Exhibit 4.8
Execution Copy
AMENDMENT NO. 3 TO THE FIRST AMENDED
AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDMENT NO. 3 TO THE FIRST AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT (this "THIRD AMENDMENT") is dated as of July 7, 2004, by and among
AT&T WIRELESS PCS LLC, a Delaware limited liability company (together with its
Affiliated Successors, "AT&T PCS"), the investors listed under the heading "Cash
Equity Investors" on the signature pages hereto (individually, each a "CASH
EQUITY INVESTOR" and, collectively, with any of their respective Affiliated
Successors, the "CASH EQUITY INVESTORS"), the individuals listed under the
heading "Management Stockholders" on the signature pages hereto (individually,
each a "MANAGEMENT STOCKHOLDER" and, collectively, the "MANAGEMENT
STOCKHOLDERS"), the individual listed under the heading "Independent Director"
on the signature pages hereto (the "INDEPENDENT DIRECTOR"), and TRITON PCS
HOLDINGS, INC., a Delaware corporation (the "COMPANY"). Certain capitalized
terms used herein and not otherwise defined have the meaning assigned to such
terms in the Stockholders' Agreement referred to below.
WHEREAS, each of the parties hereto (other than the Company) is a
Stockholder of the Company;
WHEREAS, the parties hereto are parties to that certain First Amended and
Restated Stockholders' Agreement, dated as of October 27, 1999 (the
"STOCKHOLDERS' AGREEMENT"), as amended by Amendment No. 1 to the First Amended
and Restated Stockholders' Agreement, dated as of April 4, 2002 (the "FIRST
AMENDMENT"), and as further amended by Amendment No. 2 to the First Amended and
Restated Stockholders' Agreement, dated as of November 6, 2003 (the "SECOND
AMENDMENT"); and
WHEREAS, the parties have determined to amend the Stockholders' Agreement,
as previously amended by the First Amendment and the Second Amendment, by
entering into this Third Amendment, in order to provide that (i) among the
events that shall cause the termination of the Stockholders' Agreement shall be
(A) the delivery, assignment and surrender by AT&T PCS of the Stock under
Section 2.1 or Section 7.4 of, and as defined in, that certain Agreement, as the
same may be amended from time to time, by and among the Company, AT&T Wireless
Services, Inc., AT&T Wireless PCS LLC and Cingular Wireless LLC (the
"AWS/Cingular Agreement") or (B) the failure of the Company to accept delivery
of the Stock, for any reason, in the manner contemplated by Section 2.1 or
Section 7.4 of the AWS/Cingular Agreement and (ii) the transactions contemplated
in the AWS/Cingular Agreement shall not be subject to the restrictions and
obligations relating to the transfer of the Company's capital stock contained in
Article 4 of the Stockholders' Agreement or elsewhere in the Stockholders'
Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendment to Article 4. Article 4 of the Stockholders' Agreement is
hereby amended by adding the following new Section 4.8:
4.8 Certain Transactions. Notwithstanding any provision of the
Agreement, the transactions contemplated in that certain Agreement, as the
same may be amended from time to time, by and among the Company, AT&T
Wireless Services, Inc., AT&T Wireless PCS LLC and Cingular Wireless LLC
(the "AWS/Cingular Agreement") shall not be subject to the restrictions
and obligations relating to the transfer of the Company's capital stock
contained in this Article 4 or elsewhere in this Agreement.
2. Amendment to Section 12.3. Section 12.3(a) of the Stockholders'
Agreement is hereby amended and restated to read in its entirety as follows:
"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
(iii) One Stockholder shall Beneficially Own all of the Common
Stock; or
(iv) The occurrence of the delivery and surrender by AT&T Wireless
PCS LLC of the Stock under Section 2.1 or Section 7.4 of, and as defined in the
AWS/Cingular Agreement; or
(v) The failure of the Company to accept delivery of the Stock,
for any reason, in the manner contemplated by Section 2.1 or Section 7.4 of the
AWS/Cingular Agreement."
3. Amendment Effectiveness Date. This Third Amendment shall be
effective on the date that a counterpart hereof shall have been executed by each
of the Company and the holders of a majority of the shares of each class of
capital stock held by the parties to the Stockholders' Agreement, as amended,
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.
4. Representation and Warranties.
(a) Each of the Company, as to itself, each Cash Equity Investor, as to
itself, and AT&T PCS, as to itself, represents and warrants, as applicable, to
each of the other parties as follows:
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(i) It is a corporation, limited liability company, general
partnership or limited partnership, duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has the
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
(ii) It has the requisite power, authority and capacity to execute,
deliver and perform this Third Amendment.
(iii) The execution and delivery of this Third Amendment by it have
been duly and validly authorized by its Board of Directors (or equivalent body),
if required, and no other proceedings on its part which have not been taken
(including, without limitation, approval of its stockholders, partners or
members, as applicable) are necessary to authorize this Third Amendment.
(iv) This Third Amendment has been duly executed and delivered by
it and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer or conveyance, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights generally
and may be subject to general principles of equity.
(v) The execution, delivery and performance by it of this Third
Amendment will not (A) conflict with, or result in a breach or violation of, any
provision of its organizational documents; (B) constitute, with or without the
giving of notice or passage of time or both, a breach, violation or default,
create a Lien, or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (x) any Law or License, or (y)
any note, bond, mortgage, indenture, lease, agreement or other instrument, in
each case which is applicable to or binding upon it or any of its assets; or (c)
require any Consent, or the approval of its board of directors, general partner,
stockholders or similar constituent bodies, as the case may be (which approvals
have not been obtained).
(vi) There is no action, proceeding or investigation pending or, to
its knowledge, threatened against it or any of its properties or assets that
would affect its ability to enter into this Third Amendment or to fulfill its
obligations hereunder.
(b) Each Management Stockholder and Independent Director represents and
warrants, as to himself or herself, to each of the other parties as follows:
(i) He or she has the requisite capacity to execute, deliver and
perform this Third Amendment.
(ii) This Third Amendment has been duly executed and delivered by
him or her and constitutes his or her valid and binding obligation, enforceable
against him or her in accordance with its terms, except as such enforceability
may be limited by
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bankruptcy, insolvency, fraudulent transfer or conveyance, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights generally
and may be subject to general principles of equity.
(iii) The execution, delivery and performance by him or her of this
Third Amendment will not require any Consent not already obtained.
(iv) There is no action, proceeding or investigation pending or, to
the knowledge of him or her, threatened against him or her or any of his or her
properties or assets that would affect his or her ability to enter into this
Third Amendment or to fulfill his or her respective obligations hereunder.
5. Severability of Provisions. Any provision of this Third Amendment
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
6. Agreements to Remain in Full Force and Effect. This Third Amendment
shall be deemed to be an amendment to the Stockholders' Agreement as amended by
the First Amendment and the Second Amendment. All references to the
Stockholders' Agreement in any other agreements or documents shall, on and after
the date hereof , be deemed to refer to the Stockholders' Agreement as amended
by the First Amendment and the Second Amendment and as further amended hereby.
Except as amended by the First Amendment and the Second Amendment or as further
amended hereby, the Stockholders' Agreement shall remain in full force and
effect and is hereby ratified, adopted and confirmed in all respects.
7. Heading. The headings in this Third Amendment are inserted for
convenience and identification only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Third Amendment or any
provision thereof.
8. Counterparts. This Third Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
9. Governing Law. This Third Amendment shall be governed and construed
in accordance with the laws of the State of Delaware.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties has executed or consent that this
Third Amendment be executed by its duly authorized officers as of the date first
written above.
AT&T PCS:
AT&T WIRELESS PCS LLC
By: AT&T WIRELESS SERVICES,
INC., its manager
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development, AT&T Wireless
Services, Inc.
COMPANY:
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
[Signature Pages to Amendment No. 3 to First Amended and
Restated Stockholders' Agreement]
CASH EQUITY INVESTORS:
X.X. XXXXXX PARTNERS (23A SBIC), LLC
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
X.X. XXXXXX SBIC LLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
SIXTY WALL STREET SBIC FUND, L.P.
By: SIXTY WALL STREET SBIC
CORPORATION, its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
[Signature Pages to Amendment No. 3 to First Amended and
Restated Stockholders' Agreement]
PRIVATE EQUITY INVESTORS III, L.P.
By: XXXXX X. XXXXX ASSOCIATES
III, L.L.C., its general partner
By: Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Member
EQUITY-LINKED INVESTORS-II
By: XXXXX X. XXXXX ASSOCIATES-
II, its general partner
By: Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Partner
[Signature Pages to Amendment No. 3 to First Amended and
Restated Stockholders' Agreement]
MANAGEMENT STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxxx
[Signature Pages to Amendment No. 3 to First Amended and
Restated Stockholders' Agreement]
