MANAGEMENT SERVICES AGREEMENT
Exhibit (10)(b)(1)
This
Management Services Agreement (the “Agreement”) is
entered into as of November 16, 2007, by and among Atlantis Merger Sub, Inc.,
a
Delaware corporation (“Merger Sub”),
Atlantis Holdings LLC, a Delaware limited liability company (“Parent”, and together
with Merger Sub and their respective successors, the “Companies”), Xxxxxxx,
Xxxxx & Co. (“Xxxxxxx Sachs”), and
TPG Capital, L.P. (“TPG”, together
with
Xxxxxxx Xxxxx, the “Managers”).
WHEREAS,
Parent, Merger Sub and Alltel Corporation, a Delaware corporation (“Alltel”), entered
into an Agreement and Plan of Merger, dated as of May 20, 2007 (as may be
amended and restated, supplemented or otherwise modified from time to time,
the
“Merger
Agreement”) pursuant to which Merger Sub will merge with and into Alltel,
with Alltel as the surviving corporation (the “Merger”);
WHEREAS,
pursuant to the Merger Agreement and by virtue of the Merger, Alltel will
assume, by operation of law, all of the liabilities and obligations of Merger
Sub, including all liabilities and obligations set forth in this
Agreement;
WHEREAS,
GS Capital Partners VI Fund, L.P., GS Capital Partners VI GmbH & Co.
KG, GS Capital Partners VI (Alltel), L.P., GS Capital Partners VI Parallel,
L.P, TPG Atlantis V-A, L.P., TPG Atlantis V-B, L.P., TPG FOF V-A, L.P., TPG
FOF
V-B, L.P., TPG Atlantis Coinvest-A, L.P., TPG Atlantis Coinvest-B, L.P. and
TPG
Atlantis Coinvest-C, L.P. (collectively, the “Funds”) are making
an
equity investment in Parent in connection with the Merger; and
WHEREAS,
the Companies wish to retain the Managers to provide certain management and
advisory services to the Companies, and the Managers are willing to provide
such
services on the terms set forth below.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1.
Services. Each
Manager hereby severally agrees that, during the term of this Agreement (the
“Term”), it
will provide to the Companies, to the extent requested by the Companies and
mutually agreed by the Companies and each Manager, by and through itself and/or
such Manager’s successors, assigns, affiliates, officers, employees and/or
representatives and third parties (collectively hereinafter referred to as
the
“Manager
Designees”), as such Manager in its sole discretion may designate from
time to time, management, advisory and consulting services in relation to the
affairs of the Companies; provided, that the
responsibilities of one Manager shall not be substantially disproportionate
to
the responsibilities of any other Manager. Such management, advisory
and consulting services shall include, without limitation:
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(a)
advice in connection with the negotiation and consummation of agreements,
contracts, documents and instruments necessary to provide the Companies with
financing on terms and conditions satisfactory to the Companies and their
respective subsidiaries;
(b)
advice in connection with acquisition, disposition and change of control
transactions involving any of the Companies or their respective
subsidiaries;
(c)
financial, managerial and operational advice in connection with day-to-day
operations, including, without limitation, advice with respect to the
development and implementation of strategies for improving the operating,
marketing and financial performance of the Companies or their respective
subsidiaries; and
(d)
such other services (which may include financial and strategic planning and
analysis, consulting services, human resources and executive recruitment
services and other services) as the Managers and the Companies may from time
to
time agree in writing.
The
Managers or the Manager Designees will devote such time and efforts to the
performance of the services contemplated hereby as the Managers deem reasonably
necessary or appropriate; provided, however,
that no
minimum number of hours is required to be devoted by the Managers or the Manager
Designees on a weekly, monthly, annual or other basis. The Companies
acknowledge that each of the services are not exclusive to the Companies or
their respective subsidiaries and that the Managers and the Manager Designees
may render similar services to other persons and entities. The
Managers and the Companies understand that the Companies or their respective
subsidiaries may at times engage one or more investment bankers or financial
advisers to provide services in addition to, but not in lieu of, services
provided by the Managers and the Manager Designees under this Agreement; provided, that any
such engagement will be made pursuant to the terms of the Amended and Restated
Limited Liability Operating Agreement of Parent dated as of November 16, 2007
(as may be amended and restated, supplemented or otherwise modified from time
to
time, the “LLC
Agreement”) by and among Parent and the Funds. In providing
services to the Companies or their respective subsidiaries, the Managers and
Manager Designees will act as independent contractors and it is expressly
understood and agreed that this Agreement is not intended to create, and does
not create, any partnership, agency, joint venture or similar relationship
and
that no party has the right or ability to contract for or on behalf of any
other
party or to effect any transaction for the account of any other
party.
2.
Payment of
Fees.
(a)
On the date hereof, Merger Sub will pay to the Managers (or their respective
Manager Designees) an aggregate transaction fee equal to $230,000,000 (two
hundred and thirty million dollars) (the “Transaction Fee”)
plus an aggregate financial advisory fee equal to $40,000,000 (forty million
dollars) (the “M&A
Fee”). The Transaction Fee and the M&A Fee will be divided
among the Managers as follows: (i) Xxxxxxx Xxxxx will be entitled to 50% and
(ii) TPG will be entitled to 50%. To the extent that either Manager
or any of their respective affiliates are paid a separate fee in connection
with
the Merger, such fee shall reduce the amount of the Transaction Fee to be paid
pursuant to this Section 2(a) to either TPG or Xxxxxxx Sachs,
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as
the
case may be. In addition to the Transaction Fee and the M&A Fee,
on the date hereof, Merger Sub will pay to the Managers (or their respective
Manager Designees), upon obtaining the unanimous consent of the Managers as
to
the amounts to be paid, an amount equal to all out-of pocket expenses incurred
by or on behalf of Parent and each Manager or their respective affiliates,
including, without limitation, (i) the reasonable fees, expenses and
disbursements of lawyers, accountants, consultants and other advisors that
may
have been retained by Parent and/or any Manager or its respective affiliates
and
(ii) any fees (including any financing fees) related to the Merger (all such
fees and expenses, in the aggregate, the “Covered
Costs”).
(b)
During the Term, Merger Sub will pay to the Managers (or their respective
Manager Designees) a semi-annual aggregate monitoring fee equal to 1.0% (one
percent) of the Companies’ Adjusted EBITDA for the semi-annual period in
question (the “Monitoring Fee”) as
partial compensation for the services provided by the Managers or the Manager
Designees under this Agreement, with such fee being payable by Merger Sub in
arrears as soon as practicable following the determination of the Companies’
Adjusted EBITDA for the applicable calendar semi-annual period; provided, that the
Monitoring Fee shall be pro rated for the period from the date of consummation
of the Merger through December 31, 2007; provided, further,
that the
Managers or Manager Designees may, with the unanimous consent of the Managers,
pay, or cause Merger Sub to pay, any portion of the Monitoring Fee to any
third-party in respect of services provided from time to time by such third
party to the Companies. For calculation of the Monitoring Fee, “Adjusted EBITDA”
shall mean
“Consolidated
EBITDA” as such term is defined in that certain Credit Agreement, dated as of
November
16, 2007, as amended from time to time, by and among Alltel Communications,
Inc., as borrower, Alltel Corporation, as guarantor, Citibank, N.A., as
administrative agent, Citigroup Global Markets Inc. (“CGMI”)
and Xxxxxxx Xxxxx Credit Partners
L.P. (“GSCP”),
as joint lead arrangers, CGMI, GSCP,
Barclays Capital, the investment banking division of Barclays Bank PLC, and
RBS
Securities Corporation, as joint bookrunners, Barclays Bank PLC and The Royal
Bank of Scotland, as co-documentation agents, and each lender party thereto
from
time to time (the “Credit Agreement”);
provided, that,
for purposes of this Agreement, Adjusted EBITDA shall exclude section (a)(vii)
(adjustments in respect of the Monitoring Fee) and section (a)(ix) (adjustments
in respect of certain projected cost savings) of the definition of Consolidated
EBITDA in the Credit Agreement.
(c)
During the Term, in addition to the fees paid pursuant to Section 2(b), Merger
Sub will pay to the Managers (or their respective Manager Designees) an
aggregate fee (the “Subsequent Fee”) in
connection with the consummation of any financing or refinancing (equity or
debt), dividend, recapitalization, acquisition, disposition, spin-off or
split-off transactions involving the Companies or any of their direct or
indirect subsidiaries equal to customary fees charged by
internationally-recognized investment banks for serving as a financial advisor
in similar transactions, such fee to be due and payable for the foregoing
services at the closing of such transaction.
(d)
Each payment made pursuant to this Section 2 shall be paid by wire transfer
of
immediately available federal funds to the accounts specified on Schedule 1
hereto, or to such respective other account(s) as the respective Managers may
specify to Merger Sub in writing prior to such payment. Each payment made
pursuant to this Section 2 (other than the Transaction Fee and the Covered
Costs) shall be allocated among the Managers (or their
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respective
Manager Designees) as follows: (i) Xxxxxxx Sachs will be entitled to 50%; and
(ii) TPG will be entitled to 50%; provided, that during
the one year period following the date hereof such allocation shall be adjusted
to reflect any transfers of membership units of Parent owned by investment
funds
affiliated with a Manager and/or entities controlled by affiliates of such
Manager (excluding the Xxxxxxx Xxxxx Co-Investment Vehicles and the TPG
Co-Investment Vehicles (as defined in the LLC Agreement)) following the date
hereof (such Manager, a “Transferring
Manager”), other than (x) transfers to affiliates of such Transferring
Manager permitted pursuant to Section 7.02(a) of the LLC Agreement or (y) pro
rata transfers by each of the investment funds affiliated with the Transferring
Managers and each of the entities controlled by affiliates of such Transferring
Managers (such allocation, as adjusted from time to time, the “Allocation
Percentage”). For the avoidance of doubt, upon a transfer
giving rise to an adjustment pursuant to the preceding sentence (i) the
Transferring Manager’s Allocation Percentage shall be equal to (x) the number of
membership units held by investment funds affiliated with such Transferring
Manager and/or entities controlled by affiliates of such Transferring Manager
(excluding the Xxxxxxx Sachs Co-Investment Vehicles and the TPG Co-Investment
Vehicles) after giving effect to the transfer over (y) the total number of
membership units held by investment funds affiliated with the Managers and/or
entities controlled by affiliates of the Managers (excluding the Xxxxxxx Xxxxx
Co-Investment Vehicles and the TPG Co-Investment Vehicles) after giving effect
to such transfer, and (ii) the Allocation Percentage of the non-Transferring
Manager shall be equal to 100 minus the Transferring Manager’s Allocation
Percentage determined in clause (i) above.
(e)
Each payment made to TPG pursuant to this Section 2 shall be received as
follows: 37.8984% shall be received in respect of the services performed on
behalf of TPG Media V-AIV 1, L.P., 28.4519% shall be received in respect of
the
services performed on behalf of TPG Media V-AIV 2, L.P., 0.1736% shall be
received in respect of the services performed on behalf of TPG FOF V-A, L.P.,
0.1400% shall be received in respect of the services performed on behalf of
TPG
FOF V-B, L.P. and an aggregate 33.3361% shall be received in respect of the
services performed on behalf of TPG Atlantis Coinvest-A, L.P., TPG Atlantis
Coinvest-B, L.P. and TPG Atlantis Coinvest-C, L.P.
3.
Deferral. In
the event that any financing or
similar agreements to which any of the Companies is a party and that have been
approved by written consent of TPG Media V-AIV 1, L.P. and GS Capital
Partners VI Parallel, L.P. (or any of their respective affiliates that may
be
designated as managing member of Parent from time to time (such consent, the “Requisite Consent”
and
such financing or similar
agreements, the “Financing
Documents”) restrict the
payment of all or any portion of any fee payable to the Managers (or their
respective Manager Designees) pursuant to Section 2 above for any payment period
(such restricted fees, the “Deferred
Fees”), the amount of fees
paid to each Manager and Manager Designee in such period will be reduced pro
rata (based on aggregate fees payable to each such Manager or their respective
Manager Designee), and any Deferred Fees will accrue in the immediately
succeeding period in which such amounts could, consistent with the Financing
Documents, be paid, and will be paid in such succeeding period (in addition
to
such other amounts that would otherwise be payable at such time) in the manner
set forth in Section 2.
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4.
Term. This
Agreement will continue in full force and effect until December 31, 2017; provided that,
starting on such date, this Agreement shall be automatically extended each
December 31 for an additional year unless the Companies or the Managers, acting
upon Requisite Consent, provide written notice of their desire not to
automatically extend the term of this Agreement to the other parties hereto
at
least ninety (90) days prior to such December 31; provided, further,
that (x)
this Agreement may be terminated at any time upon Requisite Consent and (y)
this
Agreement shall terminate automatically immediately prior to the earlier of
(i) an initial underwritten
public offering and sale of equity securities of Parent, Merger Sub or any
of
their respective successors for cash pursuant to an effective registration
statement (other than on Form X-0, X-0 or a comparable form) (an “IPO”)
or (ii) a transfer or issuance of
equity securities of any of the Companies (including by way of a merger,
consolidation, amalgamation, share exchange or other form of similar business
combination), in a single or series of related transactions, resulting in a
Person or Persons other than the existing stockholders owning, directly or
indirectly, a majority of the voting power of the applicable Company, upon
the
consummation of such transfer or issuance, or the sale of all or
substantially all of the assets of any of the Companies (any such sale
transaction, a “Sale”), in each
case,
unless otherwise agreed by Requisite Consent. For the avoidance of
doubt, termination of this Agreement will not relieve a party from liability
for
any breach of this Agreement on or prior to such termination. In the
event of a termination of this Agreement, Merger Sub will pay the Managers
(or
their respective Manager Designees) (i) all unpaid Transaction Fees (pursuant
to
Section 2(a) above), Covered Costs (pursuant to Section 2(a) above), Monitoring
Fees (pursuant to Section 2(b) above), Subsequent Fees (pursuant to Section
2(c)
above), Deferred Fees (pursuant to Section 3 above) and Reimbursable Expenses
(pursuant to Section 5(a) below) due with respect to periods prior to the date
of termination plus (ii) the sum of the net present values (using discount
rates
equal to the then yield on U.S. Treasury Securities of like maturity) of the
Monitoring Fees that would have been payable with respect to the period from
the
date of termination until the expiration date in effect immediately prior to
such termination, assuming for such purposes that (a) the baseline Adjusted
EBITDA for purposes of such calculation is the greater of (x) Adjusted EBITDA
for the most recently completed semi-annual period and (y) the average of the
Adjusted EBITDA for the last two completed semi-annual periods and (b) EBITDA
would have grown during each subsequent semi-annual period until the expiration
date in effect immediately prior to such termination at a rate reflecting the
greater of (x) a compounded annual growth rate of 10% and (y) the compounded
annual growth rate of the last two completed fiscal years. The
amounts described in clause (ii) above shall be divided among the Managers
in
accordance with the Managers’ Allocation Percentage, as of such
date. In the event of
an IPO or Salethat, in
either case, includes non-cash consideration, each Manager may elect for it
or
its Manager Designees to
receive all or any portion of any amounts payable pursuant to this Agreement
as
a result of such IPO or Sale in the form of such non-cash consideration, valued
at the sale price. All of Section 4 through Section 14 will
survive termination of this Agreement.
5.
Expenses;
Indemnification.
(a)
Expenses. Merger
Sub will pay to the Managers (or
their respective Manager Designees) on demand all Reimbursable
Expenses
whether incurred prior to or following the date of this Agreement. As
used herein, “Reimbursable
Expenses” means (i) all
out-of-pocket expenses incurred following the consummation of the Merger
relating to the
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services
provided by the Managers, their
respective affiliates, or the Manager Designees to the Companies or any of
their
affiliates from time to time (including, without limitation, all air travel
(by
first class on a commercial airline or by charter, as determined by the Managers
or the Manager Designees) and other travel related expenses), (ii) all
out-of-pocket legal expenses incurred by the Managers, their respective
affiliates or the Manager Designees in connection with the enforcement of rights
or taking of actions under this Agreement, the Merger Agreement or any related
documents or instruments, whether incurred prior to or following the date of
this Agreement, and (iii) all expenses incurred by the Managers, their
respective affiliates or the Manager Designees which are properly allocable
to
the Companies, including in connection with their management and operations,
whether incurred prior to or following the date of this
Agreement.
(b)
Indemnity and
Liability. The Companies, jointly and severally, will
indemnify, exonerate and hold the Managers, the Manager Designees and each
of
their respective partners, shareholders, members, affiliates, associated
investment funds, directors, officers, fiduciaries, managers, controlling
persons, employees and agents and each of the partners, shareholders, members,
affiliates, associated investment funds, directors, officers, fiduciaries,
managers, controlling persons, employees and agents of each of the foregoing
(collectively, the “Indemnitees”) free
and harmless from and against any and all actions, causes of action, suits,
claims, liabilities, losses, damages and costs and out-of-pocket expenses in
connection therewith (including attorneys’ fees and expenses) incurred by the
Indemnitees or any of them before or after the date of this Agreement
(collectively, the “Indemnified
Liabilities”), arising out of any action, cause of action, suit,
arbitration, investigation or claim arising out of, or in any way relating
to
(i) this Agreement, the Merger Agreement, any transaction to which any of the
Companies is a party or any other circumstances with respect to any of the
Companies or (ii) operations of, or services provided by the Managers or the
Manager Designees to, the Companies, or any of their respective affiliates
from
time to time; provided, that the
foregoing indemnification rights will not be available to the extent that any
such Indemnified Liabilities arose on account of such Indemnitee’s gross
negligence or willful misconduct; and provided, further,
that if and
to the extent that the foregoing undertaking may be unavailable or unenforceable
for any reason, the Companies hereby agree to make the maximum contribution
to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. For purposes of this Section 5(b),
none of the circumstances described in the limitations contained in the two
provisos in the immediately preceding sentence will be deemed to apply absent
a
final non-appealable judgment of a court of competent jurisdiction to such
effect, in which case to the extent any such limitation is so determined to
apply to any Indemnitee as to any previously advanced indemnity payments made
by
the Companies, then such payments will be promptly repaid by such Indemnitee
to
the Companies without interest. The rights of any Indemnitee to
indemnification hereunder will be in addition to any other rights any such
person may have under any other agreement or instrument referenced above or
any
other agreement or instrument to which such Indemnitee is or becomes a party
or
is or otherwise becomes a beneficiary or under law or regulation.
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6.
Disclaimer and
Limitation of Liability; Opportunities.
(a)
Disclaimer; Standard
of Care. None of the Managers nor any of their respective
Manager Designee makes any representations or warranties, express or implied,
in
respect of the services to be provided by the Managers or the Manager Designees
hereunder. In no event will the Managers, the Manager Designees or
Indemnitees be liable to the Companies or any of their respective affiliates
for
any act, alleged act, omission or alleged omission that does not constitute
gross negligence or willful misconduct of the Managers or the Manager Designees
as determined by a final, non-appealable determination of a court of competent
jurisdiction.
(b)
Freedom to Pursue
Opportunities. In recognition that the Managers, the Manager
Designees and their respective Indemnitees currently have, and will in the
future have or will consider acquiring, investments in numerous companies with
respect to which the Managers, the Manager Designees or their respective
Indemnitees may serve as an advisor, a director or in some other capacity,
and
in recognition that each Manager, each Manager Designee and their respective
Indemnitees have myriad duties to various investors and partners, and in
anticipation that the Companies, on the one hand and each Manager and Manager
Designee (or one or more of their respective Indemnitees or portfolio
companies), on the other hand, may engage in the same or similar activities
or
lines of business and have an interest in the same areas of corporate
opportunities, and in recognition of the benefits to be derived by the Companies
hereunder and in recognition of the difficulties which may confront any advisor
who desires and endeavors fully to satisfy such advisor’s duties in determining
the full scope of such duties in any particular situation, the provisions of
this Section 6(b) are set forth to regulate, define and guide the conduct of
certain affairs of the Companies as they may involve the Managers, the Manager
Designees or their respective Indemnitees. Except as the Managers or
the Manager Designees, may otherwise agree in writing after the date
hereof:
(i)
The Managers, the Manager Designees and their respective Indemnitees will have
the right: (A) to directly or indirectly engage in any business (including,
without limitation, any business activities or lines of business that are the
same as or similar to those pursued by, or competitive with, the Companies
and
their subsidiaries), (B) to directly or indirectly do business with any client
or customer of the Companies and their subsidiaries, (C) to take any other
action that a Manager or a Manager Designee believes in good faith is necessary
to or appropriate to fulfill its obligations as described in the first sentence
of this Section 6(b), and (D) not to present potential transactions, matters
or
business opportunities to the Companies or any of their subsidiaries, and to
pursue, directly or indirectly, any such opportunity for itself, and to direct
any such opportunity to another Person.
(ii)
The Managers, the Manager Designees and their respective Indemnitees will have
no duty (contractual or otherwise) to communicate or present any corporate
opportunities to the Companies or any of their affiliates or to refrain from
any
actions specified in Section 6(b)(i), and the Companies, on their own behalf
and
on behalf of their affiliates, hereby renounce and waive any right to require
the Managers, the Manager Designees or any of their respective
7
Indemnitees
to act in a manner inconsistent with the provisions of this Section
6(b).
(iii)
Except as provided in Section 6(a), none of the Managers, the Manager Designees
nor any of their respective Indemnitees will be liable to the Companies or
any
of their affiliates for breach of any duty (contractual or otherwise) by reason
of any activities or omissions of the types referred to in this Section 6(b)
or
of any such Person’s participation therein.
Notwithstanding
the foregoing, no
Manager may take any action otherwise permitted by this Section 6(b) if it
would
be reasonably likely to result in the U.S. Federal Communications Commission
or
any other governmental entity imposing any restrictions or conditions on
Parent’s or Alltel’s business or on the Funds’ ownership or control of Parent or
Alltel. For the avoidance of doubt, any actions taken, directly or
indirectly, by any publicly traded controlled affiliate (or any of its officers,
directors or employees) of a Manager shall not be deemed to be an action taken
by such Manager.
(c)
Limitation of
Liability. In no event will a Manager, a Manager Designee or
any of their respective Indemnitees be liable to the Companies or any of their
affiliates for any indirect, special, incidental or consequential damages,
including, without limitation, lost profits or savings, whether or not such
damages are foreseeable, or for any third party claims (whether based in
contract, tort or otherwise), relating to the services to be provided by a
Manager or a Manager Designee hereunder.
7.
Assignment,
etc. Except as provided below, none of the parties hereto will
have the right to assign this Agreement without the prior written consent of
each of the other parties. Notwithstanding the foregoing, (a) each
Manager may assign all or part of its rights and obligations hereunder to any
of
its respective affiliates that provides services similar to those called for
by
this Agreement, in which event such Manager will no longer be entitled to any
fees under Section 2 and reimbursement of expenses under Section 2(a) and
Section 5(a) and will be released of all of its obligations hereunder and (b)
the provisions hereof for the benefit of Indemnitees of the Managers will inure
to the benefit of such Indemnitees and their successors and
assigns.
8.
Amendments and
Waivers. No amendment or waiver of any term, provision or
condition of this Agreement will be effective, unless given in writing by
Requisite Consent and executed by the Companies; provided, that any
Manager may waive any portion of any fee to which it is entitled pursuant to
this Agreement, and, unless otherwise directed by the Manager, such waived
portion will revert to the Companies. No waiver on any one occasion
will extend to or effect or be construed as a waiver of any right or remedy
on
any future occasion. No course of dealing of any person nor any delay
or omission in exercising any right or remedy will constitute an amendment
of
this Agreement or a waiver of any right or remedy of any party
hereto.
9.
Governing Law;
Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
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ANY
ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AGREEMENT
MAY BE BROUGHT AND ENFORCED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK
OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN MANHATTAN,
AND
THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING.
10.
WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
11. Entire
Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto.
12. Notice. All
notices, demands, and communications required or permitted under this Agreement
will be in writing and will be effective if served upon such other party and
such other party’s copied persons as specified below to the address set forth
for it below (or to such other address as such party will have specified by
notice to each other party) if (i) delivered personally, (ii) sent and received
by facsimile, (iii) sent by electronic mail or (iv) sent by certified or
registered mail or by Federal Express, DHL, UPS or any other comparably
reputable overnight courier service, postage prepaid, to the appropriate address
as follows:
If
to the
Companies (with a copy, which shall not constitute notice, to Xxxxxxx Xxxxx
and
TPG), to:
Alltel
Corporation
Xxx
Xxxxxx Xxxxx
Xxxxxx
Xxxx, Xxxxxxxx
00000
Attention: Xxxxxxx
X. Xxxxxx
Facsimile:
(000) 000-0000
If
to
Xxxxxxx Xxxxx, to:
Xxxxxxx,
Sachs & Co.
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxx
Xxxxxxxxx
Facsimile: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
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Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000)
000-0000
If
to
TPG, to:
TPG
Capital, L.P.
000
Xxxxxxxx Xxxxxx
Xxxxx
0000
Xxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxx
X. Xxxx
Facsimile: (000)
000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxxxxxxx
Facsimile: (000)
000-0000
Unless
otherwise specified herein, such notices or other communications will be deemed
effective, (a) on the date received, if personally delivered or sent by
facsimile or electronic mail during normal business hours, (b) on the business
day after being received if sent by facsimile or electronic mail other than
during normal business hours, (c) one business day after being sent by Federal
Express, DHL or UPS or other comparably reputable delivery service and (d)
five
business days after being sent by registered or certified mail. Each
of the parties hereto will be entitled to specify a different address by giving
notice as aforesaid to each of the other parties hereto.
13. Severability. If
in any proceedings a court will refuse to enforce any provision of this
Agreement, then such unenforceable provision will be deemed eliminated from
this
Agreement for the purpose of such proceedings to the extent necessary to permit
the remaining provisions to be enforced. To the full extent, however,
that the provisions of any applicable law may be waived, they are hereby waived
to the end that this Agreement be deemed to be valid and binding agreement
enforceable in accordance with its terms, and in the event that any provision
hereof will be found to be invalid or unenforceable, such provision will be
construed by limiting it so as to be valid and enforceable to the maximum extent
consistent with and possible under applicable law.
14. Counterparts. This
Agreement may be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, each of which when so executed will
10
be
deemed
to be an original and all of which together will constitute one and the same
agreement.
[Remainder
of Page Intentionally Left Blank]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
[SIGNATURE
PAGES TO FOLLOW]
12
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ATLANTIS
HOLDINGS,
LLC
By: /s/
Xxxxx
Xxxx
Name: Xxxxx Xxxx
Title: Vice President
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ATLANTIS
MERGER SUB,
INC.
By: /s/
Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title: Vice President
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XXXXXXX,
XXXXX & CO.
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By: /s/
Xxxxxx
Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
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TPG
CAPITAL, L.P.
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By:
Tarrant Capital, LLC
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By: /s/
Xxxxx
Xxxx
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Name: Xxxxx
Xxxx
Title: Vice President
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Schedule
1
Wire
Transfer Instructions for Xxxxxxx
Xxxxx:
Citibank,
New York
ABA:
021 000 089
1st
Bene: Xxxxxxx Sachs and
Company
Account
#: 00000000
2nd
Bene: MBD Fee Clearance
Account
Account
#: 8720-4380
Ref:
Atlantispia
459291
Attn:
Xxxxx Xxxxx
Wire
Transfer Instructions for
TPG:
XX
Xxxxxx Chase Bank - New
York
Swift:
XXXXXX00
ABA
#: 000-000-000
Account
Name: TPG Capital,
LP
Account
#: 722602604
Reference:
Alltel Monitoring/Transaction
Fees
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