EXHIBIT 10.10
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INVESTORS STOCKHOLDERS' AGREEMENT
by and among
CB CAPITAL INVESTORS, L.P.,
X. X. XXXXXX INVESTMENT CORPORATION,
SIXTY WALL STREET SBIC FUND, L.P.,
PRIVATE EQUITY INVESTORS III, L.P.,
EQUITY-LINKED INVESTORS-II
TORONTO DOMINION CAPITAL (USA), INC.,
DAG-TRITON PCS, L.P.,
FIRST UNION CAPITAL PARTNERS, INC.
and
THE STOCKHOLDERS NAMED HEREIN
dated as of February 4, 1998
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TABLE OF CONTENTS
Page
1. Certain Definitions............................................................................. 2
2. Management of Company........................................................................... 2
2.1 Board of Directors......................................................................... 2
2.2 Removal; Filling of Vacancies.............................................................. 3
2.3 Election of Initial Board of Directors..................................................... 3
2.4 Board Committees........................................................................... 3
3. Transfers of Shares............................................................................. 3
3.1 General.................................................................................... 3
3.2 Right of First Offer....................................................................... 4
3.3 Tag Along Rights........................................................................... 4
3.4 Drag-Along Rights.......................................................................... 7
4. Unfunded Commitment; Additional Capital Contributions........................................... 8
5. Purchase Rights................................................................................. 9
5.1 Right to Exercise Purchase Rights.......................................................... 9
6. Registration Rights............................................................................. 9
6.1 Right to Exercise Registration Rights...................................................... 9
7. After-Acquired Shares; Recapitalization......................................................... 10
7.1 After-Acquired Shares; Recapitalization.................................................... 10
8. Equitable Relief................................................................................ 10
8.1 Equitable Relief........................................................................... 10
9. Miscellaneous................................................................................... 10
9.1 Notices.................................................................................... 10
9.2 Entire Agreement; Amendment; Consents...................................................... 10
9.3 Term....................................................................................... 11
9.4 Obligations Several........................................................................ 11
9.5 Governing Law.............................................................................. 11
9.6 Jurisdiction............................................................................... 11
9.7 Benefit and Binding Effect; Severability................................................... 11
9.8 Headings................................................................................... 12
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9.9 Counterparts............................................................................... 12
Schedules
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Schedule I Cash Equity Investors
Schedule II Stock Ownership
Schedule III Initial Director Nominees
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INVESTORS STOCKHOLDERS' AGREEMENT
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STOCKHOLDERS' AGREEMENT, dated as of February 4, 1998 (this "Agreement"),
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by and among CB CAPITAL INVESTORS, L.P., together with its Affiliated Successors
("Chase"), X.X. XXXXXX INVESTMENT CORPORATION, SIXTY WALL STREET SBIC FUND,
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L.P., together with their Affiliated Successors ("X.X. Xxxxxx"), PRIVATE EQUITY
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INVESTORS III, L.P. ("PEI III"), EQUITY-LINKED INVESTORS-II ("XXX XX"), TORONTO
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DOMINION CAPITAL (USA), INC. ("TD"), DAG-TRITON PCS, L.P. ("DAG"), FIRST UNION
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CAPITAL PARTNERS, INC. ("First Union") and the investors listed on Schedule I
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(individually, each a "Cash Equity Investor" and, collectively with Xxxxx, X.X.
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Xxxxxx, XXX III, XXX XX, TD, DAG and First Union and any of their respective
Affiliated Successors who become a Stockholder and a party to this Agreement in
accordance with the terms hereof, the "Cash Equity Investors"), Xxxxxxx X.
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Xxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx (the "Management Stockholders").
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Each of the foregoing Persons (other than the Company) are sometimes referred to
herein, individually, as a "Stockholder" and, collectively, as the
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"Stockholders."
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RECITALS
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WHEREAS, the Cash Equity Investors, the Company and the other Stockholders
named therein are party to that certain Stockholders Agreement, dated the date
hereof (as amended from time to time, in accordance with its terms, the "Company
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Stockholder Agreement") pursuant to which the Cash Equity Investors and the
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other parties thereto have agreed to provide for the management of the Company
and to impose certain restrictions with respect to the sale, transfer or other
disposition of Company Stock on the terms set forth therein; and
WHEREAS, each Stockholder is the registered owner of the respective shares
of Common Stock and Series C Preferred Stock set forth opposite its name on
Schedule II; and
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WHEREAS, the parties hereto desire to enter into this Agreement in order to
impose certain further restrictions with respect to the sale, transfer or other
disposition of Company Stock and to provide for certain rights with respect to
the management of the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
1. Certain Definitions.
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Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Company Stockholder Agreement.
Each definition or pronoun herein shall be deemed to refer to the singular,
plural, masculine, feminine or neuter as the context requires. Words such as
"herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to this
Agreement as a whole, unless the context otherwise requires.
2. Management of Company.
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2.1 Board of Directors. (a) Each of the Cash Equity Investors hereby
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agrees, so long as such Stockholder continues to hold any shares of Class C
Preferred Stock or Common Stock, in exercising its rights under Section 3 of the
Company Stockholder Agreement, that it will vote or cause to be voted all of the
shares of its Class C Preferred Stock or Common Stock owned or held of record by
it (whether now owned or hereafter acquired), in person or by proxy, to cause
the selection of directors, the election of directors and thereafter the
continuation in office of the following persons as members of the Board of
Directors as follows:
(i) one (1) individual selected by Chase, in its sole discretion,
to be nominated pursuant to Section 3.1(a)(i) of the Company Stockholder
Agreement;
(ii) one (1) individual selected by X.X. Xxxxxx, in its sole
discretion, to be nominated pursuant to Section 3.1(a)(i) of the Company
Stockholder Agreement; and
(iii) two (2) additional individuals selected by Chase and X.X.
Xxxxxx, after consultation with the other Cash Equity Investors, to be
nominated and approved pursuant to Section 3.1(a)(ii) of the Company
Stockholder Agreement.
(b) Any nomination or designation of directors and the acceptance thereof
pursuant to this Section 2.1 shall be evidenced in writing.
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(c) The rights set forth in clauses (a) (i) and (iii) above with respect
to Chase shall terminate if Chase owns less than 25% of the shares of Common
Stock Beneficially Owned by Chase on the date hereof. The rights set forth in
clauses (a)(ii) and (a)(iii) above with respect to X.X. Xxxxxx shall terminate
if X.X. Xxxxxx owns less than 25% of the shares of Common Stock Beneficially
Owned by X.X. Xxxxxx on the date hereof. Upon any termination of the rights set
forth in clause (a), such right(s) shall be exercisable in accordance with the
Company Stockholder Agreement by the holders of a Majority in Interest of the
Common Stock held by the Cash Equity Investors.
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(d) If the right of the Cash Equity Investors to nominate directors under
the Company Stockholder Agreement is reduced to the right to nominate one
director pursuant to Section 12.3(c) therein, such right shall be exercisable by
either Chase or X.X. Xxxxxx, whichever Cash Equity Investor holds a greater
percentage of shares of Common Stock Beneficially Owned by the Cash Equity
Investors at the time of the nomination right of the director.
2.2 Removal; Filling of Vacancies. Except as set forth in Section 2.1,
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each Cash Equity Investor agrees it will not vote any shares of Series C
Preferred Stock and/or Common Stock owned or controlled by such Cash Equity
Investor, for the removal without cause of any director designated by any other
Cash Equity Investor in accordance with Section 2.1. Any Cash Equity Investor
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who has the right to designate any member(s) of the Board of Directors pursuant
to Section 2.1 shall have the right to replace any member(s) so designated by it
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in accordance with the Company Stockholder Agreement. Each of the Cash Equity
Investors agrees to vote its shares of Series C Preferred Stock and/or Common
Stock, or shall otherwise take any action as is necessary to cause the election
of any successor director designated by any Stockholder pursuant to this
Section 2.2.
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2.3 Election of Initial Board of Directors. The Cash Equity Investors
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hereby consent to the nomination of the persons designated on Schedule III
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hereto to be directors of the Company pursuant to the Company Stockholder
Agreement.
2.4 Board Committees. If the Cash Equity Investors have the right to
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appoint a member of a committee of the Board of Directors, such member shall be
selected by Chase and X.X. Xxxxxx, after consultation with the other Cash Equity
Investors.
3. Transfers of Shares.
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3.1 General. Each Stockholder agrees that it shall not, directly or
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indirectly, Transfer Company Stock held by such Stockholder as of the date
hereof or which may hereafter be acquired by such Stockholder except in
accordance with the Company Stockholder Agreement and as set forth in this
Article 3. Each Stockholder further agrees that it shall not, directly or
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indirectly, Transfer Company Stock held by such Stockholder as of the date
hereof or which may hereafter be acquired by such Stockholder to a Disallowed
Transferee (as such term is defined in that certain Network Membership License
Agreement, dated the date hereof, between AT&T Corp. and the Company) except in
connection with a sale of capital stock of the Company held by the parties
hereto holding 66 2/3% of the shares of Common Stock Beneficially Owned by such
parties at the time of the proposed sale. Each Stockholder agrees to cause each
of its Affiliated Successors to become a party to and become bound by this
Agreement (and shall thereby become a Stockholder for all purposes of this
Agreement) prior to any transfer of Company Stock.
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3.2 Right of First Offer. (a) If a Cash Equity Investor (each a "CEI
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Seller") desires to Transfer any or all of its shares of Company Stock
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(collectively, the "Offered Shares"), other than a Transfer to an Affiliate or
an Affiliated Successor, such CEI Seller shall give written notice (the "CEI
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Offer Notice") to each Cash Equity Investor. Each CEI Offer Notice shall
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describe in reasonable detail the number of shares of each class of Offered
Shares, the cash purchase price requested and all other material terms and
conditions of the proposed Transfer. The CEI Offer Notice shall constitute an
irrevocable offer (a "First Offer") to sell the Offered Shares to the Cash
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Equity Investors at a cash price equal to the price contained in such CEI Offer
Notice and upon the same terms as the terms contained in such Offer Notice. The
Cash Equity Investors shall have the irrevocable right and option exercisable as
provided below, but not the obligations, to accept the First Offer as to the
Offered Shares.
(b) If the Cash Equity Investors have a right of First Offer pursuant to
clause (a) Cash Equity Investors shall exercise their right of First Offer by
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giving a Purchase Notice to the CEI Seller, the other Cash Equity Investors and
the Company not later than twenty-five (25) days (the "Cash Equity First Offer
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Period") after the date of the Offer Notice. If the Cash Equity Investors notify
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the Seller of their desire to purchase less than all of the Offered Shares, the
Company shall deliver notice to all Cash Equity Investors who have notified the
CEI Seller and the Company of their desire to purchase Offered Shares (the
"Purchasing Cash Equity Investors") within twenty-nine (29) days after the Offer
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Notice, and the Purchasing Cash Equity Investors shall have the right to
purchase any excess Offered Shares which other Cash Equity Investors do not
desire to purchase by written notice to the Seller and the Company so that each
Purchasing Cash Equity Investor shall have the right to acquire the proportion
of such excess Offered Shares as the number of shares of Company Stock owned by
such Purchasing Cash Equity Investor bears to the total number of shares of
Company Stock owned by all Purchasing Cash Equity Investors.
(c) The purchase of the Offered Shares by the Purchasing Cash Equity
Investors shall be closed at the principal executive offices of the Company on a
date specified by the Purchasing Cash Equity Investors at least five (5)
business days' notice, that is within thirty (30) days after the expiration of
the Cash Equity First Offer Period; provided, however, that if such purchase is
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subject to the consent of the FCC or any public service or public utilities
commission, the purchase of the Offered Shares shall be closed on the first
business day after all such consents shall have been obtained by Final Order.
The purchase price of any Offered Shares Transferred pursuant to this Section
3.2 shall be payable in cash by certified bank check or by wire transfer of
immediately available funds.
3.3 Tag Along Rights.
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(a) No Stockholder shall, directly or indirectly, Transfer, in any single
transaction or series or related transactions to one or more Persons who are not
Affiliated Successors of such Stockholder (a "CEI Inclusion Event Purchaser")
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shares of Inclusion Stock in
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circumstances in which, after giving effect to such Transfer, whether acting
alone or in concert with any other Stockholder (such parties referred to herein
as "Selling Stockholders") would result in such Selling Stockholder(s)
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Transferring, (x) ten (10%) or more of the outstanding shares of Inclusion Stock
Beneficially Owned by such Selling Stockholder to a Person who is a party, or an
Affiliated Successor of a party, to the Company Stockholder Agreement or (y) 10%
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or more of the outstanding shares of Inclusion Stock outstanding on the date of
such proposed Transfer on a fully diluted basis to a Person who is not a party,
or an Affiliated Successor to a party, to the Company Stockholder Agreement,
but, in either case, not more than twenty-five percent (25%) of the outstanding
shares of Inclusion Stock outstanding on the date of such proposed Transfer on a
fully diluted basis (a "Tag Along Event"), unless the terms and conditions of
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such sale to such CEI Inclusion Event Purchaser shall include an offer to the
Cash Equity Investors and the Management Stockholders other than the Selling
Stockholder (each, a "Tag Along Offeree") to Transfer to such CEI Inclusion
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Event Purchasers up to that number of shares of any class of Inclusion Stock
then Beneficially Owned by each Tag Along Offeree that bears the same proportion
to the total number of shares of Inclusion Stock at that time Beneficially Owned
(without duplication) by each such Tag Along Offeree as the number of shares of
Inclusion Stock being Transferred by the Selling Stockholders (including shares
of Inclusion Stock theretofore Transferred if in any applicable series of
related transactions) bears to the total number of shares of Inclusion Stock at
the time Beneficially Owned (without duplication) by the Selling Stockholders
(including shares of Inclusion Stock theretofore Transferred if in any
applicable series of related transactions). If the Selling Stockholders receive
a bona fide offer from an Inclusion Event Purchaser to purchase shares of
Inclusion Stock in circumstances in which, after giving effect to such sale
would result in a Tag Along Event, and which offer such Selling Stockholders
wish to accept, the Selling Stockholders shall then cause the Inclusion Event
Purchaser's offer to be reduced to writing (which writing shall include an offer
to purchase shares of Inclusion Stock from each Tag Along Offeree according to
the terms and conditions set forth in this Section 3.3) and the Selling
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Stockholders shall send written notice of the CEI Inclusion Event Purchaser's
offer (the "Tag Along Notice") to each Tag Along Offeree, which Tag Along Notice
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shall specify (i) the names of the Selling Stockholders, (ii) the names and
addresses of the proposed acquiring Person, (iii) the amount of shares proposed
to be Transferred and the price, form of consideration and other terms and
conditions of such Transfer (including, if in a series of related transactions,
such information with respect to shares of Inclusion Stock theretofore
Transferred), (iv) that the acquiring Person has been informed of the rights
provided for in this Section 3.3 and has agreed to purchase shares of Inclusion
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Stock in accordance with the terms hereof, and (v) the date by which each other
Selling Stockholder may exercise its respective rights contained in this
Section 3.3, which date shall not be less than thirty (30) days after the giving
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of the Tag Along Notice. The Tag Along Notice shall be accompanied by a true and
correct copy of the CEI Inclusion Event Purchaser's offer. At any time within
thirty (30) days after receipt of the Tag Along Notice, each Tag Along Offeree
may accept the offer included in the Tag Along Notice for up to such number of
shares of Inclusion Stock as is determined in accordance with this Section 3.3,
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by furnishing written notice of such acceptance to each Selling Stockholder, and
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delivering, to an escrow agent (which shall be a bank or a law or accounting
firm designated by the Company), on behalf of the Selling Stockholders, the
certificate or certificates representing the shares of Inclusion Stock to be
sold pursuant to such offer by each Tag Along Offeree, duly endorsed in blank,
together with a limited power-of-attorney authorizing the escrow agent, on
behalf of the Tag Along Offeree, to sell the shares to be sold pursuant to the
terms of such CEI Inclusion Event Purchaser's offer.
In the event that the CEI Inclusion Event Purchaser does not agree to
purchase all of the shares of Inclusion Stock proposed to be sold by the Selling
Stockholders and the Tag Along Offerees, then each Selling Stockholder and Tag
Along Offeree shall have the right to sell to the CEI Inclusion Event Purchaser
that number of shares of Inclusion Stock as shall be equal to (x) the number of
shares of Inclusion Stock which the Inclusion Event Purchaser has agreed to
purchase times (y) a fraction, the numerator of which is the number of shares of
Inclusion Stock Beneficially Owned (without duplication) by such Selling
Stockholder or Tag Along Offeree and the denominator of which is the aggregate
number of shares of Inclusion Stock Beneficially Owned (without duplication) by
all Selling Stockholders and Tag Along Offerees. If any Tag Along Offeree
desires to sell less than its proportionate amount of shares of Inclusion Stock
that it is entitled to sell pursuant to this Section 3.3, then the Selling
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Stockholders and the remaining Tag Along Offerees shall have the right to sell
to the CEI Inclusion Event Purchaser an additional amount of shares of Inclusion
Stock as shall be equal to (x) the number of shares of Inclusion Stock not being
sold by any such Inclusion Event Purchasers times (y) a fraction, the numerator
of which is the number of shares of Inclusion Stock owned such Selling
Stockholder or remaining Tag Along Offeree and the denominator of which is the
aggregate number of shares of Inclusion Stock Beneficially Owned (without
duplication) by all Selling Stockholders and remaining Tag Along Offerees. Such
process shall be repeated in series until all of the remaining Tag Along
Offerees agree to sell their remaining proportionate number of shares of
Inclusion Stock.
(b) The purchase from each Tag Along Offeree pursuant to this Section 3.3
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shall be on the same terms and conditions, including the price per share
received by the Selling Stockholders and stated in the Tag Along Notice provided
to each Tag Along Offeree. In the event that the Inclusion Stock is Common
Stock, all Tag Along Offerees shall be required, as a condition of participating
in such transaction, to Transfer Common Stock to the CEI Inclusion Event
Purchaser. In the event that the Tag Along Offerees elect to sell their pro rata
share of Series C Preferred Stock or Common Stock pursuant to this Section 3.3
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the CEI Inclusion Event Purchaser shall be required to purchase both Series C
Preferred Stock and Common Stock, the purchase price allocable to holders of
Series C Preferred Stock, on the one hand, and to holders of Common Stock, on
the other hand, shall be determined by an independent committee of the Board of
Directors selected from along those directors who were not designated by any
Selling Stockholders or Tag Along Offerees, it being understood that the
directors selected pursuant to Section 2.1(c) shall be deemed independent for
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such purposes.
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(c) Simultaneously with the consummation of the sale of the shares of
Inclusion Stock of the Selling Stockholders and each Tag Along Offeree to the
CEI Inclusion Event Purchaser pursuant to the Inclusion Event Purchaser's offer,
the Selling Stockholders shall notify each Tag Along Offeree and shall cause the
Inclusion Event Purchaser to remit to each Tag Along Offeree the total sales
price of the shares of Inclusion Stock by each Tag Along Offeree sold pursuant
thereto and shall furnish such other evidence of the completion and time of
completion of such sale and the terms thereof as may be reasonably requested by
each Tag Along Offeree.
(d) If within thirty (30) days after receipt of the Tag Along Notice, Tag
Along Offeree has not accepted the offer contained in the Tag Along Notice, such
Tag Along Offeree shall be deemed to have waived any and all rights with respect
to the sale described in the Tag Along Notice (but not with respect to any
subsequent sale, to the extent this Section 3.3 is applicable to such subsequent
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sale) and the Selling Stockholders shall have sixty (60) days in which to sell
not more than the number of shares of Inclusion Stock described in the Tag Along
Notice, on terms not more favorable to the Selling Stockholders than were set
forth in the Tag Along Notice; provided, however, that if such purchase is
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subject to the consent of the FCC or any public service or public utilities
commission, the purchase of the Offered Shares shall be closed on the first
business day after all such consents shall have been obtained by Final Order.
3.4 Drag-Along Rights. (a) If at any time a group of Cash Equity
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Investors, which group shall include (x) each of Chase and X.X. Xxxxxx for so
long as either of the foregoing holds 50% or more of the Common Stock
Beneficially Owned by it on the date hereof or (y) if each of Chase and X.X.
Xxxxxx no longer holds 50% or more of the Common Stock Beneficially Owned by it
on the date hereof or if either Chase or X.X. Xxxxxx fails to satisfy its
Unfunded Commitment which shall remain uncured, holders of 66 2/3 or more of the
Common Stock Beneficially Owned by the Cash Equity Investors at the time of the
proposed sale, proposes in a single transaction or series of transactions to
Transfer Company Stock, which Company Stock shall include 75% or more of the
outstanding Common Stock Beneficially Owned by each of Chase and X.X. Xxxxxx for
so long as either of the foregoing holds 50% or more of the Common Stock
Beneficially owned by it on the date hereof and neither Chase nor X.X. Xxxxxx
has failed to satisfy its Unfunded Commitment which shall remain uncured (each
member of the group, a "Selling Investor"), in a bona fide arm's-length
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transaction to a third party in which the same price per share shall be payable
in respect of all shares of any class of the Common Stock Beneficially Owned,
then, upon the written request of such Selling Investors, each other Cash Equity
Investor shall be obligated to, and shall, if so requested by such third party
(a) sell, transfer and deliver or cause to be sold, transferred and delivered to
such third party, up to all shares of Common Stock Beneficially Owned by them at
the same price per share (irrespective of class) and on the same terms as are
applicable to the Selling Investors, and (b) if approval of the transaction is
required of the stockholders of the Company, vote his, her or its shares of
Series C Preferred Stock and Common Stock in favor
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thereof and, in the event such sale or transfer is in connection with a merger
or consolidation, each Cash Equity Investor shall waive any dissenters' rights,
appraisal rights or similar rights in connection with such merger or
consolidation.
(b) The obligation of each Cash Equity Investor to sell shares of capital
stock pursuant to clause (a) shall be conditioned upon the following: (i) the
maximum liability with respect to indemnification granted by each selling Cash
Equity Investor to the purchaser in such sale shall not exceed the proceeds of
the sale to such Cash Equity Investor and (ii) any such liability with respect
to indemnification shall be a several (and not joint and several) obligation of
each selling Cash Equity Investor.
4. Unfunded Commitment; Additional Capital Contributions. (a) In the
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event any Cash Equity Investor (a "Defaulting Cash Equity Investor") fails to
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satisfy any portion of its Unfunded Commitment pursuant to Section 2.2 of the
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Securities Purchase Agreement (a "Payment Default"), the Company shall give
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prompt written notice, but no later than one (1) business day following such
default (a "Default Notice"), to each Cash Equity Investor other than the
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Defaulting Cash Equity Investor (each a "Non-Defaulting Cash Equity Investor")
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of the amount of such Payment Default (the "Default Amount"). In the event the
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Defaulting Cash Equity Investor has failed to cure such Payment Default, or in
the case of a Payment Default by either PEI III or XXX XX, in the event PEI III
and XXX XX have failed to cure such Payment Default, within five (5) days of the
Payment Default, each Non-Defaulting Cash Equity Investor may, acting on its own
or in conjunction with one or more of the other Non-Defaulting Cash Equity
Investors (each a "Participating Cash Equity Investor"), agree to fund all or
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any portion of such Payment Default by providing written notice to the Company
(a "Payment Notice") no later than 12:00 Noon (New York time) twenty (20) days
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following the date on which the Default Notice is delivered (the "Payment Notice
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Period") and the Company shall thereafter provide each Participating Cash Equity
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Investor with copies of such Payment Notice or Payment Notices; provided,
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however, that if the aggregate amount agreed to be funded by the Participating
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Cash Equity Investors shall exceed the Payment Default, then the amount to be
funded by each such Participating Cash Equity Investor shall be divided amongst
the Participating Cash Equity Investors pro rata in accordance with the shares
of Common Stock Beneficially Owned by the Participating Cash Equity Investors;
provided, further, however, that if the aggregate amount agreed to be funded by
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the Participating Cash Equity Investors shall be less than the Payment Default
(a "Payment Default Shortfall"), the Company shall give prompt written notice,
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but no later than one (1) business day following the end of the Payment Notice
Period, of such Payment Default Shortfall (a "Payment Default Shortfall Notice")
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to all Non-Defaulting Cash Equity Investors and all such Non-Defaulting Cash
Equity Investors may agree to fund the Payment Default Shortfall by providing
written notice to the Company within five (5) days of delivery of the Payment
Notice and payment shall be made in accordance with the preceding two provisos.
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(b) Upon payment of the Default Amount (or any portion thereof), each
Participating Cash Equity Investor (i) shall be deemed to be the record and
beneficial owner of that number of shares of Common Stock Beneficially Owned by
the Defaulting Cash Equity Investor equal to the total number of shares of
Common Stock Beneficially Owned by the Defaulting Cash Equity Investor
multiplied by the amount equal to the amount paid by such Participating Cash
Equity Investor pursuant to this Section 4 divided by the Default Amount, and
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(ii) shall become obligated to the Company pursuant to Section 2.2 of the
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Securities Purchase Agreement with respect to the remaining Unfunded Commitment,
if any, of the Defaulting Cash Equity Investor in an amount equal to the product
of the amount of such remaining Unfunded Commitment multiplied by the percentage
of the Unfunded Commitment the Defaulting Cash Equity Investor failed to satisfy
which such Participating Cash Equity Investor funded pursuant to this Section 4.
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(c) Upon a Payment Default by either Chase or X.X. Xxxxxx which shall
remain uncured by Chase or X.X. Xxxxxx, respectively, the rights of Chase and
Xxxxxx, as the case may be, pursuant to Sections 2.1, 2.4, 6.1 shall terminate.
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5. Purchase Rights.
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5.1 Right to Exercise Purchase Rights. If Equity Securities are issued by
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the Company pursuant to Section 7.2 of the Company Stockholder Agreement, then,
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notwithstanding the notice provisions in Section 7.2 of the Company Stockholder
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Agreement, each Cash Equity Investor may exercise such Purchase Right, in whole
or in part, on the terms and conditions and for the purchase price set forth in
the Issuance Notice, by giving to the Company notice to such effect, within
twenty-five (25) days after the giving of the Issuance Notice pursuant to the
Company Stockholder Agreement. If Cash Equity Investors give notice to exercise
Purchase Rights (each, a "Purchase Right Cash Equity Investor") with respect to
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less than the entire percentage of Equity Securities proposed to be offered,
issued, sold or otherwise disposed of equal to the number of shares of Common
Stock then Beneficially Owned by all Cash Equity Investors divided by the
aggregate number of shares of Common Stock outstanding immediately prior to such
offer, issuance, sale or disposition of Equity Securities (the "Purchase Right
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Shares"), then the Purchase Right Cash Equity Investors shall have the right by
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written notice to the Company within twenty-nine (29) days after the giving of
the Issuance Notice to acquire the excess Purchase Right Shares in such
proportion as such excess Purchase Right Shares bears to the number of shares of
Common Stock Beneficially owned by such Purchase Right Cash Equity Investor
immediately prior to such offer of Equity Securities by the Company.
6. Registration Rights.
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6.1 Right to Exercise Registration Rights. (a) The Cash Equity Investors
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will not exercise registration rights pursuant to Sections 5 of the Company
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Stockholder Agreement
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unless the Registrable Securities proposed to be sold by the Cash Equity
Investors which are Demanding Stockholders shall reasonably be expected to
result in aggregate gross proceeds to such Demanding Stockholders of at least
$25 million.
(b) The Cash Equity Investors will not exercise registration rights
pursuant to Section 7.8 of the Company Stockholder Agreement unless Cash Equity
Investors Beneficially Owning 33 1/3% of all shares of Common Stock Beneficially
Owned by all Cash Equity Investors, one of which shall be either Chase or X.X.
Xxxxxx, elect to exercise such rights. Notwithstanding the foregoing, from and
after the eighth anniversary of the date hereof, the Cash Equity Investors will
not exercise registration rights pursuant to Section 7.8 of the Company
Stockholder Agreement unless Cash Equity Investors Beneficially Owning 33 1/3%
of all shares of Common Stock Beneficially Owned by all Cash Equity Investors
elect to exercise such rights.
7. After-Acquired Shares; Recapitalization.
---------------------------------------
7.1 After-Acquired Shares; Recapitalization. (a) All of the provisions
---------------------------------------
of this Agreement shall apply to all of the shares of Equity Securities now
owned or hereafter issued or transferred to a Stockholder or to his, her or its
Affiliates in consequence of any additional issuance, purchase, exchange or
reclassification of shares of Equity Securities, corporate reorganization, or
any other form of recapitalization, or consolidation, or merger, or share split,
or share dividend, or which are acquired by a Stockholder or its Affiliate in
any other manner.
(b) Whenever the number of outstanding shares of Equity Securities is
changed by reason of a stock dividend or a subdivision or combination of shares
effected by a reclassification of shares, each specified number of shares
referred to in this Agreement shall be adjusted accordingly.
8. Equitable Relief.
----------------
8.1 Equitable Relief. The parties hereto agree and declare that legal
----------------
remedies may be inadequate to enforce the provisions of this Agreement and that,
in addition to being entitled to exercise all of the rights provided herein or
in the Restated Certificate or granted by law, including recovery of damages,
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
9. Miscellaneous.
-------------
9.1 Notices. All notices or other communications hereunder shall be in
-------
writing and shall be given in the manner prescribed in the Company Stockholder
Agreement.
-10-
9.2 Entire Agreement; Amendment; Consents. (a) This Agreement and the
-------------------------------------
Company Stockholder Agreement constitute the entire agreement among the parties
with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties or any
of them with respect to the subject matter hereof. The Stockholders agree that
the terms of this Agreement shall supersede any inconsistent provision contained
in the Company Stockholder Agreement.
(b) No change or modification of this Agreement shall be valid, binding or
enforceable unless the same shall be in writing and signed by Stockholders
holding 66 2/3% of all shares of Common Stock Beneficially Owned by all Cash
Equity Investors; provided, however, that no change or modification to this
-------- -------
Agreement which adversely effects the rights of any Stockholder or the Company
shall be valid, binding and enforceable unless the same shall be in writing and
signed by such Stockholder or the Company. In the event any party hereto shall
cease to own any shares of Equity Securities such party hereto shall cease to be
a party to this Agreement and the rights and obligations of such party hereunder
shall terminate.
(c) Whenever in this Agreement the consent or approval of a Stockholder is
required, except as expressly provided herein, such consent or approval may be
given or withheld in the sole and absolute discretion of each Stockholder.
(d) Whenever the Company Stockholder Agreement is amended in accordance
with its terms, the Stockholders hereto agree to enter into such amendments to
this Agreement necessary to effectuate the intent of this Agreement. The
Stockholder shall not enter into any such amendment the effect of which
adversely effects the rights of any Stockholder hereto without the consent of
such Stockholder.
9.3 Term. This Agreement shall terminate upon the termination of the
----
Company Stockholder Agreement. Section 2.1(c) shall terminate upon termination
--------------
of Section 3.1(a)(ii) of the Company Stockholder Agreement.
9.4 Obligations Several. The obligations of each Stockholder under this
-------------------
Agreement shall be several with respect to each such Stockholder.
9.5 Governing Law. This Agreement shall be governed and construed in
-------------
accordance with the law of the State of Delaware.
9.6 Jurisdiction. (a) The Company and each of the Stockholders hereby
------------
irrevocably consents to the exclusive jurisdiction of the state or federal
courts in the State of New York, and all state or federal courts competent to
hear appeals therefrom, over any actions which may be commenced against any of
them under or in connection with this Agreement. The Company and each
Stockholder hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection which any of them may now or hereafter have to the
laying of venue of any
-11-
such dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute in the Xxxxxxxx Xxxxxxxx xx Xxx Xxxx xxx Xxx Xxxx
Xxxxxx. The Company and each Stockholder hereby agree that a judgment in any
such dispute may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The Company and each Stockholder hereby
consent to process being served by any party to this Agreement in any actions by
the transmittal of a copy thereof in accordance with the provisions of
Section 9.1.
-----------
9.7 Benefit and Binding Effect; Severability. This Agreement shall be
----------------------------------------
binding upon and shall inure to the benefit of the Company (solely with respect
to Sections 3.2, 3.3 and 4), its successors and assigns, and each of the
------------ --- -
Stockholders and their respective executors, administrators and personal
representatives and heirs and permitted assigns. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any law
or public policy or any listing requirement applicable to the Common Stock, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto affected by
such determination in any material respect shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the provisions hereof
are given effect as originally contemplated to the greatest extent possible.
9.8 Headings. The captions in this Agreement are for convenience only
--------
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
9.9 Counterparts. 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.
-12-
IN WITNESS WHEREOF, each of the parties has executed or consent this
Agreement to be executed by its duly authorized officers as of the date first
written above.
CASH EQUITY INVESTORS:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc.,
its general partner
By___________________________________________
Name:
Title:
X.X. XXXXXX INVESTMENT CORPORATION
By___________________________________________
Name:
Title:
SIXTY WALL STREET SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation,
its general partner
By___________________________________________
Name:
Title:
PRIVATE EQUITY INVESTORS III, L.P.
By: XXXXX X. XXXXX ASSOCIATES III, L.L.C.,
its general partner
By___________________________________________
Name:
Title:
-13-
EQUITY-LINKED INVESTORS-II
By: XXXXX X. XXXXX ASSOCIATES-II,
its general partner
By___________________________________________
Name:
Title:
TORONTO DOMINION CAPITAL (USA), INC.
By___________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
DAG-TRITON PCS, L.P.
By: Duff Xxxxxxxx Xxxxxxxx LLC,
its general partner
By___________________________________________
Name:
Title:
FIRST UNION CAPITAL PARTNERS, INC.
By___________________________________________
Name:
Title:
MANAGEMENT STOCKHOLDERS:
XXXXXXX X. XXXXXXXX
_____________________________________________
-14-
XXXXXX X. XXXXXXX
_____________________________________________
XXXXX X. XXXXX
_____________________________________________
with respect to Sections 3.2, 3.3 and 4 only
TRITON PCS HOLDINGS, INC.
By___________________________________________
Name:
Title:
-15-
SCHEDULE I
CASH EQUITY INVESTORS
CB Capital Investors, L.P. Toronto Dominion Capital (USA), Inc.
000 Xxxxxxx Xxxxxx, 00xx Floor 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
X.X. Xxxxxx Investment Corporation Toronto Dominion Capital (USA), Inc.
000 Xxxxxxxxxx Xxxxxx, 38th Floor 000 Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Suite 1700
Attn: Xxxx Xxxxxxx Xxxxxxx, XX 00000
Tel: (000) 000-0000 Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
Sixty Wall Street SBIC Fund, L.P.
000 Xxxxxxxxxx Xxxxxx, 38th Floor First Union Capital Partners, Inc.
Xxx Xxxxxxxxx, XX 00000 One First Union Center
Attn: Xxxx Xxxxxxx 000 Xxxxx Xxxxxxx Xxxxxx / 0xx Xxxxx
Tel: (000) 000-0000 Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000 Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Private Equity Investors III, L.P. Fax: (000) 000-0000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 DAG-TRITON PCS, L.P.
Attn: Xxxxx Xxxx Two Embarcadero Center
Tel: (000) 000-0000 Suite 2930
Fax: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxx
Equity-Linked Investors-II Tel: (000) 000-0000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Fax: (000) 000-0000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE II
STOCK OWNERSHIP
Shares of Series C
Common Preferred
Stockholder Stock Shares
---------------------------------- ---------- ----------
CB Capital Investors 0 404,714
X.X. Xxxxxx Investment Corporation 0 383,679
Sixty Wall Street SBIC Fund, L.P. 0 21,036
Private Equity Investors III, L.P. 0 194,357
Equity-Linked Investors-II 0 194,357
Toronto Dominion Capital (USA) Inc. 0 97,179
First Union Capital Partners, Inc. 0 48,589
DAG-TRITON PCS, Inc. 0 48,589
Xxxxxxx X. Xxxxxxxx 78,494.80 5,000
Xxxxxx X. Xxxxxxx 58,871.10 2,500
----------- ------------
Total 137,365.90 1,400,000
SCHEDULE III
INITIAL DIRECTOR NOMINEES
Xxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxxxx