EXHIBIT 10.1.5
Fourth Amendment
to Stockholders' Agreement
--------------------------
This Fourth Amendment to Stockholders' Agreement (the "Amendment") is
entered into by and among AT&T Wireless PCS, LLC, the Cash Equity Investors and
Management Shareholders named therein and Tritel, Inc. ("Tritel").
WHEREAS, AT&T Wireless PCS, LLC, the Cash Equity Investors, the Management
Shareholders and Tritel entered into that certain Stockholders' Agreement dated
as of January 7, 1999, and as amended as of August 27, 1999, September 1, 1999
and November 17, 1999 (the "Agreement");
WHEREAS, the Board of Directors of Tritel has determined that it is in the
best interests of Tritel to commence an initial public offering of Tritel's
Class A Common Stock (the "IPO"); and
WHEREAS, to facilitate the IPO, Tritel and the Stockholders agree that
certain provisions of the Agreement should be amended;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned parties agree as follows (capitalized terms used
herein have the same meaning, as defined in the Agreement, unless otherwise
specified herein):
1. AT&T Wireless PCS Inc., a Delaware Corporation is now AT&T Wireless
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PCS, LLC, a Delaware limited liability company. All references to "AT&T Wireless
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PCS Inc., a Delaware corporation" are hereby amended to read "AT&T Wireless PCS,
LLC, a Delaware limited liability company".
2. Nomination of Directors by AT&T PCS and TWR Cellular. The
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Agreement is hereby amended as follows:
(a) Section 3.1(c) of the Stockholders' Agreement shall be amended and
restated in its entirety as follows:
"(c) two (2) individuals nominated by AT&T PCS pursuant to the
Restated Certificate in its capacity as holder of Series A Preferred
Stock (each a "Series A Preferred Director") so long as it and TWR
Cellular has the right to nominate two directors in accordance with
the Restated Certificate";
(b) 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 and TWR Cellular shall cease to be
entitled to nominate the Series A Preferred Directors, such directors
shall resign (or the other directors or Stockholders shall remove
them) 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.";
(c) The last sentence of the last paragraph of Section 3.1 shall be
amended and restated in its entirety as follows:
"In addition, so long as AT&T PCS and TWR Cellular have the right
to nominate two directors in accordance with the Restated Certificate,
up to two (2) persons designated by AT&T PCS shall have the right to
attend each meeting of the Board of Directors as an observer."; and
(d) The following Section 3.12 shall be added to the Stockholders'
Agreement:
"3.12. Series A Preferred Directors. For so long as AT&T PCS
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shall have the right to nominate one or more Series A Preferred
Directors 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 Class A Voting Common Stock and Voting Preference
Stock Beneficially 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."
3. Purchase Right. Section 7.2 of the Stockholders' Agreement shall
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be amended and restated in its entirety as follows:
"7.2 Purchase Right.
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(a) If on or prior to the IPO Date the Company proposes to offer,
issue, sell or otherwise dispose of shares of any class or series of
common stock or Preferred Stock, or options, rights, warrants,
conversion rights or appreciation rights relating thereto, or any
other type of equity security (collectively, "Equity Securities") of
the Company for cash to any Person, including pursuant to an initial
public offering, (x) the Company shall, prior to any such offer,
issuance, sale or other disposition, give written notice (an "Issuance
Notice") to each of the Stockholders setting forth the purchase price
of such Equity Securities (or, in the case of an initial public
offering, the anticipated price range), the type and aggregate number
of Equity Securities or rights to acquire Equity Securities to be so
offered, issued, sold or otherwise disposed of, the terms and
conditions of such offer, issuance, sale or other disposition, and the
rights, powers and duties
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inhering in such additional Equity Securities or rights to acquire
Equity Securities, and (y) each Stockholder shall have the right (the
"Purchase Right") to acquire the percentage of Equity Securities
proposed to be offered, issued, sold or otherwise disposed of equal to
the number of shares of Class A Voting Common Stock (or, at the
election of the Stockholder, Class B common stock in lieu thereof)
then Beneficially Owned by such Stockholder divided by the aggregate
number of shares of Class A Voting Common Stock outstanding
immediately prior to such offer, issuance, sale or other disposition
of Equity Securities (including any shares of Class A Voting Common
Stock Beneficially Owned by such Stockholder); provided, however, that
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the terms and conditions of this Section 7.2 shall not apply to any
offer, issuance, sale or other disposition of Equity Securities or
rights to acquire Equity Securities to any Person pursuant to a stock
option or stock appreciation rights plan established by the Company
for the benefit of its employees, officers, directors, agents or
consultants, or otherwise granted to an employee of the Company in
connection with such person's employment by the Company; provided,
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further, that such Purchase Right and the Company's obligation to
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provide any Issuance Notice shall expire on the business day preceding
the pricing of an initial public offering where (x) such Purchase
Right has not theretofore been exercised or (y) the Stockholder has
not notified the Company of such Stockholder's intent to exercise such
Purchase Right in connection with a proposed offering. In the case of
an offer, issuance, sale or other disposition of Equity Securities
issued as part of a unit with other debt, equity or other securities
of the Company, the right of a Stockholder to acquire such Equity
Security shall be conditioned upon such Stockholder's acquisition of
such debt, equity or other securities included in such unit.
(b) Each Stockholder 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 thirty (30) days after the giving of the Issuance
Notice. In the case of an initial public offering, the following
conditions shall apply to the Purchase Right set forth herein: (i)
In the event that a Stockholder exercises such Purchase Right, such
Stockholder shall be obligated to exercise such right if the public
offering price is not greater than the highest price in the
anticipated range specified in the applicable notice, and (ii) in the
event that a Stockholder exercises such Purchase Right and the public
offering price is greater than the highest price in the anticipated
range specified in the applicable notice, such Stockholder shall have
the right but not the obligation, to exercise such right at such
public offering price; provided however, that in either case, the
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purchase price per share shall be reduced by an amount equal to the
underwriting discount per share applicable to the shares offered to
the public in the initial public offering. After the expiration of
such thirty (30) day period, the Company shall have the right to
offer, issue, sell and otherwise dispose of any or all of the Equity
Securities referred to in the applicable Issuance Notice as to which
no Purchase Right has been exercised but
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only upon the terms and conditions, and for a purchase price not lower
than the purchase price set forth in the Issuance Notice; provided,
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however, that in the case of an initial public offering, such right of
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the Company shall be the right to offer, issue, sell and otherwise
dispose of such Equity Securities at any price. In the event of an
initial public offering of Equity Securities at a price more than 20%
below such lowest price, AT&T PCS shall have the right, exercisable at
the time of pricing of such initial public offering, to exercise such
Purchase Right. If the Company does not offer, issue, sell or
otherwise dispose of the Equity Securities referred to in the
applicable Issuance Notice on the terms and conditions set forth in
such Issuance Notice within one hundred twenty (120) days after the
expiration of such thirty (30) day period, then any subsequent
proposal by the Company to offer, issue, sell or otherwise dispose of
such Equity Securities shall be subject to this Section 7.2."
4. Entire Agreement; Amendment; Consents. Section 12.2(b) of the
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Stockholders' Agreement is hereby amended and restated in its entirety as
follows:
"(b) No change or modification of this Agreement shall be valid,
binding or enforceable unless the same shall be in writing and signed
by the Company and the Beneficial Owners of a majority of the shares
of Class A Voting Common Stock party to this Agreement, including AT&T
PCS, 66-2/3% of the Class A Voting Common Stock Beneficially Owned by
the Cash Equity Investors, and 66-2/3% of the Class A Voting Common
Stock Beneficially Owned by the Management Stockholders; provided,
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however, that in the event any party hereto shall cease to own any
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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, except to the extent otherwise provided in
Section 4.7(a) with respect to any Unfunded Commitment."
5. Termination of Certain Provisions. Section 12.3(b)(i) is hereby
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amended and restated in its entirety as follows:
"(i) the provisions of Sections 3.3, 3.4, 3.5, 3.11, 4.1(a), 4.5(c), 7.1,
7.2 and 7.6 shall terminate on the earlier to occur of a termination
pursuant to Section 12.3(a) and the IPO Date."
6. Stockholder Approval. By execution of this Amendment the
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undersigned shall be deemed to have approved by written consent pursuant to
Section 228 of the Delaware General Corporation Law of an amendment to the
Company's Certificate of Incorporation in order to provide that the holders of
Series A Preferred Stock have a right to nominate directors, and not to elect
directors.
7. Change of Address of Management Stockholders, Tritel, Inc. and AT&T
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PCS and their respective Counsel.
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(a) The address of the Management Stockholders and Tritel Inc. in
Section 12.1 is hereby amended to read:
"If to a Management Stockholder or to the Company:
Tritel Inc. (or in the case of a Management Stockholder, c/o Tritel,
Inc.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Esq.
With a copy to:
▇▇▇▇▇ & Wood LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq."
(b) The address of AT&T PCS or TWR Cellular in Section 12.1 is hereby
amended to read:
"If to AT&T PCS or TWR Cellular:
c/o AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇"
8. Representations and Warranties. Each party hereto, as to itself,
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represents and warrants, as applicable, to each of the other parties as follows:
A. 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.
B. It has the requisite power, authority and capacity to
execute, deliver and perform this Amendment.
C. The execution and delivery of this Amendment 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,
without limitation, approval of its stockholders,
partners or members) are necessary to authorize this
Amendment.
D. This Amendment 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 creditor's
rights generally and may be subject to general
principles of equity.
E. The execution, delivery and performance by it of this
Amendment 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 (i) any
Law or License or (ii) 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
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Adverse Effect on it or its ability to perform its
obligations hereunder.
F. 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 an adverse effect on its ability to
enter into this Amendment or to fulfill its obligations
hereunder.
9. Ratification. The Agreement as amended hereby is ratified and
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affirmed, and except as expressly amended hereby, all other terms and provisions
of the Agreement remain unchanged and continue in full force and effect. The
terms of this Amendment shall supersede any conflicting terms of the Agreement.
10. Entire Agreement. The Agreement, as amended by this Amendment,
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constitutes the entire agreement and understanding between the parties hereto
regarding the subject matter addressed therein.
11. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware.
12. Amendment of Effectiveness Date. This Amendment shall be
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effective on the date that a counterpart hereof shall have been executed by each
of the Company and the Beneficial Owners of a majority of the Shares of Class A
Voting Common Stock, including AT&T PCS, the holders of 66 2/3% of the Class A
Voting Common Stock Beneficially Owned by the Cash Equity Investors and the
holders of 66 2/3% of the Class A Voting Common Stock Beneficially Owned by the
Management Stockholders (the "Amendment Effectiveness Date").
13. Execution. This Amendment may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties hereto agree
to accept facsimile signatures as an original signature.
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EXECUTED as of the ____ day of December, 1999.
AT&T Wireless PCS, LLC
By:_____________________
Name:___________________
Title:__________________
TWR Cellular, Inc.
By:_____________________
Name:___________________
Title:__________________
Tritel, Inc.
By:_____________________
Name:___________________
Title:__________________
Central Alabama Partnership, L.P.
By:_____________________
Name:___________________
Title:__________________
▇.▇. Funding, LLC
By:_____________________
Name:___________________
Title:__________________
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Cash Equity Investors:
Toronto Dominion Investments, Inc.
By:__________________________
Name:
Title:
General Electric Capital Corporation
By:__________________________
Name:
Title:
CIHC, Incorporated
By:__________________________
Name:
Title:
Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity Partners LP
By: Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity
Managers LLC, as its general partner
By:__________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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Triune PCS, LLC, a Delaware limited liability
company
By: Oak Tree, LLC
Title: Manager
By: Triune Private Equity, LLC
Title: Manager
By:______________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager
FCA Venture Partners II, L.P.
By: Clayton-DC Venture Capital Group, LLC, its
general partner
By:_________________________
Name: D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
Title: Manager
▇▇▇▇▇▇▇ Associates, LLC
By:__________________________
Its managing Member
Southern Farm Bureau Life Insurance Company
By:__________________________
Name:________________________
Title:_______________________
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M3, LLC
By:__________________________
Name:________________________
Title:_______________________
▇▇▇▇▇▇▇ Communications, LLC
By:__________________________
Name:________________________
Title:_______________________
DC Investment Partners Exchange Fund, L.P.
FCA Venture Partners I, L.P.
By:__________________________
Name:________________________
Title:_______________________
Mercury PCS Investors, LLC
By:__________________________
Name:________________________
Title:_______________________
The Manufacturers' Life Insurance Company (U.S.A.)
By:__________________________
Name:________________________
Title:_______________________
By:__________________________
Name:________________________
Title:_______________________
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Trillium PCS, LLC
By:__________________________
Name:________________________
Title:_______________________
Management Stockholders:
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
_____________________________
▇.▇. ▇▇▇▇▇▇, ▇▇.
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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