Exhibit 10.39
STOCK PURCHASE AGREEMENT
(TRITEL)
This Stock Purchase Agreement (this "AGREEMENT") is executed on this the __
day of November, 1999, to be effective as of September 1, 1999, by and between
Xxxxx X. Xxxxxxxx, Xx., an individual who currently resides at 000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("XXXXXXXX") and Tritel, Inc., a Delaware
corporation ("COMPANY").
WHEREAS, Company and Xxxxxxxx have previously entered into an Employment
Agreement dated January 7, 1999 ("PRIOR AGREEMENT"), and the following other
agreements: that certain Securities Purchase Agreement by and among AT&T
Wireless PCS Inc., TWR Cellular, Inc., Cash Equity Investors, Mercury PCS, LLC,
Mercury PCS II, LLC, Management Stockholders and Company dated as of May 20,
1998, and that certain Management Agreement by and between Tritel Management,
LLC and Company dated as of January 7, 1999 and agreements and undertakings
related or incident thereto (collectively, the "OTHER AGREEMENTS"); and,
provided, however, the Other Agreements do not include that certain Option
Agreement among Company, Digital PCS, LLC, Xxxxxxx X. Xxxxxxx, XX, X. X. Xxxxxx,
Xx. and Xxxxxxxx dated as of January 7, 1999; and
WHEREAS, the Company, AT&T Wireless PCS Inc., Cash Equity Investors and
Management Stockholders executed a Stockholders' Agreement, dated as of January
7, 1999 ("STOCKHOLDERS' AGREEMENT"); and
WHEREAS, Company and Xxxxxxxx have agreed to and entered into an Amended
and Restated Employment Agreement and a Mutual Release and Termination
Agreement, and Xxxxxxxx, Xxxxxx Management, LLC, a Mississippi limited liability
company ("TRITEL MANAGEMENT"), and other persons and/or entities have agreed to
and entered into a separate Membership Purchase Agreement regarding any interest
of Xxxxxxxx in Xxxxxx Management, and other related documents executed pursuant
thereto, all of even date herewith (collectively, the "TRANSACTION DOCUMENTS");
and
WHEREAS, as a material condition precedent to consummation of the
transactions contemplated by the Transaction Documents as set forth therein,
Company and Xxxxxxxx have agreed to transfer from Xxxxxxxx to Company certain
securities originally issued by Company to Xxxxxxxx; and
WHEREAS, each of the undersigned desire to enter into and to consummate the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of each of the undersigned and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound, Xxxxxxxx and Company agree as follows:
ARTICLE 1
TRANSACTION
1.1 Conveyance. Subject to the terms and conditions and in reliance upon
the representations and warranties contained herein, Xxxxxxxx agrees to
transfer, sell, convey and deliver to Company all of the Company Stock (as
defined below) held of record or beneficially by Xxxxxxxx (as set forth in
Section 2.1.3 below) and Company agrees to purchase, accept and receive all of
the Company Stock in accordance with the terms and provisions of this Agreement.
For purposes of this Agreement, "COMPANY STOCK" shall mean any and all shares of
common, preferred, options, warrants and any and all other securities of Company
or any of its wholly owned subsidiaries which are or may be owned directly or
beneficially by Xxxxxxxx, but expressly excludes the 4,500 shares of Company
Class A Common Stock currently owned by Xxxxxxxx.
For purposes of this Agreement, the term "AFFILIATE" means (i) Tritel
Management, LLC, MSM, Inc. (f/k/a Mercury Communications Company), AT&T Wireless
PCS Inc. and TWR Cellular, Inc., (ii) any person directly or indirectly
controlling, controlled by or under common control with the Company, any of its
wholly owned subsidiaries and any of Tritel Management, LLC, MSM, Inc., AT&T
Wireless PCS Inc. and TWR Cellular, Inc., or (iii) any officer, director,
trustee or general partner of such person. For purposes of this definition, the
term "controls," "is controlled by," or "is under common control with" shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
the ownership of voting securities, by contract or otherwise. It is expressly
understood and agreed that, for purposes of this Agreement, Mercury Southern,
LLC (which has previously been dissolved), Airwave Communications, LLC (f/k/a
Mercury PCS, LLC), Digital PCS, LLC (f/k/a Mercury PCS II, LLC), Mercury
International Ventures, Inc. and Mercury Wireless Management, Inc. shall not be
deemed to be an Affiliate of the Company.
1.2 Transfer of Funds by Company. Simultaneously with the execution hereof,
Xxxxxxxx agrees to sell, and Company agrees to purchase, all of the Company
Stock for a total purchase price of Thirty-One and 90/100 Dollars
($31.90)("PURCHASE PRICE"). The Purchase Price shall be due and payable to
Xxxxxxxx upon execution hereof.
1.3 Closing. Unless extended by the mutual agreement of Xxxxxxxx and
Company, the transactions contemplated hereby will be closed simultaneously with
the execution hereof and the execution of the Transaction Documents. At the
closing, Xxxxxxxx will endorse certificates representing the Company Stock to
the Company, provided the Company delivers such certificates to Xxxxxxxx for
such endorsement. At the closing, the Company shall deliver to Xxxxxxxx a
certificate for the Xxxxxxxx Shares.
1.4 Expenses of Transaction. Except as otherwise provided by this Section
1.4, each party hereto shall be responsible for the payment from their separate
funds of their respective expenses, incurred in connection with this Agreement
and the transactions contemplated hereby. The Company will pay promptly (not
later than 30 days from the delivery of the applicable invoice) the hourly fees
and reasonable expenses of Xxxxxxxx'x counsel in accordance with the terms of
the Amended and Restated Employment Agreement of even date herewith.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Xxxxxxxx. Xxxxxxxx, in reliance on
the representations and warranties of Company set forth below specifically
including Section 2.2.2, hereby represents and warrants to Company that:
2.1.1 Authority. The execution, delivery and performance by Xxxxxxxx of
this Agreement: (i) does not and will not result in a breach or constitute
a default under any agreement, document or instrument to which Xxxxxxxx is
a party, including, without limitation, any shareholder agreement,
indenture, loan or credit agreement, lease, debt instrument or mortgage;
and/or (ii) result in or require the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance of any type upon or with respect to any of the Company Stock.
2.1.2 Valid Obligations. Xxxxxxxx has full power, authority and legal
right to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Xxxxxxxx and constitutes legal, valid and binding obligations of Xxxxxxxx,
enforceable in accordance with its terms.
2.1.3 Sole Beneficial Owner. Xxxxxxxx individually owns all of the
issued and outstanding shares of Company Stock. The Company Stock includes,
without limitation, the following shares:
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Classification Outstanding Shares
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Class A Common Shares 1,461.36
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Class C Common Shares 1,725.56
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Voting Preference Common Stock 3
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2.1.4 Sole Holder of Record;. Xxxxxxxx is the sole holder of record,
beneficial or otherwise, of all of the Company Stock. Except for the
restrictions and encumbrances established by the Company's Restated
Certificate of Incorporation and that certain Stockholders' Agreement by
and among AT&T Wireless PCS Inc., Cash Equity Investors and Management
Stockholders and Tritel dated as of January 7, 1999, as amended
("STOCKHOLDERS AGREEMENT"), the Company Stock is free and clear of any
restriction, pledge, claim, lien, security interest or encumbrance thereon
or affecting the title thereto. Other than the Company and the parties to
the Stockholders Agreement, no other person owns or has any other rights
with respect to the shares of Company Stock. Xxxxxxxx has not pledged or
created or acquiesced in the creation of a lien, security interest or other
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encumbrance on or against the Company Stock, except at the request of and
in connection with the Company's or Tritel Management's business operations
and existing indebtedness, all of which has been previously disclosed in
writing to the Company's executive officers.
2.1.5 No Other Agreements. Except those held by the Company and the
parties to the Stockholders Agreement, there are no options, warrants or
other rights to purchase or acquire and no other agreements or obligations
relating to any of the shares of Company Stock.
2.1.6 Representations Accurate. No representation or warranty made by
Xxxxxxxx herein or in any other certificate furnished from time to time in
connection herewith contains any misrepresentation of a material fact or
omits to state any material fact necessary to make the statements herein or
therein not misleading when made.
2.2 Representations and Warranties of Company. Company hereby represents
and warrants to Xxxxxxxx as follows:
2.2.1 Organization and Good Standing. Company has been duly organized
and is validly existing and in good standing under the laws of the State of
Delaware; and has all requisite power and authority to execute and deliver,
and to perform all of its obligations under this Agreement.
2.2.2 Authority of Company. Company has full power, authority and legal
right to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed by
Company and constitutes the legal, valid and binding agreement of Company,
enforceable against Company in accordance with its terms. The execution,
delivery and performance by Company of this Agreement: (i) does not
contravene with any provision of its Restated Certificate of Incorporation,
as amended, or Amended and Restated Bylaws; (ii) does not and will not
result in a breach or constitute a default under any agreement, document or
instrument to which Company is a party, including, without limitation, any
shareholder agreement, indenture, loan or credit agreement, lease, debt
instrument or mortgage; and (iii) does not financially or otherwise
adversely affect the Company or its Affiliates under any FCC statute, rule
or regulation, including FCC Debt as defined in the Securities Purchase
Agreement, dated as of May 20, 1998, among AT&T Wireless PCS Inc., TWR
Cellular, Inc., Cash Equity Investors, Mercury PCS, LLC, Mercury PCS II,
LLC, Management Stockholders and Company.
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ARTICLE 3
COVENANTS
3.1 Covenants. Xxxxxxxx and Company hereby covenant and agree from and
after the date of this Agreement as follows:
3.1.1 Xxxxxxxx Shares. Xxxxxxxx shall continue to own the 4,500 fully paid
and non-assessable shares of Tritel, Inc. Class A Voting Common Stock ("XXXXXXXX
SHARES") subject to the Company's Restated Certificate of Incorporation and the
Stockholders Agreement, as amended, except the Xxxxxxxx Shares shall not be
subject to the three year restriction on sale and transfer of shares as set
forth in Section 4.1.c. of, or as such three year restriction may otherwise be
contained in, the Stockholders Agreement. The Xxxxxxxx Shares shall not be
subject to mandatory purchase or redemption by the Company or any further
vesting, divesting or any net exercise provision or any escrow provisions
pursuant to the terms of the Prior Agreement or the Other Agreements. All such
restrictions and purchase options pursuant to the terms of Xxxxxxxx'x Prior
Agreement or the Other Agreements are hereby terminated. Upon completion of the
transactions contemplated hereby, Xxxxxxxx'x sole direct ownership interests in
the Company shall be the Xxxxxxxx Shares.
3.1.4 Legends. The legend on the stock certificates evidencing the Xxxxxxxx
Shares shall be amended to read in its entirety and shall be endorsed with the
following legend:
RESTRICTIONS ON TRANSFER OR SALE
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 7, 1999, AS
AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
AS THEREIN PROVIDED. THE CORPORATION WILL FURNISH A COPY OF SUCH AGREEMENT,
AS AMENDED, TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE ON
REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED
OFFICE.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND WERE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED ("SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE INTERESTS MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED AT ANY TIME EXCEPT IN ACCORDANCE WITH AND PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAW UNLESS AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT AND UNDER
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ANY SUCH APPLICABLE STATE LAWS IS AVAILABLE IN CONNECTION WITH SUCH
TRANSFER.
ARTICLE 4
INDEMNIFICATION
4.1 Indemnification by Xxxxxxxx. Xxxxxxxx shall defend, indemnify and hold
harmless Company and its officers, directors, representatives, agents, attorneys
and Affiliates from any and all loss, cost, damage, liability, obligation, claim
or expense (including professional and legal fees and related expenses) from,
resulting by reason of, or arising in connection with any facts, circumstances
or events constituting an inaccuracy, misrepresentation, breach or
non-performance of any representation, warranty or covenant, condition or
agreement made by or to be performed by Xxxxxxxx pursuant to the terms of this
Agreement.
4.2 Indemnification by Company. Company shall defend, indemnify and hold
harmless Xxxxxxxx and his representatives, agents and attorneys from any and all
loss, cost, damage, liability, obligation, claim or expense (including
professional and legal fees and related expenses) from, resulting by reason of,
or arising in connection with any facts, circumstances or events constituting an
inaccuracy, misrepresentation, breach or non-performance of any representation,
warranty or covenant, condition or agreement made by or to be performed by
Company pursuant to the terms of this Agreement.
4.3 Notice of Claims. Within a reasonable period of time after the party
seeking indemnification receives notice or knowledge of any event, action, suit
or proceedings, threatened or commenced, such party shall give notice to the
other party of such matter. The notice shall contain as much detail as the party
seeking indemnification currently has; provided however, that failure to give
such notice shall not relieve the indemnifying party from any liability, duty or
obligation hereunder unless such failure to give timely notice has a material
adverse effect on the rights of the indemnifying party with respect to such
indemnified losses.
ARTICLE 5
OTHER PROVISIONS
5.1 Survival. All covenants, obligations, representations, warranties and
agreements contained in this Agreement are contractual and shall survive the
closing for the applicable statute of limitations period. Neither party has made
any representation or warranty to the other in connection with the transaction
contemplated herein except as contained in this Agreement and any other
instrument, agreement or writing provided for or contemplated by this Agreement.
5.2 Announcements. Xxxxxxxx and Company shall agree on the text of any
public announcement of the execution of this Agreement and the Transaction
Documents and the changes effected thereby; provided that Company shall be free
to make any disclosure or filing with respect
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thereto that, in the opinion of its counsel, is required to comply with any law,
rule or regulation the Company is or may be or become subject to now or in the
future.
5.3 No Waiver. No waiver by either party of any breach by the other of any
provision of this Agreement shall be deemed or construed to be a waiver of any
subsequent or continuing breach of the same or any other provision of this
Agreement; nor shall any forbearance by either party from the exercise of a
remedy for any such breach be deemed or construed to be a waiver by such party
of any of its rights or remedies with respect to such breach.
5.4 Interpretation, No Presumption. It is acknowledged by the parties that
this Agreement has been reviewed and negotiated by attorneys for all parties
and, therefore, no presumptions shall arise favoring either party by virtue of
the authorship of any of its provisions.
5.5 Nature of Negotiations. The parties hereto represent, warrant and agree
that the terms of this Agreement (specifically including all agreements executed
contemporaneously herewith) have been negotiated, read, understood and
voluntarily accepted by each of the parties. In addition, each of the parties
represent and warrant that they have been represented by counsel with respect to
the negotiation and execution of this Agreement and that they have had this
Agreement fully explained to them by their respective counsel.
5.6 Consent of Stockholders. By execution of this Agreement, each party as
a shareholder of the Company hereby consents to and authorizes and approves all
of the transactions contemplated by this Agreement, and hereby waives any and
all rights under the Stockholders' Agreement or otherwise to acquire the Company
Stock or the Xxxxxxxx Shares as a result of the transaction contemplated by this
Agreement.
5.7 Consent and Waiver of Company. By execution of this Agreement, the
Company hereby consents to, authorizes and approves all of the transactions
contemplated by this Agreement, and hereby waives any and all rights under the
Stockholders' Agreement or otherwise to acquire the Company Stock or the
Xxxxxxxx Shares as a result of the transaction contemplated by this Agreement.
5.8 Notices. Any notice, consent or other communication to be given under
this Agreement shall be in writing and shall be sent to such party at the
address set forth below via personal delivery, telecopy or overnight courier and
by registered or certified mail, postage prepaid, and shall be deemed received
on the third business day after the day on which it was mailed via registered or
certified mail:
(a) If to the Company, to the attention of its Executive Vice
President - CFO, X. X. Xxxxxx, Xx., at the Company's principal
offices.
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxx
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1200 One Xxxxxxx Place
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(b) If to Xxxxxxxx:
Xxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to:
Wm. Xxxxx Xxxxxx, Esq.
Xxxxxx Law Firm
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Each party may change their address for purposes of notice by giving the
other party hereto written notice of such change and the change shall become
effective ten (10) days after such notification of all parties.
5.9 Assignment. Xxxxxxxx shall not sell, assign or transfer any right,
title or interest in this Agreement nor may Xxxxxxxx delegate any duty
hereunder. Except as set forth below, Company shall not assign or transfer any
right, title or interests in this Agreement, nor can Company delegate any duty
hereunder. Notwithstanding the foregoing restriction, Company may assign all of
its right, title, interest and duties hereunder to an Affiliate of Company
without the necessity of obtaining the prior consent of Xxxxxxxx. In the case of
an assignment, the assignee shall have, to the extent of such assignment, the
same rights, benefits and obligations as it would if it were "Company"
hereunder. Such assignment shall not relive Company of any liabilities or
obligations hereunder.
5.10 Severability. Wherever 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 shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
5.11 Entire Agreement and Amendment. This Agreement and the Transaction
Documents set forth all, and supersede and replace all prior covenants,
promises, agreements, conditions and understandings between the parties
concerning the transactions contemplated hereby, and there are no oral or
written, express or implied, covenants, promises, agreements, conditions or
understandings, between and among the parties except as contained in this
Agreement and the Transaction Documents. Any provision of this Agreement may be
amended, modified or altered but such amendment shall become effective only when
reduced to a written document executed by the parties.
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5.12 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
agreement.
5.13 Binding Nature. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
5.14 Further Assurances. Each party shall, upon the reasonable request of
the other party, promptly execute or cause to be executed and delivered any and
all documents, instruments and agreements deemed necessary to give effect to or
carry out the terms or intent of this Agreement.
5.15 Brokerage Commission. The parties represent and warrant each to the
other that they have respectively dealt directly as principals, that neither
party has engaged or retained any broker or agent in respect of the transaction
contemplated and evidenced by this agreement and that neither party has
knowledge of any brokerage commissions claimed or payable as a result of the
transaction contemplated hereby. Each party agrees to indemnify and hold the
other parties harmless from and against all claims, liabilities, and obligations
for any commission, finder's fee, or other compensation in connection with this
Agreement claimed through such party.
5.16 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
5.17 No Management Stockholder. Upon execution of this Agreement, Xxxxxxxx
shall no longer be, or be considered to be, a Management Stockholder under the
Stockholders' Agreement.
5.18 Integrated Transaction. The provisions of this Agreement are an
integral part of, and are necessary consideration for, the settlement of
existing disputes between and among the parties and the Transaction Documents.
Any breach of, or default under, this Agreement or any of the Transaction
Documents shall constitute a breach of, and a default under, each of this
Agreement and the Transaction Documents.
(Intentionally left blank, signature pages follow on next page)
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IN WITNESS WHEREOF, Xxxxxxxx and Company have caused this Agreement to be
executed the day and year first above written.
XXXXXXXX:
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Xxxxx X. Xxxxxxxx, Xx., Individually
COMPANY:
Tritel, Inc.
By: _______________________________________
_______________, _____ President
AT&T Wireless PCS, Inc.
By:
----------------------------------------
Name:
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Title:
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TWR Cellular, Inc.
By:
----------------------------------------
Name:
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Title:
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Cash Equity Investors:
Toronto Dominion Investments, Inc.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Entergy Wireless Company
By:
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Name:
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Title:
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General Electric Capital Corporation
By:
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Name:
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Title:
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Washington National Insurance Company
By:
----------------------------------------
Name:
Title:
United Presidential Life Insurance Company
By:
----------------------------------------
Name:
Title:
Dresdner Kleinwort Xxxxxx Private Equity
Partners LP
By: Dresdner Kleinwort Xxxxxx Private Equity
Managers LLC, as its general partner
By:
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Triune PCS, LLC, a Delaware limited liability
company
By: Oak Tree, LLC, a Delaware limited
liability company
Title: Manager
By: Triune Private Equity, LLC
Title: Manager
By:
-----------------------
Name: Xxxxx Xxxxxxxx
Title: President
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FCA Venture Partners II, L.P.
By: Clayton-DC Venture Capital Group, LLC,
its general partner
By:
-----------------------------------
Name: D. Xxxxxx Xxxxxx, III
Title: Manager
Xxxxxxx Associates, LLC
By:
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Its Managing Member
Airwave Communications, LLC (F/K/A Mercury
PCS, LLC)
By: MSM, Inc., its Manager
By:
-----------------------------------
Name: X. X. Xxxxxx, Xx.
Title: Vice President
Digitial PCS, LLC (F/K/A Mercury PCS II, LLC)
By: MSM, Inc., its Manager
By:
----------------------------------
Name: X. X. Xxxxxx, Xx.
Title: Vice President
The Manufacturers' Life Insurance Company
(U.S.A.)
By:
----------------------------------------
Name:
--------------------------------------
Title:
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By:
----------------------------------------
Name:
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Title:
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Trillium PCS, LLC
By:
----------------------------------------
Name:
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Title:
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Management Stockholders:
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Xxxxxxx X. Xxxxxxx, XX
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X. X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx
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