EXHIBIT 10.21
AMENDMENT NO. 2
TO
STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 2 TO STOCKHOLDERS' AGREEMENT ("Amendment No. 2") dated
as of June 8, 1999, by and among AT&T WIRELESS PCS INC., a Delaware corporation
(together with its Affiliated Successors (as hereinafter defined), "AT&T PCS"),
the investors listed under the heading "Cash Equity Investors" on the signature
pages hereto (individually, each a "Cash Equity Investor" and, collectively,
with any of their respective Affiliated Successors, the "Cash Equity
Investors"), the individuals listed under the heading "Management Stockholders"
on the signature pages hereto (individually, each a "Management Stockholder"
and, collectively, the "Management Stockholders") and TRITON PCS HOLDINGS, INC.,
a Delaware corporation (the "Company"). Certain capitalized terms used herein
and not otherwise defined have the meaning assigned to such term in the
Stockholders' Agreement referred to below.
WHEREAS, each of the parties hereto (other than the Company) are
Stockholders of the Company;
WHEREAS, the parties hereto are parties to that certain Stockholders'
Agreement, dated as of February 4, 1998 (as amended, the "Stockholders'
Agreement"), pursuant to which, among other things, the parties hereto entered
into certain agreements regarding the operation of the Company's business;
WHEREAS, AT&T PCS, the Company and Triton PCS License Company L.L.C.,
Delaware limited liability company and an indirect wholly-owned subsidiary of
the Company ("Triton License Company"), are parties to that certain License
Exchange and Acquisition Agreement, dated as of June 8, 1999 (the "License
Exchange and Acquisition Agreement"), pursuant to which, among other things,
effective upon the closing of the transactions contemplated thereby (the
"License Exchange and Acquisition Closing"), (i) AT&T PCS will acquire from
Triton License Company a portion of the A Block PCS License for the Washington-
Baltimore MTA covering the Cumberland, MD BTA and the Hagerstown, MD-
Chambersburg, PA-Martinsburg, WV BTA (collectively, the "Hagerstown\Cumberland
Markets"), and, in exchange therefor, Triton License Company will acquire from
AT&T PCS a portion of the A Block PCS License for the Atlanta, GA MTA covering
the Athens, GA BTA (the "Athens Market"), and (ii) the Company will acquire from
AT&T PCS a portion of the A Block PCS License for the Atlanta, GA MTA covering
each of Xxxxx County, GA, Chatham County, GA, Effingham County, GA and Liberty
County, GA within the Atlanta, GA MTA (such counties, together with the Athens
Market, are hereinafter referred to as the "Additional Markets"), on the terms
set forth therein;
WHEREAS, pursuant to the License Exchange and Acquisition Agreement it
was agreed, and the Company and AT&T PCS desire, that, effective upon the
License Exchange and Acquisition Closing, the Stockholders' Agreement be amended
to provide that (i) the terms "Business" and "PCS Territory", each as used in
the Stockholders Agreement, be amended to, among other things, include the
Additional Markets and delete the Hagerstown/Cumberland Markets; and (ii)
Schedule V to the Stockholders' Agreement include the build-out plan for the
Additional Markets and delete the portion of the build-out plan relating to the
Hagerstown/ Cumberland Markets (collectively, the "License Exchange and
Acquisition Amendments"); and
WHEREAS, the Stockholders desire to clarify certain other provisions
of the Stockholders' Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the License Exchange and Acquisition Agreement and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. Amendments. (a) From and after the Amendment Effectiveness Date
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(as hereinafter defined):
(i) Section 3.1(d) of the Stockholders' Agreement shall be
amended and restated in its entirety as follows:
"(d) one (1) individual nominated by AT&T PCS pursuant to the
Restated Certificate in its capacity as holder of Series A Preferred
Stock (the "Series A Preferred Director") so long as it has the right
to nominate one director in accordance with the Restated Certificate";
(ii) The second sentence immediately following clause (d) of
Section 3.1 of the Stockholders' Agreement shall be amended and
restated in its entirety as follows:
"In the event that AT&T PCS shall cease to be entitled to
nominate the Series A Preferred Director, such director shall resign
(or the other directors or Stockholders shall remove such director)
from the Board of Directors and the remaining directors shall take
such action so that the number of directors constituting the entire
Board of Directors shall be reduced accordingly.";
(iii) The last sentence of the penultimate paragraph of Section
3.1 of the Stockholders' Agreement shall be amended and restated
in its entirety as follows:
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"In addition, so long as AT&T PCS has the right to nominate one
director in accordance with the Restated Certificate, up to two (2)
Regional Directors (in regions overlapping with or in geographic
proximity to the Territory) shall have the right to attend each
meeting of the Board of Directors as an observer.";
(iv) The following Section 3.11 shall be added to the
Stockholders' Agreement in its entirety:
"3.11. Series A Preferred Director. For so long as AT&T PCS
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shall have the right to nominate a Series A Preferred Director to the
Board of Directors in accordance with the Restated Certificate, each
of the Stockholders hereby agrees that it will vote all of the shares
of Series C Preferred Stock and Common Stock owned or held of record
by it (whether now owned or hereafter acquired), in person or by
proxy, to cause the election of any such Series A Preferred Director
so nominated by AT&T PCS to serve on the Board of Directors and such
obligation of the Stockholders to cause the election of any such
Series A Preferred Director shall continue until the termination of
this Agreement in accordance with Section 12.3."
(v) Clause (a) of the definition of "Business" contained in
Section 1 of the Stockholders' Agreement is hereby amended and
restated as follows:
"(a) owning, constructing and operating systems to provide
Company Communications Services on frequencies licensed to the Company
for Commercial Mobile Radio Services pursuant to the Licenses
described on Schedule XII;"
(vi) Schedule 1 hereto is hereby added to the Stockholders'
Agreement in its entirety as Schedule XII thereto; and
(b) From and after the later to occur of (x) the Amendment
Effectiveness Date, and (y) the date of the License Exchange and Acquisition
Closing, without any further action on the part of the parties hereto, the
License Exchange and Acquisition Amendments shall be effective and in full force
and effect as set forth below:
(i) Schedule V to the Stockholders' Agreement, "Minimum Build-
Out Plan", shall be amended and restated in its entirety as set
forth on Schedule 2 hereto; and
(ii) Schedule VI to the Stockholders' Agreement, "PCS Territory",
is hereby amended and restated in its entirety as set forth on
Schedule 3 hereto:
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(iii) Schedule XII to the Stockholders' Agreement is hereby
amended as follows:
(A) To include the following PCS License:
"4. The 20 MHz PCS License covering the Athens, GA BTA
within the Atlanta, GA MTA and each of Xxxxx County, GA,
Effingham County, GA, Chatham County, GA and Liberty County, GA
within the Atlanta, GA MTA acquired by the Company pursuant to
the License Exchange and Acquisition Agreement dated as of June
8, 1999 among AT&T PCS, the Company and Triton PCS License
Company L.L.C."; and
(B) Item 1 of Schedule XII to the Stockholders' Agreement is hereby
amended and restated in its entirety as follows:
"1. The AT&T PCS Contributed Licenses; provided, that, the AT&T
Contributed PCS Licenses shall not include any portion of such Licenses covering
the Hagerstown, MD-Chambersburg, PA-Martinsburg, WV BTA or the Cumberland, MD
BTA".
2. Amendment Effectiveness Date. This Amendment No. 2 shall be
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effective on the date that a counterpart hereof shall have been executed by each
of the Company, AT&T PCS, holders of 66 2/3% of the Common Stock Beneficially
Owned by the Cash Equity Investors and holders of 60.1% of the Common Stock
Beneficially Owned by the Management Stockholders (the "Amendment Effectiveness
Date").
3. Representation and Warranties. (a) Each of the Company, as to
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itself, each Cash Equity Investors, as to itself, and AT&T PCS, as to itself,
represents and warrants, as applicable, to each of the other parties as follows:
(i) It is a corporation, limited liability company, general
partnership or limited partnership, duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization and has the requisite power and authority to own,
lease and operate its properties and to carry on its business as
now being conducted.
(ii) It has the requisite power, authority and capacity to
execute, deliver and perform this Amendment No. 2.
(iii) The execution and delivery of this Amendment No. 2 by it
have been duly and validly authorized by its Board of Directors
(or equivalent body) and no other proceedings on its part which
have not been taken (including,
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without limitation, approval of its stockholders, partners or
members, as applicable) are necessary to authorize this Amendment
No. 2.
(iv) This Amendment No. 2 has been duly executed and delivered
by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and may be subject to
general principles of equity.
(v) The execution, delivery and performance by it of this
Amendment No. 2 will not (A) conflict with, or result in a breach
or violation of, any provision of its organizational documents;
(B) constitute, with or without the giving of notice or passage
of time or both, a breach, violation or default, create a Lien,
or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (x) any Law or
License, or (y) any note, bond, mortgage, indenture, lease,
agreement or other instrument, in each case which is applicable
to or binding upon it or any of its assets; or (c) require any
Consent, or the approval of its board of directors, general
partner, stockholders or similar constituent bodies, as the case
may be (which approvals have been obtained), except in each case,
where such breach, violation, default, Lien, right, or the
failure to obtain or give such Consent would not have a material
adverse effect on it or its ability to perform its obligations
hereunder.
(vi) There is no action, proceeding or investigation pending or,
to its knowledge, threatened against it or any of its properties
or assets that would be reasonably expected to have a material
adverse effect on its ability to enter into this Amendment No. 2
or to fulfill its obligations hereunder.
(b) Each Management Stockholder represents and warrants, as to
itself, to each of the other parties as follows:
(i) He or she has the requisite capacity to execute, deliver
and perform this Amendment No. 2.
(ii) This Amendment No. 2 has been duly executed and delivered
by him or her and constitutes his or her valid and binding
obligation, enforceable against him or her in accordance with its
terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or
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other similar laws affecting or relating to enforcement of
creditors' rights generally and may be subject to general
principles of equity.
(iii) The execution, delivery and performance by him or her of
this Amendment No. 2 will not require any Consent, except in each
case, where the failure to obtain or give such Consent would not
have a material adverse effect on his or her ability to perform
its or his obligations hereunder.
(iv) There is no action, proceeding or investigation pending
or, to the knowledge of him or her, threatened against him or her
or any of his or her properties or assets that would be
reasonably expected to have a material adverse effect on his or
her ability to enter into this Amendment No. 2 or to fulfill his
or her respective obligations hereunder.
4. Severability of Provisions. Any provision of this Amendment No.
--------------------------
2 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.
5. Agreements to Remain in Full Force and Effect. This Amendment
---------------------------------------------
No. 2 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.
6. Heading. The headings in this Amendment No. 2 are inserted for
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convenience and identification only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Amendment No. 2 or any
provision thereof.
7. Counterparts. This Amendment No. 2 may be executed in
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
8. Governing Law. This Amendment No. 2 shall be governed and
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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 be executed by its duly authorized officers as of the date first
written above.
AT&T WIRELESS PCS INC.
By: /s/ X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: SR V.P & CFO
CASH EQUITY INVESTORS:
CB CAPITAL INVESTORS, L.P.
By: CP Capital Investors, Inc., its general partner
By: /s/ [SIGNATURE ILLEGIBLE]^^
-------------------------------------------------
Name:
Title:
X.X. XXXXXX INVESTMENT CORPORATION
By: /s/ X. X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: MD
SIXTY WALL STREET SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation,
its general partner
By: /s/ X. X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: MD
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates, III, L.L.C.,
its general partner
By: /s/ [SIGNATURE ILLEGIBLE]^^
-------------------------------------------------
Name:
Title:
EQUITY-LINKED INVESTORS-II
By: Xxxxx X. Xxxxx Associates-II,
its general partner
By: /s/ [SIGNATURE ILLEGIBLE]^^
-------------------------------------------------
Name:
Title:
TORONTO DOMINION CAPITAL (USA), INC.
By: /s/ [SIGNATURE ILLEGIBLE]^^
-------------------------------------------------
Name: Xxxxxxxxxxx X. ILLEGIBLE
Title: Vice President
FIRST UNION CAPITAL PARTNERS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
DAG-TRITON PCS, L.P.
By: Duff Xxxxxxxx Xxxxxxxx, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxx Xx.
-------------------------------------------------
Name: Xxxx X. Xxxx Xx.
Title: Managing Director
MANAGEMENT STOCKHOLDERS:
XXXXXXX X. XXXXXXXX
/s/ M. E. Kalogris
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XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------------------
XXXXX XXXXX
/s/ Xxxxx Xxxxx
----------------------------------------------------
XXXXXXXX XXXXXXXXX
____________________________________________________
XXXXX XXXXXXX
By: Xxxxxxx X. Xxxxxxxx pursuant to Irrevocable
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Proxy dated March 26, 1999
--------------------------
/s/ M. E. Kalogris
----------------------------------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
----------------------------------------------------
XXXXXXX X. XXXXXXXX, AS TRUSTEE UNDER AMENDED AND
RESTATED COMMON STOCK TRUST AGREEMENT FOR MANAGEMENT
EMPLOYEES AND INDEPENDENT DIRECTORS DATED JUNE 26,
1998
/s/ M. E. Kalogris
----------------------------------------------------
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
----------------------------------------------------
XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
----------------------------------------------------
Schedule 1
to Amendment No. 2
to Stockholders' Agreement
SCHEDULE XII TO STOCKHOLDERS' AGREEMENT
Licenses included in clause (a) of the definition of "Business":
1. AT&T PCS Contributed Licenses
2. The Permitted Cellular Licenses
3. The 20 MHz PCS License for the Norfolk, VA BTA acquired by the Company
pursuant to the Asset Purchase Agreement dated as of August 20, 1998
between AT&T PCS and the Company
Schedule 2 to
Amendment No. 2
to Stockholders' Agreement
SCHEDULE V TO STOCKHOLDERS' AGREEMENT
TRITON COMMUNICATIONS
A. GENERAL MINIMUM BUILDOUT PLAN/1/
PHASE I 4.4 million pops (40% total pops) within 2 years of closing of
the Securities Purchase Agreement.
11 cities with 3.4 million pops
Buildout core metro area and suburbs.
Greenville, South Carolina
Spartanburg, South Carolina
Richmond, Virginia
Petersburg, Virginia
Charlottesville, Virginia
Columbia, South Carolina
Florence, South Carolina
Charleston, South Carolina
Anderson, South Carolina
Augusta, Georgia
Roanoke, Virginia
_________________________
/1/ This Section A constitutes the minimum buildout plan for the PCS
Territory; provided, that this Section A shall only cover the
minimum build out for that portion of the PCS Territory for which a
separate minimum buildout plan is not specified in this Schedule V,
as amended from time to time. All percentages of pops for any
portion of the PCS Territory required to be covered under this
Section A shall be measured separately, in accordance with this
Section A, and shall exclude any pops required to be covered
pursuant to any minimum buildout plan specified for any other
portion of the PCS Territory in this Schedule V, as amended from
time to time.
Over 600 miles of interstate and other primary and key
secondary roads with an additional 1.0 million pops.
I-95 Charleston to Savannah
I-85 Atlanta to Xxxxxxxxx xxxxxxx
I-95 Richmond to Fredericksburg
I-64 Charlottesville to Xxxxxxxxxxxx
X-00/000 Xxxxxxxxxx - Xxxxxxxxxxx to Charleston
I-77 Columbia to Rockhill
I-20 Atlanta border (Augusta) to Florence
PHASE II Additional 2.2 million pops (20% total pops) within 3-1/2
years of closing of the Securities Purchase Agreement.
Key secondary cities and connecting highway corridors as
defined by marketing and competitive situation.
PHASE III Final 1.8 million pops (17% total pops) within 5 years of
closing of the Securities Purchase Agreement.
B. MINIMUM BUILD-OUT PLAN FOR NORFOLK, VIRGINIA BTA/2/
1.4 million pops (80% of total pops) in the Norfolk, VA BTA
within 5 years of the closing of the Securities Purchase Agreement, with
such minimum build-out bench marks within such five year period as shall
be mutually agreed to by AT&T PCS and the Company.
________________________
/2/ All percentages of pops for the Norfolk, Virginia BTA required to
be covered under this Section B shall be measured only with respect
to the Norfolk, VA BTA, in accordance with Section B.
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C. MINIMUM BUILDOUT PLAN FOR ATHENS, GA BTA AND EACH OF XXXXX COUNTY, GA,
CHATHAM COUNTY, GA, EFFINGHAM COUNTY, GA AND LIBERTY COUNTY, GA WITHIN THE
ATLANTA MTA, COLLECTIVELY/3/
PHASE I 206,000 pops (40% total pops) within 2 years of closing of the
Securities Purchase Agreement.
PHASE II Additional 103,000 pops (20% total pops) within 3-1/2 years of
closing of Securities Purchase Agreement.
PHASE III Final 104,000 pops (20% total pops) within 5 years of closing of
Securities Purchase Agreement.
_______________________
/3/ All percentages of pops for the Athens, GA BTA and each of Xxxxx
County, GA, Chatham County, GA, Effingham County, GA and Liberty
County, GA within the Atlanta MTA required to be covered under this
Section C shall be measured only with respect to the Athens, GA BTA
and such counties, in accordance with this Section C.
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Schedule 3 to
Amendment No. 2
to Stockholders' Agreement
SCHEDULE VI
PCS TERRITORY
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I. From Washington MTA BTA Market Designator
Xxxxxxxxxxxxxxx, XX X000
Xxxxxxxxxxxxxx, XX X000
Xxxxxxxxxxxx, XX X000
Xxxxxxxxxx, XX B479
II. From Richmond MTA
Danville, VA X000
Xxxxxxxxx, XX X000
Xxxxxxxxxxxx, XX X000
Xxxxxxx-Xxxxxxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxxxx, XX X000
Xxxxxxxx, XX X000
Xxxxxxx, XX X000
Xxxxxxxx-Xxxxxxxxxx, XX B430
III. From Knoxville MTA
Kingsport, Johnson City, TN-Bristol VA X000
Xxxxxxxxxxx, XX B295
IV. From Xxxxxxx XXX
Xxxxxxx, XX X000
Xxxxxxxx, XX (Beaufort, Hampton, Xxxxxx,
Xxxxx, Effingham, Chatham and Liberty Counties) X000
Xxxxxx, XX B022
V. From Xxxxxxxxx XXX
Xxxxxxxx, XX X000
Xxxxxxxx-Xxxxxxxxxxxxxx, XX X000
Xxxxxxxxxx, XX X000
Xxxxxxxx, XX B091
Xxxxxxxxxxxx-Xxxxxxxxx, XX X000
Xxxxxxxx, XX X000
Xxxxxxxxx-Xxxxxxx, XX X000
Xxxxxxxxxx-Xxxxxxxxxxx, XX B177
Xxxxxxxxxx-Xxxxxxxxxx, XX X000
Xxxxxxxxx, XX B178
Xxxxxxx-Xxxxxx-Xxxxxxxxx, XX X000
Xxxxxxxxxxxx, XX X000
Xxxxxx Xxxxx, XX X000
Xxx Xxxx, XX X000
Xxxxxxxxxx, XX X000
Xxxxxxx Xxxxxx, XX X000
Xxxxx Xxxxx-Xxxxxx, XX B382
Xxxxxx, XX X000
Xxxxxxxxxx, XX B478
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