Exhibit 4.7
AMENDMENT NO. 2 TO THE FIRST AMENDED
AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDMENT NO. 2 TO THE FIRST AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT (this "Second Amendment") is dated as of November 6, 2003, 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 individuals listed under the heading
"Independent Directors" on the signature pages hereto (individually, each an
"Independent Director" and, collectively, the "Independent Directors") 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 term 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
WHEREAS, the parties have determined to amend the Stockholders'
Agreement, as previously amended by the First Amendment, by entering into this
Second Amendment to increase the number of directors that may serve on the
Company's Board of Directors, in order to facilitate increasing the number of
independent directors serving on the Board of Directors and accommodate board
appointment rights under the Company's Second Restated Certificate of
Incorporation;
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. The first sentence of Section 3.1(a) of the
Stockholders' Agreement is hereby deleted in its entirety and the following
sentence inserted in its place:
"The Board of Directors shall consist of up to nine (9) 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."
2. Amendment Effectiveness Date. This Second 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.
3. 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:
(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 Second Amendment.
(iii) The execution and delivery of this Second 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 Second
Amendment.
(iv) This Second 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, 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
Second 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), except in each case, where such breach, violation,
default, Lien, right, or
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the failure to obtain or give such Consent would not have a material adverse
effect on it or its ability to perform its obligations hereunder.
(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 be reasonably expected to have a material adverse effect on
its ability to enter into this Second 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 Second Amendment.
(ii) This Second 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 bankruptcy, insolvency, 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 Second Amendment will not require any Consent not already obtained,
except in each case, where the failure to obtain or give such Consent would not
have a material adverse effect on his or her ability to perform his or her
obligations hereunder.
(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 be reasonably expected to have a
material adverse effect on his or her ability to enter into this Second
Amendment or to fulfill his or her respective obligations hereunder.
4. Severability of Provisions. Any provision of this Second
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.
5. Agreements to Remain in Full Force and Effect. This Second
Amendment shall be deemed to be an amendment to the Stockholders' Agreement and
to the First 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
further amended hereby. Except as amended by the First 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.
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6. Heading. The headings in this Second 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 Second Amendment
or any provision thereof.
7. Counterparts. This Second 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.
8. Governing Law. This Second 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 Second 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/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive VP, Corporate
Secretary & Associate General
Counsel, Corp.
COMPANY:
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
[Signature Pages to Amendment No. 2 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. 2 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: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Member
EQUITY-LINKED INVESTORS-II
By: XXXXX X. XXXXX ASSOCIATES-II,
its general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Member
TORONTO DOMINION CAPITAL (USA), INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
[Signature Pages to Amendment No. 2 to First Amended and
Restated Stockholders' Agreement]
FIRST UNION AFFORDABLE
HOUSING COMMUNITY
DEVELOPMENT CORPORATION
By: /s/ Xxxxx X. Peuper
--------------------------------------------
Name: Xxxxx X. Peuper
Title: Senior Vice President
[Signature Pages to Amendment No. 2 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 X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxx
------------------------------------------------
Xxxxx Xxxxxx
[Signature Pages to Amendment No. 2 to First Amended and
Restated Stockholders' Agreement]
INDEPENDENT DIRECTORS:
/s/ Xxxxx Xxxxxxxx
------------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
------------------------------------------------
Xxxx Xxxxxxx
[Signature Pages to Amendment No. 2 to First Amended and
Restated Stockholders' Agreement]
