EXHIBIT 10.20
AMENDMENT NO. 1
TO
STOCKHOLDERS' AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDERS' AGREEMENT ("Amendment No.1") dated as
of December 31, 1998, 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 its 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 (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 and the Company are parties to that certain Asset
Purchase Agreement, dated as of the date hereof, (the "Asset Purchase
Agreement") pursuant to which, among other things, the Company has acquired from
AT&T PCS, a portion of the A Block PCS License for the Norfolk, Virginia BTA
owned by AT&T PCS covering such market, on the term set forth thereon;
WHEREAS, pursuant to the Asset Purchase Agreement it was agreed, and
the Company and AT&T PCS desire, that the Stockholders' Agreement be amended to
provide that (i) the term "PCS Territory" as used in the Stockholders' Agreement
include the Norfolk, Virginia BTA, (ii) Schedule V to the Stockholders'
Agreement include the build-out plan for the Norfolk, Virginia BTA, and (iii)
Section 8.6(a) (Exclusivity) to the Stockholders' Agreement be amended and
restated as set forth on Exhibit 7.3(d) to the Asset Purchase Agreement.
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.
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(a) Schedule VI to the Stockholders' Agreement is hereby amended and
restated in its entirety as set forth on Schedule 1 attached hereto.
(b) Schedule V to the Stockholders' Agreement, "Minimum Build-Out
Plan", shall be amended to include the Minimum Build-Out Plan for the Norfolk,
VA BTA as set forth in Schedule 2 to this Amendment No. 1.
(c) Section 8.6(a) of the Stockholders' Agreement is hereby amended
and restated in its entirety as set forth in Schedule 3 attached hereto.
2. Severability of Provisions. Any provision of this Amendment No.
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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.
3. Agreements to Remain in Full Force and Effect. This Amendment No.
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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
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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. 1 or any
provision thereof.
5. Counterparts. This Amendment No. 1 may be executed in
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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
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construed in accordance with the laws of the State of Delaware.
[signature pages follow]
-2-
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: ________________________________
Name:
Title:
TRITON PCS HOLDINGS, INC.
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------------
Name:
Title:
CASH EQUITY INVESTORS:
CB CAPITAL INVESTORS, L.P.
By: CP Capital Investors, Inc., its general partner
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------------
Name: Xxxxxx [ILLEGIBLE]^^
Title: Vice-President
X.X. XXXXXX INVESTMENT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
-0-
XXXXX XXXX XXXXXX SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation, its general partner
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Managing Director
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates, III, L.L.C., its general partner
By:_______________________________________
Name:
Title:
EQUITY-LINKED INVESTORS-II
By Xxxxx X. Xxxxx Associates-II, its general partner
By:_______________________________________
Name:
Title:
TORONTO DOMINION CAPITAL (USA), INC.
By:_______________________________________
Name:
Title:
-4-
FIRST UNION CAPITAL PARTNERS, INC.
By: /s/ [SIGNATURE ILLEGIBLE]^^
------------------------------------
Name: [SIGNATURE ILLEGIBLE]^^
Title: S V P
DAG-TRITON PCS, L.P.
By: Duff Xxxxxxxx Xxxxxxxx, L.L.C., its general partner
By: /s/ Xxxx X. Xxxx Xx.
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Name: Xxxx X. Xxxx Xx.
Title: Managing Member
MANAGEMENT STOCKHOLDERS:
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
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XXXXX XXXXX
/s/ Xxxxx Xxxxx
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XXXXXXXX XXXXXXXXX
_______________________________________
XXXXX XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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XXXXXXX XXXXX
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXXXXX, AS TRUSTEE
UNDER AMENDED AND RESTATED COMMON
STOCK TRUST AGREEMENT FOR MANAGEMENT
EMPLOYEES AND INDEPENDENT DIRECTORS
DATED JUNE 26, 1998
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
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SCHEDULE I
SCHEDULE VI
PCS TERRITORY
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I. From Washington MTA BTA Market Designator
Charlottesville, VA B075
Cumberland, MD B100
Fredericksburg X000
Xxxxxxxxxxxx, XX X000
Xxxxxxxxxx, XX-Xxxxxxxxxxxx
PA-Martinsburg, WV X000
Xxxxxxxxxx, XX B479
II. From Richmond MTA
Danville, VA B104
Lynchburg, VA B266
Martinsville, VA 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 Atlanta MTA
Augusta, GA X000
Xxxxxxxx, XX (Beaufort, Hampton)
and Jasper Counties) B410
V. From Charlotte MTA
Anderson, SC 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
Schedule 2
TRITON COMMUNICATIONS
MINIMUM BUILD-OUT SCHEDULE
NORFOLK, VIRGINIA BTA
____ millions pops/1/ (80% of total pops) 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.
_______________________
/1/ The number of pops will equal 80% of the total pops in the Norfolk,
Virginia BTA.
SCHEDULE 3 TO AMENDMENT NO. 1
TO STOCKHOLDERS' AGREEMENT
8.6 Exclusivity.
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(a) None of the Stockholders or their respective Affiliates will
provide or resell, or act as the agent for any Person offering, within the
Territory, Company Communications Services except that, AT&T PCS and its
Affiliates may (i) resell, or act as the Company's agent for, Company
Communications Services provided by the Company in accordance with the Resale
Agreement (or any other agreement between AT&T PCS and its Affiliates, on the
one hand, and the Company, on the other hand), including bundling any such
Company Communications Services with other telecommunications services marketed,
offered and provided or resold by such Person, (ii) provide or resell wireless
telecommunications services to or from specific locations (such as buildings or
office complexes), even if the subscriber equipment used in connection with such
service may be capable of routine movement within a limited area (such as a
building or office complex), and even if such subscriber equipment may be
capable of obtaining other telecommunications services beyond such limited area
(which other services may include routine movement beyond such limited area) and
hand-off between the service to such specific locations and such other
telecommunications services; provided, however, that if AT&T PCS or any of its
Affiliates sells such mobile wireless subscriber equipment such equipment shall
be capable of providing (but not necessarily on an exclusive basis) Company
Communications Services and (iii) resell Company Communications Services
provided by a Person other than the Company in any geographical area within the
Territory in which the Company has not placed a Company System into commercial
service (it being understood that in the event that AT&T PCS or any of its
Affiliates that is reselling Company Communication Services of a Person other
than the Company in a geographic area within the Territory at the time the
Company places a portion of a Company System including such geographic area into
commercial service, AT&T PCS or its Affiliates, as applicable, shall terminate
such resale arrangement with respect to such geographic areas within thirty (30)
days of the date such portion of a Company System is placed in commercial
service). AT&T PCS agrees to provide the Company with not less than sixty (60)
days' prior notice of AT&T PCS's intention to engage in any resale activities
described in clause (iii) hereof to provide the Company with the opportunity to
discuss such proposed resale activities with AT&T PCS, such notice to include
(x) a reasonable description of such resale activities (including, without
limitation, the identity, if known by AT&T PCS at such time, of the Person AT&T
PCS intends to engage to provide such Company Communications Services) and (y)
AT&T PCS's confirmation that only dual band/dual mode phones shall be used in
connection with such resale activities. AT&T PCS further agrees that upon a
Company System being placed into commercial operation in any such geographic
area within the Territory it will transfer all of its subscribers in such
geographic area to the Company System either directly to the Company or on the
terms and subject to the conditions contained in the Resale Agreement. In
connection with any such transfer, AT&T PCS will use its best efforts to
facilitate such transfer, including cooperating with the Company regarding the
form(s) of notice to be sent to such subscribers informing them of such
transfer. To the extent the "other telecommunications services" referred to in
clause (ii) of the immediately preceding sentence constitute Company
Communications Services, neither AT&T
PCS nor any of its Affiliates may provide or resell, or act as agent for any
Person offering, such "other telecommunications services" except in accordance
with the terms of clause (i) of the immediately preceding sentence. Nothing
herein shall be construed to limit in any respect any advertising and
promotional and similar activities by AT&T PCS or its Affiliates or any Cash
Equity Investor or any of its Affiliates.
