EXHIBIT 1.2
STOCK PURCHASE AGREEMENT
by and between
AT&T WIRELESS PCS LLC
and
TELECORP PCS, INC.
Dated as of November __, 1999
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of November __, 1999, by and between
AT&T Wireless PCS LLC, a Delaware limited liability company (the "Investor") and
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TeleCorp PCS, Inc., a Delaware corporation (the "Company").
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W I T N E S S E T H :
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WHEREAS, the Investor is a stockholder of the Company; and
WHEREAS, the Company has entered into an Underwriting Agreement (the
"Underwriting Agreement") to sell 7,800,000 shares of its Class A Voting Common
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Stock, $.01 par value per share ("Class A Common Stock"), pursuant to a
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registration statement on Form S-1 (as amended from time to time, the
"Registration Statement") filed with the Securities and Exchange Commission
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under the Securities Act (the "IPO"), and may sell up to 1,170,000 additional
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shares of Class A Common Stock to the underwriters named in such Underwriting
Agreement (the "Underwriters") pursuant thereto (the "Over-Allotment"); and
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WHEREAS, the Investor wishes to purchase 1,650,000 shares of Class A
Common Stock (the "Firm Shares") and that number of shares (the "Over-allotment
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Shares") equal to 21.22% of the Over-Allotment which the Underwriters
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purchase, if applicable, up to 250,000 shares, all pursuant to the
Registration Statement (collectively, the "Shares"), and in addition to the
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shares of Class A Common Stock that it is selling to the Underwriters, the
Company wishes to sell the Shares to the Investor, all on the terms and subject
to the conditions herein set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person that
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directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
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the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Stock Purchase Agreement, as the same may be
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amended, modified or supplemented in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or a legal
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holiday in New York, New York or any other day on which commercial banks in New
York, New York are authorized by law or governmental decree to close.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase or
subscribe for any of the foregoing or any warrants, rights or options to
purchase or subscribe for any such warrants, rights or options.
"Claim" has the meaning set forth in Section 8.4(a).
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"Class A Common Stock" has the meaning set forth in the second
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recital.
"Closing" and "Closings" have the meanings set forth in Section 3.1.
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"Closing Date" and "Closing Dates" have the meanings set forth in
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Section 3.1.
"Company" has the meaning set forth in the preamble.
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"Confidential Information" means any and all information regarding the
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business, finances, operations, products, services and customers of the Person
specified and its Affiliates, in written or oral form or in any other medium.
"Consents" means all consents, including under the HSR Act, and
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approvals of Governmental Authorities or other third parties necessary to
authorize, approve or permit the parties hereto to consummate the Transactions
and for the Company to operate its business after the Closing Date as currently
contemplated.
"Credit Agreement" means the agreement among the Company, the lenders
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and the agents referred to therein, as of July 17, 1998, providing a credit
facility having aggregate commitments of $525 million, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"Credit Documents" means the Credit Agreement and all agreements,
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instruments and documents executed and delivered pursuant thereto, as the same
may from time to time be amended, modified or supplemented in accordance with
the terms thereof.
"Firm Shares" has the meaning set forth in the third recital.
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"Governmental Authority" means a Federal, state or local court,
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legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
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1976.
"Indemnified Party" has the meaning set forth in Section 8.4(a).
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"Indemnifying Party" has the meaning set forth in Section 8.4(a).
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"Investor" has the meaning set forth in the preamble.
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"IPO" has the meaning set forth in the second recital.
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"IPO Date" means the date on which the Company closes its IPO.
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"IPO Price" means the price per share at which the Company's Class A
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Common Stock is sold to the Underwriters pursuant to the Underwriting Agreement.
"Law" means applicable common law and any statute, ordinance, code or
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other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"Lenders" has the meaning set forth in Section 7.2(c).
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"License" means a license, permit, certificate of authority, waiver,
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approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Losses" has the meaning set forth in Section 8.2.
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"Material Adverse Effect" means a material adverse effect on the
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business, financial condition, assets, liabilities or results of operations or
prospects of the Person specified.
"New York Courts" has the meaning set forth in Section 10.5.
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"Over-allotment Shares" has the meaning set forth in the third
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recital.
"Opinion of Counsel" means, with respect to any Person, a legal
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opinion of such Person's counsel substantially in the form and substance of the
legal opinion rendered on behalf of such Person in connection with the
consummation on July 17, 1998 of the transactions contemplated by the Securities
Purchase Agreement by and among the Company and certain of its stockholders
dated as of January 23, 1998.
"Over-Allotment" has the meaning set forth in the second recital.
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"Person" means an individual, corporation, partnership, limited
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liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
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"Purchase Price" shall have the meaning set forth in Section 2.1.
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"Registration Statement" has the meaning set forth in the second
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recital.
"Restated Certificate" means the Fifth Amended and Restated
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Certificate of Incorporation of the Company.
"Section 8.2 Indemnified Party" has the meaning set forth in Section
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8.2.
"Section 8.3 Indemnified Party" has the meaning set forth in Section
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8.3.
"Securities Act" means the Securities Act of 1933, as amended.
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"Shares" has the meaning set forth in the third recital.
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"Stockholders' Agreement" means the Stockholders' Agreement, by and
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among the Company, the Investor, the Cash Equity Investors named therein and the
other parties named therein, as stockholders, dated as of July 17, 1998, as
amended by Amendment No. 1 dated as of March 30, 1999.
"Subsidiary" shall mean, with respect to any Person, a corporation or
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other entity of which 50% or more of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"Transactions" means the transactions contemplated by this Agreement.
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"Underwriters" has the meaning set forth in the second recital.
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When a reference is made in this Agreement to an Article or a Section,
such reference shall be to an Article or a Section of this Agreement unless
otherwise indicated. Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The use of a gender herein shall be deemed to include the
neuter, masculine and feminine genders whenever necessary or appropriate.
Whenever the word "herein" or "hereof" is used in this Agreement, it shall be
deemed to refer to this Agreement and not to a particular Section of this
Agreement unless expressly stated otherwise.
ARTICLE II
PURCHASE AND SALE OF SECURITIES
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2.1. Investor Purchase. Upon the terms and subject to the conditions hereof
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and in reliance upon the representations, warranties and agreements herein
contained, at each of the Closings, the Investor shall pay an amount equal to
the number of Shares to be purchased at such Closing times the IPO Price to the
Company (together, the "Purchase Price") in immediately available funds.
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2.2. Purchase and Sale of the Shares at Closing. Upon the terms and subject
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to the conditions hereof and in reliance upon the representations, warranties
and agreements herein contained, at each of the Closings, in consideration of
the applicable Purchase Price, the Company shall issue, sell and deliver to the
Investor the number of Shares purchased by the Investor.
ARTICLE III
CLOSING
3.1. Time and Place of Closing. Upon the terms and subject to the conditions
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hereof, the closing of the Transactions shall occur at one or more closings
(each, a "Closing" and together, the "Closings") at such places and times and on
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such dates as the closings of the IPO, including the closing of the purchase of
the Over-Allotment, if applicable (each, a "Closing Date" and together, the
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"Closing Dates"). Each Closing shall be deemed to have occurred as of 12:01
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a.m. on such Closing Date.
3.2. Closing Actions and Deliveries. Upon the terms and subject to the
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satisfaction or waiver by the appropriate parties, if applicable, of the
conditions set forth in Article VII, to effect the purchase and sale of the
Securities and consummate the other Transactions, the parties shall on each of
the Closing Dates take the following actions:
(a) Investor Purchase Price. The Investor shall deliver to the Company by
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wire transfer of immediately available funds to the account designated by the
Company on or prior to the Closing Date an amount equal to the applicable amount
of the Purchase Price.
(b) Delivery of the Shares. The Company shall deliver to the Investor, a
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certificate, duly executed by authorized signatories of the Company,
representing the applicable Shares.
(c) Other Deliveries. The parties shall execute and deliver or cause to be
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executed and delivered all other documents, instruments, opinions and
certificates contemplated by this Agreement to be delivered at the Closing or
necessary and appropriate in order to consummate the Transactions contemplated
to be consummated on the Closing Date.
3.3. Closing Costs; Taxes and Fees. The Company shall pay or cause to be
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paid at the Closings or, if due prior to the Closings or thereafter, promptly
when due, all transfer taxes (including sales taxes, gross receipts taxes, stamp
taxes, and other taxes) payable solely as a result of the payment of the
Purchase Price pursuant to this Agreement, but excluding any federal, state,
local or other jurisdictional income taxes (or franchise, excise, gross receipts
or other taxes that are generally imposed on a party on a periodic basis as a
result of a party's status, presence, conduct of business, holding of assets,
income, revenues, activities or other items).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Company as follows:
4.1. Organization, Power and Authority.
(a) The Investor is a limited liability company duly formed, validly existing
and in good standing under the Laws of its jurisdiction of formation 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 and authority to execute, deliver and perform
this Agreement and each other instrument, document, certificate and agreement
required or contemplated to be executed, delivered and performed by it hereunder
to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary other than any such jurisdiction
in which the failure to be so qualified would not have a Material Adverse Effect
on it or materially adversely affect the Transactions.
(d) The execution and delivery of this Agreement by it and the consummation of
the Transactions by it have been duly and validly authorized by its board of
directors (or its equivalent governing body) and no other proceedings on its
part which have not been taken (including, without limitation, approval of its
members) are necessary to authorize this Agreement or to consummate the
Transactions.
(e) This Agreement has been duly executed and delivered by it and constitutes
its valid and binding obligation, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar Laws affecting or relating to enforcement of
creditors' rights generally and may be subject to general principles of equity.
(f) As of the Closing Dates, after giving effect to the Transactions, it is
not in breach of any obligation under this Agreement.
4.2. Consents; No Conflicts. Neither the execution, delivery and performance
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by it of this Agreement nor the consummation of the Transactions will (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,
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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, other than under the
HSR Act or the approval of its board of directors or members (which board and
member approvals have been obtained), except in each case, where such breach,
violation, default, Lien, right, or the failure to obtain or give such Consent
would not have a Material Adverse Effect on it or materially adversely affect
the Transactions. To its knowledge, there is no fact relating to it or its
Affiliates that would be reasonably expected to prevent it from consummating the
Transactions.
4.3. Litigation. There is no action, proceeding or investigation pending or,
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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
consummate the Transactions to which it is a party or to fulfill its obligations
under this Agreement or which seeks to prevent or challenge the Transactions.
4.4. Brokers. It has not employed any broker, finder or investment banker or
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incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the Transactions.
4.5. Investor Acknowledgments. (a) It is not relying on and acknowledges
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that no representation is being made by the Company or any of its officers,
employees, Affiliates, agents or representatives, except for representations and
warranties expressly set forth in this Agreement and information set forth in
the Registration Statement, and, in particular, it is not relying on, and
acknowledges that no representation is being made in respect of, (x) any
projections, estimates or budgets delivered to or made available to them of
future revenues, expenses or expenditures, or future results of operations and
(y) any other information or documents delivered or made available to it or its
representatives, except for representations and warranties expressly set forth
in this Agreement, information set forth in the Registration Statement, and such
information and documents obtained by it as a stockholder of the Company and
through its representatives who serve as members of the Company's board of
directors, as the case may be.
(b) In deciding to invest in the Company, it has relied exclusively on the
representations and warranties expressly set forth in this Agreement, and the
investigations made by itself and its representatives and its and such
representatives' knowledge of the industry in which the Company operates and the
information contained in the Registration Statement. Based solely on such
representations and warranties, such investigations and knowledge and such
information and on information obtained by it by virtue of its status as a
stockholder of the Company, and through its representatives who serve as members
of the Company's board of directors, as the case may be, it has determined that
the Shares it is acquiring are a suitable investment for it.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as to the Company and its
Subsidiaries to the Investor as follows:
5.1. Organization, Power and Authority. Each of the Company and each of its
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Subsidiaries that is a corporation is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted and as proposed
to be conducted. Each of the Company's Subsidiaries that is a limited liability
company or a limited partnership is a limited liability company or a limited
partnership, as the case may be, duly formed, validly existing and in good
standing under the laws of the jurisdiction of formation and has the requisite
limited liability company or a limited partnership, as the case may be, power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted and as proposed to be conducted.
(a) It has the requisite power, authority and/or legal capacity to execute,
deliver and perform this Agreement and each other instrument, document,
certificate and agreement required or contemplated to be executed, delivered and
performed by it hereunder to which it is or will be a party.
(b) Each of the Company and each of its Subsidiaries is duly qualified to do
business in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary other than any such jurisdiction in which the failure to be so
qualified would not have a Material Adverse Effect on it or materially adversely
affect the Transactions.
(c) The execution and delivery of this Agreement and the consummation of the
Transactions by it have been duly and validly authorized by its board of
directors and no other proceedings which have not been taken are necessary to
authorize this Agreement or to consummate the Transactions.
(d) This Agreement has been duly executed and delivered by it and constitutes
the valid and binding obligation of it, enforceable against it in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar Laws affecting or relating to
enforcement of creditors' rights generally and may be subject to general
principles of equity.
(e) As of the Closings, after giving effect to the Transactions, it is not in
breach of any obligation under this Agreement.
5.2. Consents; No Conflicts. Neither the execution, delivery and performance
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of this Agreement nor the consummation of the Transactions will (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
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(c) require any Consent, other than under the HSR Act and the approval of its
board of directors (which board approval has been obtained), except in each case
where such breach, violation, default, Lien, right, or the failure to obtain or
give such Consent would not have a Material Adverse Effect on it or materially
adversely affect the Transactions or the operation of its business after the
Closing Date. To its knowledge, there is no fact relating to it or its
Affiliates that would be reasonably expected to prevent it from consummating the
Transactions or performing its obligations under this Agreement.
5.3. Litigation. There is no action, proceeding or investigation pending or,
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to its knowledge, threatened against it or any of its properties or assets that
would have a Material Adverse Effect on its ability to consummate the
Transactions to which it is a party or to fulfill its obligations under this
Agreement, or to operate its business after the Closing Date, or which seeks to
prevent or challenge the Transactions. There is no judgment, decree,
injunction, rule or order outstanding against it which would limit in any
material respect its ability to operate its business in the manner currently
contemplated.
5.4. Brokers. It has not employed any broker, finder or investment banker or
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incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the Transaction.
5.5. Capitalization. The Registration Statement sets forth the authorized
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capital stock of the Company as of the date hereof and as of the Closing Dates
after giving effect to the IPO and the Transactions. Except as set forth in the
Registration Statement, on the Closing Dates, after giving effect to the
Transactions and the IPO, there will not be any existing options, warrants,
calls, subscriptions, or other rights, or other agreements or commitments,
obligating the Company to issue, transfer or sell any shares of Capital Stock of
the Company.
5.6. Shares. The shares of Class A Common Stock being issued to the
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Investor hereunder, when issued and paid for pursuant to the terms of this
Agreement will be duly authorized, validly issued, fully paid and non-
assessable, will be registered under the Securities Act of 1933, as amended, and
approved for listing on the NASDAQ National Market System, and will be free of
any Liens caused or created by the Company, except as set forth in the
Stockholders' Agreement and the Restated Certificate; provided that Section
10.1(b) of the Stockholders' Agreement shall not be applicable to the Shares.
5.7. Subsidiaries. The Company owns directly or indirectly all of the
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outstanding shares of Capital Stock of each of its Subsidiaries, free and clear
of any Liens, except Liens granted to the Lenders pursuant to the Credit
Documents. Set forth in the Registration Statement is a complete list of its
direct and indirect Subsidiaries indicating the jurisdictions in which such
Subsidiary is organized or qualified to conduct business.
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ARTICLE VI
COVENANTS
6.1. Consummation of Transactions. Each party shall use all commercially
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reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable and consistent with
applicable law to carry out all of their respective obligations under this
Agreement and to consummate the Transactions, which efforts shall include,
without limitation, the following:
(a) The parties shall use all commercially reasonable efforts to cause the
Closings to occur and the Transactions to be consummated in accordance with the
terms hereof, and, without limiting the generality of the foregoing, to obtain
all necessary Consents including the approval of this Agreement and the
Transactions under the HSR Act and by all Governmental Authorities and agencies,
and to make all filings with and to give all notices to third parties which may
be necessary or reasonably required in order for the parties to consummate the
Transactions.
(b) Each party shall furnish to the other parties all information concerning
such party and its Affiliates reasonably required for inclusion in any
application or filing to be made by the Company or any other party in connection
with the Transactions.
(c) Upon the request of any other party, each party shall forthwith execute
and deliver, or cause to be executed and delivered, such further instruments of
assignment, transfer, conveyance, endorsement, direction or authorization and
other documents as may reasonably be requested by such party in order to
effectuate the purposes of this Agreement.
6.2. Use of Proceeds. The Company shall use the proceeds of the sale of the
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Shares only for the purposes described in the Registration Statement.
ARTICLE VII
CLOSING CONDITIONS
7.1. Conditions to Obligations of All Parties. The obligation of each of the
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parties to consummate the Transactions contemplated to occur at each of the
Closings shall be conditioned on the following, unless waived by each of the
parties at or prior each such Closing:
(a) All Consents by any Governmental Authority required to permit the
consummation of the Transactions, the failure to obtain or make which would be
reasonably expected to have a Material Adverse Effect on the Company or Investor
or to materially adversely affect the Transactions shall have been obtained or
made. Without limiting generality of the foregoing, any applicable waiting
period under the HSR Act shall have expired or been terminated.
(b) No preliminary or permanent injunction or other order, decree or ruling
issued by a Governmental Authority, nor any statute, rule, regulation or
executive order promulgated or enacted by any Governmental Authority, shall be
in effect that would (i) impose material limitations on the ability of any party
to consummate the Transactions or prohibit such consummation, or (ii) impair in
any material respect the operation of the Company.
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(c) Each Stockholder (as such term is defined in the Stockholders' Agreement),
other than the Investor, shall have delivered
(d) The Company shall have received any consent of the lenders named in the
Credit Agreement (the "Lenders") that may be required pursuant to the terms
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of the Credit Agreement.
(e) The IPO, including with respect to the Over-Allotment in the case of a
Closing for the Over-allotment Shares, shall have closed.
7.2. Conditions to Obligations of the Company. The obligation of the Company
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to consummate the Transactions contemplated to occur at the Closing shall be
further conditioned upon the satisfaction or fulfillment, at or prior to each of
the Closings, of the following conditions by the Investor, unless waived by the
Company at or prior to each such Closing:
(a) The representations and warranties of the Investor contained herein shall
be true and correct in all material respects (except for representations and
warranties that are qualified as to materiality, which shall be true and
correct), in each case when made and at and as of the Closing (except for
representations and warranties made as of a specified date, which shall be true
and correct as of such date) with the same force and effect as though made at
and as of such time, except for inaccuracies in respect of the representations
and warranties set forth in Section 4.3, (disregarding any qualifications as to
materiality contained therein) that in the aggregate would not be reasonably
expected to have a Material Adverse Effect on the Company or to materially
adversely affect the Transactions.
(b) The Investor shall have performed in all material respects all agreements
contained herein or required to be performed by it at or before the Closing.
(c) An officer of the Investor shall have delivered to the Company a
certificate, dated the applicable Closing Date, certifying as to the fulfillment
of the conditions set forth in paragraphs (a) and (b) above.
(d) All corporate and other proceedings of the Investor in connection with the
Transactions, and all documents and instruments incident thereto, shall be
reasonably satisfactory in form and substance to the Company, and the Investor
shall have delivered to the Company such receipts, documents, instruments and
certificates, in form and substance reasonably satisfactory to the Company which
the Company shall have reasonably requested in order to consummate the
Transactions.
(e) The Investor shall have executed and delivered to the Underwriters any and
all customary agreements requested by such underwriters restricting the resale
of the Shares.
7.3. Conditions to the Obligations of the Investor. The obligation of the
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Investor to consummate the Transactions contemplated to occur at the Closing
shall be further conditioned upon the satisfaction or fulfillment, at or prior
to each of the Closings, of the following conditions, unless waived by it at or
prior to each such Closing:
(a) The representations and warranties of the Company contained herein shall
be true and correct in all material respects (except for representations and
warranties that are
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qualified as to materiality, which shall be true and correct), in each case when
made and at and as of the Closing (except for representations and warranties
made as of a specified date, which shall be true and correct as of such date)
with the same force and effect as though made at and as of such time, except for
inaccuracies in respect of the representations and warranties set forth in
Section 5.3 (disregarding any qualifications as to materiality contained
therein) that in the aggregate would not be reasonably expected to have a
Material Adverse Effect on the Company or to materially adversely affect the
Transactions.
(b) The Company shall have performed in all material respects all agreements
contained herein or required to be performed by it at or before the Closing.
(c) An officer of the Company shall have delivered to the Investor a
certificate, dated the applicable Closing Date, certifying as to the fulfillment
of the conditions set forth in paragraphs (a) and (b) above.
(d) The Investor shall have been furnished with an Opinion of Counsel to the
Company dated the applicable Closing Date.
(e) All corporate and other proceedings of the Company in connection with the
Transactions, and all documents and instruments incident thereto, shall be
reasonably satisfactory in form and substance to the Investor, the Company shall
have delivered to the Investor all such receipts, documents, instruments and
certificates, in form and substance reasonably satisfactory to the Investor,
which the Investor shall have reasonably requested in order to consummate the
Transactions.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1. Survival. The representations and warranties made in this Agreement
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shall survive the Closings without regard to any investigation made by any of
the parties hereto until the second anniversary of the last Closing and shall
thereupon expire together with any right to indemnification in respect thereof
(except to the extent a written notice asserting a claim for breach of any such
representation or warranty and describing such claim in reasonable detail shall
have been given prior to the expiration of the applicable survival period to the
party which made such representation or warranty). The covenants and agreements
contained herein to be performed or complied with prior to each Closing shall
expire at such Closing. The covenants and agreements contained in this
Agreement to be performed or complied with after the Closing shall survive the
Closing; provided that the right to indemnification pursuant to this Article
VIII in respect of a breach of a representation or warranty shall expire upon
the application of the applicable survival period of the Closing (except to the
extent written notice asserting a claim thereunder and describing such claim in
reasonable detail shall have been given prior to such expiration to the party
from whom such indemnification is sought). After each Closing, the sole and
exclusive remedy of the parties for any breach or inaccuracy of any
representation or warranty contained in this Agreement, or any other claim
(whether or not alleging a breach of
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this Agreement) that arises out of the facts and circumstances constituting such
breach or inaccuracy, shall be the indemnity provided in this Article VIII.
8.2. Indemnification by the Investor. The Investor shall indemnify and hold
-------------------------------
harmless the Company and its Affiliates, directors, shareholders, officers,
employees, agents and/or the legal representatives of any of them (each, a
"Section 8.2 Indemnified Party"), against all liabilities and expenses
-----------------------------
(including amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and as counsel fees) (collectively, "Losses") incurred by him/her
------
or it in connection with the investigation, defense, or disposition of any
action, suit or other proceeding in which any Section 8.2 Indemnified Party may
be involved or with which he/she or it may be threatened (whether arising out of
or relating to matters asserted by third parties against a Section 8.2
Indemnified Party or incurred or sustained by such party in the absence of a
third-party claim), that arises out of or results from (a) any representation or
warranty of the Investor contained in this Agreement being untrue in any
material respect as of the date on which it was made or (b) any material default
by such indemnifying party or any of its Affiliates in the performance of their
respective obligations under this Agreement, except to the extent (but only to
the extent) any such Losses arise out of or result from the gross negligence or
willful misconduct of such Section 8.2 Indemnified Party or its Affiliates.
8.3. Indemnification by the Company. The Company shall indemnify and hold
------------------------------
harmless the Investor and its Affiliates, directors, shareholders, officers,
employees, agents and/or the legal representatives of any of them (each, a
"Section 8.3 Indemnified Party"), against all Losses incurred by him/her or it
-----------------------------
in connection with the investigation, defense, or disposition of any action,
suit or other proceeding in which any Section 8.3 Indemnified Party may be
involved or with which he/she or it may be threatened (whether arising out of or
relating to matters asserted by third parties against a Section 8.3 Indemnified
Party or incurred or sustained by such party in the absence of a third-party
claim), that arises out of or results from (a) any representation or warranty of
the Company contained in this Agreement being untrue in any material respect as
of the date on which it was made or (b) any material default by the Company or
any of its Affiliates in the performance of their respective obligations under
this Agreement, except to the extent (but only to the extent) any such Losses
arise out of or result from the gross negligence or willful misconduct of such
Section 8.3 Indemnified Party or its Affiliates.
8.4. Procedures.
----------
(a) The terms of this Section 8.4 shall apply to any claim (a "Claim") for
-----
indemnification under the terms of Sections 8.2 or 8.3. The Section 8.2
Indemnified Party or Section 8.3 Indemnified Party (each, an "Indemnified
-----------
Party"), as the case may be, shall give prompt written notice of such Claim
-----
to the indemnifying party (the "Indemnifying Party") under the applicable
------------------
Section, which party may assume the defense thereof, provided that any delay or
failure to so notify the Indemnifying Party shall relieve the Indemnifying Party
of its obligations hereunder only to the extent, if at all, that it is
materially prejudiced by reason of such delay or failure. The Indemnified Party
shall have the right to approve any counsel selected by the Indemnifying Party
and to approve the terms of any proposed settlement, such approval not to be
unreasonably delayed or withheld (unless, in the case of approval of a proposed
settlement, such settlement provides only, as to the Indemnified Party, the
payment of money damages actually
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paid by the Indemnifying Party and a complete release of the Indemnified Party
in respect of the claim in question). Notwithstanding any of the foregoing to
the contrary, the provisions of this Article VIII shall not be construed so as
to provide for the indemnification of any Indemnified Party for any liability to
the extent (but only to the extent) that such indemnification would be in
violation of applicable law or that such liability may not be waived, modified
or limited under applicable law, but shall be construed so as to effectuate the
provisions of this Article VIII to the fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of any
Claim, the Indemnifying Party will keep the Indemnified Party advised as to all
material developments in connection with such Claim, including, but not limited
to, promptly furnishing the Indemnified Party with copies of all material
documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the defense of
any Claim within ten business days after receiving written notice thereof, the
Indemnified Party shall have the right, subject to the Indemnifying Party's
right to assume the defense pursuant to the provisions of this Article VIII, to
undertake the defense, compromise or settlement of such Claim for the account of
the Indemnifying Party. Unless and until the Indemnified Party assumes the
defense of any Claim, the Indemnifying Party shall advance to the Indemnified
Party any of its reasonable attorneys' fees and other costs and expenses
incurred in connection with the defense of any such action or proceeding. Each
Indemnified Party shall agree in writing prior to any such advancement that, in
the event he or it receives any such advance, such Indemnified Party shall
reimburse the Indemnifying Party for such fees, costs and expenses to the extent
that it shall be determined that he or it was not entitled to indemnification
under this Article VIII.
(d) In no event shall an Indemnifying Party be required to pay in connection
with any Claim for more than one firm of counsel (and local counsel) for each of
the following groups of Indemnified Parties: (i) the Investor, its Affiliates,
directors, shareholders, officers, employees, agents and/or the legal
representatives of any of them; and (ii) the Company, its Affiliates, directors,
shareholders, officers, employees, agents and/or the legal representatives of
any of them.
ARTICLE IX
TERMINATION
9.1. Termination. In addition to any other rights of termination set forth
-----------
herein, this Agreement may be terminated, and the Transactions abandoned,
without further obligation of any party (except as set forth herein), at any
time prior to the first Closing Date:
(a) by mutual written consent of the parties;
(b) by either party by written notice to the other parties, upon termination
of the Underwriting Agreement prior to any closing thereunder; or
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(c) by any party by written notice to the other parties, if the consummation
of the Transactions shall be prohibited by a final, non-appealable order, decree
or injunction of a court of competent jurisdiction.
9.2. Effect of Termination. In the event of a termination of this Agreement,
---------------------
no party hereto shall have any liability or further obligation to any other
party to this Agreement, except as set forth in paragraph (b) below, and except
that nothing herein will relieve any party from liability for any breach by such
party of this Agreement.
(a) In the event of a termination of this Agreement pursuant to Section 9.1,
all provisions of this Agreement shall terminate, except Articles VIII and X.
(b) Whether or not a Closing for the Firm Shares occurs, except as otherwise
expressly provided in this Agreement, all costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the party
incurring such expenses.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Amendment and Modification. This Agreement may be amended, modified or
--------------------------
supplemented only by written agreement of each of the parties.
10.2. Waiver of Compliance; Consents. Any failure of any of the parties to
------------------------------
comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires
or permits consent by or on behalf of any party hereto, such consent shall be
given in writing in a manner consistent with the requirement for a waiver of
compliance as set forth in this Section 10.2.
10.3. Notices. All notices or other communications hereunder shall be in
-------
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (return receipt
requested), postage prepaid, with an acknowledgment of receipt signed by the
addressee or an authorized representative thereof, addressed as follows (or to
such other address for a party as shall be specified by like notice; provided
that notice of a change of address shall be effective only upon receipt
thereof):
If to the Investor, to:
c/o AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to it:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, P.C.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10.4. Parties in Interest; Assignment. This Agreement is binding upon and is
-------------------------------
solely for the benefit of the parties hereto and their respective permitted
successors, legal representatives and permitted assigns. Neither the Company
nor the Investor may assign its rights and obligations hereunder without the
prior written consent of each of the other parties; provided, that: (a) the
Company shall have the right to assign its rights under this Agreement to the
Lenders, as security pursuant to the terms of the Credit Documents, it being
understood that as a result of any such assignment to the Lenders, the Lenders
shall not assume any obligations of the Company hereunder.
10.5. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York without giving effect to the
conflicts of law principles thereof. The parties hereto hereby irrevocably and
unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the County of New York, New York (the "New York Courts") for any litigation
---------------
arising out of or relating to this Agreement and the Transactions, waive any
objection to the laying of venue of any such litigation in the New York Courts
and agrees not to plead or claim in any New York Court that such litigation
brought therein has been brought in an inconvenient forum.
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10.6. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.7. Interpretation. The article and section headings contained in this
--------------
Agreement are for convenience of reference only, are not part of the agreement
of the parties and shall not affect in any way the meaning or interpretation of
this Agreement.
10.8. Entire Agreement. This Agreement, including the exhibits and schedules
----------------
hereto and thereto and the certificates and instruments delivered pursuant to
the terms of this Agreement, embody the entire agreement and understanding of
the parties hereto in respect of the Transactions. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
Transactions.
10.9. Publicity. So long as this Agreement is in effect, the parties agree
---------
to consult with each other in issuing any press release or otherwise making any
public statement with respect to the Transactions, and no party shall issue any
press release or make any such public statement prior to such consultation,
except as may be required by Law. No press release or other public statement by
the parties hereto shall disclose any of the financial terms of the Transactions
without the prior consent of the other parties, except as may be required by
Law. A breach of the provisions of this Section 10.9 by a party shall not give
rise to any right to terminate this Agreement.
10.10. Specific Performance. The parties hereto agree that irreparable
--------------------
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any New York Courts.
10.11. Remedies Cumulative. All rights, powers and remedies provided under
-------------------
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
10.12. Severability. Any provision of this Agreement that 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any court determines that any covenant or any part of
any covenant is invalid or unenforceable, such covenant shall be enforced to the
extent permitted by such court, and all other covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
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10.13. Beneficiaries of Agreement. The representations, warranties,
--------------------------
covenants and agreements expressed in this Agreement are for the sole benefit of
the other parties hereto and the Section 8.2 Indemnified Parties and Section 8.3
Indemnified Parties and are not intended to benefit, and may not be relied upon
or enforced by, any other party as a third party beneficiary or otherwise.
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