EXHIBIT 10.16
SECURITYHOLDERS AGREEMENT
THIS SECURITYHOLDERS AGREEMENT (this "AGREEMENT") is made as of February
14, 2002 by and among (i) TSI Telecommunication Holdings, LLC, a Delaware
limited liability company (the "COMPANY"), (ii) GTCR Fund VII, L.P., a Delaware
limited partnership ("GTCR FUND VII"), GTCR Fund VII/A, L.P., a Delaware limited
partnership ("GTCR FUND VII/A"), and GTCR Co-Invest, L.P, a Delaware limited
partnership ("GTCR CO-INVEST") any other investment fund managed by GTCR Xxxxxx
Xxxxxx, L.L.C. that at any time acquires securities of the Company and executes
a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (each, an "INVESTOR" and collectively, the "INVESTORS"), (iii)
G.Xxxxxx Xxxxx and any other executive employee of the Company or its
Subsidiaries who, at any time, acquires securities of the Company in accordance
with SECTION 9 hereof and executes a counterpart of this Agreement or otherwise
agrees to be bound by this Agreement (each, an "EXECUTIVE" and collectively, the
"EXECUTIVES"), (iv) Snowlake Investment Pte Ltd ("PURCHASER") and (v) each of
the other Persons set forth from time to time on the attached "SCHEDULE OF
SECURITYHOLDERS" under the heading "OTHER SECURITYHOLDERS" who, at any time,
acquires securities of the Company in accordance with SECTION 9 or 10 hereof and
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement. The Investors, the Executives, Purchaser and the other Persons listed
on the SCHEDULE OF SECURITYHOLDERS are collectively referred to herein as the
"SECURITYHOLDERS" and individually as a "SECURITYHOLDER." Capitalized terms used
but not otherwise defined herein are defined in SECTION 7 hereof and if not
defined therein shall have the same meaning assigned to such term in the LLC
Agreement.
The Investors will purchase Class B Preferred Units of the Company (the
"CLASS B PREFERRED") and Common Units of the Company (the "COMMON UNITS"),
pursuant to a Unit Purchase Agreement between the Investors and the Company
dated as of the date hereof (the "INVESTOR PURCHASE AGREEMENT"). Pursuant to a
Purchase Agreement between the Company and Purchaser, Purchaser will purchase
Common Units and Class B Preferred. Pursuant to Senior Management Agreements
among the Company, TSI Telecommunication Services Inc.(as successor to TSI
Merger Sub, Inc., "TSI") and certain Executives, the Executives will purchase
Common Units and Class B Preferred.
The Company and the Securityholders desire to enter into this Agreement for
the purposes, among others, of (i) limiting the manner and terms by which units
and interests in the Company may be transferred, and (ii) assuring continuity in
the ownership of the Company. The execution and delivery of this Agreement is a
condition (i) to the Investors' purchase of the Common and the Class B Preferred
pursuant to the Investor Purchase Agreement and (ii) to Purchaser's purchase of
the Common and the Class B Preferred pursuant to the Purchase 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:
1. BOARD OF MANAGERS.
(a) From and after the Initial Closing and until the provisions of this
SECTION 1 cease to be effective, each Securityholder shall vote all of his
Securityholder Securities and any other
voting securities of the Company over which such Securityholder has voting
control and shall take all other necessary or desirable actions within his
control (whether in his capacity as a securityholder, manager, member of the
board or any committee thereof or officer of the Company or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions within
its control (including, without limitation, calling special board and
securityholder meetings), so that:
(i) the authorized number of managers on the Company's board of
managers (the "BOARD") shall be no greater than seven (7);
(ii) the following persons shall be elected to the Board:
(A) up to three (3) representatives to be designated by GTCR Fund
VII (the "INVESTOR MANAGERS"); PROVIDED that at the Initial Closing,
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx shall be designated as the
initial Investor Managers;
(B) TSI's chief executive officer (the "CEO") and one other TSI
employee to be designated by the CEO (collectively, the "EXECUTIVE
MANAGERS"); PROVIDED that at the Initial Closing, G. Xxxxxx Xxxxx
shall be the sole Executive Manager; and
(C) up to two (2) representatives to be chosen jointly by GTCR
Fund VII and the CEO (the "OUTSIDE MANAGERS"); PROVIDED that no
Outside Manager shall be a member of TSI's management or an employee
or officer of the TSI or its Subsidiaries; PROVIDED further that if
GTCR Fund VII and the CEO are unable to agree on an Outside Manager
within 10 days after the date specified by GTCR Fund VII for electing
such Outside Manager, then GTCR Fund VII shall in its sole discretion,
designate the Outside Managers;
(iii) If any party authorized to designate representatives to the
Board has at any time designated a number less than the maximum number such
party is entitled to designate pursuant to SECTION1(a)(ii)(A)-(C), such party
shall have the right to designate additional representatives to the Board up
to the maximum number such party is authorized to designate in accordance
with Section1(a)(ii)(A)-(C);
(iv) the composition of any committee of the Board shall include at
least two Investor Managers;
(v) the composition of the board of managers or board of directors of
each of the Company's Subsidiaries (each a "SUB BOARD") shall be
the same as that of the Board;
(vi) the removal from the Board, a Sub Board or a committee (with or
without cause) of any Investor Manager or any Outside Manager shall be upon
(and only upon) the written request of GTCR Fund VII;
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(vii) if an Executive Manager ceases to be employed by TSI or its
Subsidiaries, such Executive Manager shall be removed promptly after such
time from the Board, each Sub Board and each committee; and
(viii) in the event that any representative designated hereunder for
any reason ceases to serve as a member of the Board, a Sub Board or a
committee during his term of office, the resulting vacancy on the Board, the
Sub Board or such committee shall be filled by a representative designated by
the person or persons originally entitled to designate such manager pursuant
to SECTION 1(a)(ii) above.
(b) The Company shall pay all out-of-pocket expenses incurred by each
manager in connection with attending regular and special meetings of the Board,
any Sub Board and any committee thereof.
(c) If any party fails to designate a representative to fill a managership
pursuant to the terms of this SECTION 1, the election of a person to such
managership shall be accomplished in accordance with the LLC Agreement and
applicable law.
(d) Upon Purchaser's written request to the Company (any such request to be
effective for a period of twelve months following the date on which the Company
receives such request and which request may be extended on an annual basis by
providing the Company written notice of such extension no less than 60 days
prior to expiration of the immediately preceding twelve-month period), the
Company shall provide to a representative designated by Purchaser (an
"OBSERVER") notice of each meeting of the Board within a reasonable time of
notice being given to the members of the Board, and the Company shall permit the
Observer to attend, as an observer without voting rights, all meetings of the
Board. The Observer shall be entitled to receive a copy of all written materials
and other information given to the Board in connection with such meetings within
a reasonable time such materials and information are given to the Board. If the
Company proposes to take any action by written consent in lieu of a meeting of
the Board, the Company shall give notice thereof to the Observer within a
reasonable time notice is given to the Board.
(e) The provisions of this SECTION 1 shall terminate upon first to occur of
(i) the consummation of a Public Offering or (ii) the consummation of a Sale of
the Company.
2. LEGEND. Each certificate evidencing Securityholder Securities and each
certificate issued in exchange for or upon the transfer of any Securityholder
Securities (if such securities remain Securityholder Securities as defined
herein after such transfer) 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
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COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Securityholder
Securities outstanding prior to the date hereof. The legend set forth above
shall be removed from the certificates evidencing any securities that cease to
be Securityholder Securities.
3. PARTICIPATION RIGHTS.
(a) At least 30 days prior to any Transfer of Securityholder Securities by
any of the Investors, the Investors shall deliver a written notice (the
"TAG-ALONG NOTICE") to the Company and the other Securityholders (the "TAG-ALONG
SECURITYHOLDERS") specifying in reasonable detail the identity of the
prospective transferee(s) and the terms and conditions of the Transfer. The
Tag-Along Securityholders may elect to participate in the contemplated Transfer
by delivering written notice to the Investors within 30 days after delivery of
the Tag-Along Notice. If any Tag-Along Securityholders have elected to
participate in such Transfer, the Investors and such Tag-Along Securityholders
will be entitled to sell in the contemplated Transfer, at the same price and on
the same terms, a number of units of such class of Securityholder Securities
equal to the product of (A) the quotient determined by dividing the number of
units of Securityholder Securities owned by such Person by the aggregate number
of outstanding units of Securityholder Securities owned by the Investor and the
Tag-Along Securityholders participating in such sale and (B) the total number of
Securityholder Securities to be sold by the Investors and any Tag-Along
Securityholders in the contemplated Transfer.
(b) The Investor(s) will use reasonable best efforts to obtain the
agreement of the prospective transferee(s) to the participation of the Tag-Along
Securityholders in any contemplated Transfer, and the Investor(s) will not
transfer any of its Securityholder Securities to the prospective transferee(s)
unless (A) the prospective transferee(s) agrees to allow the participation of
the Tag-Along Securityholders or (B) the Investor(s) agree to purchase the
number of such class of Securityholder Securities from the Tag-Along
Securityholders that the Tag-Along Securityholders would have been entitled to
sell pursuant to this SECTION 3(b) for the consideration per unit to be paid to
the Investor(s) by the prospective transferee(s).
(c) Notwithstanding anything to the contrary in any other provision of
this Agreement, the restrictions set forth in this SECTION 3 shall not apply to
(i) any Transfer of Securityholder Securities by the Investors to or among their
Affiliates, (ii) any Transfer pursuant to SECTION 15.7 of the LLC Agreement in
connection with a public offering of securities, (iii) a Public Sale or (iv) the
Transfer made to GTCR Capital Partners, L.P. pursuant to the Inducement
Agreement; PROVIDED that the restrictions contained in this Agreement will
continue to be applicable to the Securityholder Securities after any Transfer
pursuant to CLAUSE (i) and the transferee of such Securityholder Securities
shall agree in writing to be bound by the provisions of this Agreement. Upon the
Transfer of Securityholder Securities pursuant to CLAUSE (i) of the previous
sentence, the transferees will deliver a written notice to the Company, which
notice will disclose in reasonable detail the identity of such transferee.
(d) The provisions of this SECTION 3 will terminate upon the first to
occur of (i) the consummation of a Sale of the Company and (ii) the consummation
of a Public Offering.
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4. FIRST REFUSAL RIGHTS.
(a) Prior to making any Transfer of Securityholder Securities (other than
a Transfer pursuant to SECTION 15.7 of the LLC Agreement in connection with a
public offering of securities, a Public Sale of the type referred to in CLAUSE
(i) of the definition thereof or a Sale of the Company), any Securityholder
(other than the Investors) desiring to make such Transfer (the "TRANSFERRING
SECURITYHOLDER") will give written notice (the "SALE NOTICE") to the Company and
the holders of the Common Units (collectively, the "SALE NOTICE RECIPIENTS").
The Sale Notice will disclose in reasonable detail the identity of the
prospective transferee(s), the number of units of Securityholder Securities to
be transferred and the terms and conditions of the proposed transfer. Such
Transferring Securityholder will not consummate any Transfer until 45 days after
the Sale Notice has been given to the Sale Notice Recipients, unless the parties
to the Transfer have been finally determined pursuant to this SECTION 4 prior to
the expiration of such 45-day period. (The date of the first to occur of such
events is referred to herein as the "AUTHORIZATION DATE").
(b) The Company may elect to purchase all (but not less than all) of such
Securityholder Securities to be transferred upon the same terms and conditions
as those set forth in the Sale Notice by delivering a written notice of such
election to the Transferring Securityholder and the Sale Notice Recipients
(other than the Company) within 20 days after the Sale Notice has been given to
the Company. If the Company has not elected to purchase all of the
Securityholder Securities to be transferred, the Securityholders may elect to
purchase all (but not less than all) of the Securityholder Securities to be
transferred upon the same terms and conditions as those set forth in the Sale
Notice by giving written notice of such election to such Transferring
Securityholder within 25 days after the Sale Notice has been given to the
Securityholders. If more than one Securityholder elects to purchase the
Securityholder Securities to be transferred, the units of Securityholder
Securities to be sold shall be allocated among the Securityholders pro rata
according to the number of units of Securityholders Securities owned by each
Securityholder on a fully diluted basis. If neither the Company nor the
Securityholders elects to purchase all of the Securityholder Securities
specified in the Sale Notice, the Transferring Securityholder may transfer the
Securityholder Securities specified in the Sale Notice at a price and on terms
no more favorable to the transferee(s) thereof than specified in the Sale Notice
during the 60-day period immediately following the Authorization Date. Any
Securityholder Securities not transferred within such 60-day period will be
subject to the provisions of this SECTION 4 upon subsequent Transfer. The
Company may pay the purchase price for such units by offsetting amounts
outstanding under any bona fide debts owed by the Transferring Securityholder to
the Company.
(c) The restrictions of this SECTION 4 will not apply with respect to (i)
any Transfer of Securityholder Securities by any Securityholder to or among its
Affiliates or Family Group, (ii) any Transfer of Securityholder Securities to
any Investor, (iii) a repurchase of Securityholder Securities by the Company or
an exchange or conversion of the same pursuant to the terms of a Senior
Management Agreement, (iv) a Public Sale, or (v) an Approved Sale (as defined in
SECTION 6(a)); PROVIDED that the restrictions contained in this Agreement will
continue to be applicable to the Securityholder Securities after any Transfer
pursuant to CLAUSE (i) or (ii) above and the transferee of such Securityholder
Securities shall agree in writing to be bound by the provisions of this
Agreement. Upon the Transfer of Securityholder Securities pursuant to CLAUSE (i)
or (ii) of the
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previous sentence, the transferees will deliver a written notice to the Company,
which notice will disclose in reasonable detail the identity of such transferee.
(d) Notwithstanding anything herein to the contrary, except pursuant to
CLAUSE (c) above, in no event shall any Transfer of Securityholder Securities
pursuant to this SECTION 4 be made for any consideration other than cash payable
upon consummation of such Transfer.
(e) The restrictions set forth in this SECTION 4 shall continue with
respect to each unit of Securityholder Securities until the earlier of (i) the
date on which such unit of Securityholder Securities has been transferred in a
Public Sale, (ii) the consummation of an Approved Sale, and (iii) the date on
which such unit of Securityholder Securities has been transferred pursuant to
this SECTION 4 (other than pursuant to SECTION 4(c) and other than a transfer to
a Securityholder purchasing from a Transferring Securityholder pursuant to
SECTION 4(b)).
5. PRE-EMPTIVE RIGHTS.
(a) After the date hereof, if the Company authorizes the issuance or sale
to the Investors of any Securities (as defined in the LLC Agreement), the
Company shall offer to sell to each holder of Common Units (other than the
Investors) (the "OTHER COMMON UNITHOLDERS"), at the same price and on the same
terms, a portion of such Securities equal to the quotient determined by dividing
(1) the number of Common Units held by such Other Common Unitholder (which shall
include only Carried Common held by such Other Common Unitholder, if any, if
such Other Common Unitholder is employed by the Company or its Subsidiaries as
of the date of such event) by (2) the total number of Common Units outstanding
(which shall include only Carried Common held by Other Common Unitholders, if
any, who are employed by the Company or its Subsidiaries as of the date of such
event), in each case on a fully diluted basis. Each Other Common Unitholder
shall be entitled to purchase such Securities at the most favorable price and on
the most favorable terms as such Securities are to be offered to the Investors;
PROVIDED that if the Investors purchase Securities of the Company or any of its
Subsidiaries after the date hereof, the Other Common Unitholders exercising
their rights pursuant to this SECTION 5 shall also be required to purchase the
same strip of Securities (on the same terms and conditions) that the Investors
purchase.
(b) In order to exercise its purchase rights hereunder, each Other Common
Unitholder must within thirty (30) days after receipt of written notice from the
Company describing in reasonable detail the units or securities being offered,
the purchase price thereof, the payment terms and such Other Common Unitholder's
percentage allotment, deliver a written notice to the Company describing its
election hereunder.
(c) Upon the expiration of the offering period described above, the
Company shall be entitled to sell such units or securities which the Other
Common Unitholders have not elected to purchase during the 90 days following
such expiration on terms and conditions no more favorable to the Investors than
those offered to such holders. Any such securities offered or sold by the
Company after such 90-day period must be offered to the Other Common Unitholders
pursuant to the terms of this SECTION 5.
(d) Notwithstanding the foregoing, the rights set forth in this SECTION 5
shall not apply to issuances of equity securities (or securities convertible
into or exchangeable for, or options
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to purchase, such equity securities), pro rata to all holders of Common, as a
dividend on, subdivision of or other distribution in respect of, the Common in
accordance with the LLC Agreement.
(e) The rights set forth in this SECTION 5 shall continue with respect to
each Common Unit until the earlier of (i) the transfer of such Common Unit in a
Public Sale, or (ii) the consummation of a Sale of the Company or a Public
Offering.
6. SALE OF THE COMPANY.
(a) If the holders of the Required Interest (as such term is defined in
the LLC Agreement) approve a Sale of the Company (an "APPROVED SALE"), each
holder of Securityholder Securities shall vote for, consent to and raise no
objections against such Approved Sale. If the Approved Sale is structured as a
(i) merger or consolidation, each holder of Securityholder Securities shall
waive any dissenters' rights, appraisal rights or similar rights in connection
with such merger or consolidation or (ii) sale of Units, each holder
Securityholder Securities shall agree to sell all of his, her or its
Securityholder Securities or rights to acquire Securityholder Securities on the
terms and conditions approved by the Board and the holders of the Required
Interest. Each holder of Securityholder Securities shall take all necessary or
desirable actions in connection with the consummation of the Approved Sale as
requested by the Company.
(b) The obligations of the holders of Securityholder Securities with
respect to the Approved Sale of the Company are subject to the satisfaction of
the following conditions: (i) upon the consummation of the Approved Sale, each
holder of a class of Securityholder Securities shall receive the same form of
consideration and the same amount of consideration per unit of Securityholder
Securities; (ii) if any holders of a class of Securityholder Securities are
given an option as to the form and amount of consideration to be received, each
holder of such class of Securityholder Securities shall be given the same
option; and (iii) each holder of then currently exercisable rights to acquire
any of a class of Securityholder Securities shall be given an opportunity to
either (A) exercise such rights prior to the consummation of the Approved Sale
and participate in such sale as holders of such class of Securityholder
Securities or (B) upon the consummation of the Approved Sale, receive in
exchange for such rights consideration equal to the amount determined by
multiplying (1) the same amount of consideration per class of Securityholder
Securities received by holders of such class of Securityholder Securities in
connection with the Approved Sale less the exercise price per such class of
Securityholder Securities of such rights to acquire such class of Securityholder
Securities by (2) the number of such class of Securityholder Securities
represented by such rights.
(c) If either the Company or the holders of any class of Units enter into
a negotiation or transaction for which Rule 506 (or any similar rule then in
effect) promulgated by the Securities and Exchange Commission may be available
with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Securityholder Securities
will, at the request of the Company, appoint a purchaser representative (as such
term is defined in Rule 501) reasonably acceptable to the Company. If any holder
of Securityholder Securities appoints a purchaser representative designated by
the Company, the Company will pay the fees of such purchaser representative, but
if any holder of Securityholder Securities declines to appoint the purchaser
representative designated by the Company such holder will appoint another
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purchaser representative, and such holder will be responsible for the fees of
the purchaser representative so appointed.
(d) Holders of Securityholder Securities will bear their pro rata share
(based upon the number of units sold) of the costs of any sale of such
Securityholder Securities pursuant to an Approved Sale to the extent such costs
are incurred for the benefit of all holders of Securityholder Securities and are
not otherwise paid by the Company or the acquiring party. For purposes of this
SECTION 5(d), costs incurred in exercising reasonable efforts to take all
actions in connection with the consummation of an Approved Sale in accordance
with SECTION 5(a) shall be deemed to be for the benefit of all holders of the
Securityholder Securities. Costs incurred by holders of Securityholder
Securities on their own behalf will not be considered costs of the transaction
hereunder.
7. PUBLIC OFFERING. In the event that the Board or the Investors approve an
initial Public Offering, the holders of Securityholder Securities shall take all
necessary or desirable actions requested by the Board or the Investors in
connection with the consummation of such Public Offering, including without
limitation consenting to, voting for and waiving any dissenters rights,
appraisal rights or similar rights with respect to a reorganization of the
Company pursuant to the terms of SECTION 15.7 of the LLC Agreement and
compliance with the requirements of all laws and regulatory bodies that are
applicable or that have jurisdiction over such Public Offering. In the event
that such Public Offering is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the Company's
capital structure would adversely affect the marketability of the offering, each
holder of Securityholder Securities shall consent to and vote for a
recapitalization, reorganization or exchange (each, a "RECAPITALIZATION") of any
class of the Company's equity securities into securities that the managing
underwriters, the Board and the Investors find acceptable and shall take all
necessary and desirable actions in connection with the consummation of such
Recapitalization; provided that each holder of a class of Units shall receive
the same type of security with the same value per unit.
8. DEFINITIONS.
"AFFILIATE" means, (i) with respect to any Person, any Person that
controls, is controlled by or is under common control with such Person or an
Affiliate of such Person, and (ii) with respect to any Investor, any general or
limited partner of such Investor, any employee or owner of any such partner, or
any other Person controlling, controlled by or under common control with such
Investor.
"CARRIED COMMON" means the Common Units acquired pursuant to SECTION 1(a)
of a Senior Management Agreement.
"CLASS A PREFERRED" means the Class A Preferred Units as defined in the LLC
Agreement.
"FAMILY GROUP" means, with respect to a Securityholder who is an
individual, such Securityholder's spouse and descendants (whether natural or
adopted) and any trust, family limited partnership, limited liability company or
other entity wholly owned, directly or indirectly, by such Securityholder or
such Securityholder's spouse and/or descendants that is and remains solely for
the
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benefit of such Securityholder and/or such Securityholder's spouse and/or
descendants and any retirement plan for such Securityholder.
"INDUCEMENT AGREEMENT" means that certain Inducement Agreement by and among
GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P., Snowlake
Investment Pte Ltd, and TSI Telecommunication Holdings, LLC.
"INITIAL CLOSING" shall have the meaning set forth in the Investor Purchase
Agreement.
"LLC AGREEMENT" means the Limited Liability Company Agreement of TSI
Telecommunication Holdings, LLC, dated February 14, 2002 among the parties from
time to time party thereto.
"PERSON" means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock 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.
"PLEDGE AGREEMENT" means that certain Pledge Agreement dated as of the date
hereof between G. Xxxxxx Xxxxx and GTCR Fund VII as the same may be amended or
modified from time to time.
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of the equity securities of the Company (or
any successor thereto) approved by the Board.
"PUBLIC SALE" means any sale of Securityholder Securities (i) to the public
pursuant to an offering registered under the Securities Act or (ii) to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 (other than Rule 144(k) prior to a Public Offering) adopted under the
Securities Act.
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any Person or group of related Persons (other than the
Investors and their Affiliates) in the aggregate acquire(s) (i) equity
securities of the Company possessing the voting power (other than voting rights
accruing only in the event of a default or breach) to elect a majority of the
Company's board of managers (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's equity securities, securityholder
or voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis;
PROVIDED, that a Public Offering shall not constitute a Sale of the Company.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SECURITYHOLDER SECURITIES" means (i) any Class A Preferred, Class B
Preferred, or Common Unit purchased or otherwise acquired by any Securityholder,
(ii) any equity securities issued or issuable directly or indirectly with
respect to the Units referred to in CLAUSE (i) above by way of unit dividend or
unit split or in connection with a combination of units, recapitalization,
merger, consolidation or other reorganization, and (iii) any other units of any
class or series of equity securities of the Company held by a Securityholder;
PROVIDED THAT Securityholder Securities shall not include nonvoting Units
described in this CLAUSE (iii) for purposes of SECTION 1 hereof. As to any
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particular equity securities constituting Securityholder Securities, such
Securityholder Securities will cease to be Securityholder Securities when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act.
"SENIOR MANAGEMENT AGREEMENT" means, that certain Senior Management
Agreement entered into on the date hereof by and between the Company, TSI
Telecommunication Services Inc. and G. Xxxxxx Xxxxx, or any other agreement for
the sale of equity securities between the Company and any employee of the
Company or its Subsidiaries, as approved by the Board.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership, association, or business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director or
general partner of such limited liability company, partnership, association, or
other business entity. For purposes hereof, references to a "Subsidiary" of any
Person shall be given effect only at such times that such Person has one or more
Subsidiaries, and, unless otherwise indicated, the term "Subsidiary" refers to a
Subsidiary of the Company.
"TRANSFER" means to sell, transfer, assign, pledge or otherwise dispose of
(whether with or without consideration and whether voluntarily or involuntarily
or by operation of law), but explicitly excluding exchanges of one class of
Securityholder Securities to or for another class of Securityholder Securities.
9. TRANSFERS; TRANSFERS IN VIOLATION OF AGREEMENT. Prior to Transferring
any Securityholder Securities to any person or entity, the Transferring
Securityholder shall cause the prospective transferee to execute and deliver to
the Company, the Investors and the Other Securityholders a counterpart of this
Agreement. Any Transfer or attempted Transfer of any Securityholder Securities
in violation of any provision of this Agreement or the Pledge Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Securityholder Securities as the owner of such
securities for any purpose. Upon transfer of all Securityholder Securities held
by a Person, such Person shall for all purposes cease to be a "Securityholder"
party to this Agreement.
10. ADDITIONAL SECURITYHOLDERS. In connection with the issuance of any
additional equity securities of the Company to any Person, the Company, with the
consent of the Investors holding a majority of the Securityholder Securities
held by the Investors, may permit such Person to become a party to this
Agreement and succeed to all of the rights and obligations of a
10
"SECURITYHOLDER" under this Agreement by obtaining an executed counterpart
signature page to this Agreement, and, upon such execution, such Person shall
for all purposes be a "Securityholder" party to this Agreement.
11. REPRESENTATIONS AND WARRANTIES. Each Securityholder represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Securityholder and constitutes the valid and binding
obligation of such Securityholder, enforceable in accordance with its terms, and
(ii) such Securityholder has not granted and is not a party to any proxy, voting
trust or other agreement that is inconsistent with, conflicts with or violates
any provision of this Agreement. No holder of Securityholder Securities shall
grant any proxy or become a party to any voting trust or other agreement that is
inconsistent with, conflicts with or violates any provision of this Agreement.
12. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Securityholders unless such modification,
amendment or waiver is approved in writing by the Company and the holders of a
majority of Common Units which are Securityholder Securities; PROVIDED that no
such amendment or modification that would materially and adversely affect one
class or group of holders of Securityholder Securities in a manner different
than any other class or group of holders of Securityholder Securities shall be
effective against such class or group of holders of Securityholder Securities
without the prior written consent of at least a majority of such class or group
materially and adversely affected thereby. For the avoidance of doubt, SECTION 5
of this Agreement may only be amended with the consent of the Executives holding
a majority of Securityholder Securities held by the Executives. The failure of
any party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
13. 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 shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. ENTIRE AGREEMENT. This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
15. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Securityholders and any
subsequent holders of Securityholder Securities and the respective successors
and assigns of each of them, so long as they hold Securityholder Securities.
11
16. COUNTERPARTS. This Agreement may be executed in separate counterparts
(including by means of telecopied signature pages) each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
17. REMEDIES. The Company and each Securityholder shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and each Securityholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
18. NOTICES. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed first class mail (postage
prepaid) or sent by reputable overnight courier service (charges prepaid) to the
Company at the address set forth below and to any other recipient at the address
indicated on the schedules hereto and to any subsequent holder of Securityholder
Securities subject to this Agreement at such address as indicated by the
Company's records, or at such address or to the attention of such other Person
as the recipient party has specified by prior written notice to the sending
party. Notices will be deemed to have been given hereunder when delivered
personally, three days after deposit in the U.S. mail and one day after deposit
with a reputable overnight courier service. The Company's address is:
IF TO THE COMPANY:
TSI Telecommunication Holdings, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: G. Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AND
TSI Telecommunication Holdings, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Jr.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH COPIES TO:
00
XXXX Xxxx XXX, X.X.,
XXXX Xxxx XXX/X, L.P. and
GTCR Co-Invest, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AND
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19. GOVERNING LAW. The corporate law of Delaware shall govern all issues
concerning the relative rights of the Company and its securityholders. All other
questions concerning the construction, validity and interpretation of this
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware, without giving effect to any choice of law or
other conflict of law provision or rule (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
20. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
13
IN WITNESS WHEREOF, the parties hereto have executed this Securityholders
Agreement on the day and year first above written.
TSI TELECOMMUNICATION HOLDINGS, LLC
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Its: Chief Executive Officer
GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR FUND VII, L.P./A
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CO-INVEST, L.P.
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 1 OF 16
PURCHASER
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 2 OF 16
/s/ G. Xxxxxx Xxxxx
G. Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 3 OF 16
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 4 OF 16
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 5 OF 16
/s/ Xxxxxx Xxxxxx, Jr.
Xxxxxx Xxxxxx, Jr.
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 6 OF 16
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 7 OF 16
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 8 OF 16
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 9 OF 16
/s/ Xxxxxxx X'Xxxxx
Xxxxxxx X'Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 10 OF 16
/s/ Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 11 OF 16
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 12 OF 16
PROJECT NETWORK PARTNERS LLC
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Treasurer
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 13 OF 16
/s/ Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 14 OF 16
/s/ Xxxxx Xxxx
Xxxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 15 OF 16
/s/ Xxxx Xxxx
Xxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 16 OF 16
