EXHIBIT A
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[Execution Copy]
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FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
by and among
AT&T WIRELESS PCS LLC,
CASH EQUITY INVESTORS,
MANAGEMENT STOCKHOLDERS,
INDEPENDENT DIRECTORS
and
TRITON PCS HOLDINGS, INC.
dated as of October 27, 1999
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TABLE OF CONTENTS
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Page
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1. Certain Definitions....................................................................2
2. Restated Certificate and Restated Bylaws..............................................14
3. Management of Company.................................................................14
3.1 Board of Directors...........................................................14
3.2 [Intentionally Omitted]......................................................15
3.3 [Intentionally Omitted]......................................................15
3.4 [Intentionally Omitted] .....................................................15
3.5 [Intentionally Omitted]......................................................15
3.6 [Intentionally Omitted]......................................................15
3.7 Transactions between the Company and the Stockholders or their Affiliates....16
3.8 Executive Committee..........................................................16
3.9 Voting Agreements and Voting Trusts..........................................16
3.10 Additional Capital Contributions.............................................16
3.11 Series A Preferred Director..................................................16
4. Transfers of Shares...................................................................17
4.1 General......................................................................17
4.2 Right of First Offer.........................................................18
4.3 Rights of Inclusion..........................................................19
4.4 Right of First Negotiation...................................................22
4.5 Additional Conditions to Permitted Transfers.................................22
4.6 Representations and Warranties...............................................23
4.7 Stop Transfer................................................................23
5. Registration Rights...................................................................24
6. Disqualifying Transactions............................................................37
6.1 Company Conversion Rights....................................................37
6.2 Joint Marketing Right........................................................38
7. Additional Rights and Covenants.......................................................39
7.1 [Intentionally Omitted]......................................................39
7.2 [Intentionally Omitted]......................................................39
7.3 Access.......................................................................39
7.4 Merger, Sale or Liquidation of the Company...................................40
7.5 Wholly-Owned Subsidiaries....................................................41
7.6 [Intentionally Omitted]......................................................41
7.7 Confidentiality..............................................................41
7.8 [Intentionally Omitted]......................................................42
7.9 AT&T PCS Retained Licenses...................................................42
7.10 Regulatory Cooperation.......................................................42
7.11 Permitted Transactions.......................................................42
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8. Operating Arrangements................................................................43
8.1 Construction of Company Systems..............................................43
8.2 Service Features.............................................................44
8.3 Quality Standards............................................................44
8.4 No Change of Business........................................................44
8.5 Preferred Provider...........................................................45
8.6 Exclusivity..................................................................45
8.7 Other Business; Duties; Etc..................................................47
8.8 Acknowledgments and Termination ofExclusivity................................47
8.9 Equipment, Discounts and Roaming.............................................48
8.10 ANS Agreement................................................................48
8.11 Resale Agreements............................................................49
8.12 Non-Solicitation.............................................................49
8.13 Co-Location..................................................................50
9. After-Acquired Shares; Recapitalization...............................................50
9.1 After Acquired Shares; Recapitalization......................................50
9.2 Amendment of Restated Certificate............................................50
10. Share Certificates....................................................................51
10.1 Restrictive Endorsements; Replacement Certificates...........................51
10.2 Lost or Destroyed Certificates...............................................51
11. Equitable Relief......................................................................52
12. Miscellaneous.........................................................................52
12.1 Notices......................................................................52
12.2 Entire Agreement; Amendment; Consents........................................54
12.3 Term.........................................................................54
12.4 Survival.....................................................................55
12.5 Waiver.......................................................................55
12.6 Obligations Several..........................................................56
12.7 Governing Law................................................................56
12.8 Dispute Resolution...........................................................56
12.9 Benefit and Binding Effect; Severability.....................................59
12.10 Amendment of Bylaws..........................................................59
12.11 Authorized Agent of AT&T PCS.................................................59
12.12 FCC Approval.................................................................59
12.13 Expenses.....................................................................60
12.14 Attorneys' Fees..............................................................60
12.15 Headings.....................................................................60
12.16 Counterparts.................................................................60
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
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Schedule I Cash Equity Investors
Schedule II Management Stockholders and Independent Directors
Schedule III Stockholders
Schedule IV Core Service Features
Schedule V Minimum Build-Out Plan
Schedule VI PCS Territory
Schedule VII TDMA Quality Standards
Schedule VIII [Intentionally Omitted]
Schedule IX Capital Budgets
Schedule X Voting Agreements
Schedule XI Critical Network Elements
Schedule XII Licenses
Schedule XIII Unfunded Commitments
EXHIBITS
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Exhibit A Restated Bylaws
Exhibit B Restated Certificate
Exhibit C Form of Advanced Network Services Agreement
Exhibit D Form of Resale Agreement
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FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of October
27, 1999 (this "Agreement"), by and among AT&T WIRELESS PCS LLC, a Delaware
limited liability company and successor to AT&T Wireless PCS Inc., a Delaware
corporation (together with its Affiliated Successors, "AT&T PCS"), the investors
listed on Schedule I (individually, each a "Cash Equity Investor" and,
collectively, with any of its Affiliated Successors, the "Cash Equity
Investors"), the individuals listed on Schedule II (individually, each a
"Management Stockholder" and, collectively, the "Management Stockholders"), the
individuals listed on Schedule II (individually, an "Independent Director" and
collectively, the "Independent Directors"), and Triton PCS Holdings, Inc., a
Delaware corporation (the "Company"). Each of the foregoing Persons, together
with all other Persons who, in connection with a Transfer (as hereinafter
defined) are required to become a party to this Agreement (other than the
Company) are sometimes referred to herein, individually, as a "Stockholder" and,
collectively, as the "Stockholders".
RECITALS
WHEREAS, the Company and the Stockholders are parties to that certain
Stockholders' Agreement dated as of February 4, 1998, as amended (as so amended,
the "Original Stockholders' Agreement");
WHEREAS, the Company is anticipated to consummate in the near future an
initial public offering ("IPO") of 10,000,000 (plus, if the underwriters of the
IPO exercise the over-allotment option granted to them by the Company, up to an
additional 1,500,000) shares of its Class A Common Stock (as hereinafter
defined);
WHEREAS, the total number of authorized shares of all classes of stock
("Company Stock") that the Company has the authority to issue is 650,000,000,
consisting of (a) 70,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"), of which (i) 1,000,000 shares are designated
"Series A Convertible Preferred Stock" (the "Series A Preferred Stock"), (ii)
50,000,000 shares are designated "Series B Preferred Stock" (the "Series B
Preferred Stock"), (iii) 3,000,000 shares are designated "Series C Convertible
Preferred Stock" (the "Series C Preferred Stock"), and (iv) 16,000,000 shares
are designated "Series D Convertible Preferred Stock" (the "Series D Preferred
Stock") and (b) 580,000,000 shares of common stock, par value $0.01 per share
(the "Common Stock"), of which (i) 520,000,000 shares are designated "Class A
Common Stock" (the "Class A Common Stock"), and (ii) 60,000,000 shares are
designated "Class B Non-Voting Common Stock" (the "Class B Non-Voting Common
Stock");
WHEREAS, upon consummation of the IPO each Stockholder will be the
registered owner of the respective shares of Company Stock set forth opposite
its name on Schedule III;
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WHEREAS, the parties desire to enter into this Agreement in order to
(a) amend and restate as hereinafter set forth the Original Stockholders'
Agreement, (b) to enter into certain agreements regarding the management of the
Company and (c) to impose certain restrictions with respect to the sale,
transfer or other disposition of Company Stock on the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
1. Certain Definitions.
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"Act" shall have the meaning set forth in Section 10.1(a).
"Adopted Service Features" shall mean the Core Service Features and
additional service features that are adopted by the Company's PCS Systems in
accordance with the terms of Section 8.2.
"Advice" shall have the meaning set forth in Section 5(d)(xvii).
"Affiliate" shall mean, with respect to any Person other than a natural
person, any other Person that, either directly or indirectly through one or more
intermediaries, controls, or is controlled by or is under common control with
such Person and, with respect to any natural Person, any trust for the exclusive
benefit of such natural Person and/or any member of such natural Person's
Immediate Family in which such Person is the sole trustee thereof; provided,
however, for purposes of Section 8.6, "Affiliate" shall not include (x) Persons
who conduct business in the Territory in whom a Cash Equity Investor or any of
their respective Affiliates had made an investment or held securities on
February 4, 1998 in the ordinary course of their business, or any such Person
who conducts business in the Territory in whom a Cash Equity Investor or any of
their respective Affiliates made an investment after February 4, 1998 or makes
an investment after the date hereof if such Cash Equity Investor or Affiliate
thereof controls such Person on a temporary basis where reasonably necessary to
protect its investment, or any Person who serves as an officer, director or is a
partner of any such Person who is affiliated with a Cash Equity Investor, or (y)
The Chase Manhattan Bank, The Toronto Dominion Bank, Xxxxxx Guaranty Trust
Company of New York and First Union Corporation. As used in this Agreement,
"control", "controlled" or "controlling" shall mean possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliated Successor" shall mean, with respect to any Person, an
Affiliate thereof that is a transferee or a successor in interest to any or all
of such Person's Company Stock and that is required to become a party to this
Agreement in accordance with the terms hereof; provided, however, that, for
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purposes of Section 4, with respect to any Cash Equity Investor, "Affiliated
Successor" shall also include partners, limited partners or members of a Cash
Equity Investor that are transferees of Company Stock pursuant to distributions
in accordance with the partnership agreement or operating agreement of such Cash
Equity Investor.
"Agreement" shall have the meaning set forth in the preamble.
"Arbitration Rules" shall have the meaning set forth in Section
12.8(d).
"AT&T Licensee" shall mean any Person that owns FCC licenses to provide
Commercial Mobile Radio Service, which Person is authorized to provide any such
services using the phrase "Member, AT&T Wireless Services Network" or other
service marks of AT&T Corp.
"AT&T PCS" shall have the meaning set forth in the preamble.
"AT&T PCS Contributed Licenses" shall mean, collectively, (i) the
License(s) defined as the "AT&T PCS Contributed Licenses" in the Securities
Purchase Agreement (other than the License(s) defined as the
"Cumberland/Hagerstown Exchanged License" in the License Exchange and
Acquisition Agreement), (ii) the License(s) defined as the "AT&T PCS Contributed
License in the Norfolk Purchase Agreement, and (iii) the License(s) defined as
the "AT&T PCS Transferred License" in the License Exchange and Acquisition
Agreement.
"AT&T PCS Retained Licenses" shall mean, collectively, (i) the
License(s) defined as the "AT&T PCS Retained Licenses" in the Securities
Purchase Agreement, (ii) the License(s) defined as the "AT&T PCS Retained
License" in the Norfolk Purchase Agreement, and (iii) the Licenses defined as
the "Cumberland/Hagerstown License" and the "AT&T PCS Retained License" in the
License Exchange and Acquisition Agreement.
"AWS" shall mean AT&T Wireless Services, Inc., a Delaware
corporation.
"Beneficially Own" shall have the meaning set forth in Rule 13d-3 of
the Exchange Act.
"Board of Directors" shall mean the Board of Directors of the Company.
"BTA" shall mean a geographic area established by the Rand XxXxxxx 1992
Commercial Atlas & Marketing Guide, 123rd Edition, pp. 3839, as modified by the
FCC to form the initial geographic area of license for the C, D, E and F blocks
of broadband PCS spectrum as defined in Section 24.202 of the FCC's rules.
"Business" shall mean the business of (a) owning, constructing and
operating systems to provide Company Communications Services on frequencies
licensed to the Company for Commercial Mobile Radio Services pursuant to the
Licenses as described on Schedule XII; (b) providing to end-users and resellers,
solely within the Territory, Company Communications Services available on such
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systems, (c) providing in connection with such Company Communications Services,
solely within the Territory, the Adopted Service Features and (subject to the
immediately following sentence) telecommunications services incidental or
ancillary to such Company Communications Services (including, by way of example,
bundling additional telecommunications services with Company Communications
Services), and (d) marketing and offering the services and features described in
clauses (b) and (c) within the Territory, including advertising such services
and features using broadcast and other media, so long as such advertising
extends beyond the Territory only when and to the extent necessary to reach
customers and potential customers in the Territory. The activities described in
clauses (a) and (b) shall be the indispensable requisite, and primary business,
of the Company and, to the extent the Company provides telecommunications
services incidental or ancillary thereto, the Company and its Subsidiaries shall
be only the agent or reseller for the provider thereof and shall not own or
lease the facilities used to provide such services, except that (i) the Company
may own or lease facilities that, in the aggregate, do not have a purchase price
to the Company and its Subsidiaries in excess of $10 million, and the Company
may be a facilities based provider of services using such facilities, and (ii)
after completion of the Minimum Build Out Plan and certification that Company
Systems meet the TDMA Quality Standards, the amount of $10 million set forth in
clause (i) hereof shall be increased to $100 million.
"Cash Equity Investors" shall have the meaning set forth in the
preamble.
"Cellular System" shall mean a cellular mobile radio telephone system
constructed and operated in a "metropolitan statistical area" as defined by the
FCC or a "rural service area" as defined by the FCC (or any successor
territorial designation or subdivision thereof authorized by the FCC)
exclusively using the 824 MHZ to 894 MHZ frequencies pursuant to a License
therefor issued by the FCC.
"Cellular Territory" shall mean the geographic area in respect of which
the Company acquires Permitted Cellular Licenses.
"Class A Common Stock" shall have the meaning set forth in the third
recital.
"Class B Non-Voting Common Stock" shall have the meaning set forth in
the third recital.
"Closing Agreement" shall have the meaning set forth in Section
12.2(a).
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall have the meaning set forth in the third recital.
"Company" shall have the meaning set forth in the preamble.
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"Company Asset Sale" shall have the meaning set forth in Section
7.4(a).
"Company Communications Services" shall mean mobile wireless
telecommunications services (including the transmission of voice, data, image or
other messages or content) provided solely within the Territory, initiated or
terminated using TDMA and frequencies licensed by the FCC, to or from subscriber
equipment that is capable of usage during routine movement throughout the area
covered by a cell site and routine handing off between cell sites, and is either
intended for such usage or is temporarily fixed to a specific location on a
short term basis (e.g., a bank of wireless telephones temporarily installed
during a special event of limited duration). Without limiting the foregoing,
Company Communications Services shall include wireless office services if such
services comply with this definition. Company Communications Services shall also
include the transmissions between the Company's cell sites and the Company's
switch or switches in the Territory, handing off transmissions at the Company's
switch or switches for termination by other carriers, and receiving
transmissions to the Company's customers handed off at the Company's switch or
switches, in each case for the purpose of facilitating Company Communications
Services described in the first sentence.
"Company Merger" shall have the meaning set forth in Section 7.4(a).
"Company Sale Notice" shall have the meaning set forth in Section
6.2(a).
"Company Stock" shall have the meaning set forth in the third recital.
"Company Systems" shall mean the systems owned and operated by the
Company to provide Company Communications Services in the Territory.
"Confidential Information" shall have the meaning assigned to such term
in Section 7.7(a).
"Core Service Features" shall mean the service features set forth on
Schedule IV.
"CPR" shall have the meaning set forth in Section 12.8(c).
"Demand Notice" shall have the meaning set forth in Section 5(a)(i).
"Demand Registration" shall have the meaning set forth in Section
5(a)(i).
"Demanding Stockholder" shall have the meaning set forth in Section
5(a)(i).
"Xxxxx" shall mean Private Equity Investors III, L.P. and
Equity-Linked Investors-II.
"Dispute" shall have the meaning set forth in Section 12.8(a).
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"Disqualifying Transaction" shall mean a merger, consolidation, asset
acquisition or disposition, or other business combination involving AT&T Corp.
(or its Affiliates) and another Person, which other Person (together with its
Affiliates) (a) derives from telecommunications businesses annual revenues in
excess of five billion dollars (based on its most recently ended fiscal year),
(b) derives less than one third of its aggregate revenues from the provision of
wireless telecommunications (based on its most recently ended fiscal year for
which such information is available), (c) owns FCC Licenses to offer (and does
offer) mobile wireless telecommunications services serving more than 25% of the
POP's within the Territory, and (d) with respect to which AT&T PCS has given
written notice to the Company and the other Stockholders specifying that such
merger, consolidation, asset acquisition or disposition or other business
combination shall be a Disqualifying Transaction for purposes of this Agreement
and the transactions contemplated hereby.
"Employment Agreements" shall mean the Employment Agreements dated as
of February 4, 1998 between Triton Management Company, Inc., a wholly-owned
Subsidiary of the Company, and each of Xxxxxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxx, as the same may be amended, modified or supplemented in accordance with
the terms thereof.
"Equity Securities" shall mean shares of any class or series of common
stock or preferred stock, or options, rights, warrants, conversion rights or
appreciation rights relating thereto, or any other type of equity security of
the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"FAA" shall have the meaning set forth in Section 12.8(e).
"FCC" shall mean the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"Federal Arbitration Act" shall have the meaning set forth in Section
12.8(e).
"Final Order" shall mean an action or decision that has been granted
by the FCC as to which (i) no request for a stay or similar request is pending,
no stay is in effect, the action or decision has not been vacated, reversed, set
aside, annulled or suspended and any deadline for filing such request that may
be designated by statute or regulation has passed, (ii) no petition for
rehearing or reconsideration or application for review is pending and the time
for the filing of any such petition or application has passed, (iii) the FCC
does not have the action or decision under reconsideration on its own motion and
the time within which it may effect such reconsideration has passed, and (iv) no
appeal is pending including other administrative or judicial review, or in
effect and any deadline for filing any such appeal that may be designated by
statute or rule has passed.
"First Offer" shall have the meaning set forth in Section 4.2(a).
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"First Offer Period" shall have the meaning set forth in Section
4.2(b).
"First Offeree" shall have the meaning set forth in Section 4.2(a).
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"Immediate Family" shall mean an individual's spouse, children
(including adopted children), grandchildren, parents, grandparents, and
siblings.
"Inclusion Event" shall have the meaning set forth in Section 4.3(a).
"Inclusion Event Offeree" shall have the meaning set forth in Section
4.3(a).
"Inclusion Event Purchaser" shall have the meaning set forth in Section
4.3(a).
"Inclusion Notice" shall have the meaning set forth in Section 4.3(a).
"Inclusion Stock" shall have the meaning set forth in Section 4.3(a).
"Indemnified Party" shall have the meaning set forth in Section
5(e)(v).
"Indemnified Stockholder" shall have the meaning set forth in Section
5(e)(i).
"Indemnifying Party" shall have the meaning set forth in Section
5(e)(v).
"Independent Director" shall have the meaning set forth in the
preamble.
"IPO" shall have the meaning set forth in the second recital.
"IPO Date" shall mean, in connection with the IPO, the first date on
which (a) the Class A Common Stock shall have been registered pursuant to an
effective Registration Statement under the Securities Act, (b) the aggregate
gross proceeds received by the Company in connection with such Registration
Statement(s) equals or exceeds $20 million, and (c) the Class A Common Stock
shall be listed for trading on the New York Stock Exchange or the American Stock
Exchange or authorized for trading on NASDAQ, including without limitation its
National Market System.
"Joint Marketing Period" shall have the meaning set forth in Section
6.2(a).
"JPMI" shall have the meaning set forth in Section 3.1(d).
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"X.X. Xxxxxx" shall have the meaning set forth in Section
3.1(d).
"Law" shall mean applicable common law and any statute, ordinance, code
or other law, rule, permit, permit condition, regulation, order, decree,
technical or other standard, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority.
"License" shall mean a license, permit, certificate of authority,
waiver, approval, certificate of public convenience and necessity, registration
or other authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"License Exchange and Acquisition Agreement" shall mean the License
Exchange and Acquisition Agreement among the Company, Triton PCS License Company
L.L.C., and AT&T PCS, dated as of June 8, 1999, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
"Liens" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, right of first refusal or right of others
therein or encumbrance of any nature whatsoever in respect of such asset.
"Management Stockholder" shall have the meaning set forth in the
preamble.
"Majority in Interest" shall mean, with respect to the Cash Equity
Investors, Persons that Beneficially Own, in the aggregate more than 50% of the
aggregate number of shares of Common Stock Beneficially Owned by all such
Persons.
"Majority of the Southeast Region" shall mean PCS Systems and Cellular
Systems owned by AT&T PCS and its Affiliates covering a majority of the POPs in
all such PCS Systems and Cellular Systems in the Southeast Region.
"Majority of the United States" shall mean PCS Systems and Cellular
Systems owned by AT&T PCS and its Affiliates covering a majority of the POPs in
all such PCS Systems and Cellular Systems in the United States.
"Minimum Build-Out Plan" shall mean the build-out plan for the
Company's PCS Systems set forth on Schedule V hereto.
"Model Procedures" shall have the meaning set forth in Section 12.8(c).
"MTA" shall mean a geographic area established by the Rand XxXxxxx 1992
Commercial Atlas & Marketing Guide, 123rd Edition, pp. 3839, as modified by the
FCC to form the initial geographic area of license for the A and B blocks of
broadband PCS spectrum as defined in Section 24.202 of the FCC's rules.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the National Association of Securities Dealers'
Automated Quotation System.
"Network Membership License Agreement" shall mean the Network
Membership License Agreement between Triton Operating and AT&T Corp., dated
February 4, 1998, as the same may be amended, modified or supplemented in
accordance with the terms thereof.
"Norfolk Purchase Agreement" shall mean the Asset Purchase Agreement
between the Company and AT&T PCS dated as of August 20, 1998, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"Offer Notice" shall have the meaning set forth in Section 4.2(a).
"Offered Shares" shall have the meaning set forth in Section 4.2(a).
"Original Management Stockholders" shall mean, collectively, Xxxxxxx X.
Xxxxxxxx and Xxxxxx X. Xxxxxxx.
"Original Stockholders' Agreement" shall have the meaning set forth in
the first recital.
"Overlap Territory" shall mean that portion of the Territory in which a
Person or its Affiliates (other than AT&T PCS and its Affiliates) that is party
to a transaction meeting the description of a transaction set forth in clauses
(a), (b) and (c) of the definition of a Disqualifying Transaction owns an FCC
License to offer Commercial Mobile Radio Services.
"PCS System" shall mean a mobile communication system constructed and
operated in a BTA or a MTA (or any successor territorial designations or
subdivision thereof authorized by the FCC) exclusively using the 1850 MHZ to
1910 MHZ and 1930 MHZ to 1990 MHZ frequencies, or portions thereof, pursuant to
a License therefor issued by the FCC.
"PCS Territory" shall mean the territory described on Schedule VI
hereto.
"Permitted Cellular License" shall have the meaning assigned to such
term in Section 7.11(b).
"Permitted Consolidation Transaction" shall have the meaning set forth
in Section 7.11(a).
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"Permitted Merger Participant" shall mean an AT&T Licensee that (i)
owns one or more FCC Licenses to provide Commercial Mobile Radio Services that
were acquired from AT&T PCS or its Affiliates in all or any part of the
Knoxville, TN, Memphis, TN, Little Rock, AK, Detroit, MI, St. Louis, MO,
Xxxxxxx, XX, Xxxxxx, XX, Xxxxxxxxxx, XX, Nashville, TN and Columbus, OH MTA's
and (ii) on the date of acquisition from AT&T PCS of any such FCC Licenses to
provide Commercial Mobile Radio Service referred to in clause (i) hereof, owned
FCC Licenses covering at least 8 million POPs, and in which AT&T PCS or its
Affiliates has not disposed of more than one-half of its original equity
interest therein.
"Person" shall mean an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust or other legal entity.
"Piggyback Notice" shall have the meaning set forth in Section 5(b)(i).
"Piggyback Registration" shall have the meaning set forth in Section
5(b)(i).
"POPs" shall mean, with respect to any Licensed area, the residents of
such area based on the most recent publication by Equifax Marketing Decision
Systems, Inc.
"Preferred Stock" shall have the meaning set forth in the third
recital.
"Prohibited Transferee" shall mean any Person that is one of the three
(excluding any Person excluded from this definition by reason of the proviso
hereto) largest carriers (other than AT&T Corp.) of telecommunications services
that as of the date hereof constitute interexchange services (based on revenue
derived from the provision of such telecommunications services during the most
recent fiscal year for which such information is available) or an Affiliate
thereof; provided, however, that such Person shall not constitute a Prohibited
Transferee if (a) a material portion of such Person's business is also the
business of providing wireless communications systems, and (b) TDMA is utilized
in a substantial majority of such Person's wireless communications systems.
"Prospectus" shall have the meaning set forth in Section 5(d)(i).
"Purchase Notice" shall have the meaning set forth in Section 4.2(b).
"Qualified Holder" shall mean (a) any Stockholder or group of
Stockholders that Beneficially Owns shares of Series C Preferred Stock and
Common Stock reasonably expected to, upon sale, result in aggregate gross
proceeds of at least $25 million, or (b) AT&T PCS for so long as it Beneficially
Owns, greater than two-thirds of the initial issuance to AT&T PCS of shares of
Series A Preferred Stock (as appropriately adjusted for stock splits, stock
dividends and the like).
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"Registrable Securities" shall mean (a) the Common Stock now owned or
hereafter acquired by any Stockholder or issuable upon conversion or exchange of
any Equity Security, and (b) all Common Stock issued or issuable upon
conversion, exchange or exercise of any Equity Security which is issued pursuant
to a stock split, stock dividend or other similar distribution or event with
respect to Common Stock but with respect to any Common Stock, only until such
time as such Common Stock (i) has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
covering it, (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in force), (iii) shall otherwise have been transferred, a
new certificate evidencing such Common Stock without a legend restricting
further transfer shall have been delivered by the Company, and subsequent public
distribution of such Common Stock shall neither require registration under the
Securities Act nor qualification (or any similar filing) under any state
securities or "blue sky" law then in effect, or (iv) shall have ceased to be
issued and outstanding.
"Registration" shall have the meaning set forth in Section 5(d).
"Registration Expenses" shall have the meaning set forth in Section
5(g).
"Registration Statement" shall have the meaning set forth in Section
5(d)(i).
"Regulatory Problem" shall mean, with respect to any SBIC Holder, any
set of facts or circumstances wherein it has been asserted by any Governmental
Authority (or any SBIC Holder reasonably believes in good faith that there is a
substantial risk of such assertion) that such SBIC Holder and its Affiliates are
not entitled to hold, or exercise any significant right with respect to, the
Company Stock.
"Related Agreements" shall mean each of the Network Membership License
Agreement, the Employment Agreements, the Resale Agreement and the Roaming
Agreement.
"Representatives" shall have the meaning set forth in Section 7.7.
"Resale Agreement" shall mean the form of Resale Agreement between
Triton Operating and AWS or an Affiliate thereof, attached hereto as Exhibit D,
as the same may be amended, modified or supplemented in accordance with the
terms thereof.
"Restated Bylaws" shall mean the Second Amended and Restated Bylaws of
the Company in the form of Exhibit A, as the same may be amended, modified or
supplemented in accordance with the terms thereof.
"Restated Certificate" shall mean the Second Restated Certificate of
Incorporation of the Company, in the form of Exhibit B, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
11
"Roaming Agreement" shall mean the Intercarrier Roamer Service
Agreement between Triton Operating and AWS, dated February 4, 1998, as the same
may be amended, modified or supplemented in accordance with the terms thereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act (or
any similar rule as may be in effect from time to time).
"Sale Notice" shall have the meaning set forth in Section 7.4(d).
"Sale Offer" shall have the meaning set forth in Section 7.4(d).
"Sale Transaction" shall have the meaning set forth in Section 7.4(c).
"SBIC" shall mean a small business investment company licensed under
the SBIC Act.
"SBIC Act" means the Small Business Investment Company Act of 1958, as
amended.
"SBIC Holder" shall mean each Cash Equity Investor that is an SBIC.
"Section 6.2 Period" shall have the meaning set forth in Section 6.2.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of October 8, 1997, among the Company and the Stockholders,
as the same may be amended, modified or supplemented in accordance with the
terms thereof.
"Seller" shall have the meaning set forth in Section 4.2(a).
"Selling Stockholders" shall have the meaning set forth in Section
4.3(a).
"Series A Preferred Director" shall mean the Class II director of the
Company that AT&T PCS has the right to nominate pursuant to Section 4.3(d)(iii)
of the Restated Certificate.
"Series A Preferred Stock" shall have the meaning set forth in the
third recital.
"Series B Preferred Stock" shall have the meaning set forth in the
third recital.
"Series C Preferred Stock" shall have the meaning set forth in the
third recital.
"Series D Preferred Stock" shall have the meaning set forth in the
third recital.
"Sixty Wall Street" shall have the meaning set forth in Section 3.1(d).
12
"Southeast Region" shall mean the geographic area comprising
Washington, D.C., and the States of Alabama, Florida, Georgia, Kentucky,
Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and
West Virginia.
"Stockholder" shall have the meaning set forth in the preamble.
"Subject Market" shall mean, with respect to any announcement by AT&T
PCS or its Affiliates of a transaction meeting the description of a transaction
set forth in clauses (a), (b) and (c) of the definition of a Disqualifying
Transaction, the PCS System owned and operated by AT&T PCS and its Affiliates in
any of Charlotte, North Carolina, Atlanta, Georgia, Baltimore/Washington, D.C.
or Richmond, Virginia BTA.
"Subsidiary" shall mean, with respect to any Person, a corporation or
other entity of which 50% or more of the voting power of the voting equity
securities or equity interests is owned, directly or indirectly, by such Person.
"Substantial Company Breach" shall mean a material breach by the
Company or its Subsidiaries of their respective obligations under any of
Sections 8.1(a), 8.2, 8.3, or 8.5(a) of this Agreement, if and only if any such
material breach is not cured within 30 days of notice thereof from AT&T PCS to
the Company or, if such breach is not capable of being cured within such thirty
(30) day period, within one hundred eighty (180) days of such notice, provided
the Company is using best efforts to cure such material breach as soon as
reasonably practicable.
"TDMA" shall mean the North American Time Division Multiple Access
standard set by the Cellular Telecommunications Industry Association, IS54/136,
and any standard that is based upon, or is an upgrade from, or is a successor
to, such standard, if and only if such new or upgraded standard is (i) adopted
by AT&T PCS and its Affiliates in a Majority of the Southeast Region, (ii)
technologically compatible in all material respects with the standard then being
used in a Majority of the United States (including without limitation for the
purpose of facilitating roaming, handoff and automatic call delivery between
systems), and the User Interface in PCS Systems using such new or upgraded
standard will not differ from the User Interface in a Majority of the United
States in a manner that would be material to customers, or (iii) is approved in
writing by AT&T PCS.
"TDMA Quality Standards" shall mean the quality standards applicable to
TDMA PCS Systems and Cellular Systems owned and operated by AT&T PCS and its
Affiliates in the Southeast Region, which, as currently in effect, are set forth
on Schedule VII, as the same may be amended from time to time, provided any such
amended standards shall become effective one hundred twenty (120) days after
notice thereof is given to the Company.
"Territory" shall mean the PCS Territory and the Cellular Territory;
provided, however, that in the event that, after consummation of a Disqualifying
Transaction, AT&T PCS terminates its and its Affiliates' obligations under
Section 8.6 with respect to any Overlap Territory, the "Territory" shall exclude
the Overlap Territory solely for the purpose of determining the rights and
obligations of AT&T PCS and the Company hereunder.
13
"Transfer" shall have the meaning set forth in Section 4.1(b).
"Triton Operating" shall mean Triton PCS Operating Company L.L.C., a
Delaware limited liability company which is a wholly-owned Subsidiary of the
Company.
"Unfunded Commitment", with respect to any Cash Equity Investor or
Original Management Stockholder, the amount set forth opposite such Person's
name on Schedule XII.
"User Interface" shall mean the process, functional commands, and look
and feel by which a mobile wireless telecommunications service subscriber
operates and utilizes the mobile wireless telecommunications services and
service features provided by a PCS System, including the sequence and detail of
specific commands or service codes, the detailed operation and response of
subscriber equipment to the sequence of keys pressed to effect subscriber
equipment function, the response of subscriber equipment to the activation of
these keys or signals or data from the PCS System, the manner in which
information is displayed on the screen of subscriber equipment, and the use of
announcement tones and messages.
Each definition or pronoun herein shall be deemed to refer to the singular,
plural, masculine, feminine or neuter as the context requires. Words such as
"herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to this
Agreement as a whole, unless the context otherwise requires.
2. Restated Certificate and Restated Bylaws. The Restated Certificate
in effect as of the date hereof is in the form of Exhibit B hereto. The Restated
Bylaws of the Company in effect as of the date hereof are in the form of Exhibit
A hereto.
3. Management of Company.
3.1 Board of Directors.
(a) The Board of Directors shall consist of seven
(7) directors; provided, however, that the number of directors constituting the
Board of Directors shall be reduced in the circumstances set forth in this
Section 3.1. Each of the Stockholders (other than X.X. Xxxxxx) hereby agrees
that it will vote all of the shares of its Common Stock owned or held of record
by it (whether now owned or hereafter acquired), in person or by proxy, to cause
the election of directors (and thereafter the continuation in office) of two (2)
individuals (one of which shall be one of the Company's Class I directors and
one of which shall be one of the Company's Class III directors, as more
particularly described in the Restated Bylaws) selected by holders of a Majority
in Interest of the Common Stock Beneficially Owned by the Cash Equity Investors,
in their sole discretion. Any nomination or designation of directors and the
acceptance thereof pursuant to this Section 3.1(a) shall be evidenced in
writing.
14
(b) So long as Xxxxx Beneficially Owns at least
4.6 million shares of Common Stock, it shall have the right to designate one (1)
one individual who shall be entitled to attend each meeting of the Board of
Directors as an observer, including meetings during which the Company's annual
budget is discussed and presented (such observer shall have the right to receive
all Board of Directors materials and shall also have the right to meet quarterly
with management of the Company to consult on the business affairs of the
Company).
(c) So long as AT&T PCS has the right to nominate
the Series A Preferred Director, it shall have the right to designate up to two
(2) of AT&T PCS's Regional Directors (in regions overlapping with or in
geographic proximity to the Territory) who shall have the right to attend each
meeting of the Board of Directors as observers.
(d) In the event that CB Capital Investors, L.P.,
or X.X. Xxxxxx Investment Corporation ("JPMI") or Sixty Wall Street SBIC Fund,
L.P. ("Sixty Wall Street"; JPMI and Sixty Wall Street are hereinafter referred
to collectively as "X.X. Xxxxxx") shall fail to satisfy any portion of their
respective Unfunded Commitments when due in accordance with Section 2.2 of the
Securities Purchase Agreement or Section 3.10 hereof, and such failure is not
cured by CB Capital Investors, L.P. or X.X. Xxxxxx, as applicable, or any other
Cash Equity Investor within thirty-five (35) days thereof, then, until such
failure is cured, the right of the Cash Equity Investors to designate two (2)
directors pursuant to Section 3.1(a) shall be reduced to a right to designate
one (1) director (subject to reinstatement upon cure of such failure) and the
director designated by CB Capital Investors, L.P. or X.X. Xxxxxx, as applicable,
pursuant to such right of the Cash Equity Investors, or, in the case of a
default by CB Capital Investors, L.P. and X.X. Xxxxxx and two (2) directors
designated by the Cash Equity Investors pursuant to Section 3.1(a), shall resign
(or the other directors or Stockholders shall remove them) from the Board of
Directors and the remaining directors shall take such action so that the number
of directors constituting the entire Board of Directors shall be reduced
accordingly.
3.2 [Intentionally Omitted]
3.3 [Intentionally Omitted]
3.4 [Intentionally Omitted]
3.5 [Intentionally Omitted]
3.6 [Intentionally Omitted]
3.7 Transactions between the Company and the Stockholders or
their Affiliates. Except for this Agreement, the Securities Purchase Agreement
15
and the Related Agreements and the transactions contemplated hereby and thereby
and any other arms-length agreements or transactions entered into from time to
time between the Company and its Subsidiaries, on the one hand, and AT&T PCS and
its Affiliates, on the other hand, no Stockholder or any Affiliate of any
Stockholder shall enter into any transaction with the Company or any Subsidiary
of the Company unless such transaction is approved by a majority of the
disinterested members of the Board of Directors. For purposes hereof, a director
shall be deemed to be disinterested with respect to any such transaction if such
director was not designated a director by the Stockholder that (or an Affiliate
of which) proposed to engage in such transaction with the Company or any
Subsidiary of the Company and such member is not an officer, director, partner,
employee, stockholder of, or consultant to, such Stockholder or any of its
Affiliates.
3.8 Executive Committee. If an executive committee of the Board of
Directors (or a committee of the Board of Directors having substantially the
same mandate and powers of such a committee) is established, the Series A
Preferred Director, one of the directors selected by the Cash Equity Investors
pursuant to Section 3.1 and Xxxxxxx X. Xxxxxxxx (so long as he is an officer of
the Company) shall each serve as a member of such committee (or such other
committee having substantially the same mandate and powers).
3.9 Voting Agreements and Voting Trusts. Except as disclosed on
Schedule X, each Stockholder agrees that it will not, directly or indirectly,
deposit any of his or its shares of Series C Preferred Stock, Series D Preferred
Stock and/or Common Stock in a voting trust or other similar arrangement or,
except as expressly provided herein, subject such shares to a voting agreement
or other similar arrangements. AT&T PCS covenants and agrees that it will not,
directly or indirectly, enter into a voting or similar agreement with any
Transferee of shares of Series A Preferred Stock.
3.10 Additional Capital Contributions. Each Cash Equity Investor
and Original Management Stockholder shall contribute to the capital of the
Company no later than November 30, 1999 an aggregate additional amount equal to
its Unfunded Commitment. Pursuant to Section 7 of the Closing Agreement, such
contributions shall be made directly to Triton PCS, Inc., a Delaware corporation
that is a wholly-owned Subsidiary of the Company.
3.11 Series A Preferred Director. For so long as AT&T PCS shall
have the right to nominate the Series A Preferred Director, each of the
Stockholders (other than X.X. Xxxxxx) hereby agrees that it will vote all of the
shares of Series C Preferred Stock and Common Stock owned or held of record by
it (whether now owned or hereafter acquired), in person or by proxy, to cause
the election of any such Series A Preferred Director so nominated by AT&T PCS to
serve on the Board of Directors and such obligation of the Stockholders to cause
the election of any such Series A Preferred Director shall continue until the
termination of this Agreement in accordance with Section 12.3.
16
4. Transfers of Shares.
4.1 General.
(a) [Intentionally Omitted]
(b) Each Stockholder agrees that at all times on
and after the IPO Date it shall not, directly or indirectly, transfer, sell,
assign, pledge, tender or otherwise grant, create or suffer to exist a Lien in
or upon, give, place in trust, or otherwise voluntarily or involuntarily
(including transfers by testamentary or intestate succession) dispose of by
operation of law, offer or otherwise (any such action being referred to herein
as a "Transfer") any of the shares of Series D Preferred Stock or Common Stock
Beneficially Owned by such Stockholder as of the date hereof or which may
hereafter be acquired by such Stockholder, except that a Cash Equity Investor
may Transfer shares of Series C Preferred Stock and Common Stock to another Cash
Equity Investor and a Stockholder may Transfer (i) shares of Series D Preferred
Stock and Common Stock to an Affiliated Successor, and (ii) shares of Common
Stock after complying first with Section 4.2 and next with Section 4.3, if
applicable; provided, however, a Stockholder shall not be required to comply
with Section 4.2 if such Stockholder first complies with the applicable
provisions of Section 4.4 in connection with Transfers of Common Stock (x)
pursuant to a Registration of Common Stock under Section 5 which is an
underwritten offering and constitutes a bona fide distribution of such Common
Stock pursuant to such Registration, (y) pursuant to Rule 144, or (z) in any
single transaction or series of related transactions to one or more Persons
which results in the Transfer by such Stockholder (together with any other
Stockholder participating in such single transaction or series of related
transactions) of not more than ten percent (10%) of the Common Stock on a fully
diluted basis (excluding for such purposes the Series A Preferred Stock).
(c) Notwithstanding anything to the contrary
contained in Section 4.1(b), prior to February 4, 2001, each Stockholder agrees
that it will not Transfer any shares of Series C Preferred Stock or Common Stock
Beneficially Owned by it as of the date hereof or which may hereafter be
acquired by it to any Person other than an Affiliated Successor.
(d) AT&T PCS agrees that it will not (i) Transfer
any shares of Series D Preferred Stock held by it to any Person other than to an
Affiliated Successor; provided, however, that nothing contained in this Section
4.1(d) shall limit AT&T PCS' right to Transfer in accordance with the terms of
this Agreement any shares of Series C Preferred Stock or Common Stock issued
upon conversion of any such shares of Series D Preferred Stock. Moreover, AT&T
PCS may Transfer its shares of Series A Preferred Stock free from any
restrictions on Transfer of such shares under this Agreement.
(e) Notwithstanding anything to the contrary
contained in this Section 4, (i) Section 4.1 shall not apply to the pledge by
the Cash Equity Investors of the Series C Preferred Stock or Common Stock as
security for their Unfunded Commitments pursuant to a pledge agreement in favor
17
of the Company or to any Transfer of shares of Series C Preferred Stock or
Common Stock in connection with the exercise by the Company of its remedies
pursuant to any such pledge agreement, and (ii) a Cash Equity Investor that is a
SBIC Holder that is required to dispose of its investment in the Company by
reason of a breach by the Company of Section 6.6(d) of the Securities Purchase
Agreement or a Regulatory Problem, may Transfer its shares of Series C Preferred
Stock or Common Stock without complying with the terms of Section 4.3.
4.2 Right of First Offer.
(a) If a Stockholder (each a "Seller") desires to
Transfer any or all of its shares of Company Stock (collectively, the "Offered
Shares"), such Seller shall give written notice (the "Offer Notice") to the
Company and to each Stockholder entitled to become the First Offeree of such
Offered Shares, as determined below. Each Offer Notice shall describe in
reasonable detail the number of shares of each class of Offered Shares, the cash
purchase price requested and all other material terms and conditions of the
proposed Transfer. The Offer Notice shall constitute an irrevocable offer (a
"First Offer") to sell all (and not less than all) of the Offered Shares to the
First Offeree(s) at a cash price equal to the price contained in such Offer
Notice and upon the same terms as the terms contained in such Offer Notice. The
First Offeree(s) shall have the irrevocable right and option, exercisable as
provided below, but not the obligation, to accept the First Offer as to all (and
not less than all) of the Offered Shares. The "First Offeree(s)" shall be
determined as follows:
(i) If the Seller is a Cash Equity Investor,
AT&T PCS shall be First Offeree;
(ii) If the Seller is AT&T PCS, each Cash
Equity Investor shall be the First Offeree; and
(iii) If the Seller is any Stockholder
other than a Cash Equity Investor, AT&T PCS shall be the First Offeree.
(b) The option provided for herein shall be
exercisable by the First Offeree(s) by giving written notice (a "Purchase
Notice"), that the First Offeree desires to purchase all (and not less than all)
of such Offered Shares from the Seller, the Stockholders (other than the Seller)
and the Company not later than ten (10) business days (the "First Offer Period")
after the date of the Offer Notice. If the Cash Equity Investors are First
Offeree and two or more Cash Equity Investors notify the Seller of their desire
to purchase all of the Offered Shares, then each Cash Equity Investor shall
acquire the proportion of such Offered Shares as the number of shares of Company
Stock owned by such Cash Equity Investor bears to the total number of shares of
Company Stock owned by all Cash Equity Investors who elected to purchase all of
the Offered Shares. If Offered Shares are purchased by more than one purchaser,
the purchase price shall be allocated among the parties purchasing the shares on
the basis of the number of shares being so purchased. The purchase of the
Offered Shares by the First Offeree(s) shall be closed at the principal
executive offices of the Company on a date specified by the First Offeree(s)
upon at least five (5) business days' notice, that is within thirty (30) days
after the expiration of the First Offer Period; provided, however, that if such
purchase is subject to the consent of the FCC or any public service or public
utilities commission, the purchase of the Offered Shares shall be closed on the
first business day after all such consents shall have been obtained by Final
Order.
18
(c) If the First Offeree(s) decline (which shall
include the failure to give timely notice of acceptance) to purchase all of the
Offered Shares subject to the First Offer within the First Offer Period, the
Seller shall have the right (for a period of ninety (90) days following the
expiration of the First Offer Period) to consummate the sale of the Offered
Shares to any Person; provided, however, that the purchase price of such Offered
Shares payable by such Person must be at least equal to the cash purchase price
thereof set forth in the Offer Notice and all other terms and conditions of any
such sale shall not be more beneficial to such third party than those contained
in the Offer Notice. If any Offered Shares are not sold pursuant to the
provisions of this Section 4.2 prior to the expiration of the ninety (90) day
period specified in the immediately preceding sentence, such Offered Shares
shall become subject once again to the provisions and restrictions hereof.
(d) The purchase price of any Offered Shares
Transferred pursuant to this Section 4.2 shall be payable in cash by certified
bank check or by wire transfer of immediately available funds.
4.3 Rights of Inclusion.
(a) No Stockholder shall, directly or indirectly,
Transfer, in any single transaction or series or related transactions to one or
more Persons who are not Affiliated Successors of such Stockholder (each such
Person an "Inclusion Event Purchaser") shares of Series C Preferred Stock or
Common Stock (collectively, "Inclusion Stock") in circumstances in which, after
giving effect to such Transfer, whether acting alone or in concert with any
other Stockholder (such parties referred to herein as "Selling Stockholders")
would result in such Selling Stockholder(s) Transferring twenty-five percent
(25%) or more of the outstanding shares of Inclusion Stock outstanding on the
date of such proposed Transfer on a fully diluted basis (excluding for such
purposes the Series A Preferred Stock) (an "Inclusion Event"), unless the terms
and conditions of such sale to such Inclusion Event Purchaser shall include an
offer to AT&T PCS, the Cash Equity Investors and the Management Stockholders
other than the Selling Stockholder (each, an "Inclusion Event Offeree") to
Transfer to such Inclusion Event Purchasers up to that number of shares of any
class of Inclusion Stock then Beneficially Owned by each Inclusion Event Offeree
that bears the same proportion to the total number of shares of Inclusion Stock
at that time Beneficially Owned (without duplication) by each such Inclusion
Event Offeree as the number of shares of Inclusion Stock being Transferred by
the Selling Stockholders (including shares of Inclusion Stock theretofore
Transferred if in any applicable series of related transactions) bears to the
total number of shares of Inclusion Stock at the time Beneficially Owned
(without duplication) by the Selling Stockholders (including shares of Inclusion
Stock theretofore Transferred if in any applicable series of related
19
transactions). If the Selling Stockholders receive a bona fide offer from an
Inclusion Event Purchaser to purchase shares of Inclusion Stock in circumstances
in which, after giving effect to such sale would result in an Inclusion Event,
and which offer such Selling Stockholders wish to accept, the Selling
Stockholders shall then cause the Inclusion Event Purchaser's offer to be
reduced to writing (which writing shall include an offer to purchase shares of
Inclusion Stock from each Inclusion Event Offeree according to the terms and
conditions set forth in this Section 4.3) and the Selling Stockholders shall
send written notice of the Inclusion Event Purchaser's offer (the "Inclusion
Notice") to each Inclusion Event Offeree, which Inclusion Notice shall specify
(i) the names of the Selling Stockholders, (ii) the names and addresses of the
proposed acquiring Person, (iii) the amount of shares proposed to be Transferred
and the price, form of consideration and other terms and conditions of such
Transfer (including, if in a series of related transactions, such information
with respect to shares of Inclusion Stock theretofore Transferred), (iv) that
the acquiring Person has been informed of the rights provided for in this
Section 4.3 and has agreed to purchase shares of Inclusion Stock in accordance
with the terms hereof, and (v) the date by which each other Selling Stockholder
may exercise its respective rights contained in this Section 4.3, which date
shall not be less than thirty (30) days after the giving of the Inclusion
Notice. The Inclusion Notice shall be accompanied by a true and correct copy of
the Inclusion Event Purchaser's offer. At any time within thirty (30) days after
receipt of the Inclusion Notice, each Inclusion Event Offeree may accept the
offer included in the Inclusion Notice for up to such number of shares of
Inclusion Stock as is determined in accordance with this Section 4.3, by
furnishing written notice of such acceptance to each Selling Stockholder, and
delivering, to an escrow agent (which shall be a bank or a law or accounting
firm designated by the Company), on behalf of the Selling Stockholders, the
certificate or certificates representing the shares of Inclusion Stock to be
sold pursuant to such offer by each Inclusion Event Offeree, duly endorsed in
blank, together with a limited power of attorney authorizing the escrow agent,
on behalf of the Inclusion Event Offeree, to sell the shares to be sold pursuant
to the terms of such Inclusion Event Purchaser's offer.
In the event that the Inclusion Event Purchaser does not agree
to purchase all of the shares of Inclusion Stock proposed to be sold by the
Selling Stockholders and the Inclusion Event Offeree, then each Selling
Stockholder and Inclusion Event Offeree shall have the right to sell to the
Inclusion Event Purchaser that number of shares of Inclusion Stock as shall be
equal to (x) the number of shares of Inclusion Stock which the Inclusion Event
Purchaser has agreed to purchase times (y) a fraction, the numerator of which is
the number of shares of Inclusion Stock Beneficially Owned (without duplication)
by such Selling Stockholder or Inclusion Event Offeree and the denominator of
which is the aggregate number of shares of Inclusion Stock Beneficially Owned
(without duplication) by all Selling Stockholders and Inclusion Event Offeree.
If any Inclusion Event Offeree desires to sell less than its proportionate
amount of shares of Inclusion Stock that it is entitled to sell pursuant to this
Section 4.3, then the Selling Stockholders and the remaining Inclusion Event
Offeree shall have the right to sell to the Inclusion Event Purchaser an
additional amount of shares of Inclusion Stock as shall be equal to (x) the
20
number of shares of Inclusion Stock not being sold by any such Inclusion Event
Purchasers times (y) a fraction, the numerator of which is the number of shares
of Inclusion Stock owned such Selling Stockholder or remaining Inclusion Event
Offeree and the denominator of which is the aggregate number of shares of
Inclusion Stock Beneficially Owned (without duplication) by all Selling
Stockholders and remaining Inclusion Event Offeree. Such process shall be
repeated in series until all of the remaining Inclusion Event Offeree agree to
sell their remaining proportionate number of shares of Inclusion Stock.
(b) The purchase from each Inclusion Event
Offeree pursuant to this Section 4.3 shall be on the same terms and conditions,
including the price per share received by the Selling Stockholders and stated in
the Inclusion Notice provided to each Inclusion Event Offeree. In the event that
the Inclusion Stock is Common Stock, all Inclusion Event Offeree shall be
required, as a condition of participating in such transaction, to convert its
Preferred Stock into Common Stock and Transfer Common Stock to the Inclusion
Event Purchaser. In the event that the Inclusion Stock is Series C Preferred
Stock and after giving effect to the rights of the Inclusion Event Offeree to
sell their pro rata share of Series C Preferred Stock or Common Stock pursuant
to this Section 4.3 the Inclusion Event Purchaser shall be required to purchase
both Series C Preferred Stock and Common Stock, the purchase price allocable to
holders of Series C Preferred Stock, on the one hand, and to holders of Common
Stock, on the other hand, shall be determined by an independent committee of the
Board of Directors selected from among those directors who were not designated
by any Selling Stockholders or Inclusion Event Offeree.
(c) Simultaneously with the consummation of the
sale of the shares of Inclusion Stock of the Selling Stockholders and each
Inclusion Event Offeree to the Inclusion Event Purchaser pursuant to the
Inclusion Event Purchaser's offer, the Selling Stockholders shall notify each
Inclusion Event Offeree and shall cause the purchaser to remit to each Inclusion
Event Offeree the total sales price of the shares of Inclusion Stock held by
each Inclusion Event Offeree sold pursuant thereto and shall furnish such other
evidence of the completion and time of completion of such sale and the terms
thereof as may be reasonably requested by each Inclusion Event Offeree.
(d) If within thirty (30) days after receipt of
the Inclusion Notice, an Inclusion Event Offeree has not accepted the offer
contained in the Inclusion Notice, such Inclusion Event Offeree shall be deemed
to have waived any and all rights with respect to the sale described in the
Inclusion Notice (but not with respect to any subsequent sale, to the extent
this Section 4.3 is applicable to such subsequent sale) and the Selling
Stockholders shall have sixty (60) days in which to sell not more than the
number of shares of Inclusion Stock described in the Inclusion Notice, on terms
not more favorable to the Selling Stockholders than were set forth in the
Inclusion Notice; provided, however, that if such purchase is subject to the
consent of the FCC or any public service or public utilities commission, the
purchase of the Offered Shares shall be closed on the first business day after
all such consents shall have been obtained by Final Order.
21
4.4 Right of First Negotiation. In the event that a
Stockholder desires to Transfer any shares of Common Stock following the IPO
Date in a Transfer described in clauses (x), (y) or (z) of Section 4.1(b), such
Stockholder shall give written notice thereof to AT&T PCS, such notice to
specify, among other things, the number of shares that such Stockholder desires
to sell. For the applicable first negotiation period hereinafter set forth, AT&T
PCS shall have the exclusive right to negotiate with such Stockholder with
respect to the purchase of such shares; it being understood and agreed that such
exclusive right shall not be deemed to be a right of first offer or right of
first refusal for the benefit of AT&T PCS and such Stockholder shall have the
right to reject any offer made by AT&T PCS during such applicable first
negotiation period. Upon the expiration of such applicable first negotiation
period, such Stockholder shall have the right (for the applicable offer period
hereinafter set forth with respect to each applicable first negotiation period),
following the expiration of such applicable first negotiation period, to offer
and sell such shares included in such written notice on such terms and
conditions as shall be acceptable to such Stockholder in its sole discretion. If
any of such shares included in such written notice are not sold pursuant to the
provisions of this Section 4.4 prior to the expiration of the applicable offer
period, such shares shall become subject once again to the provision and
restrictions hereof.
If a Stockholder desires to Transfer shares of Common Stock (a)
pursuant to a Registration of Common Stock under Section 5 in an underwritten
offering that constitutes a bona fide distribution of such Common Stock pursuant
to such Registration, the applicable first negotiation period shall be ten (10)
days and the applicable offer period upon the expiration of such first
negotiation period shall be one hundred twenty (120) days, (b) pursuant to Rule
144, the applicable first negotiation period shall be three (3) hours (it being
understood and agreed that such Stockholder shall, in addition to giving written
notice of such proposed Transfer by facsimile, use commercially reasonable
efforts to contact AT&T PCS by telephone in accordance with Section 12.1) and
the applicable offer period upon the expiration of such first negotiation period
shall be five (5) business days, and (c) in any single transaction or series of
related transactions to one or more Persons which will result in the Transfer by
such Stockholder (together with any other Stockholder participating in such
single transaction or series of related transactions) of not more than ten
percent (10%) of the Common Stock on a fully diluted basis (excluding for such
purposes the Series A Preferred Stock), the applicable first negotiation period
shall be one (1) business day, so long as notice of such proposed Transfer is
given to AT&T PCS prior to 9:00 A.M. on the day prior to the date of such
proposed Transfer (it being understood and agreed that such Stockholder shall,
in addition to giving written notice of such proposed Transfer by facsimile, use
commercially reasonable efforts to contact AT&T PCS by telephone in accordance
with Section 12.1) and the applicable offer period upon the expiration of such
first negotiation period shall be ten (10) business days.
4.5 Additional Conditions to Permitted Transfers.
(a) As a condition to any Transfer to an Affiliated
Successor permitted pursuant to Section 4.1, or any Transfer pursuant to Section
4.2 or Section 4.3, each transferee that is not a party hereto shall, prior to
22
such Transfer, agree in writing to be bound by all of the provisions of this
Agreement applicable to the Stockholders (and shall thereby become a Stockholder
for all purposes of this Agreement). Any Transfer without compliance with such
provisions of this Agreement shall be null and void and such transferee shall
have no rights as a Stockholder of the Company.
(b) Notwithstanding anything to the contrary
contained in this Agreement, each Stockholder agrees that it will not effect a
Transfer of shares of Company Stock to a Prohibited Transferee; provided,
however, that nothing contained in this Section 4.5(b) shall be construed to
prohibit a Transfer of Common Stock by a Stockholder after the IPO Date pursuant
to an underwritten Registration or in accordance with the provisions of Rule
144. It shall be deemed a breach of this Section 4.5(b) by a Stockholder
Beneficially Owning more than 10% of the Common Stock outstanding if any
Prohibited Transferee shall acquire, directly or indirectly, in a private sale
Beneficial Ownership of more than 331/3% of any class of equity securities or
equity interest in, such Stockholder.
(c) [Intentionally Omitted]
4.6 Representations and Warranties. A Stockholder purchasing
shares of Company Stock pursuant to Section 4.2 shall be entitled to receive
representations and warranties from the transferring Stockholder that such
Stockholder has the authority (corporate or otherwise) to sell such shares, is
the sole owner of such shares, and has good and valid title to such shares, free
and clear of any and all Liens (other than pursuant to this Agreement, the
Restated Certificate or any Related Agreement), and that the sale of such shares
does not violate any agreement to which it is a party or by which it is bound.
4.7 Stop Transfer.
(a) The Company agrees not to effect any Transfer
of shares of Company Stock by any Stockholder whose proposed Transfer is subject
to Sections 4.2, 4.3 or 4.4 until it has received evidence reasonably
satisfactory to it that the rights provided to any other Stockholders pursuant
to such Sections, if applicable to such Transfer, have been complied with and
satisfied in all respects. If any portion of such Stockholder's Unfunded
Commitment shall remain unpaid on the date of such proposed Transfer, then, as a
condition of such Transfer, such Person purchasing such Company Stock shall, or
another Cash Equity Investor may, execute an instrument in form satisfactory to
the Company agreeing to pay in full such Stockholder's Unfunded Commitment
outstanding on the date of such proposed Transfer, provided, however, that such
Stockholder shall not be released from its obligation in respect of such
Unfunded Commitment. No Transfer of any shares of Preferred Stock and/or Common
Stock shall be made except in compliance with all applicable securities laws.
Any Transfer made in violation of this Agreement shall be null and void.
23
(b) The Company agrees that it will not, without
the prior written consent of AT&T PCS, Transfer, issue or dispose of any Equity
Securities to a Prohibited Transferee except that purchases of Common Stock by a
Prohibited Transferee in connection with a Registration of Common Stock shall
not constitute a violation of this Section 4.7(b).
5. Registration Rights.
(a) Demand Registration Rights.
(i) Right to Demand Registration. From
and after February 4, 2001 and, subject to Section 4.1(d), each of (A) AT&T PCS,
(B) a Qualified Holder, and (C) Management Stockholders that in the aggregate
Beneficially Own at least 50.1% of the shares of Common Stock then Beneficially
Owned by the Management Stockholders (each a "Demanding Stockholder" and,
collectively, the "Demanding Stockholders") shall have the right to make a
written request to the Company for registration with the Commission, under and
in accordance with the provisions of the Securities Act, of all or part of their
Registrable Securities pursuant to an underwritten offering (a "Demand
Registration"), which request shall specify the number of Registrable Securities
proposed to be sold by each Demanding Stockholder; provided, however, that (x)
the Company need not effect a Demand Registration unless the sale of the
Registrable Securities proposed to be sold by the Demanding Stockholder shall
reasonably be expected to result in aggregate gross proceeds to such Demanding
Stockholder of at least $10 million, and (y) if the Board of Directors
determines that a Demand Registration would interfere with any pending or
contemplated material acquisition, disposition, financing or other material
transaction, the Company may defer a Demand Registration (including by
withdrawing any Registration Statement filed in connection with a Demand
Registration); so long as that the aggregate of all such deferrals shall not
exceed one hundred twenty (120) days in any 360 day period. Demand Registration
shall not be deemed a Demand Registration hereunder until such Demand
Registration has been declared effective by the Commission (without interference
by any stop order, injunction or other order or requirement of the Commission or
other governmental agency, for any reason), and maintained continuously
effective for a period of at least three (3) months or such shorter period when
all Registrable Securities included therein have been sold in accordance with
such Demand Registration; provided, however, that a Qualified Holder may, not
more frequently than once in any twelve (12) month period, request that the
Demand Registration be a shelf registration that is maintained continuously
effective for a period of at least six (6) months or such shorter period when
all Registrable Securities included therein have been sold in accordance with
such Demand Registration. A Demanding Stockholder may make a written request for
a Demand Registration in accordance with the foregoing in respect of Equity
Securities that it intends to convert into shares of Common Stock upon the
effectiveness of the Registration Statement prepared in connection with such
demand, and the Company shall fulfill its obligations under this Section 5 in a
manner that permits such Demanding Stockholder to exercise its conversion rights
in respect of such Equity Securities and substantially contemporaneously sell
the shares of Common Stock issuable upon such conversion under such Registration
Statement.
24
The Company will not be obligated to effect more than two (2)
separate Demand Registrations during any twelve (12) month period; provided,
however, that only one (1) request for a Demand Registration may be exercised by
AT&T PCS and/or Management Stockholders that in the aggregate Beneficially Own
at least 50.1% of the shares of Common Stock then Beneficially Owned by the
Management Stockholders during any twelve (12) month period.
Within ten (10) days after receipt of the request for a Demand
Registration, the Company will send written notice (the "Demand Notice") of such
Registration request and its intention to comply therewith to all Stockholders
who are holders of Registrable Securities and, subject to Section 5(a)(ii), the
Company will include in such Demand Registration all Registrable Securities of
such Stockholders with respect to which the Company has received written
requests for inclusion therein within twenty (20) days after the last date such
Demand Notice was deemed to have been given pursuant to Section 12.1.
(ii) Priority on Demand Registration. If
the managing underwriter or underwriters advise the Company and the holders of
the Registrable Securities to be registered in writing that in its or their
opinion that, the number of Registrable Securities proposed to be sold in such
Registration and any other securities of the Company requested or proposed to be
included in such Registration exceeds the number that can be sold in such
offering without (A) creating a substantial risk that the proceeds or price per
share that will be derived from such Registration will be reduced or that the
number of Registrable Securities to be registered is too large a number to be
reasonably sold, or (B) materially and adversely affecting such Registration in
any other respect, the Company will (x) include in such Registration the
aggregate number of Registrable Securities recommended by the managing
underwriter (the number of Registrable Securities to be registered for each
Stockholder to be reduced pro rata based on the amount of Registrable Securities
each of the Stockholders requested to be included in such Registration), and (y)
not allow any securities s other than Registrable Securities to be included in
such Registration unless all Registrable Securities requested to be included
shall have been included therein, and then only to the extent recommended by the
managing underwriter or determined by the Company after consultation with an
investment banker of nationally recognized standing (notification of which
number shall be given by the Company to the holders of Registrable Securities).
(iii) Selection of Underwriters. The
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. The Demanding Stockholder that
initiated such Demand Registration will select a managing underwriter or
underwriters of recognized national standing to administer the offering, which
managing underwriter or underwriters shall be reasonably acceptable to the
Company.
25
(b) Piggyback Registration Rights.
(i) Right to Piggyback. If the Company
proposes to register any shares of Common Stock (or securities convertible into
or exchangeable for Common Stock) with the Commission under the Securities Act
(other than a Registration on Form S-4 or Form S-8, or any successor forms), and
the Registration form to be used may be used for the Registration of the
Registrable Securities (a "Piggyback Registration"), the Company will give
written notice (a "Piggyback Notice") to all Stockholders, at least thirty (30)
days prior to the anticipated filing date, of its intention to effect such a
Registration, which notice will specify the proposed offering price (if
determined at that time), the kind and number of securities proposed to be
registered, the distribution arrangements and will, subject to Section 5(b)(ii),
include in such Piggyback Registration all Registrable Securities with respect
to which the Company has received written requests (which requests have not been
withdrawn) for inclusion therein within twenty (20) days after the last date
such Piggyback Notice was deemed to have been given pursuant to Section 12.1. If
at any time after giving the Piggyback Notice and prior to the effective date of
the Registration Statement filed in connection with such Registration, the
Company determines for any reason not to register or to delay Registration, the
Company may, at its election, give written notice of such determination to each
holder of Registrable Securities that has requested inclusion of Registrable
Securities in such Registration and (A) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such Registration, and (B) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities.
(ii) Priority on Piggyback Registrations.
If the managing underwriter or underwriters, if any, advise the Company and the
holders of Registrable Securities in writing that in its or their opinion, that
the number or kind of securities proposed to be sold in such Registration
(including Registrable Securities to be included pursuant to Section 5(b)(i))
exceeds the number that can be sold in such offering without (A) creating a
substantial risk that the proceeds or price per share the Company will derive
from such Registration will be reduced, or that the number of shares to be
registered is too large a number to be reasonably sold or (B) materially and
adversely affecting such Registration in any other respect, without any
reduction in the amount of securities the Company proposes to issue and sell for
its own account or in the amount of securities any other security holder
proposes to sell for its own account pursuant to a demand Registration right,
the number of Registrable Securities to be registered for each Demanding
Stockholder shall be reduced pro rata based on the amount of Registrable
Securities each of the Demanding Stockholders requested to be included in such
Registration, to the extent necessary to reduce the number of Registrable
Securities to be registered to the number recommended by the managing
underwriter or determined by the Company after consultation with an investment
banker of nationally recognized standing (notification of which number shall be
given by the Company to the holders of Registrable Securities of such
determination).
(c) Selection of Underwriters. Except as set
forth in Section 5.1(a)(iii), the Company (by action of the Board of Directors)
will select a managing underwriter or underwriters to administer the offering,
which managing underwriter or underwriters will be of nationally recognized
standing.
26
(d) Registration Procedures. With respect to any
Demand Registration or Piggyback Registration (each, a "Registration"), the
Company shall, subject to Sections 5(a)(i) and (5)(a)(ii) and Sections 5(b)(i)
and 5(b)(ii), as expeditiously as practicable:
(i) prepare and file with the Commission,
as promptly as reasonably practicable (but in no event more than forty-five (45)
days) after the receipt of the Registration requests under Sections 5(a) or
5(b), a registration statement or registration statements (each, a "Registration
Statement") relating to the applicable Registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof; cooperate and assist in any filings required to be made
with the NASD; and use its reasonable best efforts to cause such Registration
Statement to become and (to the extent provided herein) remain effective;
provided, however, that before filing a Registration Statement or prospectus
related thereto (a "Prospectus") or any amendments or supplements thereto, the
Company shall furnish to the holders of the Registrable Securities covered by
such Registration Statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the
reasonable review of such holders and underwriters and their respective counsel,
and the Company shall not file any Registration Statement or amendment thereto
or any Prospectus or any supplement thereto to which the holders of a majority
of the Registrable Securities covered by such Registration Statement or the
underwriters, if any, shall reasonably object;
(ii) prepare and file with the Commission
such amendments and supplements to the Registration Statement as may be
necessary to keep each Registration Statement effective for three (3) months
(six (6) months in the case of any shelf registration requested by a Qualified
Holder pursuant to this Section 5) or such shorter period that will terminate
when all Registrable Securities covered by such Registration Statement have been
sold; cause each Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) promptly notify the selling holders
of Registrable Securities and the managing underwriters, if any (and, if
requested by any such person or entity, confirm such advice in writing), (A)
when the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective; (B) of any request
by the Commission for amendments or supplements to the Registration Statement or
27
the Prospectus or for additional information; (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (D) if at any
time the representations and warranties of the Company contemplated by
subsection (xiv) of this subsection (d) below cease to be true and correct; (E)
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale under the securities
or blue sky laws of any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and (F) of the happening of any event which makes
any statement made in the Registration Statement, the Prospectus or any document
incorporated therein by reference untrue or which requires the making of any
changes in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements therein not
misleading;
(iv) use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of (I) the
Registration Statement, or (II) the qualification of the Registrable Securities
for sale under the securities or blue sky laws of any jurisdiction at the
earliest possible time;
(v) if requested by the managing
underwriter or underwriters or a holder of Registrable Securities being sold in
connection with an underwritten offering, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters and the holders of a majority of the Registrable Securities being
sold agree should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such underwriters
and any other terms of the underwritten (or best efforts underwritten) offering
of the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(vi) furnish to each selling holder of
Registrable Securities and each managing underwriter, without charge, at least
one signed copy of the Registration Statement and any amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(vii) deliver to each selling holder of
Registrable Securities and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such selling holder of Registrable Securities
underwriters may reasonably request in order to facilitate the public sale or
other disposition of the securities owned by such selling holder;
(viii) prior to any public offering of
Registrable Securities, use its reasonable best efforts to register or qualify
or cooperate with the selling holders of Registrable Securities, the
28
underwriters, if any, and their respective counsel in connection with the
Registration or qualification of such Registrable Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions in the United
States as any seller or underwriter reasonably requests in writing, use its
reasonable best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to taxation or general service of
process in any such jurisdiction where it is not then so subject;
(ix) cooperate with the selling holders of
Registrable Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and to be in such
denominations and registered in such names as the managing underwriters may
request at least two (2) business days prior to any sale of Registrable
Securities to the underwriters;
(x) use its reasonable best efforts to
cooperate with any selling holder to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities in the United States as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;
(xi) upon the occurrence of any event
contemplated by subsection (iii)(F) above, promptly prepare a supplement or
post-effective amendment to the Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(xii) cause all Registrable Securities
covered by any Registration Statement to be listed on each securities exchange
on which similar securities issued by the Company are then listed, or, if not so
listed, cause such Registrable Securities to be authorized for trading on the
NASDAQ National Market System if any similar securities issued by the Company
are then so authorized, if requested by the holders of a majority of such
Registrable Securities or the managing underwriters, if any;
(xiii) not later than the effective date
of the applicable Registration, provide a CUSIP number for all
Registrable Securities;
(xiv) enter into such customary agreements
(including in the case of a Demand Registration that is an underwritten
offering, an underwriting agreement in customary form) and take all such other
29
actions reasonably required in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the Registration is an underwritten Registration, (A) make such
representations and warranties to the holders of such Registrable Securities and
the underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings; (B) use reasonable
best efforts to obtain opinions of counsel to the Company and updates thereof
(which opinions of counsel shall be in form, scope and substance reasonably
satisfactory to the managing underwriters, if any, and to the holders of a
majority of the Registrable Securities being sold), addressed to each selling
holder and the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters; (C) use reasonable best
efforts to obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the selling holders of
Registrable Securities and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings; and (D) deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the Registrable Securities being sold
and the managing underwriters, if any, to evidence compliance with subsection
(xi) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. All the above in this
Section 5(d)(xiv) shall be done at each closing under each underwriting or
similar agreement or as and to the extent required thereunder;
(xv) make available for inspection by a
representative of each Demanding Stockholder, any underwriter participating in
any disposition pursuant to such Registration, and any attorney or accountant
retained by the sellers or underwriter, copies or extracts of all financial and
other records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary, in the opinion of the holders' or underwriter's
counsel, to enable them to fulfill their due diligence responsibilities; and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided, however,
that the Company shall not be required to comply with this paragraph (xv) unless
such person executes confidentiality agreements whereby such person agrees that
any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such Persons and used only
in connection with the proposed Registration unless disclosure of such records,
information or documents is required by court or administrative order or any
regulatory body having jurisdiction; and each seller of Registrable Securities
agrees that it will, upon learning that disclosure of such records, information
or documents is sought in a court of competent jurisdiction or by a governmental
agency, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of any records,
information or documents deemed confidential; provided further, however,
notwithstanding any designation of confidentiality by the Company, confidential
information shall not include information which (i) becomes generally available
30
to the public other than as a result of a disclosure by or on behalf of any such
Person, or (ii) becomes available to any such Person on a non-confidential basis
from a source other than the Company or its advisors, provided that such source
is not to such Person's knowledge bound by a confidentiality agreement with or
other obligations of secrecy to the Company or another party with respect to
such information;
(xvi) otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no later than
forty-five (45) days after the end of any twelve (12)-month period (or ninety
(90) days, if such period is a fiscal year) (A) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering, or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said twelve (12)-month periods; and
(xvii) promptly prior to the filing of any
document that is to be incorporated by reference into any Registration Statement
or Prospectus (after initial filing of the Registration Statement), provide
copies of such document to counsel to the selling holders of Registrable
Securities and to the managing underwriters, if any, make the Company's
executive officers and other representatives available for discussion of such
document and make such changes in such document prior to the filing thereof as
counsel for such selling holders or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities as the
Company may from time to time reasonably request in writing. Each holder of
Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(d)(xi), such holder shall forthwith
discontinue disposition of Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
5(d)(xi), or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus; and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such seller's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company gives any such notice, the time periods regarding the maintenance of the
effectiveness of any Registration Statement in Sections 5(d)(ii) shall be
extended by the number of days during the period from and including the date of
the receipt of such notice pursuant to Section 5(d)(iii)(F) hereof to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended prospectuses contemplated by Section 5(d)(xi) or the Advice.
31
(e) Indemnification.
(i) In the event of the Registration or
qualification of any Registrable Securities under the Securities Act or any
other applicable securities laws pursuant to the provisions of this Section 5,
the Company agrees to indemnify and hold harmless each Stockholder thereby
offering such Registrable Securities for sale (an "Indemnified Stockholder"),
underwriter, broker or dealer, if any, of such Registrable Securities, and each
other person, if any, who controls any such Indemnified Stockholder,
underwriter, broker or dealer within the meaning of the Securities Act or any
other applicable securities laws, from and against any and all losses, claims,
damages, expenses or liabilities (or actions in respect thereof), joint or
several, to which such Indemnified Stockholder, underwriter, broker or dealer or
controlling person may become subject under the Securities Act or any other
applicable federal or state securities laws or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered or qualified under the Securities Act or
any other applicable securities laws, any preliminary prospectus or final
prospectus relating to such Registrable Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of any rule or regulation under the Securities Act or any other
applicable federal or state securities laws applicable to the Company or
relating to any action or inaction required by the Company in connection with
any such Registration or qualification, and will reimburse each such Indemnified
Stockholder, underwriter, broker or dealer and each such controlling person for
any legal or other expenses reasonably incurred by such Indemnified Stockholder,
underwriter, broker or dealer or controlling person in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, expense or liability arises out
of or is based upon an untrue statement or omission contained in such
Registration Statement, such preliminary prospectus, such final prospectus or
such amendment or supplement thereto, made in reliance upon and in conformity
with written information furnished to the Company by such Indemnified
Stockholder, underwriter, broker, dealer or controlling person specifically and
expressly for use in the preparation thereof or by the failure of such
Indemnified Stockholder, underwriter, broker or dealer, or controlling person to
deliver a copy of the Registration Statement, such preliminary prospectus, such
final prospectus or such amendment or supplement thereto after the Company has
furnished such party with a sufficient number of copies of the same and such
party failed to deliver or otherwise provide a copy of the final prospectus to
the person asserting an untrue statement or omission or alleged untrue statement
or omission at or prior to the written confirmation of the sale of securities to
such person, if such statement or omission was in fact corrected in such final
prospectus.
32
(ii) In the case of an underwritten offering
in which the Registration Statement covers Registrable Securities, the Company
agrees to enter into an underwriting agreement in customary form and substance
with such underwriters and to indemnify the underwriters, their officers and
directors, if any, and each person, if any, who controls such underwriters
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as provided in the preceding paragraph with
respect to the indemnification of the holders of Registrable Securities;
provided, however, the Company shall not be required to indemnify any such
underwriter, or any officer or director of such underwriter or any person who
controls such underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, to the extent that the loss, claim, damage,
expense or liability (or actions in respect thereof) for which indemnification
is sought results from such underwriter's failure to deliver or otherwise
provide a copy of the final prospectus to the person asserting an untrue
statement or omission or alleged untrue statement or omission at or prior to the
written confirmation of the sale of securities to such person, if such statement
or omission was in fact corrected in such final prospectus.
(iii) In the event of the Registration or
qualification of any Registrable Securities of the Stockholders under the
Securities Act or any other applicable federal or state securities laws for sale
pursuant to the provisions hereof, each Indemnified Stockholder agrees
severally, and not jointly, to indemnify and hold harmless the Company, each
person who controls the Company within the meaning of the Securities Act, and
each officer and director of the Company from and against any losses, claims,
damages, expenses or liabilities (or actions in respect thereof), joint or
several, to which the Company, such controlling person or any such officer or
director may become subject under the Securities Act or any other applicable
securities laws or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered or qualified
under the Securities Act or any other applicable securities laws, any
preliminary prospectus or final prospectus relating to such Registrable
Securities, or any amendment or supplement thereto, or arise out of or are based
upon an untrue statement therein or the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, which untrue statement or omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Indemnified Stockholder specifically and expressly for use in connection with
the preparation thereof, and will reimburse the Company, such controlling person
and each such officer or director for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, expense, liability or action; provided, however, an Indemnified
Stockholder's liability under this Section 5(e)(iii) shall not exceed the net
proceeds received by such Indemnified Stockholder with respect to the sale of
any Registrable Securities.
(iv) In the case of an underwritten offering
of Registrable Securities, each holder of a Registrable Security included in a
Registration Statement shall agree to enter into an underwriting agreement in
customary form and substance with such underwriters, and to indemnify such
33
underwriters, their officers and directors, if any, and each person, if any, who
controls such underwriters within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act, to the same extent as provided in the
preceding paragraph with respect to indemnification by such holder of the
Company, but subject to the same limitation as provided in Section 5(e)(ii) with
respect to indemnification by the Company of such underwriters, officers,
directors and control persons.
(v) Promptly after receipt by a person
entitled to indemnification under this Section 5(e) (an "Indemnified Party") of
notice of the commencement of any action or claim relating to any Registration
Statement filed under this Section 5 as to which indemnity may be sought
hereunder, such Indemnified Party will, if a claim for indemnification hereunder
in respect thereof is to be made against any other party hereto (an
"Indemnifying Party"), give written notice to each such Indemnifying Party of
the commencement of such action or claim, but the omission to so notify each
such Indemnifying Party will not relieve any such Indemnifying Party from any
liability which it may have to any Indemnified Party otherwise than pursuant to
the provisions of this Section 5(e) and shall also not relieve any such
Indemnifying Party of its obligations under this Section 5(e) except to the
extent that any such Indemnifying Party is actually prejudiced thereby. In case
any such action is brought against an Indemnified Party, and such Indemnified
Party notifies an Indemnifying Party of the commencement thereof, such
Indemnifying Party will be entitled (at its own expense) to participate in and,
to the extent that it may wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense, with counsel reasonably satisfactory
to such Indemnified Party, of such action and/or to settle such action and,
after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party will not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof, other
than the reasonable cost of investigation; provided, however, that no
Indemnifying Party shall consent to the entry of any judgment or enter into any
settlement agreement without the prior written consent of the Indemnified Party
unless such Indemnified Party is fully released and discharged from any such
liability, and no Indemnified Party shall consent to the entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an Indemnifying Party without the consent of each Indemnifying Party.
Notwithstanding the foregoing, the Indemnified Party shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (a) the
employment of such counsel shall have been authorized in writing by the
Indemnifying Party in connection with the defense of such suit, action, claim or
proceeding; (b) the Indemnifying Party shall not have employed counsel
(reasonably satisfactory to the Indemnified Party) to take charge of the defense
of such action, suit, claim or proceeding; or (c) such Indemnified Party shall
have reasonably concluded, based upon the advice of counsel, that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
the defenses available to such Indemnified Party. If any of the events specified
34
in clauses (a), (b) or (c) of the preceding sentence shall have occurred or
shall otherwise be applicable, then the fees and expenses of one counsel or firm
of counsel selected by a majority in interest of the indemnified parties (and
reasonably acceptable to the Indemnifying Party) shall be borne by the
Indemnifying Party. If, in any such case, the Indemnified Party employs separate
counsel, the Indemnifying Party shall not have the right to direct the defense
of such action, suit, claim or proceeding on behalf of the Indemnified Party and
the Indemnified Party shall assume such defense and/or settle such action;
provided, however, that an Indemnifying Party shall not be liable for the
settlement of any action, suit, claim or proceeding effected without its prior
written consent, which consent shall not be unreasonably withheld.
The provisions of this Section 5(e) shall be in
addition to any liability which any party may have to any other party and shall
survive any termination of this Agreement.
(f) Contribution. If for any reason the
indemnification provided for in Section 5(e)(i) or 5(e)(iii) is unavailable to
an Indemnified Party as contemplated therein, then the Indemnifying Party, in
lieu of indemnification shall contribute to the amount paid or payable by the
Indemnified Party as a result of such loss, claim, damage, expense or liability
(or action in respect thereof) in such proportion as is appropriate to reflect
not only the relative benefits received by the Indemnified Party and the
Indemnifying Party, but also the relative fault of the Indemnified Party and the
Indemnifying Party, as well as any other relevant equitable considerations,
provided that no Stockholder shall be required to contribute in an amount
greater than the difference between the net proceeds received by such
Stockholder with respect to the sale of any Registrable Securities and all
amounts already contributed by such Stockholder with respect to such claims,
including amounts paid for any legal or other fees or expenses incurred by such
Stockholder. No person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of any such fraudulent
misrepresentation. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
(g) Registration Expenses. Except as hereinafter
provided, all expenses incident to the Company's performance of or compliance
with this Section 5 will be borne by the Company, including, without limitation,
all Registration and filing fees under the Securities Act and the Exchange Act,
the fees and expenses of the counsel and accountants for the Company (including
the expenses of any "cold comfort" letters and special audits required by or
incident to the performance of such persons), all other costs and expenses of
the Company incident to the preparation, printing and filing under the
Securities Act of the Registration Statement (and all amendments and supplements
thereto), and furnishing copies thereof and of the Prospectus included therein,
35
all out-of-pocket expenses of underwriters customarily paid for by issuers to
the extent provided for in any underwriting agreement, the costs and expenses
incurred by the Company in connection with the qualification of the Registrable
Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
NASDAQ and all other costs and expenses incurred by the Company in connection
with any Registration hereunder. In addition, the Company shall pay or reimburse
the sellers of Registrable Securities the reasonable fees and expenses of one
attorney to such sellers incurred in connection with a registration
(collectively, with the expenses referred to in the immediately preceding
sentence, the "Registration Expenses"). Except as provided in the immediately
preceding sentence, each Stockholder shall bear the costs and expenses of any
underwriters' discounts and commissions, brokerage fees or transfer taxes
relating to the Registrable Securities sold by such Stockholder and the fees and
expenses of any attorneys, accountants or other representatives retained by the
Stockholder.
(h) Participation in Underwritten Registrations.
No Stockholder may participate in any underwritten Registration hereunder unless
such Stockholder (i) agrees to sell its Registrable Securities on the basis
provided in any customary and reasonable underwriting arrangements approved by
the persons entitled hereunder to select the underwriter, and (ii) accurately
completes in a timely manner and executes all questionnaires, powers of
attorney, underwriting agreements, indemnities and other documents customarily
required under the terms of such underwriting arrangements.
(i) Holdback Agreements.
(i) Each holder of Registrable Securities
whose securities are included in a Registration Statement agrees not to effect
any public sale or distribution of the issue being registered or a similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the fifteen (15) days prior to, and during
the ninety (90)-day period (or such longer period as requested by the managing
underwriter or underwriters in the case of an underwritten public offering)
beginning on, the effective date of such Registration Statement (except as part
of such Registration), if and to the extent requested by the managing
underwriter or underwriters in an underwritten public offering.
(ii) The Company agrees not to effect any
public sale or distribution of the issue being registered or a similar security
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities (other than any such sale or distribution of
such securities in connection with any merger or consolidation by the Company or
any Subsidiary or the acquisition by the Company or any Subsidiary of the
capital stock or substantially all of the assets of any other Person), during
the fifteen (15) days prior to, and during the ninety (90)-day period beginning
on, the effective date of each Demand Registration.
36
(j) Public Information Reporting. The Company
hereby covenants and agrees to and with the Stockholders that at all times
following the IPO Date it shall provide and file such financial and other
information concerning the Company as may from time to time be required by the
Commission and any other governmental authority having jurisdiction, so as to
comply with all reporting requirements under the Exchange Act, and shall, upon
request, state in writing that it has complied with all such requirements, and
further agrees that, for so long as (following the IPO Date) the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company shall comply in
all respects with paragraph (c)(2) of Rule 144.
6. Disqualifying Transactions.
6.1 Company Conversion Rights. In the event AT&T PCS
terminates its obligations under Section 8.6 pursuant to Section 8.8(c) with
respect to any Overlap Territory, the Company shall have the following rights
which may be exercised by the Company in its sole discretion during the sixty
(60) day period commencing on the date of such termination:
(a) (i) The Company shall have the right in
accordance with the Restated Certificate to cause AT&T PCS and such Section 4.8
Transferee (as defined in the Restated Certificate) to exchange either (A) all,
or (B) a proportionate number of shares of Series A Preferred Stock then owned
by AT&T PCS and each Section 4.8 Transferee equal to a fraction, the numerator
of which is the number of POPS in the Overlap Territory and the denominator of
which is the total number of POPS in the Territory, of the shares of Series A
Preferred Stock then owned by AT&T PCS and each Section 4.8 Transferee for an
equivalent number of shares of Series B Preferred Stock determined in accordance
with the Restated Certificate; and
(ii) The Company shall have the right in
accordance with the Restated Certificate to cause AT&T PCS and each Section 4.8
Transferee to exchange either (A) all or (B) a proportionate number equal to a
fraction, the numerator of which is the number of 38 POPs in the Overlap
Territory, and the denominator of which is the total number of POPs in the
Territory, of the shares of Series D Preferred Stock owned by AT&T PCS on the
date hereof (or Series C Preferred Stock or Common Stock into which such shares
shall have been converted) and that AT&T PCS continues to own on the date such
right is exercised by the Company for that number of shares of Series B
Preferred Stock as shall be equal to the aggregate purchase price paid by AT&T
PCS for all of such shares of Series D Preferred Stock, Series C Preferred Stock
or Common Stock that AT&T PCS or such Section 4.8 Transferee then owns
(including any Series C Preferred Stock or Common Stock into which such Series D
Preferred Stock shall have been converted) divided by the liquidation preference
of the Series B Preferred Stock determined in accordance with the Restated
Certificate;
provided, however, that (x) if the Company exercises its right under clause
(i)(A) of this Section 6.1(a) it shall be required to exercise its right under
clause (ii)(A) of this Section 6.1(a), and vice versa; and if the Company
37
exercises its right under clause (i)(B) of the Section 6.1(a) it shall be
required to exercise its right under clause (ii)(B) of this Section 6.1(a) and
vice versa, and (y) the provisions of this Section 6.1(a) shall not apply to any
Section 4.8 Transferee which is a Cash Equity Investor.
(b) The Company may redeem the shares of Series B
Preferred Stock at any time as provided in the Restated Certificate.
6.2 Joint Marketing Right. During the period commencing
on the date of announcement by AT&T PCS of a transaction meeting the description
of a transaction set forth in clauses (a), (b) and (c) of the definition of a
Disqualifying Transaction (unless AT&T PCS notifies the Company it has waived
its right to declare such transaction a Disqualifying Transaction in which
event, this Section 6.2 shall not be applicable to such transaction) and
terminating on the later of (x) six (6) months after the date of consummation of
such transaction, and (y) if applicable, the date by which AT&T PCS is required
under applicable law to dispose of any PCS System or Cellular System serving a
Subject Market (the "Section 6.2 Period"), the following provisions shall apply:
(a) If AT&T PCS proposes to sell, transfer or assign
to any Person which is not an Affiliate of AT&T PCS any Subject Market, AT&T PCS
shall give written notice (the "Company Sale Notice") to the Company and the
Company shall have the right, exercisable by written notice given within ten
(10) days of receipt of the Company Sale Notice, to elect to cause AT&T PCS to
offer for sale jointly with the Company for a period of one hundred eighty (180)
days the Subject Markets covered by the Company Sale Notice together with all of
the Territory included in the MTA that includes the Subject Markets (the "Joint
Marketing Period"). In the event that AT&T PCS has granted similar rights to the
rights set forth in this Section 6.2 to any Permitted Merger Participant and any
Subject Market is also a "Subject Market" under the terms of any agreement
between AT&T PCS and any such Permitted Merger Participant, the Company agrees
that any territory of the Permitted Merger Participant that is required under
the terms of such agreement to be offered for sale jointly with any Subject
Markets shall be offered for sale jointly with such Subject Markets and all of
the Territory included in the MTA that includes such Subject Markets. During the
Joint Marketing Period, AT&T PCS shall not sell the Subject Markets other than
in a transaction that includes the Subject Markets and the Territory included in
the MTA that includes the Subject Markets, provided, however, that neither AT&T
PCS nor the Company shall be obligated to enter into a transaction for such
Subject Markets and such Territory other than on terms acceptable to each of
them in their sole discretion. This Section 6.2 shall cease to apply to any
Subject Market upon the earlier of (x) if the Company fails to make the joint
marketing election with respect to the applicable Subject Market within the ten
(10) day period referred to above, the expiration of such ten (10) day period,
or (y) if the Company makes the joint marketing election with respect to the
applicable Subject Market, upon the expiration of the Joint Marketing Period.
38
(b) Nothing contained in this Section 6.2 shall
(x) be construed to require AT&T PCS to deliver a Company Sale Notice with
respect to any Subject Market except during the Section 6.2 Period, (y) extend
the obligation of AT&T PCS set forth in this Section 6.2 beyond the expiration
of the Section 6.2 Period or (z) apply to any sale, transfer or assignment of
any Subject Market pursuant to an agreement executed on any date not within the
Section 6.2 Period.
(c) Nothing in this Agreement shall be construed
to require AT&T PCS to deliver the notice described in clause (d) of the
definition of a Disqualifying Transaction, including, without limitation,
circumstances in which AT&T PCS or its Affiliates enters into any transaction
meeting the description of a transaction set forth in clauses (a), (b) and (c)
of the definition of a Disqualifying Transaction.
7. Additional Rights and Covenants.
7.1 [Intentionally Omitted]
7.2 [Intentionally Omitted]
7.3 Access. The Company shall permit, and shall cause each of
its Subsidiaries to permit, upon reasonable notice, during normal business
hours, each Qualified Holder and Xxxxx, for so long as it has the right to an
observer to the Board of Directors pursuant to Section 3.1, and its directors,
officers, employees, attorneys, accountants, representatives, consultants and
other agents, at the sole expense of such Qualified Holder, to (a) visit and
inspect any of the properties and facilities of the Company and its
Subsidiaries, (b) examine and make copies of and extracts from the corporate and
financial records of the Company and its Subsidiaries, (c) discuss the affairs,
finances and accounts of the Company or any such Subsidiary with any of its
officers, directors and key employees and its independent accountants, and (d)
otherwise investigate the properties, businesses and operations of the Company
and its Subsidiaries, in each case as such Qualified Holder reasonably deems
necessary; provided, however, that (i) each Qualified Holder may exercise its
rights pursuant to this Section 7.3 no more than three times in any 12-month
period and (ii) X.X. Xxxxxx shall not have any of the rights afforded to any
Qualified Holder in this Section 7.3. The Company shall, and shall cause each of
its Subsidiaries and the officers, directors and employees of the Company and
its Subsidiaries to, cooperate fully in connection with such inspection,
examinations and discussions. The presentation of a copy of this Agreement by
any Qualified Holder to the independent accountants of the Company or any of its
Subsidiaries shall constitute permission by the Company or such Subsidiary to
its independent accountants to participate in discussions with such Qualified
Holder.
39
7.4 Merger, Sale or Liquidation of the Company.
(a) Except for transactions permitted pursuant to
Section 7.11 and to the extent permitted in this Section 7.4, the Company shall
not, and shall not permit any of its Subsidiaries to, except with the prior
written consent of AT&T PCS or in accordance with Sections 7.4(b) and 7.4(c),
effect (i) any merger, combination or consolidation of the Company or such
Subsidiary with or into any other entity (regardless of whether the Company or
such Subsidiary is the surviving entity in any such transaction) (any such
merger, combination or consolidation is referred to as a "Company Merger"), (ii)
any sale or disposition of a substantial portion of its assets (a "Company Asset
Sale"), or (iii) the liquidation, dissolution or winding up of the Company or
such Subsidiary.
(b) The Company and its Subsidiaries may effect a
Company Merger, without the prior written consent of AT&T PCS, (i) in which the
only constituent corporations are two or more of the Company's wholly owned
Subsidiaries, (ii) in which the only constituent corporations are the Company
and one or more of its wholly owned Subsidiaries and the Company is the
surviving corporation, or (iii) between a Subsidiary of the Company and another
entity for the purpose of acquiring such other entity; provided, that (x) such
transaction does not affect the capital structure of the Company, except to the
extent the Company issues common stock to the stockholders of the other entity
pursuant to the terms of such Company Merger, (y) the surviving corporation is a
direct or indirect wholly owned Subsidiary of the Company, and (z) the
consummation of such transaction does not violate Section 8.1(a).
(c) The Company and its Subsidiaries may effect
any of the transactions described in clauses (i) or (ii) of Section 7.4(a) (a
"Sale Transaction"), without the prior written consent of AT&T PCS, if (a) such
transaction has no material effect on AT&T PCS' equity interest in the Company
(and the seniority thereof) or its rights under this Agreement, (b) the
Company's direct or indirect interest in its assets is unaffected by such
transaction in any material respect, and (c) such transaction is otherwise
equivalent in all material respects to AT&T PCS to the sale by each of the other
Stockholders of its equity interests in the Company for cash or marketable
securities; provided, that any such Sale Transaction shall nevertheless be
subject to a right of first offer in accordance with the provisions of Section
7.4(d).
(d) Prior to entering into a Sale Transaction,
the Company shall give written notice (the "Sale Notice") to AT&T PCS. Each Sale
Notice shall describe in reasonable detail all material terms of the proposed
Sale Transaction. The Sale Notice shall constitute an irrevocable offer (a "Sale
Offer") to enter into the Sale Transaction with AT&T PCS on the terms set forth
in the Sale Notice. AT&T PCS shall have the irrevocable right and option, but
not the obligation, to accept the Sale Offer in whole but not in part by giving
written notice of its acceptance of such offer within thirty (30) days of the
date of the Sale Notice is given. The Sale Transaction shall be closed at the
principal executive offices of the Company within thirty (30) days after the
40
acceptance by AT&T PCS of the Sale Offer; provided, however, that, if the Sale
Transaction is subject to the consent of the FCC or any public service or public
utilities commission, the Sale Transaction shall be closed on the fifth business
day after all such consents shall have been obtained by Final Order. If AT&T PCS
declines (which shall include the failure to give timely notice of acceptance)
to accept the Sale Offer, the Company shall have the right (for a period of
ninety (90) days following the expiration of the thirty (30) day acceptance
period referred to above) to close a Sale Transaction on the terms described in
the Sale Offer (except that the price must be at least 95% of the price set
forth in the Sale Offer); provided, however, that, if the consent of the FCC or
any public service or public utilities commission is required, the Sale
Transaction may be closed not later than the fifth business day after all such
consents shall have been obtained by Final Order. If, after giving a Sale Offer,
the Company does not close a Sale Transaction in accordance with the terms of
the immediately preceding sentence, the Company shall not effect any Sale
Transaction without giving another Sale Notice in accordance with this Section
7.4(d).
7.5 Wholly-Owned Subsidiaries. All of the Company's
Subsidiaries shall be direct or indirect wholly owned Subsidiaries of the
Company, and the Company shall not, and shall not permit any Subsidiary to, sell
or issue, transfer, encumber or otherwise dispose of any shares of capital stock
of any of the Company's Subsidiaries to any Person other than the Company and
its direct or indirect wholly owned Subsidiaries, except for a pledge of any
such shares in connection with the incurrence of indebtedness.
7.6 [Intentionally Omitted]
7.7 Confidentiality.
(a) Each party shall, and shall cause each of its
Affiliates, and its and their respective stockholders, members, managers,
directors, officers, employees and agents (collectively "Representatives") to,
keep secret and retain in strictest confidence any and all information relating
to the Company or any other party that is designated in writing by the party
providing such information or the Company as confidential ("Confidential
Information") and shall not disclose such information, and shall cause its
Representatives not to disclose such information, to anyone except such
Affiliates, Representatives or any other Person that agrees in writing to keep
in confidence all such information in accordance with the terms of this Section
7.7. Each party agrees to use such information received from another party or
the Company only in connection with its ownership interest in the Company but
not for any other purpose. All such information furnished pursuant to this
Agreement shall be returned promptly to the party to whom it belongs upon
request by such party.
(b) To the fullest extent permitted by law, if a
party or any of its Affiliates or Representatives breaches, or threatens to
commit a breach of, this Section 7.7, the party whose Confidential Information
shall be disclosed, or threatened to be disclosed, shall have the right and
remedy to have this Section 7.7 specifically enforced by any court having
41
jurisdiction, it being acknowledged and agreed that money damages will not
provide an adequate remedy to such party. Nothing in this Section 7.7 shall be
construed to limit the right of any party to collect money damages in the event
of breach of this Section 7.7.
(c) Anything else in this Agreement notwithstanding,
each party shall have the right to disclose any information, including
Confidential Information of the other party or such other party's Affiliates, in
any filing with any regulatory agency, court or other authority or any
disclosure to a trustee of public debt of a party to the extent that the
disclosing party determines in good faith that it is required by Law, regulation
or the terms of such debt to do so; provided, however, that any such disclosure
shall be as limited in scope as possible and shall be made only after giving the
other party as much notice as practicable of such required disclosure and an
opportunity to contest such disclosure if possible.
7.8 [Intentionally Omitted]
7.9 AT&T PCS Retained Licenses. In the event that AT&T PCS
desires to Transfer all or any of the AT&T PCS Retained Licenses in the
Territory at any time prior to February 4, 2006, AT&T PCS shall give written
notice thereof to the Company at least thirty (30) days prior to entering into a
binding agreement to sell such AT&T PCS Retained Licenses in the Territory such
notice to specify among other things, the AT&T PCS Retained Licenses in the
Territory that it desires to sell. For a period of thirty (30) days after the
date such notice is given, the Company shall have the right to negotiate with
AT&T PCS with respect to the purchase of all, but not less than all, of such
AT&T Retained Licenses in the Territory; it being understood and agreed that
such right shall not be deemed to be a right of first offer or right of first
refusal for the benefit of the Company and AT&T PCS shall have the right to
reject any offer made by the Company during such thirty (30) day period. In the
event no binding agreement to sell all or any of such AT&T PCS Retained Licenses
in the Territory is entered into prior to the expiration of the one hundred and
eighty (180) day period following the expiration of such (30) day period, such
Licenses shall become subject once again to the provision and restrictions
hereof.
7.10 Regulatory Cooperation. Each of the Stockholders
severally agrees to comply with the last sentence of Section 6.7 of the
Securities Purchase Agreement.
7.11 Permitted Transactions. Notwithstanding the terms
of Section 7.4(a) and 8.4(a):
(a) after completion of the Minimum Build-Out
Plan and certification that Company Systems meet the TDMA Quality Standards, the
Company and its Subsidiaries may effect a merger, combination of consolidation
with or into a Permitted Merger Participant or acquire all or substantially all
of the assets of a Permitted Merger Participant or sell all or substantially all
of the assets of the Company and its Subsidiaries to a Permitted Merger
Participant (any such transaction being referred to as a "Permitted
Consolidation Transaction"), so long as such transaction is approved by the
Board of Directors and the holders of the Company's capital stock to the extent
such approval is required pursuant to the Restated Certificate or applicable
law; and
42
(b) the Company may acquire FCC Licenses (each
such License a "Permitted Cellular License") authorizing the holder to provide
in a specified geographic area using specified frequencies in respect of which
the Board of Directors has determined that the acquisition of such License (and
any other assets being acquired together therewith) is a demonstrably superior
alternative to constructing a PCS System in the applicable area within the PCS
Territory, provided that, (i) a majority of the POPs included in the geographic
area covered by such License are within the PCS Territory, (ii) none of AT&T
PCS, any Affiliate thereof or any AT&T Licensee owns an interest in an FCC
License to provide Commercial Mobile Radio Service in such geographic area, and
(iii) the ownership of such License will not conflict with, or cause AT&T PCS,
any Affiliate thereof or any AT&T Licensee to be in violation or breach of any
agreement, instrument, Law or License applicable to or binding upon such Person
or its assets. Notwithstanding the foregoing, the Company shall not acquire any
Permitted Cellular License if the acquisition of such License would adversely
affect the Company's ability to satisfy its obligations under the first sentence
of Section 8.1(b).
8. Operating Arrangements.
8.1 Construction of Company Systems.
(a) The Company hereby agrees to construct, or cause
its Subsidiaries to construct, Company Systems covering the Territory on a
schedule no less rapid than is set forth in the Minimum Build-Out Plan. Company
Systems shall be technologically compatible in all material respects with
systems being used in a Majority of the Southeast Region (including without
limitation for the purpose of facilitating roaming and handoff between systems),
and will to the extent technologically feasible implement the same User
Interface as such systems, with the intention that the User Interface in Company
Systems will not differ from the User Interface in a Majority of the Southeast
Region in a manner that would be material to customers.
(b) The Company and AT&T PCS hereby agree that
the Company shall assume and be obligated to satisfy the construction
requirements set forth in 47 CFR ss.24.203 with respect to the AT&T PCS Retained
Licenses in the Territory and the AT&T PCS Contributed Licenses. The Company and
AT&T PCS agree from time to time at the request of the Company or AT&T PCS, as
applicable, to provide the other with information concerning the status of
construction of its PCS Systems to enable such party to determine the level of
compliance with such construction requirements with respect to the AT&T PCS
Retained Licenses and AT&T PCS Contributed Licenses, as applicable.
(c) The Company will arrange for all necessary
microwave relocation in connection with the AT&T PCS Contributed Licenses and
pay, assume or (if applicable) reimburse AT&T PCS or its Affiliates for any
obligation to pay, any reasonable costs incurred by it or AT&T PCS in connection
with any such microwave relocation, provided, that nothing contained herein
shall require the Company to pay any costs incurred in connection with microwave
relocation in connection with the AT&T PCS Retained Licenses.
43
8.2 Service Features. Company Systems will offer the Core
Service Features. Company Systems will also offer, at the written request of
AT&T PCS, additional service features that AT&T PCS has notified the Company it
will provide in a Majority of the Southeast Region, unless the Board of
Directors reasonably determines that the provision of such additional features
would be financially detrimental to the Company. Unless the Board of Directors
makes such a determination, any such additional features shall be adopted within
one hundred twenty (120) days after the request by AT&T PCS. The Critical
Network Elements are set forth on Schedule XI.
8.3 Quality Standards. The Company shall use commercially
reasonable efforts to cause the Company Systems to comply with the TDMA Quality
Standards. Without limiting the foregoing, with respect to each material portion
of a Company System (such as a city) that the Company places in commercial
service, on or prior to the first anniversary of the date such material portion
is placed in commercial service, the Company shall cause each such material
portion to achieve a level of compliance with the TDMA Quality Standards equal
to at least the average level of compliance achieved by comparable PCS and
Cellular Systems owned and operated by AT&T PCS taking into account, among other
things, the relative stage of development thereof. In the event that the Company
fails to achieve such level of compliance, the Company shall not be deemed to be
in material breach of this provision if such noncompliance is cured within
thirty (30) days of notice thereof from AT&T PCS to the Company, or, if such
breach is not capable of being cured within such thirty (30) day period using
commercially reasonable efforts, within one hundred eighty (180) days of such
notice, provided the Company is using commercially reasonable efforts to cure
such material breach as soon as reasonably practicable.
8.4 No Change of Business.
(a) Subject to Section 7.11, the Company will
not, and will not permit any of its Subsidiaries to, without obtaining the prior
written consent of AT&T PCS, do any of the following: (i) conduct, directly or
indirectly, any business other than the Business, (ii) make any material change
to the Minimum Build Out Plan in the Territory, or (iii) effect any transaction,
agreement or arrangement which has or could reasonably be expected to have the
effect of materially impairing or materially limiting the ability of (x)
subscribers to Cellular Systems and PCS Systems in which AT&T PCS or its
Affiliates have an ownership interest to utilize the Company Systems for
roaming, or (y) AT&T PCS or its Affiliates to resell wireless service on the
Company Systems; it being understood that clause (i) shall not be deemed to
restrict the business of the Company in any Overlap Territory.
(b) [Intentionally Omitted]
44
(c) If at any time during the term of this
Agreement AT&T PCS and its Affiliates determine to discontinue use of TDMA in a
Majority of the United States: (i) the Company will have the right to cease to
use TDMA and may adopt the new technology adopted by AT&T PCS and its Affiliates
in a Majority of the United States or implement any other alternative technology
in Company Systems, and, if it exercises such right, the definition of Company
Systems shall be automatically deemed to be modified by substituting a reference
to such new or alternative technology in lieu of the reference in such
definition to TDMA, and (ii) the obligations of AT&T PCS and its Affiliates
pursuant to Section 8.6 shall terminate and be of no further force or effect,
unless within sixty (60) days of notice by AT&T PCS to the Company specifying
that AT&T PCS and its Affiliates have determined to discontinue use of TDMA in a
Majority of the United States, the Company agrees to implement in Company
Systems on a reasonable schedule the new technology adopted by AT&T PCS and its
Affiliates in a Majority of the United States. In the event AT&T PCS desires to
test any technology that is an alternative to TDMA in any PCS System or Cellular
System contiguous to the Territory, AT&T PCS hereby agrees to notify the Company
at least thirty (30) days before conducting such test and will conduct such
tests in a manner that does not have a material adverse effect on the Company.
8.5 Preferred Provider.
(a) The Company and its Subsidiaries shall not
market, offer, provide or resell interexchange services, except (i)
interexchange services that constitute Company Communication Services and (ii)
interexchange services procured from AT&T Corp. or an Affiliate thereof
designated by AT&T Corp. Such interexchange services shall be provided by AT&T
Corp. or such Affiliate at a reasonable rate per minute, subject to mutual
agreement as to all the terms of the agreement to provide such services,
including, without limitation, the volume commitment and duration.
(b) With respect to services other than
interexchange services, when the Company or a Subsidiary does not itself
develop, or is not permitted to develop, one or more telecommunications services
that are offered or provided in connection with the conduct of its Business
(including, by way of example, local telephone services or voicemail), but
instead procures such services, the Company shall request in writing that AT&T
PCS provide such services (directly or through an Affiliate designated by it)
and, provided, that AT&T PCS (or a designated Affiliate) offers to provide such
telecommunication services to the Company on reasonably competitive terms, the
Company or such Subsidiary shall procure such services from AT&T PCS (or such
Affiliate thereof).
8.6 Exclusivity.
(a) None of the Stockholders or their respective
Affiliates will provide or resell, or act as the agent for any Person offering,
within the Territory, Company Communications Services except that, AT&T PCS and
its Affiliates may (i) resell, or act as the Company's agent for, Company
45
Communications Services provided by the Company in accordance with the Resale
Agreement (or any other agreement between AT&T PCS and its Affiliates, on the
one hand, and the Company, on the other hand), including bundling any such
Company Communications Services with other telecommunications services marketed,
offered and provided or resold by such Person, (ii) provide or resell wireless
telecommunications services to or from specific locations (such as buildings or
office complexes), even if the subscriber equipment used in connection with such
service may be capable of routine movement within a limited area (such as a
building or office complex), and even if such subscriber equipment may be
capable of obtaining other telecommunications services beyond such limited area
(which other services may include routine movement beyond such limited area) and
handoff between the service to such specific locations and such other
telecommunications services; provided, however, that if AT&T PCS or any of its
Affiliates sells such mobile wireless subscriber equipment such equipment shall
be capable of providing (but not necessarily on an exclusive basis) Company
Communications Services and (iii) resell Company Communications Services
provided by a Person other than the Company in any geographical area within the
Territory in which the Company has not placed a Company System into commercial
service (it being understood that in the event that AT&T PCS or any of its
Affiliates that is reselling Company Communication Services of a Person other
than the Company in a geographic area within the Territory at the time the
Company places a portion of a Company System including such geographic area into
commercial service, AT&T PCS or its Affiliates, as applicable, shall terminate
such resale arrangement with respect to such geographic areas within thirty (30)
days of the date such portion of a Company System is placed in commercial
service). AT&T PCS agrees to provide the Company with not less than sixty (60)
days' prior notice of AT&T PCS' intention to engage in any resale activities
described in clause (iii) hereof to provide the Company with the opportunity to
discuss such proposed resale activities with AT&T PCS, such notice to include
(x) a reasonable description of such resale activities (including, without
limitation, the identity, if known by AT&T PCS at such time, of the Person AT&T
PCS intends to engage to provide such Company Communication Services) and (y)
AT&T PCS' confirmation that only dual band/dual mode phones shall be used in
connection with such resale activities. AT&T PCS further agrees that upon a
Company System being placed into commercial operation in any such geographic
area within the Territory it will transfer all of its subscribers in such
geographic area to the Company System either directly to the Company or on the
terms and subject to the conditions contained in the Resale Agreement. In
connection with any such transfer, AT&T PCS will use its best efforts to
facilitate such transfer, including cooperating with the Company regarding the
form(s) of notice to be sent to such subscribers informing them of such
transfer. To the extent the "other telecommunications services" referred to in
clause (ii) of the first sentence of this Section 8.6(a) constitute Company
Communications Services, neither AT&T PCS nor any of its Affiliates may provide
or resell, or act as agent for any Person offering, such "other
telecommunications services" except in accordance with the terms of clause (i)
of the first sentence of this Section 8.6(a). Nothing herein shall be construed
to limit in any respect any advertising and promotional and similar activities
by AT&T PCS or its Affiliates or any Cash Equity Investor or any of its
Affiliates.
46
(b) With respect to the markets listed on Schedules 1 and 2 to the
Roaming Agreement, each of AT&T PCS and the Company shall, and shall cause each
of its Affiliates to, in its and such Affiliates' capacity as Home Carrier: (i)
program and direct its authorized dealers to program the subscriber equipment
provided by it or such authorized dealers to its customers, at the time it is
provided to such customers, (to the extent such programming is technologically
feasible) so that the Company or AT&T PCS, as the case may be, and such
Affiliates, in its and such Affiliates' capacity as Serving Carrier, is the
preferred provider of service in the markets listed on such Schedules 1 and 2,
and (ii) refrain, and direct its authorized dealers to refrain, from inducing
any of its customers to change or, except at such customer's request in the
event the quality of the Company's services do not meet industry standards,
changing the programming described in clause (i) above. For the purpose of this
Section 8.6(b), the terms "Affiliate," "Home Carrier" and "Serving Carrier"
shall have the meanings ascribed thereto in the Roaming Agreement.
8.7 Other Business; Duties; Etc. Except to the extent expressly set
forth in Section 8.6, AT&T PCS and each Cash Equity Investor and any Person
affiliated with AT&T PCS or a Cash Equity Investor may engage in or possess an
interest in other business ventures, and may engage in any other activities, of
every kind and description (whether or not competitive with the business of the
Company or otherwise affecting the Company), independently or with others and
shall owe no duty or liability to the Company, the other Stockholders or their
Affiliates in connection therewith. None of the Company or the other
Stockholders shall have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement or any of the Related
Agreements. Without limiting the generality of the foregoing, in the event that
AT&T PCS or a Cash Equity Investor or a Person affiliated with AT&T PCS or a
Cash Equity Investor develops inventions which are patentable or are otherwise
trade secrets relevant to the Business, AT&T PCS or such Cash Equity Investor or
affiliated Person shall nevertheless retain ownership of such invention and may
license it to the Company if the Company so desires and if mutually satisfactory
terms are agreed to. The Company shall also have the right to develop any
inventions related to the Business deemed desirable by it and to retain title to
such inventions. To the extent that, at law or in equity, AT&T PCS or a Cash
Equity Investor or any Person affiliated with AT&T PCS or a Cash Equity Investor
would have duties (including fiduciary duties) and liabilities to the Company,
or to the Stockholders, different from or in addition to those provided in this
Section 8.7 and Section 8.6 with respect to the subject matter of such Sections,
all rights of the Company and the Stockholders arising out of such duties and
liabilities are hereby waived and no such Person shall be liable to the Company
or to any Stockholder for its good faith reliance on the provisions of this
Section 8.7.
8.8 Acknowledgments and Termination of Exclusivity.
(a) The Stockholders hereby expressly acknowledge that none of the
Stockholders would have been willing to enter
47
into this Agreement or make contributions to the capital of the Company, except
for each other Stockholder's and its Affiliates willingness to enter into this
Agreement (including without limitation the provisions set forth in this Section
8) and the Related Agreements.
(b) Without limiting the foregoing, and without limiting the remedies
that may be available to it at law or in equity, in the event of a Substantial
Company Breach, the obligations of AT&T PCS and its Affiliates under Section 8.6
shall automatically terminate and be of no further force or effect.
(c) Upon consummation of a Disqualifying Transaction, AT&T PCS may, by
notice to the Company, terminate its and its Affiliates' obligations under
Section 8.6 with respect to any Overlap Territory, provided that the obligations
of AT&T PCS and its Affiliates pursuant to Section 8.6(b)(ii) shall continue in
effect with respect to the then existing customers of the PCS Systems and
Cellular Systems owned and operated by AT&T PCS and its Affiliates (and their
respective successors pursuant to the applicable Disqualifying Transaction)
before giving effect to such Disqualifying Transaction, so long as such
customers remain customers of such systems and such systems continue to be owned
or operated by AT&T PCS or its Affiliates. Notwithstanding the foregoing, in the
event that the Company exercises its right pursuant to Section 6.1 to convert
all of the shares of Company Stock owned by AT&T PCS into Series B Preferred
Stock, the reference in this Section 8.8(c) to the "Overlap Territory" shall be
deemed to refer to the Territory.
8.9 Equipment, Discounts and Roaming. AT&T PCS acknowledges and agrees
that, subject to the terms of Sections 8.1 and 8.5, the Company shall have the
sole discretion to select (a) the equipment vendor(s) for the infrastructure to
be constructed by the Company and (b) billing and other vendors providing goods
and services to the Company. If reasonably requested by the Company, AT&T PCS
agrees to use all commercially reasonable efforts to assist representatives of
the Company in obtaining discounts from any AT&T PCS vendor with whom the
Company is negotiating for the purchase of any such subscriber or infrastructure
equipment or billing services. In addition, AT&T PCS agrees to use all
commercially reasonable efforts to enable the Company to become a party to the
roaming agreements between AT&T PCS and its Affiliates and operators of other
Cellular Systems and PCS Systems or, subject to the Company agreeing to the
obligations thereunder, entitled to the rights and benefits of AT&T PCS under
such roaming agreements. The two immediately preceding sentences shall not be
construed to require AT&T PCS or its Affiliates to take any action that AT&T PCS
or such Affiliate determines in its sole discretion to be adverse to its
interests.
8.10 ANS Agreement. At the request of the Company, AT&T PCS shall cause
AWS to enter into an Advanced Network Services Agreement with the Company,
substantially in the form of Exhibit C.
48
8.11 Resale Agreements.
(a) From time to time, upon the request of AT&T PCS, the Company shall
enter into a Resale Agreement relating to the Territory, with AT&T PCS and any
of its Affiliates and, with respect to any geographic area within the Territory,
one other Person designated by AT&T PCS, provided such other Person is licensed
to provide telecommunications services in such geographic area under the service
marks used by AT&T Corp. and such other Person qualifies as a reseller under any
generally applicable standards the Company establishes for its resellers from
time to time and upon the request of AT&T PCS, the Company shall enter into an
agency agreement authorizing AT&T PCS and any of its Affiliates and, with
respect to any geographic area within the Territory, one other Person designated
by AT&T PCS, provided such other Person is licensed to provide
telecommunications services in such geographic area under the service marks used
by AT&T Corp. and such other Person qualifies as an agent under any generally
applicable standards the Company establishes for its agents from time to time.
Any such agency agreements shall provide that the Company shall pay the agent a
commission at the rate then generally offered to the Company's agents and shall
otherwise be on commercially reasonable terms. At no time shall there be more
than one Person (other than AT&T PCS and its Affiliates) designated by AT&T PCS
as a reseller or an agent with respect to any geographic area within the
Territory.
(b) It is the intention of the parties that, in light of AT&T PCS's
equity interest in the Company and the other arrangements between AT&T PCS and
its Affiliates and the Company (including the roaming revenues anticipated to be
earned by the Company from subscribers of AT&T PCS and its Affiliates), the
rates, terms and conditions of Service (as defined in the Resale Agreement)
provided by the Company pursuant to the Resale Agreement or any other agreement
between AT&T PCS or such other reseller and the Company shall be at least as
favorable to AT&T PCS or such other reseller, taken as a whole, as the rates,
terms and conditions of Service, taken as a whole, provided by the Company to
any other Customer (as defined in the Resale Agreement) and, to the extent
permitted by applicable law, such rates, terms and conditions shall be superior
to those provided to any other Customer. Without limiting the foregoing, the
rate plans offered by the Company pursuant to any Resale Agreement shall be
designed to result in the average actual rate per minute paid by the Reseller
for Service being at least 25% below the weighted average actual rate per minute
billed by the Company to its subscribers for access and air time, but excluding
revenues for features, taxes, toll or other non-rate items. The Company and
Reseller shall negotiate commercially reasonable reductions to such resale rate
based upon increased volume commitments (including roaming charges incurred by
subscribers of AT&T PCS and its Affiliates).
8.12 Non-Solicitation.
(a) AT&T PCS hereby covenants and agrees that from and after the date
hereof until six months after the date on which it shall cease to own any Equity
Securities
49
that neither AT&T PCS nor its Affiliates shall solicit for employment any
employee of the Company; provided, however, that, nothing contained in this
Section 8.12(a) shall prevent AT&T PCS or its Affiliates from engaging in a
general solicitation for employment that is not directed at employees of the
Company.
(b) The Company hereby covenants and agrees that from and after the
date hereof until six months after the date on which AT&T PCS or its Affiliates
shall cease to own any Equity Securities that neither the Company nor its
Affiliates shall solicit for employment any employee of the AT&T PCS or its
Affiliates; provided, however, that nothing contained in this Section 8.12(b)
shall prevent the Company or its Affiliates from engaging in a general
solicitation for employment that is not directed at employees of AT&T PCS and
its Affiliates.
8.13 Co-Location. The Company agrees to permit on commercially
reasonable terms AT&T PCS and its Affiliates to install, operate and maintain
cell site equipment owned or used by AT&T PCS and its Affiliates in their
respective businesses on the towers, buildings and other locations at which the
Company's cell site equipment is installed, operated and maintained. AT&T PCS
and its Affiliates agree to permit on commercially reasonable terms the Company
to install, operate and maintain cell site equipment owned or used by the
Company in its business on the towers, buildings and other locations at which
AT&T PCS and its Affiliates cell site equipment is installed, operated and
maintained.
9. After-Acquired Shares; Recapitalization.
9.1 After Acquired Shares; Recapitalization.
(a) All of the provisions of this Agreement shall apply to all of the
shares of Equity Securities now owned or hereafter issued or transferred to a
Stockholder or to his, her or its Affiliated Successors in consequence of any
additional issuance, purchase, exchange or reclassification of shares of Equity
Securities, corporate reorganization, or any other form of recapitalization, or
consolidation, or merger, or share split, or share dividend, or which are
acquired by a Stockholder or its Affiliated Successors in any other manner.
(b) Whenever the number of outstanding shares of Equity Securities is
changed by reason of a stock dividend or a subdivision or combination of shares
effected by a reclassification of shares, each specified number of shares
referred to in this Agreement shall be adjusted accordingly.
9.2 Amendment of Restated Certificate. Whenever the number of shares of
authorized Company Stock is not sufficient in order to issue shares of Preferred
Stock or Common Stock upon conversion of Preferred Stock or Common Stock in
accordance with the Restated Certificate, (i) the Company shall promptly amend
the Restated Certificate in order to
50
authorize a sufficient number of shares of Company Stock, and (ii) each
Stockholder agrees to vote its shares of Preferred Stock and Common Stock in
favor of any such amendment.
10. Share Certificates.
10.1 Restrictive Endorsements; Replacement Certificates.
(a) Each certificate representing the shares of Equity Securities now
or hereafter held by a Stockholder (including any such certificate delivered
upon conversion of the Preferred Stock) or delivered in substitution or exchange
for any of the foregoing certificates shall be stamped with legends in
substantially the following form:
The shares represented by this Certificate have been acquired for
investment and have not been registered under the Securities Act of
1933, as amended (the "Act"), or under any state securities or "Blue
Sky" laws. Said securities may not be sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of, unless and until
registered under the Act and the rules and regulations thereunder and
all applicable state securities or "Blue Sky" laws or exempted
therefrom under the Act and all applicable state securities or "Blue
Sky" laws.
The shares represented by this Certificate are also subject to a
Stockholders' Agreement dated as of February 4, 1998, as the same may
be amended, modified or supplemented in accordance with the terms
thereof, a copy of which is on file at the offices of the Company and
will be furnished by the Company to the holder hereof upon written
request. Such Stockholders' Agreement provides, among other things, for
the granting of certain restrictions on the sale, transfer, pledge
hypothecation or other disposition of the shares represented by this
Certificate, and that under certain circumstances, the holder hereof
may be required to sell the shares represented by this Certificate. By
acceptance of this Certificate, each holder hereof agrees to be bound
by the provisions of such Stockholders' Agreement. The Company reserves
the rights to refuse to transfer the shares represented by this
Certificate unless and until the conditions to transfer set forth in
such Stockholders' Agreement have been fulfilled.
Each Stockholder agrees that he, she or it will deliver all
certificates for shares of Equity Securities owned by him, her or it to the
Company for the purpose of affixing such legends thereto.
10.2 Lost or Destroyed Certificates. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any certificate representing shares of Equity Securities subject
to this Agreement and of a bond or other indemnity reasonably satisfactory to
the Company, and upon reimbursement to the Company of all reasonable expenses
incident thereto, and upon surrender of such certificate, if mutilated, the
Company will make and deliver a new certificate of like tenor in lieu of such
lost, stolen, destroyed or mutilated certificate.
51
11. Equitable Relief. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement and
that, in addition to being entitled to exercise all of the rights provided
herein or in the Restated Certificate or granted by law, including recovery of
damages, equitable relief, including specific performance and injunctive relief,
may be used to enforce the provisions of this Agreement.
12. Miscellaneous.
12.1 Notices. All notices or other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by facsimile transmission, or by registered
or certified mail (return receipt requested), postage prepaid, with an
acknowledgment of receipt signed by the addressee or an authorized
representative thereof, addressed as follows (or to such other address for a
party as shall be specified by like notice; provided, that notice of a change of
address shall be effective only upon receipt thereof:
If to AT&T PCS:
c/o AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx-Key
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
and
52
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Cash Equity Investor, to its address set forth on Schedule I.
With a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Management Stockholder:
c/o Triton PCS, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Kleinbard, Xxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
53
If to the Company, to it:
c/o Triton PCS, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to each other party sent to the addresses set forth in this
Section 12.1.
12.2 Entire Agreement; Amendment; Consents.
(a) This Agreement, together with the Closing Agreement, dated as of
February 4, 1998, among the Company, the Cash Equity Investors and the Original
Management Stockholders (the "Closing Agreement") constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
(b) No change or modification of this Agreement shall be valid, binding
or enforceable unless the same shall be in writing and signed by the Company and
the holders of a majority of the shares of each class of capital stock held by
the parties hereto, including AT&T PCS, 66 2/3% of the Common Stock Beneficially
Owned by the Cash Equity Investors, and 60.1% of the Common Stock Beneficially
Owned by the Management Stockholders; provided, however, that in the event any
party hereto shall cease to own any shares of Equity Securities such party
hereto shall cease to be a party to this Agreement and the rights and
obligations of such party hereunder shall terminate, except to the extent
otherwise provided in Section 4.7(a) with respect to any Unfunded Commitment.
(c) Whenever in this Agreement the consent or approval of a Stockholder
is required, except as expressly provided herein, such consent or approval may
be given or withheld in the sole and absolute discretion of each Stockholder.
12.3 Term.
(a) Subject to Sections 12.3(b), 12.3(c) and 12.4, this Agreement shall
terminate upon the earliest to occur of any of the following events:
(i) The consent in writing of all of the parties hereto; or
(ii) February 4, 2009; or
54
(iii) One Stockholder shall Beneficially Own all of the Common
Stock.
(b) Notwithstanding anything contained herein to the contrary, (i) the
provisions of Sections 3 and 4 shall terminate on the earlier to occur of a
termination pursuant to Section 12.3(a) and February 4, 2008, and (ii) the
provisions of Sections 4.7(b), 7.4, 7.6 and 8.4(a), shall terminate, and neither
the Company nor any Stockholder shall be required to obtain AT&T PCS's prior
written consent as required under such Sections, on the earlier to occur of (i)
a termination pursuant to Section 12.3(a) and (ii) (x) with respect to the
period prior to February 4, 2006, the date on which AT&T PCS shall cease to
Beneficially Own more than two-thirds of the number of shares of Series A
Preferred Stock that AT&T PCS Beneficially Owned on February 4, 1998, and (y)
with respect to the period on or after February 4, 2006, the date on which AT&T
PCS shall cease to Beneficially Own more than two-thirds of the number of shares
of Common Stock that AT&T PCS Beneficially Owned on February 4, 1998.
(c) Notwithstanding anything contained herein to the contrary, in the
event the Cash Equity Investors shall Beneficially Own less than (i) one half
but more than one quarter of the number of shares of Common Stock Beneficially
Owned by the Cash Equity Investors on February 4, 1998, the number of directors
the Cash Equity Investors shall be permitted to designate under Section 3.1(a)
shall be reduced to one, and (ii) one-quarter of the number of shares of Common
Stock Beneficially Owned by the Cash Equity Investors on February 4, 1998, the
provisions of Section 3.1(a) shall terminate. In the event the number of
directors the Cash Equity Investors are entitled to designate is reduced
pursuant to Section 12.3(c)(i), one of the directors designated by the Cash
Equity Investors under Section 3.1(a) shall resign (or the other directors or
Stockholders shall remove them from the Board of Directors) and the remaining
directors shall take such action so that the number of directors constituting
the entire Board of Directors shall be reduced accordingly. In the event the
provisions of Section 3.1(a) are terminated pursuant to Section 12.3(c)(ii), the
directors designated by the Cash Equity Investors pursuant to Section 3.1(a)
shall resign (or the other directors or Stockholders shall remove them from the
Board of Directors) and the remaining directors shall take such action so that
the number of directors constituting the entire Board of Directors is reduced by
two (2) individuals.
12.4 Survival. Nothing contained in Section 12.3 shall impair
any rights or obligations of any party hereto arising prior to the time of the
termination of this Agreement, or which may arise by an event causing the
termination of this Agreement. The provisions of Section 5 shall survive any
termination of this Agreement pursuant to Section 12.3 and shall continue in
full force and effect until February 4, 2018. The provisions of Section 7.7 and
Article 12 shall survive the termination of this Agreement.
12.5 Waiver. No failure or delay on the part of any Stockholder
in exercising any right, power or privilege hereunder, nor any course of dealing
between the Company and any Stockholder shall operate as a waiver thereof nor
55
shall any single or partial exercise of any right, power or privilege hereunder
preclude the simultaneous or later exercise of any other right, power or
privilege. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights and remedies which any Stockholder would otherwise
have. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Stockholders or any of
them to take any other or further action in any circumstances without notice or
demand.
12.6 Obligations Several. The obligations of each Stockholder under
this Agreement shall be several with respect to each such Stockholder.
12.7 Governing Law. This Agreement shall be governed and construed
in accordance with the law of the State of Delaware.
12.8 Dispute Resolution.
(a) The parties shall use and strictly adhere to the following dispute
resolution processes, except as otherwise expressly provided in this Section
12.8, to resolve any and all disputes, controversies or claims, whether based on
contract, tort, statute, fraud, misrepresentation or any other legal or
equitable theory (hereinafter, "Dispute(s)"), arising out of or relating to this
Agreement (and any prior agreement this Agreement supersedes), including without
limitation, its making, termination, non-renewal, its alleged breach and the
subject matter of this Agreement (e.g., products or services furnished hereunder
or those related to those furnished):
(b) The parties shall first attempt to settle each Dispute through good
faith negotiations. The aggrieved party shall initiate such negotiations by
giving the other party(ies) written notice of the existence and nature of the
Dispute. The other party(ies) shall in a writing to the aggrieved party
acknowledge such notice of Dispute within ten (10) business days. Such
acknowledgment may also set forth any Dispute that the acknowledging party
desires to have resolved in accordance with this Section.
(c) Thereafter, if any Dispute is not resolved by the parties through
negotiation within thirty (30) calendar days of the date of the notice of
acknowledgment, either party may terminate informal negotiations with respect to
that Dispute and request that the Dispute be submitted to non-binding mediation.
Any mediation of a Dispute under this Section shall be conducted by the CPR
Institute for Dispute Resolution ("CPR") in accordance with the then current CPR
"Model Mediation Procedure for Business Disputes" ("Model Procedures") and the
procedures specified in this Section to the extent that they conflict with,
modify or add to such Model Procedures. Any demand for initiation of mediation
of a Dispute must be given in writing to both the other party(is) involved and
to the CPR and must set forth the nature of the Dispute. Each party to the
mediation shall bear its own expenses with respect to mediation and the parties
shall share equally the fees and expenses of the CPR and the mediator.
56
The failure by a party to timely pay its share of the mediation fees and
expenses of the CPR and the mediator shall be a bar to arbitration under Section
12.8(d) of that party's Dispute(s). Any mediation under this Section shall be
conducted within the State of New York at a site selected by the mediator that
is reasonably convenient to the parties. Each party shall be represented in the
mediation by representatives having final settlement authority with respect to
the Dispute(s). All information and documents disclosed in mediation by any
party shall remain private and confidential to the disclosing party and may not
be disclosed by any party outside the mediation. No privilege or right with
respect to any information or document disclosed in mediation shall be waived or
lost by such disclosure.
(d) Any Dispute not finally resolved after negotiation and mediation in
accordance with Section 12.8(b) and 12.8(c) shall, upon the written demand of
any involved party delivered to the other party(is) and the CPR, be finally
resolved through binding arbitration in accordance with the then current CPR
"Non-Administered Arbitration Rules" ("Arbitration Rules") and the procedures
specified in this Section to the extent that they conflict with, modify or add
to such Arbitration Rules. Any Dispute of any other party not finally resolved
after negotiation and mediation pursuant to this Section may be made a part of
the arbitration demanded by another party, provided that the written notice of
demand for arbitration of that Dispute is received by the CPR before selection
of an arbitrator by the CPR. Any demand for arbitration of a Dispute received by
the CPR after the selection of the arbitrator must be resolved through a
separate arbitration proceeding in accordance with this Section. Each party
shall bear its own expenses with respect to arbitration and the parties shall
share equally the fees and expenses of the CPR and the arbitrator. Unless
otherwise mutually agreed by the parties in writing, the arbitration shall be
conducted by one (1) neutral arbitrator. The arbitration shall be conducted in
the State of New York at a site selected by the arbitrator that is reasonably
convenient to the parties. The arbitrator shall be bound by and strictly enforce
the terms of the Agreement and may not limit, expand, or otherwise modify the
terms of this Agreement. The arbitrator shall make a good faith effort to apply
applicable law, but an arbitration decision and award shall not be subject to
review because of errors of law. The arbitrator shall have the sole authority to
resolve issues of the arbitrability of any Dispute, including the applicability
or running of any statute of limitation. The arbitrator shall not have power to
award damages in connection with any Dispute in excess of actual compensatory
damages or to award punitive damages and each party irrevocably waives any claim
thereto. The arbitrator shall not have the power to order pre-hearing discovery
of documents or the taking of depositions. The arbitrator may compel, to the
extent provided by the FAA (as hereinafter defined), attendance of witnesses and
the production of documents at the hearing. The arbitrator's decision and award
shall be made and delivered to the parties within six (6) months of selection of
the arbitrator by the CPR and judgment on the award by the arbitrator may be
entered by any court having jurisdiction thereof.
(e) This Section shall be interpreted, governed by and enforced in
accordance with the United States Arbitration Act, 9 U.S.C. Sections 114 (the
"Federal Arbitration Act" or "FAA"). The laws of the State of New York, except
those pertaining to choice of law, arbitration of disputes and those pertaining
to the time limits for bringing an action
57
that conflict with the terms of this Dispute Resolution provision, shall govern
all other substantive matters pertaining to the interpretation and enforcement
of the other terms of this Agreement with respect to any Dispute. Any party to a
Dispute, which is the subject of a notice initiating the Dispute resolution
procedures under this Section, may seek a temporary injunction in any state or
federal court of competent jurisdiction to the limited extent necessary to
preserve the status quo during the pendency of final resolution of a Dispute in
accordance with this Section. If court proceedings to stay litigation of a
Dispute or compel arbitration of a Dispute are necessary, the party who
unsuccessfully opposes such proceedings shall pay all associated costs,
expenses, and attorneys' fees that the other party reasonably incurs in
connection with such court proceedings. An order to pay such costs, expenses and
attorney fees shall become part of any decision and award of the arbitrator of
the Dispute. An arbitrator appointed pursuant to Section 12.8(d) to resolve a
Dispute may also issue such injunctive orders and shall have the power to modify
or dissolve the injunctive order of any court to the extent it pertains to the
Dispute which the arbitrator has been selected to finally resolve. The parties,
their representatives, other participants, and the mediator and arbitrator shall
hold the existence, content, and result of the mediation and arbitration of a
Dispute in confidence except to the limited extent necessary to enforce a final
settlement agreement or to obtain and secure enforcement of or a judgment on an
arbitration decision and award.
(f) The statute(s) of limitation applicable to any Dispute shall be
tolled upon initiation of the Dispute resolution procedures under this Section
and shall remain tolled until the Dispute is resolved by mediation or
arbitration under this Section. Tolling shall cease if the aggrieved party with
a Dispute does not initiate mediation within sixty (60) calendar days after good
faith negotiations are terminated by any party and, after mediation of a
Dispute, if the aggrieved party with a Dispute does not initiate a demand for
arbitration within sixty (60) calendar days after mediation is terminated.
However, any Dispute is forever barred that has not expressly been made the
subject of the written notice required under Section 12.8(b) above within 365
days after the date the Party asserting the Dispute first knows or should have
known of the existence of the acts or omissions that give rise to such Dispute.
(g) Unless the parties mutually agree in writing, Disputes relating to
trademarks (including service marks), patents and copyrights shall not be
resolved in accordance with the Dispute resolution procedures set forth in this
Section and shall be resolved as otherwise provided in this Agreement.
(h) The Company and each of the Stockholders hereby irrevocably
consents to the exclusive jurisdiction of the state or federal courts in the
State of New York, and all state or federal courts competent to hear appeals
therefrom, over any actions which may be commenced against any of them under or
in connection with this Agreement. The Company and each Stockholder hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which any of them may now or hereafter have to the laying of venue of
any such dispute brought in such court or any defense of inconvenient forum for
the maintenance of such dispute in the Xxxxxxxx Xxxxxxxx xx Xxx Xxxx xxx Xxx
Xxxx Xxxxxx. The Company and each Stockholder hereby agree that a judgment in
58
any such dispute may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. The Company and each Stockholder hereby
consent to process being served by any party to this Agreement in any actions by
the transmittal of a copy thereof in accordance with the provisions of Section
12.1.
12.9 Benefit and Binding Effect; Severability. This Agreement shall
be binding upon and shall inure to the benefit of the Company, its successors
and assigns, and each of the Stockholders and their respective executors,
administrators and personal representatives and heirs and permitted assigns. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any law or public policy or any listing requirement
applicable to the Common Stock, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto affected by such determination in any material respect shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the provisions hereof are given effect as originally contemplated to the
greatest extent possible.
12.10 Amendment of Bylaws. The Stockholders agree that the terms of
this Agreement shall supersede any inconsistent provision that is contained in
the Restated Bylaws and, to the extent required by Delaware law or the Restated
Bylaws, this Agreement shall be deemed to constitute a written action taken by
the Stockholders of the Company and shall be deemed an amendment of the Restated
Bylaws.
12.11 Authorized Agent of AT&T PCS. AT&T PCS hereby authorizes
Wireless PCS, Inc. as its agent, with full power to execute, in the name of and
on behalf of AT&T PCS, the Related Agreements to which AT&T PCS is a party and
any and all other documents that AT&T PCS is required to execute and deliver,
and to give and receive all notices, requests, consents, amendments, demands and
other communications to or from AT&T PCS, hereunder or thereunder. Each party
hereto (other than AT&T PCS) shall be entitled to rely on the full power and
authority of Wireless PCS, Inc. to act on behalf of AT&T PCS in accordance with
this Section 12.11. Nothing contained in this Section 12.11 shall relieve AT&T
PCS from complying with its obligations under this Agreement or any of the
Related Agreements to which it is a party.
12.12 FCC Approval. Notwithstanding anything contained in this
Agreement to the contrary, no transaction or action contemplated herein shall be
consummated and no interests or rights transferred, converted or exchanged prior
to receiving FCC approval with respect thereto to the extent such approval is
necessary.
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12.13 Expenses. The Company shall pay the reasonable fees and
expenses of counsel to the Stockholders incurred in connection with the
preparation, negotiation and execution of this Agreement and of any amendment or
modification hereof. Except as provided in Sections 5(g) and 12.14, all other
attorneys' fees incurred by the Stockholders in connection with this Agreement
(including, without limitation, in the preparation of notices (and responses
thereto) and consents) shall be borne by the Stockholder(s) incurring such fees.
12.14 Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
12.15 Headings. The captions in this Agreement are for convenience
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
12.16 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
[signature pages follow]
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[signature pages to First Amended and Restated Stockholders' Agreement]
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed by its duly authorized officers as of the date first
written above.
AT&T WIRELESS PCS, LLC
By:
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Name:
Title:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc., its general partner
By:
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Name:
Title:
X.X. XXXXXX INVESTMENT CORPORATION
By:
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Name:
Title:
SIXTY WALL STREET SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation, its general
partner
By:
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Name:
Title:
[signatures continued on next page]
[signatures continued from previous page]
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, L.L.C., its
general partner
By:
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Name:
Title:
EQUITY-LINKED INVESTORS-II
By: Xxxxx X. Xxxxx Associates-II, its general partner
By:
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Name:
Title:
TORONTO DOMINION CAPITAL (U.S.A.), INC.
By:
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Name:
Title:
FIRST UNION CAPITAL PARTNERS, INC.
By:
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Name:
Title:
[signatures continued on next page]
[signatures continued from previous page]
DAG-TRITON PCS, L.P.
By: Duff Xxxxxxxx Xxxxxxxx, LLC, its general
partner
By:
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Name:
Title:
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Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, as Trustee under Amended and
Restated Common Stock Trust Agreement for Management
Employees and Independent Directors dated June 26,
1998
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Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxx
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Xxxxx Xxxxx
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Xxxxxxx Xxxxx
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[signatures continued from previous page]
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Xxxxx Xxxxxxxx
CEDAR GROVE PARTNERS
By:
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Name:
Title:
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Xxxx Xxxxxxx
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Xxxxxxx XxXxxxx
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Xxxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxx
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Xxxxx Xxxxxx
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Xxxxxxxx Xxxxxxxx
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Xxxxxx Xxxxxx
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Xxxx Xxxxx
[signatures continued on next page]
[signatures continued from previous page]
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Xxxxxxx Xxxxxxxxx
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Xxxxxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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Xxxx Xxxxx
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Xxxxxxxx Xxxxxxxxx
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X.X. Xxxxxxxx
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Xxxxx Xxxxxx
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Xxxxxxxx Xxxxxxxxx
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Xxxxx Xxxxxxx
