EXHIBIT 10.3
EXECUTION COPY
AGREEMENT
by and among
TRITON PCS HOLDINGS, INC.,
AT&T WIRELESS SERVICES, INC.,
AT&T WIRELESS PCS LLC
and
CINGULAR WIRELESS LLC
Dated July 7, 2004
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS................................................................... 1
ARTICLE 2 - CLOSING TRANSACTIONS.......................................................... 5
2.1 Closing Transactions.......................................................... 5
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF THE PARTIES................................. 7
3.1 Organization.................................................................. 7
3.2 Authorization; Enforceability................................................. 7
3.3 No Violation or Conflict...................................................... 7
3.4 Claims and Litigation......................................................... 7
3.5 Certain Fees.................................................................. 8
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF AWS and aws pcs............................. 8
4.1 Ownership of Stock and Affiliate License Co., L.L.C........................... 8
4.2 SUNCOM Marks.................................................................. 8
ARTICLE 5 - REPRESENTATIONs AND WARRANTIES OF CINGULAR.................................... 9
5.1 Ownership of Triton Stock..................................................... 9
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF TRITON...................................... 9
6.1 Legal Opinion................................................................. 9
6.2 Required Consents............................................................. 9
6.3 Intent........................................................................ 9
6.4 Solvency...................................................................... 9
6.5 Bankruptcy.................................................................... 9
6.6 Amendment to Stockholders Agreement........................................... 9
ARTICLE 7 - COVENANTS AND OTHER AGREEMENTS................................................ 10
7.1 Interim Period................................................................ 10
7.2 Access to Information......................................................... 10
7.3 Waiver by AWS PCS, Etc........................................................ 10
7.4 Delivery of the Stock and License Company Interests to Triton
In Certain Circumstances......... ............................................ 10
7.5 Covenant Not to Xxx; No Objection to the Merger............................... 12
ARTICLE 8 - CONFIDENTIALITY............................................................... 13
8.1 Confidentiality............................................................... 13
ARTICLE 9 - JOINT COVENANTS............................................................... 13
-i-
TABLE OF CONTENTS
(continued)
PAGE
9.1 Cooperation................................................................... 13
9.2 Consents...................................................................... 14
9.3 Public Announcements.......................................................... 14
ARTICLE 10 -CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE................................... 14
10.1 Conditions Applicable to all of the Parties................................... 14
10.2 Waiver of Conditions, Etc..................................................... 15
ARTICLE 11 -CLOSING AND CLOSING DELIVERIES................................................ 15
11.1 Closing....................................................................... 15
11.2 Documents To Be Delivered by Each Party to This Agreement at the Closing...... 15
11.3 Deliveries by AWS and AWS PCS at the Closing.................................. 16
11.4 Deliveries by Triton at the Closing........................................... 16
ARTICLE 12 -TERMINATION................................................................... 16
12.1 Termination................................................................... 16
ARTICLE 13 -SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................... 17
13.1 Survival...................................................................... 17
ARTICLE 14 -MISCELLANEOUS................................................................. 17
14.1 Fees and Expenses............................................................. 17
14.2 Notices....................................................................... 17
14.3 Assignment; Benefit and Binding Effect........................................ 19
14.4 GOVERNING LAW................................................................. 19
14.5 Entire Agreement.............................................................. 20
14.6 Counterparts.................................................................. 20
14.7 Severability.................................................................. 20
-ii-
Pursuant to Item 601(b)(2) of Regulation S-K the Schedules and Exhibits hereto
have been omitted but will be provided to the Securities and Exchange Commission
supplementally upon its request.
EXHIBITS
Exhibit 2.1(b) Amendment of Stockholders Agreement
Exhibit 2.1(e) Release
Exhibit 4.1 Stock Certificates
Exhibit 6.1 Opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC
Exhibit 11.2(c) Release
Exhibit 11.3(b) Assignment
SCHEDULES
Schedule 6.2 No Violation or Conflict and Required Consents
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated the 7th day of July, 2004, is by
and among TRITON PCS HOLDINGS, INC., a Delaware corporation ("Triton"), AT&T
WIRELESS SERVICES, INC., a Delaware corporation ("AWS"), AT&T WIRELESS PCS LLC,
a Delaware limited liability company ("AWS PCS"), and CINGULAR WIRELESS LLC, a
Delaware limited liability company ("Cingular").
RECITALS
WHEREAS, Cingular has entered into the Merger Agreement (as defined below)
whereby Cingular Wireless Corporation (which is Cingular's sole manager) will
acquire AWS and AWS PCS; and
WHEREAS, AWS, AWS PCS, Cingular and Triton desire to address certain
aspects of their existing and future relationships as set forth in this
Agreement;
NOW, THEREFORE, in consideration of the recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms when used
herein shall have the meanings assigned to them below (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
1.1 "Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first-named Person. The
term "control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities or other ownership interest, by contract or otherwise. For
purposes of this Agreement, neither AWS nor AWS PCS shall be deemed to be an
"Affiliate" of Triton.
1.2 "Agreement" shall have the meaning set forth in the preamble.
1.3 "Amendment to the Stockholders Agreement" shall mean have the
meaning set forth in Section 2.1(b).
1.4 "Affiliate License Co. Agreement" shall have the meaning set forth
in Section 2.1(c).
1.5 "Assignment" shall have the meaning set forth in Section 11.3(b).
1.6 "Bankruptcy" of a Person shall mean that such Person (i) shall have
suffered the filing of an involuntary petition for relief, under bankruptcy laws
or any other similar applicable law, or (ii) shall have suffered the entry of a
decree or order of a court of competent jurisdiction for the appointment of a
receiver, liquidator, trustee, assignee or custodian in bankruptcy or insolvency
for the winding up or liquidation of its affairs, or (iii) shall voluntarily
file a petition for relief or institute proceedings to be adjudicated a
voluntary bankrupt, or shall file a petition or answer or consent seeking
reorganization, readjustment, arrangement, composition or similar relief under
bankruptcy laws, or any other similar or applicable law, or shall consent to the
filing of any such petition, or (iv) shall consent to the appointment of a
receiver, liquidator, trustee, assignee or custodian in bankruptcy or
insolvency, or (v) shall make an assignment for the benefit of creditors, or
(vi) shall admit in writing its inability generally to pay its debts as they
become due. For the purposes of Section 7.4(f), the term "Bankruptcy" shall also
include, with respect to Triton, (i) the failure of Triton PCS, Inc. to make any
required payment of principal or interest under any of the Indentures or the
Credit Agreement within any applicable grace period or (ii) the occurrence of
any other Event of Default (as defined in the Indentures or the Credit
Agreement) that, in the case of either (i) or (ii), has resulted in the
acceleration of the maturity of the indebtedness outstanding under the
Indentures or the Credit Agreement by the requisite holders thereof.
1.7 "Breaching Party" shall have the meaning set forth in Section
12.1(iii).
1.8 "Business Day" shall mean any day other than a Saturday, Sunday,
federal holiday or day on which banking institutions in New York are authorized
or obligated by law or executive order to be closed.
1.9 "Closing" shall have the meaning set forth in Section 10.1(a)(i).
1.10 "Closing Date" shall mean the date on which the Closing occurs.
1.11 "Confidentiality Agreement" shall mean the Information Exchange
Agreement dated as of April 14, 2004 among AWS, Cingular and Triton.
1.12 "Consents" shall mean the consents, permits, approvals and
authorizations of Governmental Authorities and other Persons necessary to
consummate the transactions contemplated by the Transaction Documents or, in the
case of the first sentence of Section 7.5, the Merger.
1.13 "Credit Agreement" shall mean the Credit Agreement dated as of June
13, 2003 among Triton PCS, Inc., Triton, the Lenders party thereto, Xxxxxx
Commercial Paper Inc., as Administrative Agent, Cobank ACB, as Co-Syndication
Agent, Chase Lincoln First Commercial Corporation, as Co-Documentation Agent,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Co-Documentation Agent,
and Xxxxxx Brothers Inc., Cobank ACB and Citigroup Global Markets Inc., as Joint
Lead Arrangers, as amended by the First Amendment dated as of September 29,
2003.
1.14 "Disqualifying Event" shall have the meaning set forth in Section
7.4(f).
-2-
1.15 "Dividend" shall have the meaning set forth in Section 2.1(d).
1.16 "Enforceability Exceptions" shall mean the exceptions or limitations
to the enforceability of contracts under bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors rights
generally or by judicial discretion in the enforcement of equitable remedies and
by public policies generally.
1.17 "FCC" shall mean the Federal Communications Commission.
1.18 "Final Tax Returns" shall have the meaning set forth in Section
2.1(c).
1.19 "Governmental Authority" shall mean any federal, state or local
governmental authority or instrumentality, including any court, tribunal or
administrative or regulatory agency, department, bureau, commission or board.
1.20 "Indentures" shall mean each of (i) the Indenture dated as of
January 19, 2001 between Triton PCS, Inc., the Guarantors party thereto and The
Bank of New York, as Trustee, relating to Triton PCS, Inc.'s 9-3/8% Senior
Subordinated Notes due 2011, (ii) the Indenture dated as of November 14, 2001
between Triton PCS, Inc., the Guarantors party thereto and The Bank of New York,
as Trustee, relating to Triton PCS, Inc.'s 8-3/4% Senior Subordinated Notes due
2011, and (iii) the Indenture dated as of June 13, 2003 among Triton PCS, Inc.,
the Guarantors party thereto and The Bank of New York, as Trustee, relating to
Triton PCS Inc.'s 8-1/2% Senior Notes due 2013.
1.21 "Legal Requirement" shall mean applicable common law and any
applicable statute, permit, ordinance, code or other law, rule, regulation or
order enacted, adopted, promulgated or applied by any Governmental Authority,
including any applicable order, decree or judgment handed down, adopted or
imposed by any Governmental Authority, all as in effect from time to time.
1.22 "Legal Restrictions" shall mean restrictions on transfer arising
under the Securities Acts and all applicable state securities laws.
1.23 "License Company Interests" shall have the meaning set forth in
Section 4.1(b).
1.24 "License Exchange Agreement" shall mean that certain License
Exchange Agreement of even date herewith by and among Triton PCS, Inc., AWS, AWS
PCS and Cingular.
1.25 "Liens" shall have the meaning set forth in Section 2.1(a).
1.26 "Merger" shall mean the acquisition of AWS by Cingular Wireless
Corporation pursuant to the Agreement and Plan of Merger, dated as of February
17, 2004, by and among AWS, Cingular Wireless Corporation, Cingular and Links I
Corporation and, for certain limited purposes, SBC Communications, Inc. and
BellSouth Corporation, as it may be amended from time to time (the "Merger
Agreement").
-3-
1.27 "Organizational Documents" shall mean, with respect to any Person
(other than an individual), the articles or certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, limited liability company operating agreement, and all other
organizational documents of such Person.
1.28 "Person" shall mean any individual, corporation, association,
partnership, joint ventures, trust, estate, limited liability company, limited
liability partnership, Governmental Authority, or other entity or organization.
1.29 "Representatives" shall mean, with respect to any Person, such
Person's employees, officers, directors, financial advisors or legal counsel or
Affiliates or any of such Affiliate's employees, officers, directors, financial
advisors or legal counsel.
1.30 "Required Consents" shall mean the Consents set forth on Schedule
6.2.
1.31 "Securities Acts" shall mean the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the U.S. Securities and Exchange Commission (the "SEC")
promulgated thereunder, as in effect from time to time.
1.32 "Shares" shall have the meaning set forth in Section 4.1(a).
1.33 "Stock" shall mean all shares of Triton's capital stock owned or
held of record or beneficially by AWS or AWS PCS (or any of their controlled
Affiliates) as of the Closing, including, without limitation, Triton's Series A
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"),
Series C Preferred Stock, par value $.01 per share, Series D Preferred Stock,
par value $.01 per share (the "Series D Preferred Stock"), and Class A Common
Stock, par value $.01 per share (the "Common Stock"), and all shares of capital
stock issued in exchange therefor and in respect thereof, whether by way of
dividend, stock split, combination, reclassification, reorganization or
otherwise. Without limitation of the foregoing, the Stock shall include the
Shares (as defined in Section 4.1 hereof).
1.34 "Stockholders Agreement" shall mean the First Amended and Restated
Stockholders' Agreement, dated as of October 27, 1999, by and among AWS PCS, the
Cash Equity Investors named therein, the Management Shareholders named therein,
the Independent Directors named therein and Triton, as amended by Amendment No.
1 dated as April 4, 2002 and Amendment No. 2 dated as of November 6, 2003.
1.35 Rules of Construction. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender and any other number as the context requires. As used
in this Agreement, the word "including" is not limiting, and the word "or" is
not exclusive. Except as specifically otherwise provided in this Agreement in a
particular instance, a reference to a Section is a reference to a Section of
this Agreement, a reference to an Exhibit is a reference to an Exhibit to this
Agreement, and a reference to a Schedule is a reference to a Schedule to this
Agreement. The terms "hereof," "herein" and other like terms refer to this
Agreement as a whole, including the Schedules and Exhibits to this Agreement,
and not solely to any particular part of this Agreement. The
-4-
descriptive headings in this Agreement are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
1.36 "Transaction Documents" shall have the meaning set forth in Section
3.1.
ARTICLE 2
CLOSING TRANSACTIONS
2.1 Closing Transactions. Subject to the terms and conditions set forth
in this Agreement (including Section 7.4 hereof):
(a) Surrender of Stock. AWS PCS hereby agrees to surrender, assign
and deliver to Triton at the Closing, and Triton agrees to accept from AWS PCS
at the Closing, the Stock, free and clear of all claims, liabilities, security
interests, mortgages, liens, pledges, conditions, charges or encumbrances of any
nature whatsoever other those created by or in favor of Triton or its Affiliates
(collectively, "Liens") if the Stock has not been previously delivered pursuant
to Section 7.4. AWS PCS and Triton agree that such surrender, assignment and
delivery of the Stock shall be deemed to have been consummated at the Closing
immediately after, and solely in consideration of, the termination of the
Stockholders Agreement contemplated by Section 2.1(b). At the Closing, AWS PCS
shall deliver to Triton the certificates representing the Stock, together with
executed stock powers in blank for each certificate delivered. Effective upon
such surrender, assignment and delivery, Triton shall cancel such stock
certificates and return the Stock to the status of treasury shares.
(b) Termination of Stockholders Agreement. Triton hereby
acknowledges and agrees (i) that as of the date hereof the requisite parties to
the Stockholders Agreement have executed and delivered an amendment to the
Stockholders Agreement, attached hereto as Exhibit 2.1(b) (the "Amendment to the
Stockholders Agreement"), which has amended (A) Article 4 of the Stockholders
Agreement to provide that the transactions contemplated in this Agreement shall
not be subject to the restrictions and obligations relating to the transfer of
Stock contained in the Stockholders Agreement and (B) Section 12.3 of the
Stockholders Agreement to provide that the delivery and surrender of the Stock
pursuant to Section 2.1 or Section 7.4 of this Agreement or Triton's failure to
accept delivery of the Stock in the manner contemplated by Section 2.1 or
Section 7.4 of this Agreement, for any reason, shall be additional events that
shall cause the termination of the Stockholders Agreement and (ii) that the
delivery and surrender of the Stock pursuant to Section 2.1 or Section 7.4 of
this Agreement or Triton's failure to accept delivery of the Stock in the manner
contemplated by Section 2.1 or Section 7.4 of this Agreement, for any reason,
shall cause the termination of the Stockholders Agreement.
(c) Affiliate License Co., L.L.C. At the Closing, AWS agrees to
sell, convey, transfer, assign and deliver to Triton all of AWS's limited
liability company membership interests in Affiliate License Co., L.L.C., free
and clear of all Liens, and thereafter the parties agree that, except for
obligations and restrictions arising under Article 9 of the Operating Agreement
of Affiliate License Co. and under Sections 6 and 9 of the Amended and Restated
Agreement dated as of April 16, 1999 (the "Affiliate License Co. Agreement")
among Tritel Communications, Inc. (as
-5-
predecessor in interest to AWS), Telecorp Communications, Inc. (as predecessor
in interest to AWS) and Triton PCS, Inc. (which shall remain in full force and
effect), neither AWS nor AWS PCS will be subject to any obligations or
restrictions imposed in connection with, or as a result of, its prior ownership
of its limited liability company membership interest in Affiliate License Co.,
L.L.C. At the request of Triton, AWS agrees to take all actions necessary to
terminate the Affiliate License Co. Agreement with respect to AWS effective upon
the Closing, other than Sections 6 and 9 thereof, and to transfer and assign to
Triton PCS, Inc. all of AWS's right, title and interest in and to the
trademarks, trade names and services marks containing the word "SUNCOM" or
derivatives thereof (collectively, the "SUNCOM Marks"). Triton shall prepare or
cause to be prepared and timely file or cause to be timely filed all tax returns
for Affiliate License Co., L.L.C. with respect to taxable periods ending on or
before the Closing Date that are required to be filed after the Closing Date
("Final Tax Returns"), in accordance with the following:
(i) any such Final Tax Returns shall, to the extent permitted by
applicable tax law, be prepared on a basis consistent with the last previous tax
returns filed for Affiliate License Co., L.L.C. (copies of which have been
furnished by AWS to Triton) and
(ii) Triton shall submit or cause to be submitted a draft of the
Final Tax Returns (including the underlying workpapers) to Cingular at least
thirty (30) days prior to the due date for their approval. Cingular shall have
the right to conduct a reasonable review of the Final Tax Returns prepared by
Triton, and Triton shall not file (or cause to be filed) such Final Tax Returns
without the prior written consent of AWS PCS, which consent shall not be
unreasonably withheld or delayed. If Cingular disagrees with any material tax
item or amount on the Final Tax Returns, Cingular and Triton shall in good faith
use their commercially reasonable efforts to reach agreement on the disputed tax
items or amounts.
Allocations of items of income and gain and loss and deduction of Affiliate
License Co., L.L.C. for the taxable period ending on the Closing Date shall be
made using the closing-of-the-books method. Triton shall cause an election under
Section 754 of the Code to be in effect for the taxable year in which the
Closing occurs.
(d) Deferral of Dividend Payment; Waiver. The parties acknowledge
that Triton's Board of Directors declared on February 25, 2004 the payment of a
quarterly cash dividend on Triton's Series A Preferred Stock (the "Dividend"),
which Dividend is payable to AWS PCS, as the sole shareholder of Series A
Preferred Stock as of the record date of March 31, 2004, and that Triton has not
yet paid such Dividend to AWS PCS. The parties agree that Triton may continue to
defer the payment of the Dividend to AWS PCS pending the Closing of this
Agreement or the earlier delivery of the Stock to Triton under the circumstances
expressly permitted in Section 7.4 hereunder. Effective as of the Closing or
such earlier delivery of the Stock to Triton, each of Cingular, AWS and AWS PCS
hereby irrevocably waives any claim and any right, title and interest in and to
the Dividend, provided, however, such waiver will not, in any way, affect any
other rights of the holders of the Series A Preferred Stock, including, without
limitation, the right to receive cumulative dividends (including cumulative
dividends on the Dividend) that accrue during the period prior to Closing or the
earlier delivery of the Stock to Triton under the circumstances expressly
permitted in Section 7.4 hereunder. In connection with such Dividend payment
deferral and waiver, each of Cingular, AWS and AWS PCS further represents,
warrants and covenants to Triton that it has not taken any action to assign, and
has
-6-
not assigned, to any other Person any of such party's respective right, title or
interest in and to all or any portion of the Dividend and that it will make no
such assignment prior to the Closing or the earlier delivery of the Stock to
Triton under the circumstances expressly permitted in Section 7.4 hereunder. The
waiver provided by AWS PCS hereunder shall terminate in the event that this
Agreement is terminated prior to the Closing or the earlier delivery of the
Stock to Triton under the circumstances expressly permitted in Section 7.4
hereunder.
(e) Mutual Release. Cingular, Triton, AWS and AWS PCS have
executed and delivered, concurrently with the execution and delivery of this
Agreement, the Release in the form of Exhibit 2.1(e).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each of AWS, AWS PCS, Cingular and Triton severally represents with
respect to itself only to the other parties to this Agreement as follows:
3.1 Organization. It has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization, with
full corporate or limited liability company (as the case may be) power and
authority to enter into this Agreement and the other instruments, agreements,
certificates and documents to be executed and delivered by it in connection with
this Agreement (collectively with this Agreement, the "Transaction Documents"),
and to execute and deliver the Transaction Documents and to perform its
obligations hereunder and thereunder.
3.2 Authorization; Enforceability. The execution, delivery and
performance by it of the Transaction Documents are within its corporate or
limited liability company (as the case may be) power and authority and have been
duly authorized and approved by all necessary corporate or limited liability
company (as the case may be) actions. The Transaction Documents have been duly
executed and delivered by it, and the Transaction Documents are or will be, as
the case may be, when executed and delivered by the parties hereto and thereto
other than it, the valid and binding obligations of it, enforceable against it
in accordance with their respective terms, subject to the Enforceability
Exceptions.
3.3 No Violation or Conflict. The execution, delivery and performance by
it of the Transaction Documents to which it is a party (with or without the
giving of notice, the lapse of time, or both): (a) do not require any Consent,
declaration to, or filing with any Governmental Authority or any other Person
that has not been obtained; (b) will not conflict with any provision of its
Organizational Documents as currently in effect; (c) will not conflict with,
result in a breach of, or constitute a default under any Legal Requirement to
which it is bound; and (d) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of any
agreement or instrument to which it is a party or bound.
3.4 Claims and Litigation. As of the date of this Agreement, there is no
pending or written threat of a claim, legal action, arbitration, governmental
investigation or other legal,
-7-
administrative or tax proceeding, nor any order, decree or judgment pending, or,
to its knowledge, threatened other than in writing, against or relating to it or
its subsidiaries' assets or business that would have an adverse effect on its
ability to perform its obligations under the Transaction Documents.
3.5 Certain Fees. No finder, broker, agent, financial advisor or other
intermediary has acted on its behalf in connection with the Transaction
Documents or the transactions contemplated thereby, or is entitled to any
payment in connection herewith or therewith which, in either case, would result
in any obligation or liability to any other party to this Agreement or any
Affiliate of any such other party.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF AWS AND AWS PCS
AWS and AWS PCS jointly represent and warrant to Triton as follows:
4.1 Ownership of Stock and Affiliate License Co., L.L.C.
(a) As of the date hereof, the Stock consists of 543,683.47 shares
of Triton's Series D Preferred Stock and 786,252.64 shares of Triton's Series A
Preferred Stock (such shares of Series D Preferred Stock and Series A Preferred
Stock, collectively, the "Shares"), of which AWS PCS is the sole record and
beneficial owner, except to the extent that AWS, as the sole member of AWS PCS,
and its Affiliates may be deemed to be beneficial owners due to AWS' status as
the parent entity of AWS PCS. As of the date hereof and except for the Shares,
AWS PCS and its Affiliates hold no legal or beneficial interest in any capital
stock of Triton. AWS PCS owns the Shares, free and clear of all Liens. Upon the
Closing or the earlier delivery of the Stock pursuant to Section 7.4 and subject
to any action taken by or condition created by Triton, Triton will become the
legal and beneficial holder of the Shares, free and clear of all Liens. Copies
of the stock certificates representing the Shares are attached hereto as Exhibit
4.1.
(b) AWS owns limited liability company membership interests in
Affiliate License Co., L.L.C. representing 66.66% of the outstanding ownership
interests, entitlements to distributions, and allocations of profits and losses
and voting rights of Affiliate License Co., L.L.C. (collectively, the "License
Company Interests"). Except as set forth in the preceding sentence, AWS and its
Affiliates own no limited liability company membership interests in Affiliate
License Co., L.L.C. Upon the Closing or the earlier delivery of the License
Company Interests pursuant to Section 7.4 and subject to any action taken by or
condition created by Triton, Triton PCS, Inc. will become the legal and
beneficial holder of the License Company Interests, free and clear of all Liens,
and, subject to the terms of the Affiliate License Co. Agreement, admitted as a
member of the Affiliate License Co., L.L.C in respect thereof.
4.2 SUNCOM Marks. Neither AWS nor AWS PCS has granted to any third party
any license to use any SUNCOM Xxxx, nor has AWS or AWS PCS granted any Lien with
respect to any SUNCOM Xxxx in favor of any other Person.
-8-
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CINGULAR
Cingular represents and warrants to Triton as follows:
5.1 Ownership of Triton Stock. Cingular has no legal or beneficial
interest in any capital stock of Triton.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF TRITON
Triton represents and warrants to Cingular, AWS & AWS PCS as follows:
6.1 Legal Opinion. Triton has caused Dow, Xxxxxx & Xxxxxxxxx, PLLC to
deliver a legal opinion addressed to Cingular, AWS and AWS PCS in the form of
Exhibit 6.1 on and dated as of the date hereof.
6.2 Required Consents. As of the date hereof, Triton has received the
Required Consents set forth on Schedule 6.3 and such consents are irrevocable
and in full force and effect.
6.3 Intent. Triton is not entering into the transactions contemplated by
this Agreement or the other Transaction Documents with an actual intent to
hinder, delay or defraud its present or future creditors.
6.4 Solvency. On and as of the date hereof, both before and after giving
effect to the consummation of the transactions contemplated by this Agreement or
the other Transaction Documents: (a) the fair value of Triton's assets at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of Triton's property will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) Triton will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) Triton will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the date hereof.
6.5 Bankruptcy. Triton is not contemplating filing a petition in
bankruptcy or for reorganization under the federal Bankruptcy Code, nor does
Triton have any knowledge of any threatened bankruptcy or insolvency proceedings
against it.
6.6 Amendment to Stockholders Agreement. The Amendment to the
Stockholders Agreement has been executed and delivered by the requisite parties
to the Stockholders Agreement. All action necessary to effect the Amendment to
the Stockholders Agreement has been taken. The Amendment to the Stockholders
Agreement is effective and enforceable in accordance with its terms.
-9-
ARTICLE 7
COVENANTS AND OTHER AGREEMENTS
7.1 Interim Period. Between the date of this Agreement and the Closing
Date, except as contemplated by this Agreement:
(a) AWS PCS shall not sell, assign, lease or otherwise transfer or
dispose of any of the Shares, or any interest therein, and AWS shall not sell,
assign, lease or otherwise transfer or dispose of any of the License Company
Interests, or any interest therein, or otherwise permit Affiliate License Co.,
L.L.C. to issue or grant any limited liability company membership interests or
any other form of equity interests, or options, warrants, or participation
rights therein.
(b) AWS PCS shall not create, assume or permit to exist any Lien
upon the Shares and AWS shall not create, assume or permit to exist any Lien
upon any of the License Company Interests.
7.2 Access to Information. Between the date of this Agreement and the
Closing, each party to this Agreement shall give each other party to this
Agreement and such other party's officers, employees, agents, counsel,
accountants and other Representatives, reasonable access during normal business
hours upon reasonable prior notice and approval, which shall not be unreasonably
withheld, to all of such party's records and information that such other party
reasonably requests as may be reasonably necessary in connection with the
consummation of the transactions contemplated by the Transaction Documents;
provided, that any inspection of another party's properties or discussion with
another party's personnel shall occur only if a Representative designated by
such other party is present. All such information provided pursuant to this
Section 7.2 shall be subject to the Confidentiality Agreement. The rights of the
parties under this Section 7.2 shall not be exercised in such a manner as to
interfere unreasonably with the business or operations of any party or for any
purpose other than in connection with the consummation of the transactions
contemplated by this Agreement.
7.3 Waiver by AWS PCS, Etc. From and after the date hereof, AWS PCS
does, and shall cause its controlled Affiliates to waive Triton's compliance
with Section 7.11 and Section 8.4 of the Stockholders Agreement and all other
provisions of the Stockholders Agreement that may limit the ability of Triton
and its controlled Affiliates to acquire and hold (but not to operate) spectrum
or related FCC licenses for spectrum in markets that are outside of the
Territory (as defined in the Stockholders Agreement), including the Lafayette
License (as defined under the License Exchange Agreement); provided, however,
such waiver shall not, in any way, affect or amend the definition of Territory
in the Stockholders Agreement.
7.4 Delivery of the Stock and License Company Interests to Triton In
Certain Circumstances.
(a) Notwithstanding any other provision of this Agreement and
without regard to the satisfaction of the closing conditions set forth in
Article 10 hereof, AWS PCS shall surrender, assign and deliver (at the Triton
address set forth in Section 14.2) the Stock to Triton upon the closing of the
Merger, in the manner contemplated under Section 2.1(a) hereof, with the
-10-
Stock being free and clear of all Liens, and Triton shall be required to accept,
and shall be deemed to have accepted, the Stock after AWS PCS has delivered to
Triton the certificates representing the Stock, together with endorsed stock
powers in blank for each certificate.
(b) Notwithstanding any other provision of this Agreement AWS PCS
shall have the right to surrender, assign and deliver (at the Triton address set
forth in Section 14.2) the Stock to Triton at any time prior to or following the
closing of the Merger, in the manner contemplated under Section 2.1(a) hereof
(but without giving effect to the references to the term "Closing," which shall
be deemed to be removed from Section 2.1(a) for purposes of this section), so
long as the Stock is free and clear of all Liens, and Triton shall be required
to accept, and shall be deemed to have accepted, the Stock after AWS PCS has
delivered to Triton the certificates representing the Stock, together with
endorsed stock powers in blank for each certificate. This Section 7.4(b) shall
survive indefinitely any termination of this Agreement or any of the other
Transaction Documents other than Triton's termination of this Agreement pursuant
to Section 12.1(a)(iv).
(c) The delivery of the Stock, free and clear of all Liens, by AWS
PCS to Triton in the manner contemplated under this Section 7.4 shall be deemed
to be a Closing for purposes of Section 2.1(a) hereof and shall cause the
immediate termination of the Stockholders Agreement, in accordance with terms of
the Amendment to the Stockholders Agreement and Section 2.1(b). In addition, as
set forth in the Amendment to the Stockholders Agreement, in the event that
Triton fails to accept delivery of the Stock in the manner contemplated by this
Section 7.4 or at the Closing, for any reason, then such failure shall cause the
immediate termination of the Stockholders Agreement and, upon the termination of
the Stockholders Agreement, Triton agrees that the Stock shall be transferable
free of the restrictions on transferability contained in the Stockholders
Agreement, in this Agreement or in the provisions of any other agreement between
Triton and its controlled Affiliates, on the one hand, and AWS PCS and its
Affiliates, on the other hand.
(d) AWS further agrees that, concurrently with any delivery of the
Stock to Triton contemplated under Section 7.4(a) or Section 7.4(b), AWS also
shall surrender, assign and deliver the License Company Interests to Triton,
free and clear of all Liens, and Triton shall be required to accept, and shall
be deemed to have accepted, the License Company Interests after AWS PCS has
delivered to Triton an executed Assignment. Notwithstanding any other provision
of this Agreement, the failure of AWS to effect delivery of the License Company
Interests, free and clear of all Liens, or the delivery of the Assignment
concurrently with any such delivery of the Stock shall not affect the validity
of such delivery and acceptance of the Stock, and such concurrent delivery of
the License Company Interests shall not otherwise be a condition to Triton's
obligations under Section 7.4(a) or Section 7.4(b) to accept delivery of the
Stock. Notwithstanding the foregoing, however, if AWS fails to effect delivery
of the License Company Interests, free and clear of all Liens, or the delivery
of the executed Assignment, Triton shall continue to have all rights and
remedies to seek enforcement of such obligation to deliver the License Company
Interests and the Assignment, and nothing in this Section 7.4 is intended to
relieve any party of any liability or obligation to effect at the Closing any of
the other transactions contemplated under any of the other provisions of this
Agreement or the Transaction Documents in accordance with their respective
terms.
-11-
(e) In the event of the surrender, assignment and delivery of the
Stock by AWS PCS to Triton and concurrent termination of the Stockholders
Agreement under this Section 7.4 , the surrender, assignment and delivery of the
Stock and termination of the Stockholders Agreement shall be viewed as being in
the nature of liquidated damages because of the difficulty of estimating the
damages which would result and not as a penalty with respect to the obligations
of any of Triton, Cingular, AWS and AWS PCS under Sections 2.1(a) and 2.1(b)
hereof, and thereafter none of Cingular, AWS, AWS PCS or Triton shall pursue any
other right or remedy that may be available to it against another party hereto
that directly relates to the Stock or the Stockholders Agreement.; provided,
however, that nothing in this Section 7.4 is intended to relieve any party of
any liability or obligation to effect any of the other transactions contemplated
under any of the other provisions of this Agreement (including the other
provisions of Section 2.1 or the provisions of Section 7.4(f)) or the
Transaction Documents and the parties shall reserve such other rights and
remedies as they may have at law or in equity against any other party hereto to
seek to enforce such other provisions. Notwithstanding such reservation of
rights and remedies with respect to the other provisions of this Agreement and
the Transaction Documents, Triton shall not pursue such rights and remedies in a
manner that could reasonably be expected to interfere with the ability of any of
Cingular, AWS or AWS PCS to effectuate the Merger.
(f) Notwithstanding any other provision of this Agreement or the
termination of the Stockholders Agreement in accordance with the terms hereof,
in the event that the surrender, assignment and delivery of the Stock by AWS PCS
to Triton and Triton's concurrent acceptance of such Stock occurs both prior to
the closing of the Merger and prior to a Disqualifying Event (as defined below),
then each of AWS, AWS PCS and their respective Affiliates shall continue to be
bound by, and shall be obligated to comply fully and in all respects with, the
provisions set forth in Section 8.6(b) of the Stockholders Agreement until the
earlier of a Disqualifying Event or the closing of the Merger occurs. As used
herein a "Disqualifying Event" shall mean any of the following: (i) a breach by
Triton or its Affiliates of Section 7.5 hereof; (ii) a material breach by Triton
of any of the representations contained in Sections 6.3, 6.4 or 6.5 hereof; or
(iii) a Triton Bankruptcy.
7.5 Covenant Not to Xxx; No Objection to the Merger. Triton, on
behalf of itself and its Affiliates, hereby covenants and agrees not to bring,
commence, prosecute, maintain or cause or permit to be brought, commenced,
prosecuted or maintained any suit, action or proceeding, either at law or in
equity, in any court or before any other Governmental Authority (i) regarding
the Merger or on account of Cingular's acquisition of AWS and AWS PCS or (ii)
challenging the enforceability of Sections 7.4 or 7.5 hereof, including without
limitation a filing at the FCC with respect to, or otherwise seek to cause any
Governmental Authority to refuse to issue its Consent to, the Merger. The
foregoing covenant not to xxx xxx be raised or pleaded in any action or other
proceeding which may be brought, instituted or taken by any party or its
predecessors, successors or assigns and all past and present shareholders,
directors, officers, agents, Affiliates, heirs, and personal Representatives.
The foregoing covenant not to xxx shall not be deemed or construed to be an
acknowledgement or agreement by Cingular, AWS or AWS PCS that Triton has any
claim or standing to challenge the Merger in any way.
-12-
ARTICLE 8
CONFIDENTIALITY
8.1 Confidentiality. AWS, Cingular and Triton are parties to the
Confidentiality Agreement, and the disclosure of this Agreement, or of the terms
hereof or the existence of the transactions contemplated hereby, shall be
governed by the terms of the Confidentiality Agreement. Notwithstanding the
execution, delivery and performance of this Agreement or the termination of this
Agreement prior to Closing in accordance with Article 12, the Confidentiality
Agreement shall remain in full force and effect in accordance with its terms,
but shall expire concurrently with the Closing hereunder.
ARTICLE 9
JOINT COVENANTS
Subject to the provisions of Section 7.4, each of the parties to this
Agreement covenant and agree as follows:
9.1 Cooperation. Without limiting any of the obligations of the parties
hereunder, each of the parties to this Agreement shall cooperate fully with each
other and their respective counsel, accountants, agents and other
Representatives in all commercially reasonable respects in connection with any
actions required to be taken as part of their respective obligations under the
Transaction Documents, and the parties hereto shall use their commercially
reasonable efforts to consummate the transactions contemplated hereby and to
fulfill their respective obligations under the Transaction Documents as
expeditiously as practicable, provided, however, neither Cingular, AWS nor AWS
PCS shall have any obligation to Triton or its Affiliates to cause the closing
of the Merger. Subject to the terms and conditions of this Agreement, from time
to time prior to, at and after the Closing, each party hereto will use
commercially reasonable efforts to take, or cause to be taken, all such actions
and to do or cause to be done, all things, necessary, proper or advisable under
applicable Legal Requirements and regulations to consummate and make effective
the transactions contemplated by the Transaction Documents, including, without
limitation, executing and delivering such documents as any of the other parties
being advised by counsel shall reasonably request in connection with the
consummation of this Agreement. After the Closing, each of the parties to this
Agreement will execute any further documents consistent with the Transaction
Documents, provide any further reasonably available information, and take any
other actions not imposing significant financial or operational obligations in
excess of the other obligations imposed by the Transaction Documents, upon the
request of any other party to this Agreement based upon any such other party's
reasonable determination that those actions are required to enable such other
party to effectuate the Transaction Documents. No party to this Agreement shall
take any action which is materially inconsistent with its obligations under the
Transaction Documents. Each party to this Agreement shall notify each other
party to this Agreement of any litigation, arbitration or administrative
proceeding pending or, to its knowledge, threatened, which challenges any of the
transactions contemplated by the Transaction Documents or which threatens to
delay them, and shall use commercially reasonable efforts to take such steps as
may be necessary to remove any such impediment to the consummation of the
transactions contemplated by the Transaction Documents.
-13-
9.2 Consents. Each party to this Agreement shall diligently make and
cooperate with the other parties to this Agreement in using all commercially
reasonable efforts to obtain or cause to be obtained prior to the Closing all
Consents which have not been obtained on or before the date of this Agreement.
9.3 Public Announcements. No party to this Agreement will issue any
press release or make any other public announcements concerning this Agreement
or any of the other Transaction Documents or the transactions contemplated
hereby or thereby except with the prior approval (not to be unreasonably
withheld or delayed) of the other parties; provided, however, that if any such
disclosure is required by any applicable Legal Requirements or the rules or
regulations of any securities exchange, such consent shall not be required, but,
in such circumstances no party hereto will make such disclosure without first
providing to the other parties an advance copy of any such disclosure and a
reasonable opportunity to review and comment, to the extent practicable.
Notwithstanding anything to the contrary contained herein, the parties hereto
shall use commercially reasonable efforts to prepare and issue a press release
with respect to the transactions contemplated by this Agreement upon the
execution and delivery of this Agreement.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
10.1 Conditions Applicable to all of the Parties. The obligations of each
of the parties to this Agreement to consummate the transactions to occur at the
Closing pursuant to this Agreement (other than as contemplated under Section 7.4
hereof) are subject to satisfaction, at or prior to the Closing, of each of the
following conditions:
(a) Representations, Warranties and Covenants.
(i) All representations and warranties of the other parties
to this Agreement made in this Agreement shall be true and correct in all
material respects at and as of the time of the Closing as though made at and as
of that time, except to the extent such representations and warranties expressly
relate to an earlier date in which case such representations and warranties
shall be true and correct in all material respects on and as of such earlier
date and except in each case for changes contemplated by this Agreement.
(ii) All of the covenants and agreements of the other parties
to this Agreement contained in this Agreement to be complied with and performed
by such parties on or prior to Closing shall have been complied with or
performed in all material respects.
(b) Adverse Proceedings. No judgment, injunction, restraining
order or decree of any nature of any court of competent jurisdiction or other
Governmental Authority shall be in effect that restrains or prohibits any party
to this Agreement from consummating any transaction contemplated by the
Transaction Documents.
(c) Merger Closing. The Merger shall have been consummated.
-14-
(d) Deliveries. Each party to this Agreement shall have made or
stand willing to make all the deliveries set forth to be made by it in Section
11.2.
(e) Consents. Each party to this Agreement shall have received its
Required Consents with all such Required Consents being irrevocable.
10.2 Waiver of Conditions, Etc. Notwithstanding anything to the contrary
contained in this Article 10, any party to this Agreement may, in its sole
discretion, waive any condition to its obligation to consummate the transactions
contemplated by this Agreement. No party to this Agreement may rely on the
failure of any condition set forth in this Article 10 to be satisfied if the
failure of such condition to be satisfied is the result of the breach of this
Agreement by such party or, in the case of a non-fulfillment of the condition
set forth in Section 10.1(b), if such party shall not have used commercially
reasonable efforts to prevent the entry of such judgment, injunction,
restraining order or decree and to appeal as expeditiously as reasonably
possible any such judgment, injunction, restraining order or decree that may be
entered.
ARTICLE 11
CLOSING AND CLOSING DELIVERIES
11.1 Closing.
(a) Closing Date. Except as otherwise provided in Section 7.4,
subject to (i) the satisfaction or, to the extent permissible by law, waiver (by
the party for whose benefit the closing condition is imposed) on the date
scheduled for Closing of the closing conditions described in Article 10 hereof
and (ii) the provisions of Article 12 hereof, the parties hereto shall be
obligated to consummate the transactions contemplated by Sections 2.1(a), 2.1(b)
and 2.1(c) (the "Closing") at the Closing, which shall take place (A)
immediately after the consummation of the Merger or (B) no later than ten (10)
Business Days following the satisfaction of the conditions described in Article
10 to the extent such conditions have not been satisfied at the time of the
consummation of the Merger.
(b) Closing Place. The Closing shall be held at the offices of
Xxxxxx & Bird LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
location as agreed upon by the parties.
11.2 Documents To Be Delivered by Each Party to This Agreement at the
Closing. At the Closing, each party to this Agreement shall deliver or cause to
be delivered to each other party to this Agreement the following:
(a) a certificate of such party, dated the date of the Closing
certifying to the fulfillment of the conditions set forth in Section 10.1(a)(i)
and Section 10.1(a)(ii) by such party; and
(b) copies of all Consents received by such party as of the
Closing;
(c) the Release in the form of Exhibit 11.2(c).
-15-
11.3 Deliveries by AWS and AWS PCS at the Closing. At the Closing, AWS
and AWS PCS shall deliver or cause to be delivered to Triton the following:
(a) as provided in Section 2.1(b), the certificates representing
the Stock, with executed stock powers in blank; and
(b) an assignment (the "Assignment") in the form of Exhibit
11.3(b), assigning to Triton all of AWS's limited liability company membership
interests in Affiliate License Co., L.L.C.
11.4 Deliveries by Triton at the Closing. At the Closing, Triton shall
cause to be delivered to Cingular, AWS and AWS PCS a legal opinion of Dow,
Xxxxxx & Xxxxxxxxx, PLLC in the form of Exhibit 6.1.
ARTICLE 12
TERMINATION
12.1 Termination
(a) This Agreement may be terminated:
(i) at any time by mutual written consent of all parties to
this Agreement;
(ii) by any party to this Agreement, if the Merger Agreement
is terminated;
(iii) by Triton, on the one hand, or Cingular, AWS and AWS
PCS, acting jointly, on the other hand, upon written notice to the other
parties, in the event such other party (the "Breaching Party") has breached in
any material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement and failed to cure such breach within 30
days from the date of the Breaching Party's receipt of the notice specified
above and such terminating party and its Affiliates are not in breach or default
in any material respect of their respective obligations, representations or
warranties under this Agreement.; or
(iv) by Triton, in the event that AWS PCS sells, assigns,
leases or otherwise transfers or disposes of any of the Shares, or any interest
therein, or enters into any written agreement to do any of the foregoing, with
any Person other than Triton; or
(v) by Cingular, AWS and AWS PCS, acting jointly, if Triton
or any of its Affiliates breaches Section 7.5 hereof.
(b) In the event of termination of this Agreement by any or all of
the parties for any reason, prompt written notice thereof shall forthwith be
given to the other parties and this Agreement shall terminate and the
transactions contemplated hereby and by the other Transaction Documents shall be
abandoned without further action by any of the parties hereto, but subject to
and without limiting any of the rights of the parties specified herein in the
event a
-16-
party is in default or breach in any material respect of its obligations,
representations or warranties under this Agreement or any of the other
Transaction Documents. Notwithstanding the foregoing, the provisions of Sections
7.3, 7.4 and 7.5 shall survive indefinitely any termination of this Agreement or
any of the other Transaction Documents, except that Sections 7.4 and 7.5 shall
not survive in the event that Triton terminates this Agreement pursuant to
Section 12.1(a)(iv).
(c) Notwithstanding any other provision of this Agreement, in the
event that this Agreement is terminated by any party pursuant to Section 12.1(a)
and the Merger Agreement is terminated, no party shall be liable to any other
party hereto for any damages, costs or expenses related to its default or breach
in any respect of its obligations, representations or warranties or for any
other reason under this Agreement or any of the other Transaction Documents
other than liabilities arising out of a breach of the covenants contained in
Section 7.1 or Section 7.5.
ARTICLE 13
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
13.1 Survival. The representations and warranties of the parties
contained herein shall survive the Closing until the fourth anniversary of the
date hereof.
ARTICLE 14
MISCELLANEOUS
14.1 Fees and Expenses. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement and the
other Transaction Documents, including all fees and expenses of counsel,
accountants, agents, and Representatives, and each party shall be responsible
for all fees or commissions payable to any finder, broker, advisor, or similar
Person retained by or on behalf of such party; provided, however, that all
transfer Taxes, recordation Taxes, sales Taxes and document stamps in connection
with the transactions contemplated by this Agreement, including, without
limitation, the transfer of the Stock and the limited liability company
membership interests of Affiliate License Co., L.L.C. to Triton hereunder, shall
be paid by AWS PCS (with respect to the Stock) and AWS (with respect to the
limited liability company membership interests of Affiliate License Co., L.L.C.)
and all other filing fees, and other charges levied by any Governmental
Authority in connection with the transactions contemplated by this Agreement
shall be paid by the party incurring the same.
14.2 Notices. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by facsimile (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
-17-
To AWS:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To AWS PCS:
AT&T Wireless PCS LLC
c/o AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Cingular:
Cingular Wireless, LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
-18-
With a copy (which shall not constitute notice) to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Triton:
Triton PCS, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 14.2.
14.3 Assignment; Benefit and Binding Effect. No party hereto may assign
this Agreement without the prior written consent of each of the other parties
hereto, provided, however, that (i) Cingular may, without the consent of the
other parties, assign any and all of its rights (but Cingular shall not thereby
be released from its obligations) hereunder to any Affiliate of Cingular and
(ii) Triton may, without the consent of the other parties, assign any and all of
its rights (but Triton shall not thereby be released from its obligations)
hereunder to any Affiliate of Triton. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The provisions of this Agreement shall be for the
exclusive benefit of the parties hereto (and their successors and permitted
assigns) and shall not be for the benefit of any other Person.
14.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF). The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of any federal or state court located
within the State of Delaware over any dispute arising out of or
-19-
relating to this Agreement or any of the transactions contemplated hereby and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
14.5 Entire Agreement. This Agreement, the other Transaction Documents
and the Schedules and Exhibits hereto and thereto collectively represent the
entire understanding and agreement of the parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior representations,
warranties, covenants, understandings, agreements, written or oral, discussions,
or negotiations among the parties with respect to the subject matter hereof and
cannot be amended, supplemented or changed, except by an agreement in writing
that makes specific reference to this Agreement and that is signed by each of
the parties hereto. Each party hereby represents, acknowledges and agrees that
it has not relied on any representation, warranty, covenant, understanding,
agreement, written or oral, discussion, or negotiation not expressly contained
herein in entering into this Agreement or the Transaction Documents. Each party
hereby represents, acknowledges and agrees that, except as otherwise expressly
stated herein, this Agreement and the other Transaction Documents are
independent of, and not in any way conditioned on or to be construed with any
other agreement or arrangement, written or oral, between the parties including,
but not limited to, that certain non-binding letter of intent between the
parties dated as of the date hereof and the transactions contemplated thereby.
14.6 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
14.7 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. Upon such determination that
any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
[Signatures on following page]
-20-
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed this Agreement as of the 7th day of July, 2004.
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development, AT&T Wireless
Services, Inc.
AT&T WIRELESS PCS LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development, AT&T Wireless
Services, Inc.
CINGULAR WIRELESS LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
