EXHIBIT 10.1.2
AMENDMENT NO. 1
TO
STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDERS' AGREEMENT ("Amendment No.1") dated as
of August 27, 1999, by and among AT&T WIRELESS PCS INC., a Delaware corporation
(together with its Affiliated Successors (as hereinafter defined), "AT&T PCS"),
TWR CELLULAR, INC., a Maryland corporation, the investors listed under the
heading "Cash Equity Investors" on the signature pages hereto, the individuals
listed under the heading "Management Stockholders" on the signature pages hereto
and TRITEL, INC., a Delaware corporation (the "Company"). Certain capitalized
terms used herein and not otherwise defined have the meaning assigned to such
term in the Stockholders' Agreement referred to below.
WHEREAS, each of the parties hereto (other than the Company) are
stockholders of the Company;
WHEREAS, the parties hereto are parties to that certain Stockholders'
Agreement, dated as of January 7, 1999 (the "Stockholders' Agreement"), pursuant
to which, among other things, the parties hereto entered into certain agreements
relating to the PCS Territory;
WHEREAS, pursuant to the Option Agreement the Company has an option to
acquire the PCS Licenses referred to on Schedule I thereto (the "Option
Licenses"), and the Company wishes to exercise such option;
WHEREAS, pursuant to the terms of the Company's Stockholders Agreement,
dated as of January 7, 1999, among the parties hereto and the other stockholders
of the Company referred to therein, the Company is required to obtain the
consent of AT&T PCS and TWR Cellular, Inc., a Maryland corporation and an
affiliate of AT&T PCS ("TWR"), to the Company's exercise of such option, and the
Company wishes to obtain such consent;
WHEREAS, AT&T PCS and TWR wish to grant such consent pursuant to a
Consent, dated the date hereof, provided, among other things, that the parties
to the Stockholders Agreement (other than AT&T PCS and TWR) enter into this
Amendment, and such Persons wish to enter into this Amendment; and
WHEREAS, the Company and AT&T PCS and TWR desire that the Stockholders'
Agreement be amended to provide that, except with the prior written consent of
AT&T PCS (i) the term "PCS Territory" as used in the Stockholders' Agreement
excludes the territory (the "Option Territory") covered by the Option Licenses,
and (ii) each of the Company
and its Subsidiaries shall only engage in specified permitted activities
relating to the Option Licenses or the Option Territory;
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Amendments. Section 7.13 is hereby amended by deleting it in its
entirety and replacing it with the following:
Section 7.13 Option Licenses. (a) Notwithstanding any other
provision of this Stockholders Agreement, except with the prior
written consent of AT&T PCS, the PCS Territory shall not include
the geographic area covered by the PCS Licenses (the "Option
Licenses")acquired by the Company pursuant to the Option
Agreement. By way of amplification and not limitation of the
foregoing, the Company and the Stockholders acknowledge and agree
that, unless and until such consent of AT&T PCS is hereafter
obtained, the term "Company Communications Services" shall not
include any mobile wireless telecommunications services or any
other telecommunications services provided using the Option
Licenses, and the term "Business" shall not include owning,
constructing or operating systems to provide Company
Communications Services (or any other telecommunications systems)
on frequencies licensed to the Company for Commercial Mobile Radio
Services pursuant to the Option Licenses.
(b) The Company further agrees that, except with the prior written
consent of AT&T PCS, it shall not (and it shall not permit its
Subsidiaries to) construct any telecommunications systems with
respect to the Option Licenses or take any other actions in
respect of, or incur or pay any costs or expenses relating to, the
Option Licenses or the territory covered by the Option Licenses
(the "Option Territory"), except that the Company and its
Subsidiaries may: (i) perform its obligations under and consummate
the transactions contemplated in the Option Agreement and the
License Purchase Agreement annexed thereto; (ii) take actions
reasonably required to maintain ownership of the Option Licenses
(other than any applicable FCC build-out requirements relating to
the Option Territory), including paying when due interest on and
principal of the existing indebtedness to the U.S. Department of
Treasury related to the Option Licenses; and (iii) if it
determines to do so in the future, dispose of the Option Licenses,
and, in the case of (i), (ii) and (iii), pay any reasonable
out-of-pocket costs related thereto.
2. Severability of Provisions. Any provision of this Amendment No. 1
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
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3. Agreements to Remain in Full Force and Effect. This Amendment No. 1
shall be deemed to be an amendment to the Stockholders' Agreement. All
references to the Stockholders' Agreement in any other agreements or documents
shall on and after the date hereof be deemed to refer to the Stockholders'
Agreement as amended hereby. Except as amended hereby, the Stockholders'
Agreement shall remain in full force and effect and is hereby ratified, adopted
and confirmed in all respects.
4. Heading. The headings in this Amendment No. 1 are inserted for
convenience and identification only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Amendment No. 1 or any
provision thereof.
5. Counterparts. This Amendment No. 1 may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
6. Governing Law. This Amendment No. 1 shall be governed and construed
in accordance with the laws of the State of Delaware.
[signature pages follow]
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IN WITNESS WHEREOF, each of the parties has executed or consent this
Agreement to be executed by its duly authorized officers as of the date first
written above.
AT&T WIRELESS PCS INC.
By:
---------------------------------
Name:
Title:
TWR CELLULAR, INC.
By:
---------------------------------
Name:
Title:
TRITEL, INC.
By:
---------------------------------
Name:
Title:
CASH EQUITY INVESTORS:
TORONTO DOMINION INVESTMENTS, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ENTERGY WIRELESS COMPANY
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
WASHINGTON NATIONAL INSURANCE
COMPANY
By:
---------------------------------
Name:
Title:
UNITED PRESIDENTIAL LIFE INSURANCE
COMPANY
By:
---------------------------------
Name:
Title:
DRESDNER KLEINWORT XXXXXX
PRIVATE EQUITY PARTNERS LP
BY: DRESDNER KLEINWORT XXXXXX
PRIVATE EQUITY MANAGERS LLC, AS
ITS GENERAL PARTNER
By:
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
TRIUNE PCS, LLC, A DELAWARE LIMITED
LIABILITY COMPANY
BY: OAK TREE, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
TITLE: MANAGER
BY: TRIUNE INC., A DELAWARE
CORPORATION TITLE: MANAGER
By:
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: President
FCA VENTURE PARTNERS II, L.P.
BY: CLAYTON-DC VENTURE CAPITAL
GROUP, LLC, ITS GENERAL PARTNER
By:
-----------------------------
Name: D. Xxxxxx Xxxxxx, III
Title: Manager
XXXXXXX ASSOCIATES, LLC
BY: ,
--------------------------------
ITS MANAGING MEMBER
By:
------------------------------
Name:
Title:
AIRWAVE COMMUNICATIONS, LLC (F/K/A
MERCURY PCS, LLC)
By: MSM, Inc., its Manager
By:
-----------------------------
Name: X.X. Xxxxxx, Xx.
Title: Vice President
DIGITAL PCS, LLC (F/K/A MERCURY
PCS II, LLC)
By: MSM, Inc., its Manager
By:
-----------------------------
Name: X.X. Xxxxxx, Xx.
Title: Vice President
THE MANUFACTURERS' LIFE INSURANCE
COMPANY (U.S.A.)
By:
---------------------------------
Name:
Title:
TRILLIUM PCS, LLC
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx, XX
Title: Manager
MANAGEMENT STOCKHOLDERS:
------------------------------------
Xxxxxxx X. Xxxxxxx, XX
------------------------------------
X.X. Xxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
