Exhibit 10.4
EQUITY PURCHASE AGREEMENT
(for TeleCorp Shares)
This EQUITY PURCHASE AGREEMENT, dated as of December 22, 2000, among
Xxxxxx X. Xxxxx ("Xxxxx") and Xxxxxx X. Xxxxxxxx ("Xxxxxxxx" and, together with
Vento, the "Sellers") and AT&T Wireless Services, Inc, a Delaware corporation
(the "Buyer").
Whereas, the Sellers in the aggregate own, in the amounts set forth
opposite their names on Schedule I, shares (the "TeleCorp Shares")of capital
stock of TeleCorp PCS, Inc, ("TeleCorp"), and the Buyer wishes to purchase the
same.
Now, therefore, the parties agree as follows:
1. Definitions
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Average Last Trade Price" means the average last sale price for the
20 consecutive trading days ending three trading days immediately before later
of (i) the day that the Qualifying Stock Notice is given to the Sellers and (ii)
the day that is 20 calendar days before the Second Closing (such later day, the
"Price Day"), which price shall be adjusted as appropriate for stock splits,
stock dividends, recapitalizations, mergers and similar transactions and for
ex-dividend trading.
"Buyer" has the meaning set forth in the Preamble.
"Consent" means any consent and approval of a Governmental Authority
or other third party necessary to authorize, approve or permit the parties
hereto to consummate the Transactions and for the Buyer to operate its business
after the closing of the Transactions.
"Courts" has the meaning set forth in Section 4(g).
"FCC" means the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"FCC Law" means the Communications Act of 1934, as amended, including
as amended by the Telecommunications Act of 1996, and the rules, regulations and
policies promulgated thereunder.
"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.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Law" means 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" means 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.
"Lien" means, 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, except for a Lien
created by this Agreement, a Lien in favor of the Buyer or any Affiliate thereof
or a Lien arising out of the Securities Act of 1933, as amended.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, assets, liabilities or results of operations of
the Person specified.
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"Purchase Price" means $21.00 per TeleCorp Share.
"Qualifying Stock" means any duly authorized, validly issued, fully
paid and non-assessable equity security of a class that (i) is listed on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ National Market,
(ii) traded every day during the 20 consecutive trading day-period preceding the
Price Day, and had average daily trading volume during that period of at least
2,000,000 shares and an Average Last Trade Price of at least $10 per share,
(iii) has been duly authorized and validly issued and is fully paid and
nonassessable and (v) either (A) the resale thereof is the subject of an
effective registration statement or (B) such Qualifying Stock is not a
"restricted security" as defined in Rule 144 under the Securities Act of 1933,
as amended and, to the best of
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Buyer's knowledge the Seller is not an Affiliate of the issuer of the Qualifying
Stock (except by virtue of Seller's ownership of such issuer's stock).
"Qualifying Stock Notice" has the meaning set forth in Section 2(ii).
"Related Person" means, with respect to any Person, such Person's
spouse, parents, siblings and children and such Person's spouse's parents,
siblings and children.
"Sellers" has the meaning set forth in the Preamble.
"Xxxxxxxx" has the meaning set forth in the Preamble.
"Tax" or "Taxes" means any Federal, state, local or foreign tax, fee
or other like assessment or charge of any kind, including any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, value-added, transfer, franchise, profits, license, withholding on
amounts paid by the taxpayer, payroll, employment, excise, severance, stamp,
capital stock occupation, property, environmental or windfall tax, premium,
custom, duty or other tax of any kind whatsoever, including any interest,
penalty or addition thereto.
"TeleCorp" has the meaning set forth in the recitals.
"TeleCorp Shares" has the meaning set forth in the recitals.
"TeleCorp Management Agreement" means that certain Management
Agreement dated as of November 1, 2000 between TeleCorp Management Corp., Inc.
and TeleCorp.
"TeleCorp Stockholders Agreement" means that certain Stockholders'
Agreement dated as of November 13, 2000 by and among BUYER, TeleCorp and the
other TeleCorp stockholders named therein.
"Transactions" means the transactions contemplated by this Agreement.
"Vento" has the meaning set forth in the Preamble.
2. Purchase and Sale
(i) Upon the terms and subject to the conditions hereof, the closing
of the Transactions (the " Closing") shall take place at the offices of Xxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m.
local time on the earlier of (x) January 2, 2002 and (y) three business days
following notice from the Buyer, but no earlier than the fifth business day
following the date of receipt or waiver of the last Consent required by Section
5(a), or at such other place and/or time and/or on such other date as the
parties may agree or as may be necessary to permit the fulfillment or waiver of
the conditions set forth in Section 5 (the "Closing Date").
(ii) At the Closing, subject to the conditions hereof, (A) the Sellers
shall sell the TeleCorp Shares to the Buyer by delivering to the Buyer one or
more
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certificates representing in the aggregate the TeleCorp Shares, accompanied by
stock powers duly executed in blank, and (B) the Buyer shall buy the TeleCorp
Shares from the Sellers by delivering to the Sellers the Purchase Price for each
TeleCorp Share delivered to the Buyer at the Closing, payable at the option of
the Buyer in any combination of cash by wire transfer of immediately available
funds, or subject to the written notice (the "Qualifying Stock Notice") by the
Buyer at least twenty (20) calendar days prior to the Closing, Qualifying Stock
valued at its Average Last Trade Price before the Closing.
(iii) The parties shall execute and deliver or cause to be executed
and delivered all other documents, instruments, and certificates contemplated by
this Agreement to be delivered at the Closing or necessary and appropriate in
order to consummate the Transactions contemplated to be consummated at the
Closing.
3. Closing Conditions
The obligation of the Buyer to consummate the Transactions
contemplated to occur at the Closing shall be conditioned on the following,
unless waived by the Buyer:
(a) Regulatory Approvals
The obligation of each of the parties to consummate the transactions
contemplated to occur at the Closing shall be subject to the condition precedent
that all required Consents, if any, from any Governmental Authority shall have
been obtained by final non-appealable order. If any regulatory approval is
required for the Closing, an application for such regulatory approval shall be
filed no later than January 31, 2001 and the Closing with respect thereto shall
occur at the time provided in Section 2. If such approvals are denied by a final
non-appealable order, or are not obtained before January 2, 2002, then
notwithstanding the lack of a final non-appealable order, Buyer shall pay to the
Sellers the Closing Price on January 2, 2002 and thereafter the Sellers shall
transfer the TeleCorp Shares that were to have been transferred at the Closing
to a trust created for that purpose within five business days following the
receipt of all required regulatory approvals therefor (and the Sellers shall use
their reasonable best efforts to assist in obtaining such approvals). As used
herein, "final non-appealable order" when referring to an order of the FCC shall
mean a preliminary grant which is not reversed, stayed, enjoined, set aside,
annulled, or suspended within the deadline, if any, provided by applicable
statute or regulation, and with respect to which no timely request for stay,
motion or petition for reconsideration or rehearing, application or request for
review, or notice of appeal or other judicial petition for review is pending,
and as to which the time for filing any such request, motion, petition,
application, appeal, or notice, and for the entry of an order staying,
reconsidering, or reviewing on the FCC's or other regulatory authority's own
motion, has expired and which preliminary grant is not subject to conditions
that in the aggregate would have a material adverse effect on the Buyer.
(b) Title, Liens, etc.
The obligation of the Buyer to consummate the transactions
contemplated to occur at the Closing shall be subject to the condition (unless
waived by the Buyer) that
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each Seller transferring TeleCorp Shares (i) is the sole beneficial and record
owner thereof and has good and marketable title thereto free and clear of all
Liens and (ii) has full power and authority to sell the TeleCorp Shares without
conflict with the terms of any material agreement, law, order or instrument
binding upon him. Each Seller shall deliver a written certification that the
foregoing sentence is true on the Closing Date together with such customary
instruments of assignment with respect to the transfers as the Buyer shall
reasonably request, including certificates evidencing the TeleCorp Shares,
accompanied by stock powers duly executed in blank,.
Notwithstanding anything in Section 5(b) to the contrary, the Buyer
shall be obligated to consummate the transactions contemplated to occur at the
Closing regardless of (A) the bankruptcy of TeleCorp that results in the
cancellation of any TeleCorp Shares or (B) a default or an "event of default"
under an agreement for borrowed money that results in any TeleCorp Shares being
foreclosed upon by the Buyer or any of its respective Affiliates, provided such
bankruptcy, default or foreclosure is not:
(x) the result of fraud, knowing and willful misconduct or bad faith
by a Seller or an Affiliate of a Seller, or
(y) due to a willful and knowing breach by a Seller or an Affiliate of
a Seller under any Approved Instrument;
and further provided that if a Seller or an Affiliate of a Seller or a Related
Person of a Seller directly or indirectly derives any value arising out of
TeleCorp Shares so cancelled or foreclosed, then such value shall be transferred
to the Buyer as a condition precedent to the payment of the Purchase Price at
the Closing.
As used herein, "Approved Instrument" means the organizational
documents of TeleCorp or any agreement to which TeleCorp, a Seller or an
Affiliate of a Seller is a party.
(c) Qualifying Stock
If the Buyer elects to deliver Qualifying Stock to a Seller in payment
of some or all of the Purchase Price, then the obligation of such Seller to
consummate the transactions contemplated to occur at the Closing shall be
subject to the condition that such Qualifying Stock has been duly authorized and
validly issued and is fully paid and nonassessable and either (i) the resale
thereof is the subject of any effective registration statement or (ii) such
Qualifying Stock is not a "restricted security" as defined in Rule 144 under the
Securities Act of 1933, as amended and, to the best of its knowledge the Seller
is not an Affiliate of the issuer of the Qualifying Stock (except by virtue of
Seller's ownership of such issuer's stock). The Buyer shall deliver a written
certification that the foregoing sentence is true on the date of the Closing.
(d) Cross Closing
The obligation of the Buyer to consummate the transactions contemplated to
occur at the Closing shall be subject to the condition (unless waived by the
Buyer) that
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the Sellers have not failed to consummate the transactions contemplated to occur
under those certain Equity Purchase Agreements dated the date hereof among the
Sellers and certain parties related to the Sellers and Cascade Wireless, LLC in
breach of their obligation to do so in accordance with those Agreements (so long
as the Buyer was or is not in breach of any such Agreement and was or is ready,
willing and able to close thereunder).
4. Miscellaneous
(a) This Agreement including the exhibits and schedules hereto and the
certificates and instruments delivered pursuant to the terms of this Agreement,
as the cases may be, embodies the entire agreement and understanding of the
parties hereto in respect of the Transactions. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
Transactions.
(b) This Agreement may be amended, modified, supplemented or waived
only by written agreement of each of the parties.
(c) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective permitted successors, legal
representatives and permitted assigns. No party may assign its rights and
obligations hereunder without the prior written consent of the other parties,
and any purported assignment without such consent shall be void.
(d) Any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirement
for a waiver of compliance as set forth in this paragraph.
(e) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(f) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given on the next business day after it
is either (a) delivered personally to the recipient or (b) sent to the recipient
by telecopy (receipt confirmed), reputable overnight next day express courier
service (charges prepaid) or electronic mail
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(receipt confirmed). Such notices, demands and other communications will be sent
to the Sellers and the Buyer at the addresses indicated below:
If to Buyer:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attn: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
and
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to any Seller:
0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Cadwalader Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
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or to such other address as either party hereto may, from time to time,
designate in writing delivered in a like manner.
(g) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENT TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA LOCATED IN
THE CITY OF NEW YORK (THE "COURTS") FOR ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS, WAIVE ANY OBJECTION TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION IN THE COURTS AND AGREE NOT TO PLEAD OR
CLAIM IN ANY COURT THAT SUCH LITIGATION BROUGHT THEREIN HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(h) 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.
(i) The article and section headings contained in this Agreement are
for convenience of reference only, are not part of the agreement of the parties
and shall not affect in any way the meaning or interpretation of this Agreement.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
antecedent Person or Person may require.
(j) All press releases, notices to customers and suppliers and other
announcements with respect to this Agreement and the Transactions, as well as
any statements (whether written or oral) made to the FCC with respect to this
Agreement and the Transactions, shall be approved by both the Sellers and the
Buyer prior to issuing any such announcement or making any such statement,
provided that either party may make any public disclosure it believes in good
faith is required by law or regulation (in which case the disclosing party will
use its best efforts to advise the other party prior to making such disclosure
and provide the other party an opportunity to review the proposed disclosure).
(k) The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any Court.
(l) All per share prices and all numbers and types of shares referred
to herein shall be appropriately adjusted for stock splits, stock dividends,
recapitalizations and similar transactions.
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[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AT&T WIRELESS SERVICES, INC.
By:
-----------------------------
Name:
Title:
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XXXXXX X. XXXXX
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XXXXXX X. XXXXXXXX
Schedule I
TELECORP SHARES
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Series C Series E Preference Class A Common
Preference
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Vento 490 6,450 1,339,602
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Xxxxxxxx 108 4,009 896,064
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Total 598 10,459 2,235,666
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