individually, an
"Exchanging Party" and collectively, the "Exchanging Parties"). Except as
otherwise indicated herein, capitalized terms used herein are defined in Section
4 hereof or the Merger Agreement (as defined below).
The Exchanging Parties hold shares of the following securities
of TSI Telecommunication Network Services Inc., a Delaware corporation ("TSI
Networks"): Class B Common Stock, par value $.01 per share (the "TSI Networks
Stock").
Each of the Exchanging Parties desires to contribute to the
Company all of the TSI Networks Stock owned by such Exchanging Party in exchange
for the number of Common Units of the Company (the "Common Units") listed
opposite the Exchanging Party's name on the Schedule of Exchanging Parties
attached hereto.
The execution of this Agreement by the Company and the
Exchanging Parties is a condition to the acquisition of Brience, Inc. by TSI
Networks pursuant to an agreement and plan of merger among TSI Networks, TSI
Brience, LLC, Brience, Inc., GTCR Fund VII, L.P., GTCR Co-Invest, L.P. and the
Exchanging Parties dated as of July 15, 2003 (the "Merger Agreement").
The exchange with the Company by the Exchanging Parties of TSI
Networks Stock for Common Units hereunder shall be effective immediately
following the consummation of the transactions contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
Section 1. Exchange; Authorization and Issuance of Company
Securities.
1A. Authorization of Company Securities. The Company shall
authorize the issuance of 19,775.01 Common Units to the Exchanging Parties.
1B. Exchange of TSI Networks Stock for Common Units. At the
Closing (as defined in Section 1C below), subject to the terms and conditions
set forth herein, (i) each Exchanging Party shall deliver to the Company all of
the TSI Networks Stock owned by the Exchanging Party, accompanied by instruments
of assignment acceptable to the Company (the "Exchange"), and (ii) the Company
shall deliver to each Exchanging Party the number of Common Units listed
opposite such Exchanging Party's name on the Schedule of Exchanging Parties
attached hereto in exchange therefor. The Company and the Exchanging Parties
agree that, as of the date of the Exchange, the fair value of each Exchanging
Party's TSI Networks Stock is equal to the fair value of the Common Units set
forth next to such Exchanging Party's name on the Schedule of Exchanging
Parties. The Company and the Exchanging Parties agree to prepare or cause to be
prepared their tax returns in accordance with the immediately preceding
sentence.
1C. Closing. The closing of the Exchanging Parties' exchange
of TSI Networks Stock for Common Units (the "Closing") shall take place at the
offices of Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
immediately following the closing of the transactions contemplated by the Merger
Agreement.
Section 2. Representations and Warranties with respect to the
Exchanging Parties. As a material inducement to the Company to enter into this
Agreement, each of the Exchanging Parties represents and warrants to the
Company, as to such Person (severally and not jointly), that:
2A. Authorization of Transactions. The Exchanging Party has
full power and authority to enter into this Agreement and the other agreements
contemplated hereby to which the Exchanging Party is a party, and to perform the
Exchanging Party's obligations hereunder and thereunder.
2B. Execution, Delivery; Valid and Binding Agreements. This
Agreement has been duly executed and delivered by the Exchanging Party, and this
Agreement constitutes, and the other agreements contemplated hereby to which the
Exchanging Party is a party, when executed and delivered by the Exchanging Party
in accordance with the terms thereof, shall each constitute a valid and binding
obligation of the Exchanging Party, enforceable in accordance with its terms,
subject to the effect of bankruptcy or other similar laws and to general
principles of equity (whether considered in proceedings at law or in equity).
2C. No Breach. The execution and delivery by the Exchanging
Party of this Agreement and the other agreements contemplated hereby to which
the Exchanging Party is a party, and the fulfillment of and compliance with the
respective terms hereof and thereof by the Exchanging Party, do not and shall
not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under (whether with or without the
giving of notice, the passage of time or both), (iii) result in the creation of
any lien upon the Exchanging Party's assets or encumbrance upon the Exchanging
Party's TSI Networks Stock pursuant to, (iv) give any third party the right to
modify, terminate or accelerate any obligation under, (v) result in a violation
of, or (vi) require any authorization, consent, approval, exemption or other
action by or notice or declaration to, or filing with, any third party or any
court or administrative or governmental body or agency pursuant to, any material
law, statute, rule or regulation to which the Exchanging Party is subject, or
any material agreement, instrument, order, judgment or decree to which the
Exchanging Party is subject.
2D. Title to TSI Networks Stock. On the Closing Date, the
Exchanging Party shall transfer to the Company good and marketable title to the
shares of the TSI Networks Stock set forth opposite the Exchanging Party's name
on the Schedule of Exchanging Parties, free and clear of all encumbrances, other
than applicable federal and state securities law restrictions, and the
restrictions set forth in this Agreement, the Merger Agreement, and the other
ancillary agreements contemplated thereby.
2E. Issued Entirely for Own Account. The Common Units to be
issued to the Exchanging Party are for investment for the Exchanging Party's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Exchanging
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Party has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Exchanging
Party further represents that the Exchanging Party does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Common Units other than as set forth in the LLC Agreement and the
Securityholders Agreement.
2F. Disclosure of Information. The Exchanging Party believes
that it has received all the information the Exchanging Party considers
necessary or appropriate for deciding whether to acquire the Common Units. The
Exchanging Party further represents that the Exchanging Party has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the Common Units and the business, properties, prospects
and financial condition of the Company.
2G. Investment Experience. Immediately upon the consummation
of the transactions contemplated hereby, the Exchanging Party shall be an
"accredited investor" as such term is defined in Rule 501(a) of the Securities
Act. The Exchanging Party acknowledges that the Exchanging Party can bear the
economic risk of such Person's investment, and has such knowledge and experience
in financial or business matters that the Exchanging Party is capable of
evaluating the merits and risks of the purchase of the Common Units.
2H. Restricted Securities. The Exchanging Party understands
that the Common Units have not been registered under the Securities Act on the
basis that the sale of the Common Units is exempt from the registration
provisions thereof and that the Company's reliance on such exemption is
predicated upon the representations of the Exchanging Parties herein.
Section 3. Representations and Warranties of the Company. As a
material inducement to the Exchanging Parties to enter into this Agreement and
effect the Exchange, the Company hereby represents and warrants to the
Exchanging Parties:
3A. Organization and Power. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify would have a material adverse effect on the financial
condition, operating results, assets, operations or business prospects of the
Company. The Company has all requisite power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and to carry out the transactions contemplated by this
Agreement.
3B. Capitalization and Related Matters.
(a) As of the Closing contemplated hereunder, and after giving
effect to the transactions contemplated by this Agreement and the Merger
Agreement, the issued and outstanding capital securities of the Company shall
consist of the following: (i) 252,367.49 Class B Preferred Units and (ii)
89,254,009.28 Common Units.
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(b) There are no statutory or, to the best of the Company's
knowledge, contractual unitholders preemptive rights or rights of refusal with
respect to the issuance of the Common Units hereunder, except as expressly
contemplated in the Securityholders Agreement or provided herein. To the best of
the Company's knowledge, there are no agreements between the Company's
unitholders with respect to the voting or transfer of the Company's capital
stock or with respect to any other aspect of the Company's affairs, except as
set forth in the LLC Agreement or Securityholders Agreement.
3C. Authorization; No Breach. The execution, delivery and
performance of this Agreement, and all other agreements contemplated hereby to
which the Company is a party (collectively, the "Relevant Agreements") have been
duly authorized by the Company. Each Relevant Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms.
Except as set forth on Schedule 3C attached hereto, the execution and delivery
by the Company of the Relevant Agreements, the issuance of the Common Units
hereunder, and the fulfillment of and compliance with the respective terms
hereof and thereof by the Company do not and will not (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii) constitute a
default under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon the Company's capital securities or assets pursuant
to, (iv) give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice to any
court or administrative or governmental body pursuant to, the LLC Agreement, or
any law, statute, rule or regulation to which the Company is subject, or any
agreement, instrument, order, judgment or decree to which the Company is a party
or by which it is bound.
3D. Valid Issuance of Common Units. The Common Units being
issued to the Exchanging Parties pursuant to this Agreement, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be free of restrictions on transfer other
than restrictions on transfer under the Transaction Documents and under
applicable state and federal securities laws.
Section 4. Definitions. For the purposes of this Agreement,
the following terms have the meanings set forth below:
"Affiliates" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Confidential Information" means all information of a
confidential or proprietary nature (whether or not specifically labeled or
identified as "confidential"), in any form or medium, that relates to the
business, products, services or research or development of any of the Company or
its subsidiaries or their respective suppliers, distributors, customers,
independent contractors or other business relations. Confidential Information
includes, but is not limited to, the following: internal business information
(including information relating to strategic and staffing plans and practices,
business, training, marketing, promotional and sales plans and practices, cost,
rate and pricing structures, accounting and business methods and potential
acquisition candidates); identities of, individual requirements of, specific
contractual
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arrangements with, and information about, the Company's and its subsidiaries'
suppliers, distributors, customers, independent contractors or other business
relations and their confidential information; trade secrets, know-how,
compilations of data and analyses, techniques, systems, formulae, research,
records, reports, manuals, documentation, models, data and data bases relating
thereto; inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports and all similar or related information (whether or
not patentable) and other intellectual property.
"LLC Agreement" means that certain Limited Liability Company
Agreement of the Company, dated as of February 14, 2002, by and among the
Company and the unitholders party thereto, as amended from time to time in
accordance with its terms.
"Person" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint share company, a
trust, a joint venture, an unincorporated organization, an investment fund, any
other business entity and a governmental entity or any department, agency or
political subdivision thereof.
"Registration Agreement" means that certain Registration
Agreement, dated as of February 14, 2002, by and among the Company, GTCR Fund
VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P., G. Xxxxxx Xxxxx,
Snowlake Investments Pte Ltd, and each of the other Persons from time to time
party thereo, as amended in accordance with its terms.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
"Securityholders Agreement" means that certain Securityholders
Agreement, dated as of February 14, 2002, by and among the Company, GTCR Fund
VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P., G. Xxxxxx Xxxxx,
Snowlake Investments Pte Ltd, and each of the other Persons from time to time
party thereo, as amended in accordance with its terms.
"Transaction Documents" means this Agreement, the Merger
Agreement, the LLC Agreement, the Registration Agreement and the Securityholders
Agreement.
Section 5. Miscellaneous.
5A. Legend. Each certificate evidencing Common Units and each
certificate issued in exchange for or upon the transfer of any Common Units
shall be stamped or otherwise imprinted with a legend in substantially the
following form:
"The securities represented by this certificate are subject to
a securityholders Agreement, dated as of february 14, 2002,
among the issuer of such securities (the "Company") and
certain of the company's securityholders. A copy of such
securityholders Agreement will be furnished without charge by
the Company to the holder hereof upon written request."
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The Company shall imprint such legend on certificates evidencing the Common
Units to be issued in connection with the consummation of the transactions
contemplated hereby.
5B. Survival of Representations and Warranties. All of the
representations and warranties set forth in this Agreement or in any writing
delivered by the Company or any Exchanging Party in connection with this
Agreement shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (regardless of any
investigation, inquiry or examination made by or on behalf of or any knowledge
of any party or on its behalf or the acceptance by any party of a certificate or
opinion).
5C. Remedies. The Exchanging Parties shall have all rights and
remedies set forth in this Agreement and all rights and remedies that the
Exchanging Parties have been granted at any time under any other agreement or
contract and all of the rights that the Exchanging Parties have under any law.
Any Person having any rights under any provision of this Agreement shall be
entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law.
5D. Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Exchanging Parties representing a majority in interest of the
Common Units issued to the Exchanging Parties pursuant to this Agreement. No
other course of dealing between the Company and the holder of any Common Units
or any delay in exercising any rights hereunder shall operate as a waiver of any
rights of any such holders.
5E. Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not.
5F. Confidentiality.
(a) If the transactions contemplated hereby are consummated,
each Exchanging Party agrees not to disclose to any third party (and shall use
commercially reasonable efforts to cause each of its Affiliates not to disclose)
any Confidential Information (whether or not such information is or was
developed by such Exchanging Party) related to the terms and conditions of the
transactions contemplated by the Transaction Documents, except to the extent (i)
disclosure of such information is required by law, or (ii) the information
becomes publicly known except through the actions or inactions of such
Exchanging Party.
(b) Notwithstanding anything herein to the contrary, each
party to this Agreement (and each Affiliate and person acting on behalf of any
such party) agrees that each other party (and each employee, representative, and
other agent of such party) may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
have been or are provided to such party or such Person relating to such tax
treatment and tax structure,
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except to the extent necessary to comply with any applicable federal or state
securities laws. This authorization is not intended to permit disclosure of any
other information including (without limitation) (i) any portion of any
materials to the extent not related to the tax treatment or tax structure of the
transaction, (ii) the identities of participants or potential participants in
the transaction, (iii) the existence or status of any negotiations, (iv) any
pricing or financial information (except to the extent such pricing or financial
information is related to the tax treatment or tax structure of the
transaction), or (v) any other term or detail not relevant to the tax treatment
or the tax structure of the transaction.
5G. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
5H. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts (including by means of telecopied
signature pages), any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
5I. Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
5J. Further Assurances. Each Exchanging Party will execute and
deliver such further instruments of conveyance and transfer and take such
additional action as the Company may reasonably request to effect, consummate,
confirm or evidence the transfer to the Company of the TSI Networks Stock by
such Exchanging Party. The Company will execute and deliver such further
instruments of conveyance and transfer and take such additional action as any of
the Exchanging Parties may reasonably request to effect, consummate, confirm or
evidence the transfer to the Exchanging Parties of the Common Units.
5K. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed therein.
5L. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when (i) delivered
personally to the recipient, (ii) sent to the recipient by reputable express
courier service (charges prepaid), (iii) mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid, or (iv)
telecopied to the recipient (with hard copy sent to the recipient by reputable
overnight courier service (charges prepaid) that same day) if telecopied before
5:00 p.m. Chicago, Illinois time on a business day, and otherwise on the next
business day. Such notices, demands and other communications shall be sent to
the
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Exchanging Parties at the addresses set forth on the Schedule of Exchanging
Parties and to the Company at the address indicated below:
TSI Telecommunication Holdings, LLC
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: G. Xxxxxx Xxxxx, Chief Executive Officer
Telecopy No.: (000) 000-0000
with a copy to:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
Xxxxxxxx & Xxxxx LLP
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, P.C.
Telecopy No.: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
5M. Other Agreements. Simultaneously with the consummation of
the transactions contemplated hereby, each of the Exchanging Parties agrees to
enter into the Securityholders Agreement, the Registration Agreement and the
Limited Liability Company Agreement, and each Exchanging Party acknowledges and
agrees that such Exchanging Party will be an "Other Securityholder" (as defined
in the Securityholders Agreement) for purposes thereof and a holder of "Other
Registrable Securities" (as defined in the Registration Agreement) for purposes
thereof.
5N. Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertaking with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
5O. Rights Cumulative; Waiver. The rights and remedies of the
Exchanging Parties and the Company under this Agreement shall be cumulative and
not exclusive of any rights or remedies which either would otherwise have
hereunder or at law or in equity or by statute, and no failure or delay by
either party in exercising any right or remedy shall impair any such right or
remedy or operate as a waiver of such right or remedy, nor shall any single or
partial exercise of any power or right preclude such party's other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any
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provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by either party to exercise any
right or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Exchange Agreement on the date first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC
/s/ G. Xxxxxx Xxxxx
By: G. Xxxxxx Xxxxx
Its: Chief Executive Officer
Exchanging Parties: GREYLOCK X LIMITED PARTNERSHIP
GREYLOCK X-A LIMITED PARTNERSHIP
By:
/s/ Xxxxxx X. Xxxxxxxx
By: Greylock X GP Limited Partnership
Its: General Partner
XxXXXXX FAMILY, L.P
By:
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
XXXXX X. XXXXX REVOCABLE TRUST
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
MAPACHE INVESTMENTS, L.P.
By:
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
XXXXXXX XXX AND XXXXX VAN DIEEN,
TENANTS IN COMMON
By:
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
XXXXXXXXX XXXXXXX XXXXXX XXXXXXXXXX
XXXXXXXX & XXXXXXXXX, LLP
/s/ Xxxxxxxx Xxxxxxx
By: Xxxxxxxx Xxxxxxx
Its: Investment Portfolio Administrator
O'MELVENY & XXXXX, LLP
/s/ Xxxxx X. Xxxxx
By: Xxxxx X. Xxxxx
Its: Partner
MG-HIW, LLC
By:
Its:
/s/ Xxx XxXxxxx
XXX XxXXXXX
/s/ Xxxx X. Xxxxxx
XXXXXX X. XXX, XX.
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXXXX X. XXXXXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXXXX XXXXXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXX XXXXXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXXXX X. XXXXXX, XX.
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXX XXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXX X. XXXXXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
/s/ Xxxx X. Xxxxxx
XXXXX X. XXXXXXX
By: Xxxx X. Xxxxxx
Its: Attorney-In-Fact
