EXHIBIT 2.3
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of
July 23, 2003, by and among TSI Telecommunication Holdings, LLC, a Delaware
limited liability company (the "Company"), GTCR Fund VII, L.P., a Delaware
limited partnership ("GTCR Fund VII"), and GTCR Co-Invest, L.P., a Delaware
limited partnership ("GTCR Co-Invest" and, together with GTCR Fund VII, the
"Investors" and individually, an "Investor"). Except as otherwise indicated
herein, capitalized terms used herein are defined in Section 4 hereof.
The Investors hold shares of the following securities of TSI
Telecommunication Network Services Inc., a Delaware corporation ("TSI
Networks"): Class B Common Stock, par value $.01 per share (the "TSI Networks
Stock").
Each of the Investors desires to contribute to the Company all
of the TSI Networks Stock owned by such Investor in exchange for the number of
Common Units of the Company (the "Common Units") listed opposite the Investor's
name on the Schedule of Investors attached hereto.
The contribution and exchange with the Company by the
Investors of TSI Networks Stock for Common Units hereunder shall be effective
immediately following the execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
Section 1. Exchange; Authorization and Issuance of Company
Securities.
1A. Authorization of Company Securities. The Company shall
authorize the issuance of 80,224.99 Common Units to the Investors.
1B. Exchange of TSI Networks Stock for Common Units. At the
Closing (as defined in Section 1C below), subject to the terms and conditions
set forth herein, (i) each Investor shall deliver to the Company all of the TSI
Networks Stock owned by the Investor, accompanied by instruments of assignment
acceptable to the Company (the "Exchange"), and (ii) the Company shall deliver
to each Investor the number of Common Units listed opposite such Investor's name
on the Schedule of Investors attached hereto in exchange therefor. The Company
and the Investors agree that, as of the date of the Exchange, the fair value of
each Investor's TSI Networks Stock is equal to the fair value of the Common
Units set forth next to such Investor's name on the Schedule of Investors. The
Company and the Investors agree to prepare or cause to be prepared their tax
returns in accordance with the immediately preceding sentence.
1C. Closing. The closing of the Investors' exchange of TSI
Networks Stock for Common Units (the "Closing") shall take place at the offices
of Xxxxxxxx & Xxxxx, 000 Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 immediately following the execution of
this Agreement.
Section 2. Representations and Warranties with respect to the
Investors. As a material inducement to the Company to enter into this Agreement,
each of the Investors represents and warrants to the Company, as to such Person
(severally and not jointly), that:
2A. Authorization of Transactions. The Investor has full power
and authority to enter into this Agreement and the other agreements contemplated
hereby to which the Investor is a party, and to perform the Investor's
obligations hereunder and thereunder.
2B. Execution, Delivery; Valid and Binding Agreements. This
Agreement has been duly executed and delivered by the Investor, and this
Agreement constitutes, and the other agreements contemplated hereby to which the
Investor is a party, when executed and delivered by the Investor in accordance
with the terms thereof, shall each constitute a valid and binding obligation of
the Investor, enforceable in accordance with its terms, subject to the effect of
bankruptcy or other similar laws and to general principles of equity (whether
considered in proceedings at law or in equity).
2C. No Breach. The execution and delivery by the Investor of
this Agreement and the other agreements contemplated hereby to which the
Investor is a party, and the fulfillment of and compliance with the respective
terms hereof and thereof by the Investor, do not and shall not (i) conflict with
or result in a breach of the terms, conditions or provisions of, (ii) constitute
a default under (whether with or without the giving of notice, the passage of
time or both), (iii) result in the creation of any lien upon the Investor's
assets or encumbrance upon the Investor's TSI Networks Stock pursuant to, (iv)
give any third party the right to modify, terminate or accelerate any obligation
under, (v) result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice or declaration to, or filing
with, any third party or any court or administrative or governmental body or
agency pursuant to, any material law, statute, rule or regulation to which the
Investor is subject, or any material agreement, instrument, order, judgment or
decree to which the Investor is subject.
2D. Title to TSI Networks Stock. On the Closing Date, the
Investor shall transfer to the Company good and marketable title to the shares
of the TSI Networks Stock set forth opposite the Investor's name on the Schedule
of Investors, free and clear of all encumbrances, other than applicable federal
and state securities law restrictions, and the restrictions set forth in this
Agreement, the Merger Agreement, and the other ancillary agreements contemplated
thereby.
2E. Issued Entirely for Own Account. The Common Units to be
issued to the Investor are for investment for the Investor's own account, not as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Investor further represents that the Investor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Common Units other than as set forth in the LLC Agreement
and the Securityholders Agreement.
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2F. Disclosure of Information. The Investor believes that it
has received all the information the Investor considers necessary or appropriate
for deciding whether to acquire the Common Units. The Investor further
represents that the Investor has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the Common Units
and the business, properties, prospects and financial condition of the Company.
2G. Investment Experience. Immediately upon the consummation
of the transactions contemplated hereby, the Investor shall be an "accredited
investor" as such term is defined in Rule 501(a) of the Securities Act. The
Investor acknowledges that the Investor can bear the economic risk of such
Person's investment, and has such knowledge and experience in financial or
business matters that the Investor is capable of evaluating the merits and risks
of the purchase of the Common Units.
2H. Restricted Securities. The Investor understands that the
Common Units have not been registered under the Securities Act on the basis that
the sale of the Common Units is exempt from the registration provisions thereof
and that the Company's reliance on such exemption is predicated upon the
representations of the Investors herein.
Section 3. Representations and Warranties of the Company. As a
material inducement to the Investors to enter into this Agreement and effect the
Exchange, the Company hereby represents and warrants to the Investors:
3A. Organization and Power. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify would have a material adverse effect on the financial
condition, operating results, assets, operations or business prospects of the
Company. The Company has all requisite power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and to carry out the transactions contemplated by this
Agreement.
3B. Capitalization and Related Matters.
(a) As of the Closing contemplated hereunder, and after giving
effect to the transactions contemplated by this Agreement and the Merger
Agreement, the issued and outstanding capital securities of the Company shall
consist of the following: (i) 252,367.49 Class B Preferred Units and (ii)
89,334,234.27 Common Units.
(b) There are no statutory or, to the best of the Company's
knowledge, contractual unitholders preemptive rights or rights of refusal with
respect to the issuance of the Common Units hereunder, except as expressly
contemplated in the Securityholders Agreement or provided herein. To the best of
the Company's knowledge, there are no agreements between the Company's
unitholders with respect to the voting or transfer of the Company's capital
stock or with respect to any other aspect of the Company's affairs, except as
set forth in the LLC Agreement or Securityholders Agreement.
3C. Authorization; No Breach. The execution, delivery and
performance of this Agreement, and all other agreements contemplated hereby to
which the Company is a party
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(collectively, the "Relevant Agreements") have been duly authorized by the
Company. Each Relevant Agreement constitutes a valid and binding obligation of
the Company, enforceable in accordance with its terms. Except as set forth on
Schedule 3C attached hereto, the execution and delivery by the Company of the
Relevant Agreements, the issuance of the Common Units hereunder, and the
fulfillment of and compliance with the respective terms hereof and thereof by
the Company do not and will not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or encumbrance
upon the Company's capital securities or assets pursuant to, (iv) give any third
party the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to, the LLC Agreement, or any law, statute, rule or
regulation to which the Company is subject, or any agreement, instrument, order,
judgment or decree to which the Company is a party or by which it is bound.
3D. Valid Issuance of Common Units. The Common Units being
issued to the Investors pursuant to this Agreement, when issued, sold and
delivered in accordance with the terms of this Agreement for the consideration
expressed herein, will be free of restrictions on transfer other than
restrictions on transfer under the Transaction Documents and under applicable
state and federal securities laws.
Section 4. Definitions. For the purposes of this Agreement,
the following terms have the meanings set forth below:
"Affiliates" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Confidential Information" means all information of a
confidential or proprietary nature (whether or not specifically labeled or
identified as "confidential"), in any form or medium, that relates to the
business, products, services or research or development of any of the Company or
its subsidiaries or their respective suppliers, distributors, customers,
independent contractors or other business relations. Confidential Information
includes, but is not limited to, the following: internal business information
(including information relating to strategic and staffing plans and practices,
business, training, marketing, promotional and sales plans and practices, cost,
rate and pricing structures, accounting and business methods and potential
acquisition candidates); identities of, individual requirements of, specific
contractual arrangements with, and information about, the Company's and its
subsidiaries' suppliers, distributors, customers, independent contractors or
other business relations and their confidential information; trade secrets,
know-how, compilations of data and analyses, techniques, systems, formulae,
research, records, reports, manuals, documentation, models, data and data bases
relating thereto; inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports and all similar or related information
(whether or not patentable) and other intellectual property.
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"LLC Agreement" means that certain Limited Liability Company
Agreement of the Company, dated as of February 14, 2002, by and among the
Company and the unitholders party thereto, as amended from time to time in
accordance with its terms.
"Person" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint share company, a
trust, a joint venture, an unincorporated organization, an investment fund, any
other business entity and a governmental entity or any department, agency or
political subdivision thereof.
"Registration Agreement" means that certain Registration
Agreement, dated as of February 14, 2002, by and among the Company, GTCR Fund
VII, GTCR Fund VII/A, L.P., GTCR Co-Invest, G. Xxxxxx Xxxxx, Snowlake
Investments Pte Ltd, and each of the other Persons from time to time party
thereo, as amended in accordance with its terms.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
"Securityholders Agreement" means that certain Securityholders
Agreement, dated as of February 14, 2002, by and among the Company, GTCR Fund
VII, GTCR Fund VII/A, L.P., GTCR Co-Invest, G. Xxxxxx Xxxxx, Snowlake
Investments Pte Ltd, and each of the other Persons from time to time party
thereo, as amended in accordance with its terms.
"Transaction Documents" means this Agreement, the Merger
Agreement, the LLC Agreement, the Registration Agreement and the Securityholders
Agreement.
Section 5. Miscellaneous.
5A. Legend. Each certificate evidencing Common Units and each
certificate issued in exchange for or upon the transfer of any Common Units
shall be stamped or otherwise imprinted with a legend in substantially the
following form:
"The securities represented by this certificate are subject to
a securityholders Agreement, dated as of february 14, 2002,
among the issuer of such securities (the "Company") and
certain of the company's securityholders. A copy of such
securityholders Agreement will be furnished without charge by
the Company to the holder hereof upon written request."
The Company shall imprint such legend on certificates evidencing the Common
Units to be issued in connection with the consummation of the transactions
contemplated hereby.
5B. Survival of Representations and Warranties. All of the
representations and warranties set forth in this Agreement or in any writing
delivered by the Company or any Investor in connection with this Agreement shall
survive the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby (regardless of any
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investigation, inquiry or examination made by or on behalf of or any knowledge
of any party or on its behalf or the acceptance by any party of a certificate or
opinion).
5C. Remedies. The Investors shall have all rights and remedies
set forth in this Agreement and all rights and remedies that the Investors have
been granted at any time under any other agreement or contract and all of the
rights that the Investors have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
5D. Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Investors representing a majority in interest of the Common Units
issued to the Investors pursuant to this Agreement. No other course of dealing
between the Company and the holder of any Common Units or any delay in
exercising any rights hereunder shall operate as a waiver of any rights of any
such holders.
5E. Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not.
5F. Confidentiality.
(a) If the transactions contemplated hereby are consummated,
each Investor agrees not to disclose to any third party (and shall use
commercially reasonable efforts to cause each of its Affiliates not to disclose)
any Confidential Information (whether or not such information is or was
developed by such Investor) related to the terms and conditions of the
transactions contemplated by the Transaction Documents, except to the extent (i)
disclosure of such information is required by law, or (ii) the information
becomes publicly known except through the actions or inactions of such Investor.
(b) Notwithstanding anything herein to the contrary, each
party to this Agreement (and each Affiliate and person acting on behalf of any
such party) agrees that each other party (and each employee, representative, and
other agent of such party) may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
have been or are provided to such party or such Person relating to such tax
treatment and tax structure, except to the extent necessary to comply with any
applicable federal or state securities laws. This authorization is not intended
to permit disclosure of any other information including (without limitation) (i)
any portion of any materials to the extent not related to the tax treatment or
tax structure of the transaction, (ii) the identities of participants or
potential participants in the transaction, (iii) the existence or status of any
negotiations, (iv) any pricing or financial information (except to the extent
such pricing or financial information is related to the tax treatment or tax
structure of the transaction), or (v) any other term or detail not relevant to
the tax treatment or the tax structure of the transaction.
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5G. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
5H. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts (including by means of telecopied
signature pages), any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
5I. Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
5J. Further Assurances. Each Investor will execute and deliver
such further instruments of conveyance and transfer and take such additional
action as the Company may reasonably request to effect, consummate, confirm or
evidence the transfer to the Company of the TSI Networks Stock by such Investor.
The Company will execute and deliver such further instruments of conveyance and
transfer and take such additional action as any of the Investors may reasonably
request to effect, consummate, confirm or evidence the transfer to the Investors
of the Common Units.
5K. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed therein.
5L. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when (i) delivered
personally to the recipient, (ii) sent to the recipient by reputable express
courier service (charges prepaid), (iii) mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid, or (iv)
telecopied to the recipient (with hard copy sent to the recipient by reputable
overnight courier service (charges prepaid) that same day) if telecopied before
5:00 p.m. Chicago, Illinois time on a business day, and otherwise on the next
business day. Such notices, demands and other communications shall be sent to
the Investors at the addresses set forth on the Schedule of Investors and to the
Company at the address indicated below:
TSI Telecommunication Holdings, LLC
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: G. Xxxxxx Xxxxx, Chief Executive Officer
Telecopy No.: (000) 000-0000
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with a copy to:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
Xxxxxxxx & Xxxxx LLP
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, P.C.
Telecopy No.: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
5M. Other Agreements. Simultaneously with the consummation of
the transactions contemplated hereby, each of the Investors agrees to enter into
the Securityholders Agreement, the Registration Agreement and the Limited
Liability Company Agreement, and each Investor acknowledges and agrees that such
Investor will be an "Other Securityholder" (as defined in the Securityholders
Agreement) for purposes thereof and a holder of "Other Registrable Securities"
(as defined in the Registration Agreement) for purposes thereof.
5N. Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertaking with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
5O. Rights Cumulative; Waiver. The rights and remedies of the
Investors and the Company under this Agreement shall be cumulative and not
exclusive of any rights or remedies which either would otherwise have hereunder
or at law or in equity or by statute, and no failure or delay by either party in
exercising any right or remedy shall impair any such right or remedy or operate
as a waiver of such right or remedy, nor shall any single or partial exercise of
any power or right preclude such party's other or further exercise or the
exercise of any other power or right. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's rights
or privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Contribution Agreement on the date first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC.
/s/ Xxxxxxx X. Xxxxxxx
By: Xxxxxxx X. Xxxxxxx
Its: Chief Financial Officer
Investors: GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
/s/ Xxxxxx X. Xxxxxxxx
By: Xxxxxx X. Xxxxxxxx
Its: Principal
GTCR CO-INVEST, L.P.
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
/s/ Xxxxxx X. Xxxxxxxx
By: Xxxxxx X. Xxxxxxxx
Its: Principal
