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FIRST AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
by and among
AT&T WIRELESS PCS LLC,
CASH EQUITY INVESTORS,
MANAGEMENT STOCKHOLDERS,
INDEPENDENT DIRECTORS
and
TRITON PCS HOLDINGS, INC.
dated as of October 27, 1999
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TABLE OF CONTENTS
Page
1. Certain Definitions 2
2. Restated Certificate and Restated Bylaws 14
3. Management of Company 14
3.1 Board of Directors 14
3.2 [Intentionally Omitted] 15
3.3 [Intentionally Omitted] 15
3.4 [Intentionally Omitted] 15
3.5 [Intentionally Omitted] 15
3.6 [Intentionally Omitted] 15
3.7 Transactions between the Company and the
Stockholders or their Affiliates 16
3.8 Executive Committee 16
3.9 Voting Agreements and Voting Trusts 16
3.10 Additional Capital Contributions 16
3.11 Series A Preferred Director 16
4. Transfers of Shares 17
4.1 General 17
4.2 Right of First Offer 18
4.3 Rights of Inclusion 19
4.4 Right of First Negotiation 22
4.5 Additional Conditions to Permitted Transfers 23
4.6 Representations and Warranties 23
4.7 Stop Transfer 23
5. Registration Rights 24
6. Disqualifying Transactions 37
6.1 Company Conversion Rights 37
6.2 Joint Marketing Right 38
7. Additional Rights and Covenants 39
7.1 [Intentionally Omitted] 39
7.2 [Intentionally Omitted] 39
7.3 Access. 39
7.4 Merger, Sale or Liquidation of the Company. 40
7.5 Wholly-Owned Subsidiaries 41
7.6 [Intentionally Omitted] 41
7.7 Confidentiality 41
7.8 [Intentionally Omitted] 42
7.9 AT&T PCS Retained Licenses 42
7.10 Regulatory Cooperation 42
7.11 Permitted Transactions 42
8. Operating Arrangements 43
8.1 Construction of Company Systems 43
8.2 Service Features 44
8.3 Quality Standards 44
8.4 No Change of Business 44
8.5 Preferred Provider 45
8.6 Exclusivity 45
8.7 Other Business; Duties; Etc 47
8.8 Acknowledgments and Termination of Exclusivity 47
8.9 Equipment, Discounts and Roaming 48
8.10 ANS Agreement 48
8.11 Resale Agreements 49
8.12 Non-Solicitation 49
8.13 Co-Location 50
9. After-Acquired Shares; Recapitalization 50
9.1 After Acquired Shares; Recapitalization 50
9.2 Amendment of Restated Certificate 50
10. Share Certificates 51
10.1 Restrictive Endorsements; Replacement Certificates 51
10.2 Lost or Destroyed Certificates 51
11. Equitable Relief 52
12. Miscellaneous 52
12.1 Notices. 52
12.2 Entire Agreement; Amendment; Consents 54
12.3 Term 54
12.4 Survival 55
12.5 Waiver. 55
12.6 Obligations Several 56
12.7 Governing Law. 56
12.8 Dispute Resolution 56
12.9 Benefit and Binding Effect; Severability 59
12.10 Amendment of Bylaws 59
12.11 Authorized Agent of AT&T PCS 59
12.12 FCC Approval 59
12.13 Expenses 60
12.14 Attorneys Fees 60
12.15 Headings 60
12.16 Counterparts 60
LIST OF SCHEDULES AND EXHIBITS
Schedules
Schedule I Cash Equity Investors
Schedule II Management Stockholders and Independent Directors
Schedule III Stockholders
Schedule IV Core Service Features
Schedule V Minimum Build-Out Plan
Schedule VI PCS Territory
Schedule VII TDMA Quality Standards
Schedule VIII [Intentionally Omitted]
Schedule IX Capital Budgets
Exhibits
Exhibit A Restated Bylaws
Exhibit B Restated Certificate
Exhibit C Form of Advanced Network Services Agreement
Exhibit D Form of Resale Agreement
FIRST AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
FIRST AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as
of October 27, 1999 (this Agreement), by and among AT&T WIRELESS
PCS LLC, a Delaware limited liability company and successor to
AT&T Wireless PCS Inc., a Delaware corporation (together with its
Affiliated Successors, AT&T PCS), the investors listed on
Schedule I (individually, each a Cash Equity Investor and,
collectively, with any of its Affiliated Successors, the Cash
Equity Investors), the individuals listed on Schedule II
(individually, each a Management Stockholder and, collectively,
the Management Stockholders), the individuals listed on Schedule
II (individually, an Independent Director and collectively, the
Independent Directors), and Triton PCS Holdings, Inc., a Delaware
corporation (the Company). Each of the foregoing Persons,
together with all other Persons who, in connection with a
Transfer (as hereinafter defined) are required to become a party
to this Agreement (other than the Company) are sometimes referred
to herein, individually, as a Stockholder and, collectively, as
the Stockholders.
RECITALS
WHEREAS, the Company and the Stockholders are parties to
that certain Stockholders Agreement dated as of February 4, 1998,
as amended (as so amended, the Original Stockholders Agreement);
WHEREAS, the Company is anticipated to consummate in the
near future an initial public offering (IPO) of 10,000,000 (plus,
if the underwriters of the IPO exercise the over-allotment option
granted to them by the Company, up to an additional 1,500,000)
shares of its Class A Common Stock (as hereinafter defined);
WHEREAS, the total number of authorized shares of all
classes of stock (Company Stock) that the Company has the
authority to issue is 650,000,000, consisting of (a) 70,000,000
shares of preferred stock, par value $0.01 per share (the
Preferred Stock), of which (i) 1,000,000 shares are designated
Series A Convertible Preferred Stock (the Series A Preferred
Stock), (ii) 50,000,000 shares are designated Series B Preferred
Stock (the Series B Preferred Stock), (iii) 3,000,000 shares are
designated Series C Convertible Preferred Stock (the Series C
Preferred Stock), and (iv) 16,000,000 shares are designated
Series D Convertible Preferred Stock (the Series D Preferred
Stock) and (b) 580,000,000 shares of common stock, par value
$0.01 per share (the Common Stock), of which (i) 520,000,000
shares are designated Class A Common Stock (the Class A Common
Stock), and (ii) 60,000,000 shares are designated Class B Non-
Voting Common Stock (the Class B Non-Voting Common Stock);
WHEREAS, upon consummation of the IPO each Stockholder will
be the registered owner of the respective shares of Company Stock
set forth opposite its name on Schedule III;
WHEREAS, the parties desire to enter into this Agreement in
order to (a) amend and restate as hereinafter set forth the
Original Stockholders Agreement, (b) to enter into certain
agreements regarding the management of the Company and (c) to
impose certain restrictions with respect to the sale, transfer or
other disposition of Company Stock on the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants, conditions and
agreements hereinafter set forth, the parties agree as follows:
1. Certain Definitions.
Act shall have the meaning set forth in Section 10.1(a).
Adopted Service Features shall mean the Core Service
Features and additional service features that are adopted by the
Companys PCS Systems in accordance with the terms of Section 8.2.
Advice shall have the meaning set forth in Section
5(d)(xvii).
Affiliate shall mean, with respect to any Person other than
a natural person, any other Person that, either directly or
indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with such Person and,
with respect to any natural Person, any trust for the exclusive
benefit of such natural Person and/or any member of such natural
Persons Immediate Family in which such Person is the sole trustee
thereof; provided, however, for purposes of Section 8.6,
Affiliate shall not include (x) Persons who conduct business in
the Territory in whom a Cash Equity Investor or any of their
respective Affiliates had made an investment or held securities
on February 4, 1998 in the ordinary course of their business, or
any such Person who conducts business in the Territory in whom a
Cash Equity Investor or any of their respective Affiliates made
an investment after February 4, 1998 or makes an investment after
the date hereof if such Cash Equity Investor or Affiliate thereof
controls such Person on a temporary basis where reasonably
necessary to protect its investment, or any Person who serves as
an officer, director or is a partner of any such Person who is
affiliated with a Cash Equity Investor, or (y) The Chase
Manhattan Bank, The Toronto Dominion Bank, ▇▇▇▇▇▇ Guaranty Trust
Company of New York and First Union Corporation. As used in this
Agreement, control, controlled or controlling shall mean
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract
or otherwise.
Affiliated Successor shall mean, with respect to any Person,
an Affiliate thereof that is a transferee or a successor in
interest to any or all of such Persons Company Stock and that is
required to become a party to this Agreement in accordance with
the terms hereof; provided, however, that, for purposes of
Section 4, with respect to any Cash Equity Investor, Affiliated
Successor shall also include partners, limited partners or
members of a Cash Equity Investor that are transferees of Company
Stock pursuant to distributions in accordance with the
partnership agreement or operating agreement of such Cash Equity
Investor.
Agreement shall have the meaning set forth in the preamble.
Arbitration Rules shall have the meaning set forth in
Section 12.8(d).
AT&T Licensee shall mean any Person that owns FCC licenses
to provide Commercial Mobile Radio Service, which Person is
authorized to provide any such services using the phrase Member,
AT&T Wireless Services Network or other service marks of AT&T
Corp.
AT&T PCS shall have the meaning set forth in the preamble.
AT&T PCS Contributed Licenses shall mean, collectively, (i)
the License(s) defined as the AT&T PCS Contributed Licenses in
the Securities Purchase Agreement (other than the License(s)
defined as the Cumberland/Hagerstown Exchanged License in the
License Exchange and Acquisition Agreement), (ii) the License(s)
defined as the AT&T PCS Contributed License in the Norfolk
Purchase Agreement, and (iii) the License(s) defined as the AT&T
PCS Transferred License in the License Exchange and Acquisition
Agreement.
AT&T PCS Retained Licenses shall mean, collectively, (i) the
License(s) defined as the AT&T PCS Retained Licenses in the
Securities Purchase Agreement, (ii) the License(s) defined as the
AT&T PCS Retained License in the Norfolk Purchase Agreement, and
(iii) the Licenses defined as the Cumberland/Hagerstown License
and the AT&T PCS Retained License in the License Exchange and
Acquisition Agreement.
AWS shall mean AT&T Wireless Services, Inc., a Delaware
corporation.
Beneficially Own shall have the meaning set forth in Rule
13d-3 of the Exchange Act.
Board of Directors shall mean the Board of Directors of the
Company.
BTA shall mean a geographic area established by the Rand
▇▇▇▇▇▇▇ 1992 Commercial Atlas & Marketing Guide, 123rd Edition,
pp. 3839, as modified by the FCC to form the initial geographic
area of license for the C, D, E and F blocks of broadband PCS
spectrum as defined in Section 24.202 of the FCCs rules.
Business shall mean the business of (a) owning,
constructing and operating systems to provide Company
Communications Services on frequencies licensed to the Company
for Commercial Mobile Radio Services pursuant to the Licenses as
described on Schedule XII; (b) providing to end-users and
resellers, solely within the Territory, Company Communications
Services available on such systems, (c) providing in connection
with such Company Communications Services, solely within the
Territory, the Adopted Service Features and (subject to the
immediately following sentence) telecommunications services
incidental or ancillary to such Company Communications Services
(including, by way of example, bundling additional
telecommunications services with Company Communications
Services), and (d) marketing and offering the services and
features described in clauses (b) and (c) within the Territory,
including advertising such services and features using broadcast
and other media, so long as such advertising extends beyond the
Territory only when and to the extent necessary to reach
customers and potential customers in the Territory. The
activities described in clauses (a) and (b) shall be the
indispensable requisite, and primary business, of the Company
and, to the extent the Company provides telecommunications
services incidental or ancillary thereto, the Company and its
Subsidiaries shall be only the agent or reseller for the provider
thereof and shall not own or lease the facilities used to provide
such services, except that (i) the Company may own or lease
facilities that, in the aggregate, do not have a purchase price
to the Company and its Subsidiaries in excess of $10 million, and
the Company may be a facilities based provider of services using
such facilities, and (ii) after completion of the Minimum Build
Out Plan and certification that Company Systems meet the TDMA
Quality Standards, the amount of $10 million set forth in clause
(i) hereof shall be increased to $100 million.
Cash Equity Investors shall have the meaning set forth in
the preamble.
Cellular System shall mean a cellular mobile radio telephone
system constructed and operated in a metropolitan statistical
area as defined by the FCC or a rural service area as defined by
the FCC (or any successor territorial designation or subdivision
thereof authorized by the FCC) exclusively using the 824 MHZ to
894 MHZ frequencies pursuant to a License therefor issued by the
FCC.
Cellular Territory shall mean the geographic area in respect
of which the Company acquires Permitted Cellular Licenses.
Class A Common Stock shall have the meaning set forth in the
third recital.
Class B Non-Voting Common Stock shall have the meaning set
forth in the third recital.
Closing Agreement shall have the meaning set forth in
Section 12.2(a).
Commission shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the
Securities Act.
Common Stock shall have the meaning set forth in the third
recital.
Company shall have the meaning set forth in the preamble.
Company Asset Sale shall have the meaning set forth in
Section 7.4(a).
Company Communications Services shall mean mobile wireless
telecommunications services (including the transmission of voice,
data, image or other messages or content) provided solely within
the Territory, initiated or terminated using TDMA and frequencies
licensed by the FCC, to or from subscriber equipment that is
capable of usage during routine movement throughout the area
covered by a cell site and routine handing off between cell
sites, and is either intended for such usage or is temporarily
fixed to a specific location on a short term basis (e.g., a bank
of wireless telephones temporarily installed during a special
event of limited duration). Without limiting the foregoing,
Company Communications Services shall include wireless office
services if such services comply with this definition. Company
Communications Services shall also include the transmissions
between the Companys cell sites and the Companys switch or
switches in the Territory, handing off transmissions at the
Companys switch or switches for termination by other carriers,
and receiving transmissions to the Companys customers handed off
at the Companys switch or switches, in each case for the purpose
of facilitating Company Communications Services described in the
first sentence.
Company Merger shall have the meaning set forth in Section
7.4(a).
Company Sale Notice shall have the meaning set forth in
Section 6.2(a).
Company Stock shall have the meaning set forth in the third
recital.
Company Systems shall mean the systems owned and operated by
the Company to provide Company Communications Services in the
Territory.
Confidential Information shall have the meaning assigned to
such term in Section 7.7(a).
Core Service Features shall mean the service features set
forth on Schedule IV.
CPR shall have the meaning set forth in Section 12.8(c).
Demand Notice shall have the meaning set forth in Section
5(a)(i).
Demand Registration shall have the meaning set forth in
Section 5(a)(i).
Demanding Stockholder shall have the meaning set forth in
Section 5(a)(i).
▇▇▇▇▇ shall mean Private Equity Investors III, L.P. and
Equity-Linked Investors-II.
Dispute shall have the meaning set forth in Section 12.8(a).
Disqualifying Transaction shall mean a merger,
consolidation, asset acquisition or disposition, or other
business combination involving AT&T Corp. (or its Affiliates)
and another Person, which other Person (together with its
Affiliates) (a) derives from telecommunications businesses annual
revenues in excess of five billion dollars (based on its most
recently ended fiscal year), (b) derives less than one third of
its aggregate revenues from the provision of wireless
telecommunications (based on its most recently ended fiscal year
for which such information is available), (c) owns FCC Licenses
to offer (and does offer) mobile wireless telecommunications
services serving more than 25% of the POPs within the Territory,
and (d) with respect to which AT&T PCS has given written notice
to the Company and the other Stockholders specifying that such
merger, consolidation, asset acquisition or disposition or other
business combination shall be a Disqualifying Transaction for
purposes of this Agreement and the transactions contemplated
hereby.
Employment Agreements shall mean the Employment Agreements
dated as of February 4, 1998 between Triton Management Company,
Inc., a wholly-owned Subsidiary of the Company, and each of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as the same may be
amended, modified or supplemented in accordance with the terms
thereof.
Equity Securities shall mean shares of any class or series
of common stock or preferred stock, or options, rights, warrants,
conversion rights or appreciation rights relating thereto, or any
other type of equity security of the Company.
Exchange Act shall mean the Securities Exchange Act of 1934,
as amended.
FAA shall have the meaning set forth in Section 12.8(e).
FCC shall mean the Federal Communications Commission or
similar regulatory authority established in replacement thereof.
Federal Arbitration Act shall have the meaning set forth in
Section 12.8(e).
Final Order shall mean an action or decision that has been
granted by the FCC as to which (i) no request for a stay or
similar request is pending, no stay is in effect, the action or
decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be
designated by statute or regulation has passed, (ii) no petition
for rehearing or reconsideration or application for review is
pending and the time for the filing of any such petition or
application has passed, (iii) the FCC does not have the action or
decision under reconsideration on its own motion and the time
within which it may effect such reconsideration has passed, and
(iv) no appeal is pending including other administrative or
judicial review, or in effect and any deadline for filing any
such appeal that may be designated by statute or rule has passed.
First Offer shall have the meaning set forth in Section 4.2(a).
First Offer Period shall have the meaning set forth in Section 4.2(b).
First Offeree shall have the meaning set forth in Section 4.2(a).
Governmental Authority means a Federal, state or local
court, legislature, governmental agency (including, without
limitation, the United States Department of Justice), commission
or regulatory or administrative authority or instrumentality.
Immediate Family shall mean an individuals spouse, children
(including adopted children), grandchildren, parents,
grandparents, and siblings.
Inclusion Event shall have the meaning set forth in Section 4.3(a).
Inclusion Event Offeree shall have the meaning set forth in
Section 4.3(a).
Inclusion Event Purchaser shall have the meaning set forth
in Section 4.3(a).
Inclusion Notice shall have the meaning set forth in Section 4.3(a).
Inclusion Stock shall have the meaning set forth in Section 4.3(a).
Indemnified Party shall have the meaning set forth in Section 5(e)(v).
Indemnified Stockholder shall have the meaning set forth in
Section 5(e)(i).
Indemnifying Party shall have the meaning set forth in Section 5(e)(v).
Independent Director shall have the meaning set forth in thepreamble.
IPO shall have the meaning set forth in the second recital.
IPO Date shall mean, in connection with the IPO, the first
date on which (a) the Class A Common Stock shall have been
registered pursuant to an effective Registration Statement under
the Securities Act, (b) the aggregate gross proceeds received by
the Company in connection with such Registration Statement(s)
equals or exceeds $20 million, and (c) the Class A Common Stock
shall be listed for trading on the New York Stock Exchange or the
American Stock Exchange or authorized for trading on NASDAQ,
including without limitation its National Market System.
Joint Marketing Period shall have the meaning set forth in
Section 6.2(a).
JPMI shall have the meaning set forth in Section 3.1(d).
▇.▇. ▇▇▇▇▇▇ shall have the meaning set forth in Section 3.1(d).
Law shall mean applicable common law and any statute,
ordinance, code or 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.
License shall mean a license, permit, certificate of
authority, waiver, 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.
License Exchange and Acquisition Agreement shall mean the
License Exchange and Acquisition Agreement among the Company,
Triton PCS License Company L.L.C., and AT&T PCS, dated as of June
8, 1999, as the same may be amended, modified or supplemented in
accordance with the terms thereof.
Liens shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest, right of first refusal
or right of others therein or encumbrance of any nature
whatsoever in respect of such asset.
Management Stockholder shall have the meaning set forth in
the preamble.
Majority in Interest shall mean, with respect to the Cash
Equity Investors, Persons that Beneficially Own, in the aggregate
more than 50% of the aggregate number of shares of Common Stock
Beneficially Owned by all such Persons.
Majority of the Southeast Region shall mean PCS Systems and
Cellular Systems owned by AT&T PCS and its Affiliates covering a
majority of the POPs in all such PCS Systems and Cellular Systems
in the Southeast Region.
Majority of the United States shall mean PCS Systems and
Cellular Systems owned by AT&T PCS and its Affiliates covering a
majority of the POPs in all such PCS Systems and Cellular Systems
in the United States.
Minimum Build-Out Plan shall mean the build-out plan for the
Companys PCS Systems set forth on Schedule V hereto.
Model Procedures shall have the meaning set forth in Section 12.8(c).
MTA shall mean a geographic area established by the Rand
▇▇▇▇▇▇▇ 1992 Commercial Atlas & Marketing Guide, 123rd Edition,
pp. 3839, as modified by the FCC to form the initial geographic
area of license for the A and B blocks of broadband PCS spectrum
as defined in Section 24.202 of the FCCs rules.
NASD shall mean the National Association of Securities Dealers, Inc.
NASDAQ shall mean the National Association of Securities
Dealers Automated Quotation System.
Network Membership License Agreement shall mean the Network
Membership License Agreement between Triton Operating and AT&T
Corp., dated February 4, 1998, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
Norfolk Purchase Agreement shall mean the Asset Purchase
Agreement between the Company and AT&T PCS dated as of August 20,
1998, as the same may be amended, modified or supplemented in
accordance with the terms thereof.
Offer Notice shall have the meaning set forth in Section 4.2(a).
Offered Shares shall have the meaning set forth in Section 4.2(a).
Original Management Stockholders shall mean, collectively,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Original Stockholders Agreement shall have the meaning set
forth in the first recital.
Overlap Territory shall mean that portion of the Territory
in which a Person or its Affiliates (other than AT&T PCS and its
Affiliates) that is party to a transaction meeting the
description of a transaction set forth in clauses (a), (b) and
(c) of the definition of a Disqualifying Transaction owns an FCC
License to offer Commercial Mobile Radio Services.
PCS System shall mean a mobile communication system
constructed and operated in a BTA or a MTA (or any successor
territorial designations or subdivision thereof authorized by the
FCC) exclusively using the 1850 MHZ to 1910 MHZ and 1930 MHZ to
1990 MHZ frequencies, or portions thereof, pursuant to a License
therefor issued by the FCC.
PCS Territory shall mean the territory described on
Schedule VI hereto.
Permitted Cellular License shall have the meaning assigned
to such term in Section 7.11(b).
Permitted Consolidation Transaction shall have the meaning
set forth in Section 7.11(a).
Permitted Merger Participant shall mean an AT&T Licensee
that (i) owns one or more FCC Licenses to provide Commercial
Mobile Radio Services that were acquired from AT&T PCS or its
Affiliates in all or any part of the Knoxville, TN, Memphis, TN,
Little Rock, AK, Detroit, MI, St. Louis, MO, ▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Nashville, TN and Columbus, OH MTAs
and (ii) on the date of acquisition from AT&T PCS of any such FCC
Licenses to provide Commercial Mobile Radio Service referred to
in clause (i) hereof, owned FCC Licenses covering at least 8
million POPs, and in which AT&T PCS or its Affiliates has not
disposed of more than one-half of its original equity interest
therein.
Person shall mean an individual, corporation, partnership,
limited liability company, association, joint stock company,
Governmental Authority, business trust or other legal entity.
Piggyback Notice shall have the meaning set forth in Section 5(b)(i).
Piggyback Registration shall have the meaning set forth in
Section 5(b)(i).
POPs shall mean, with respect to any Licensed area, the
residents of such area based on the most recent publication by
Equifax Marketing Decision Systems, Inc.
Preferred Stock shall have the meaning set forth in the
third recital.
Prohibited Transferee shall mean any Person that is one of
the three (excluding any Person excluded from this definition by
reason of the proviso hereto) largest carriers (other than AT&T
Corp.) of telecommunications services that as of the date hereof
constitute interexchange services (based on revenue derived from
the provision of such telecommunications services during the most
recent fiscal year for which such information is available) or an
Affiliate thereof; provided, however, that such Person shall not
constitute a Prohibited Transferee if (a) a material portion of
such Persons business is also the business of providing wireless
communications systems, and (b) TDMA is utilized in a substantial
majority of such Persons wireless communications systems.
Prospectus shall have the meaning set forth in Section 5(d)(i).
Purchase Notice shall have the meaning set forth in Section 4.2(b).
Qualified Holder shall mean (a) any Stockholder or group of
Stockholders that Beneficially Owns shares of Series C Preferred
Stock and Common Stock reasonably expected to, upon sale, result
in aggregate gross proceeds of at least $25 million, or (b) AT&T
PCS for so long as it Beneficially Owns, greater than two-thirds
of the initial issuance to AT&T PCS of shares of Series A
Preferred Stock (as appropriately adjusted for stock splits,
stock dividends and the like).
Registrable Securities shall mean (a) the Common Stock now
owned or hereafter acquired by any Stockholder or issuable upon
conversion or exchange of any Equity Security, and (b) all Common
Stock issued or issuable upon conversion, exchange or exercise of
any Equity Security which is issued pursuant to a stock split,
stock dividend or other similar distribution or event with
respect to Common Stock but with respect to any Common Stock,
only until such time as such Common Stock (i) has been
effectively registered under the Securities Act and disposed of
in accordance with the Registration Statement covering it, (ii)
has been sold to the public pursuant to Rule 144 (or any similar
provision then in force), (iii) shall otherwise have been
transferred, a new certificate evidencing such Common Stock
without a legend restricting further transfer shall have been
delivered by the Company, and subsequent public distribution of
such Common Stock shall neither require registration under the
Securities Act nor qualification (or any similar filing) under
any state securities or blue sky law then in effect, or (iv)
shall have ceased to be issued and outstanding.
Registration shall have the meaning set forth in Section 5(d).
Registration Expenses shall have the meaning set forth in
Section 5(g).
Registration Statement shall have the meaning set forth in
Section 5(d)(i).
Regulatory Problem shall mean, with respect to any SBIC
Holder, any set of facts or circumstances wherein it has been
asserted by any Governmental Authority (or any SBIC Holder
reasonably believes in good faith that there is a substantial
risk of such assertion) that such SBIC Holder and its Affiliates
are not entitled to hold, or exercise any significant right with
respect to, the Company Stock.
Related Agreements shall mean each of the Network Membership
License Agreement, the Employment Agreements, the Resale
Agreement and the Roaming Agreement.
Representatives shall have the meaning set forth in Section 7.7.
Resale Agreement shall mean the form of Resale Agreement
between Triton Operating and AWS or an Affiliate thereof,
attached hereto as Exhibit D, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
Restated Bylaws shall mean the Second Amended and Restated
Bylaws of the Company in the form of Exhibit A, as the same may
be amended, modified or supplemented in accordance with the terms
thereof.
Restated Certificate shall mean the Second Restated
Certificate of Incorporation of the Company, in the form of
Exhibit B, as the same may be amended, modified or supplemented
in accordance with the terms thereof.
Roaming Agreement shall mean the Intercarrier Roamer Service
Agreement between Triton Operating and AWS, dated February 4,
1998, as the same may be amended, modified or supplemented in
accordance with the terms thereof.
Rule 144 shall mean Rule 144 promulgated under the
Securities Act (or any similar rule as may be in effect from time
to time).
Sale Notice shall have the meaning set forth in Section 7.4(d).
Sale Offer shall have the meaning set forth in Section 7.4(d).
Sale Transaction shall have the meaning set forth in Section 7.4(c).
SBIC shall mean a small business investment company licensed
under the SBIC Act.
SBIC Act means the Small Business Investment Company Act of
1958, as amended.
SBIC Holder shall mean each Cash Equity Investor that is an
SBIC.
Section 6.2 Period shall have the meaning set forth in
Section 6.2.
Securities Act shall mean the Securities Act of 1933, as
amended.
Securities Purchase Agreement shall mean the Securities
Purchase Agreement, dated as of October 8, 1997, among the
Company and the Stockholders, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
Seller shall have the meaning set forth in Section 4.2(a).
Selling Stockholders shall have the meaning set forth in
Section 4.3(a).
Series A Preferred Director shall mean the Class II director
of the Company that AT&T PCS has the right to nominate pursuant
to Section 4.3(d)(iii) of the Restated Certificate.
Series A Preferred Stock shall have the meaning set forth in
the third recital.
Series B Preferred Stock shall have the meaning set forth in
the third recital.
Series C Preferred Stock shall have the meaning set forth in
the third recital.
Series D Preferred Stock shall have the meaning set forth in
the third recital.
Sixty Wall Street shall have the meaning set forth in
Section 3.1(d).
Southeast Region shall mean the geographic area comprising
Washington, D.C., and the States of Alabama, Florida, Georgia,
Kentucky, Maryland, Mississippi, North Carolina, South Carolina,
Tennessee, Virginia, and West Virginia.
Stockholder shall have the meaning set forth in the
preamble.
Subject Market shall mean, with respect to any announcement
by AT&T PCS or its Affiliates of a transaction meeting the
description of a transaction set forth in clauses (a), (b) and
(c) of the definition of a Disqualifying Transaction, the PCS
System owned and operated by AT&T PCS and its Affiliates in any
of Charlotte, North Carolina, Atlanta, Georgia,
Baltimore/Washington, D.C. or Richmond, Virginia BTA.
Subsidiary shall mean, with respect to any Person, a
corporation or other entity of which 50% or more of the voting
power of the voting equity securities or equity interests is
owned, directly or indirectly, by such Person.
Substantial Company Breach shall mean a material breach by
the Company or its Subsidiaries of their respective obligations
under any of Sections 8.1(a), 8.2, 8.3, or 8.5(a) of this
Agreement, if and only if any such material breach is not cured
within 30 days of notice thereof from AT&T PCS to the Company or,
if such breach is not capable of being cured within such thirty
(30) day period, within one hundred eighty (180) days of such
notice, provided the Company is using best efforts to cure such
material breach as soon as reasonably practicable.
TDMA shall mean the North American Time Division Multiple
Access standard set by the Cellular Telecommunications Industry
Association, IS54/136, and any standard that is based upon, or is
an upgrade from, or is a successor to, such standard, if and only
if such new or upgraded standard is (i) adopted by AT&T PCS and
its Affiliates in a Majority of the Southeast Region, (ii)
technologically compatible in all material respects with the
standard then being used in a Majority of the United States
(including without limitation for the purpose of facilitating
roaming, handoff and automatic call delivery between systems),
and the User Interface in PCS Systems using such new or upgraded
standard will not differ from the User Interface in a Majority of
the United States in a manner that would be material to
customers, or (iii) is approved in writing by AT&T PCS.
TDMA Quality Standards shall mean the quality standards
applicable to TDMA PCS Systems and Cellular Systems owned and
operated by AT&T PCS and its Affiliates in the Southeast Region,
which, as currently in effect, are set forth on Schedule VII, as
the same may be amended from time to time, provided any such
amended standards shall become effective one hundred twenty (120)
days after notice thereof is given to the Company.
Territory shall mean the PCS Territory and the Cellular
Territory; provided, however, that in the event that, after
consummation of a Disqualifying Transaction, AT&T PCS terminates
its and its Affiliates obligations under Section 8.6 with respect
to any Overlap Territory, the Territory shall exclude the Overlap
Territory solely for the purpose of determining the rights and
obligations of AT&T PCS and the Company hereunder.
Transfer shall have the meaning set forth in Section 4.1(b).
Triton Operating shall mean Triton PCS Operating Company
L.L.C., a Delaware limited liability company which is a wholly-
owned Subsidiary of the Company.
Unfunded Commitment, with respect to any Cash Equity
Investor or Original Management Stockholder, the amount set forth
opposite such Persons name on Schedule XII.
User Interface shall mean the process, functional commands,
and look and feel by which a mobile wireless telecommunications
service subscriber operates and utilizes the mobile wireless
telecommunications services and service features provided by a
PCS System, including the sequence and detail of specific
commands or service codes, the detailed operation and response of
subscriber equipment to the sequence of keys pressed to effect
subscriber equipment function, the response of subscriber
equipment to the activation of these keys or signals or data from
the PCS System, the manner in which information is displayed on
the screen of subscriber equipment, and the use of announcement
tones and messages.
Each definition or pronoun herein shall be deemed to refer to the
singular, plural, masculine, feminine or neuter as the context
requires. Words such as herein, hereinafter, hereof, hereto and
hereunder refer to this Agreement as a whole, unless the context
otherwise requires.
2. Restated Certificate and Restated Bylaws. The Restated
Certificate in effect as of the date hereof is in the form of
Exhibit B hereto. The Restated Bylaws of the Company in effect
as of the date hereof are in the form of Exhibit A hereto.
3. Management of Company.
3.1 Board of Directors.
(1) The Board of Directors shall consist of seven (7) directors;
provided, however, that the number of directors constituting the
Board of Directors shall be reduced in the circumstances set
forth in this Section 3.1. Each of the Stockholders (other than
▇.▇. ▇▇▇▇▇▇) hereby agrees that it will vote all of the shares of
its Common Stock owned or held of record by it (whether now owned
or hereafter acquired), in person or by proxy, to cause the
election of directors (and thereafter the continuation in office)
of two (2) individuals (one of which shall be one of the Companys
Class I directors and one of which shall be one of the Companys
Class III directors, as more particularly described in the
Restated Bylaws) selected by holders of a Majority in Interest of
the Common Stock Beneficially Owned by the Cash Equity Investors,
in their sole discretion. Any nomination or designation of
directors and the acceptance thereof pursuant to this Section
3.1(a) shall be evidenced in writing.
(2) So long as ▇▇▇▇▇ Beneficially Owns at least 4.6 million
shares of Common Stock, it shall have the right to designate one
(1) one individual who shall be entitled to attend each meeting
of the Board of Directors as an observer, including meetings
during which the Companys annual budget is discussed and
presented (such observer shall have the right to receive all
Board of Directors materials and shall also have the right to
meet quarterly with management of the Company to consult on the
business affairs of the Company).
(3) So long as AT&T PCS has the right to nominate the Series A
Preferred Director, it shall have the right to designate up to
two (2) of AT&T PCSs Regional Directors (in regions overlapping
with or in geographic proximity to the Territory) who shall have
the right to attend each meeting of the Board of Directors as
observers.
(4) In the event that CB Capital Investors, L.P., or ▇.▇. ▇▇▇▇▇▇
Investment Corporation (JPMI) or Sixty Wall Street SBIC Fund,
L.P. (Sixty Wall Street; JPMI and Sixty Wall Street are
hereinafter referred to collectively as ▇.▇. ▇▇▇▇▇▇) shall fail
to satisfy any portion of their respective Unfunded Commitments
when due in accordance with Section 2.2 of the Securities
Purchase Agreement or Section 3.10 hereof, and such failure is
not cured by CB Capital Investors, L.P. or ▇.▇. ▇▇▇▇▇▇, as
applicable, or any other Cash Equity Investor within thirty-five
(35) days thereof, then, until such failure is cured, the right
of the Cash Equity Investors to designate two (2) directors
pursuant to Section 3.1(a) shall be reduced to a right to
designate one (1) director (subject to reinstatement upon cure of
such failure) and the director designated by CB Capital
Investors, L.P. or ▇.▇. ▇▇▇▇▇▇, as applicable, pursuant to such
right of the Cash Equity Investors, or, in the case of a default
by CB Capital Investors, L.P. and ▇.▇. ▇▇▇▇▇▇ and two (2)
directors designated by the Cash Equity Investors pursuant to
Section 3.1(a), shall resign (or the other directors or
Stockholders shall remove them) from the Board of Directors and
the remaining directors shall take such action so that the number
of directors constituting the entire Board of Directors shall be
reduced accordingly.
3.2 [Intentionally Omitted]
3.3 [Intentionally Omitted]
3.4 [Intentionally Omitted]
3.5 [Intentionally Omitted]
3.6 [Intentionally Omitted]
3.7 Transactions between the Company and the Stockholders or
their Affiliates. Except for this Agreement, the Securities
Purchase Agreement and the Related Agreements and the
transactions contemplated hereby and thereby and any other arms-
length agreements or transactions entered into from time to time
between the Company and its Subsidiaries, on the one hand, and
AT&T PCS and its Affiliates, on the other hand, no Stockholder or
any Affiliate of any Stockholder shall enter into any transaction
with the Company or any Subsidiary of the Company unless such
transaction is approved by a majority of the disinterested
members of the Board of Directors. For purposes hereof, a
director shall be deemed to be disinterested with respect to any
such transaction if such director was not designated a director
by the Stockholder that (or an Affiliate of which) proposed to
engage in such transaction with the Company or any Subsidiary of
the Company and such member is not an officer, director, partner,
employee, stockholder of, or consultant to, such Stockholder or
any of its Affiliates.
3.8 Executive Committee. If an executive committee of the Board
of Directors (or a committee of the Board of Directors having
substantially the same mandate and powers of such a committee) is
established, the Series A Preferred Director, one of the
directors selected by the Cash Equity Investors pursuant to
Section 3.1 and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (so long as he is an officer
of the Company) shall each serve as a member of such committee
(or such other committee having substantially the same mandate
and powers).
3.9 Voting Agreements and Voting Trusts. Except as disclosed on
Schedule X, each Stockholder agrees that it will not, directly
or indirectly, deposit any of his or its shares of Series C
Preferred Stock, Series D Preferred Stock and/or Common Stock in
a voting trust or other similar arrangement or, except as
expressly provided herein, subject such shares to a voting
agreement or other similar arrangements. AT&T PCS covenants and
agrees that it will not, directly or indirectly, enter into a
voting or similar agreement with any Transferee of shares of
Series A Preferred Stock.
3.10 Additional Capital Contributions. Each Cash Equity Investor
and Original Management Stockholder shall contribute to the
capital of the Company no later than November 30, 1999 an
aggregate additional amount equal to its Unfunded Commitment.
Pursuant to Section 7 of the Closing Agreement, such
contributions shall be made directly to Triton PCS, Inc., a
Delaware corporation that is a wholly-owned Subsidiary of the
Company.
3.11 Series A Preferred Director. For so long as AT&T PCS shall
have the right to nominate the Series A Preferred Director, each
of the Stockholders (other than ▇.▇. ▇▇▇▇▇▇) hereby agrees that
it will vote all of the shares of Series C Preferred Stock and
Common Stock owned or held of record by it (whether now owned or
hereafter acquired), in person or by proxy, to cause the election
of any such Series A Preferred Director so nominated by AT&T PCS
to serve on the Board of Directors and such obligation of the
Stockholders to cause the election of any such Series A Preferred
Director shall continue until the termination of this Agreement
in accordance with Section 12.3.
1.1
4. Transfers of Shares.
4.1 General.
(1) [Intentionally Omitted]
(2) Each Stockholder agrees that at all times on and after the
IPO Date it shall not, directly or indirectly, transfer, sell,
assign, pledge, tender or otherwise grant, create or suffer to
exist a Lien in or upon, give, place in trust, or otherwise
voluntarily or involuntarily (including transfers by testamentary
or intestate succession) dispose of by operation of law, offer or
otherwise (any such action being referred to herein as a
Transfer) any of the shares of Series D Preferred Stock or Common
Stock Beneficially Owned by such Stockholder as of the date
hereof or which may hereafter be acquired by such Stockholder,
except that a Cash Equity Investor may Transfer shares of Series
C Preferred Stock and Common Stock to another Cash Equity
Investor and a Stockholder may Transfer (i) shares of Series D
Preferred Stock and Common Stock to an Affiliated Successor, and
(ii) shares of Common Stock after complying first with Section
4.2 and next with Section 4.3, if applicable; provided, however,
a Stockholder shall not be required to comply with Section 4.2 if
such Stockholder first complies with the applicable provisions of
Section 4.4 in connection with Transfers of Common Stock (x)
pursuant to a Registration of Common Stock under Section 5 which
is an underwritten offering and constitutes a bona fide
distribution of such Common Stock pursuant to such Registration,
(y) pursuant to Rule 144, or (z) in any single transaction or
series of related transactions to one or more Persons which
results in the Transfer by such Stockholder (together with any
other Stockholder participating in such single transaction or
series of related transactions) of not more than ten percent
(10%) of the Common Stock on a fully diluted basis (excluding for
such purposes the Series A Preferred Stock).
(3) Notwithstanding anything to the contrary contained in
Section 4.1(b), prior to February 4, 2001, each Stockholder
agrees that it will not Transfer any shares of Series C Preferred
Stock or Common Stock Beneficially Owned by it as of the date
hereof or which may hereafter be acquired by it to any Person
other than an Affiliated Successor.
(4) AT&T PCS agrees that it will not (i) Transfer any shares
of Series D Preferred Stock held by it to any Person other than to
an Affiliated Successor; provided, however, that nothing
contained in this Section 4.1(d) shall limit AT&T PCS right to
Transfer in accordance with the terms of this Agreement any
shares of Series C Preferred Stock or Common Stock issued upon
conversion of any such shares of Series D Preferred Stock.
Moreover, AT&T PCS may Transfer its shares of Series A Preferred
Stock free from any restrictions on Transfer of such shares under
this Agreement.
(5) Notwithstanding anything to the contrary contained in
this Section 4, (i) Section 4.1 shall not apply to the pledge by the
Cash Equity Investors of the Series C Preferred Stock or Common
Stock as security for their Unfunded Commitments pursuant to a
pledge agreement in favor of the Company or to any Transfer of
shares of Series C Preferred Stock or Common Stock in connection
with the exercise by the Company of its remedies pursuant to any
such pledge agreement, and (ii) a Cash Equity Investor that is a
SBIC Holder that is required to dispose of its investment in the
Company by reason of a breach by the Company of Section 6.6(d) of
the Securities Purchase Agreement or a Regulatory Problem, may
Transfer its shares of Series C Preferred Stock or Common Stock
without complying with the terms of Section 4.3.
4.2 Right of First Offer.
(1) If a Stockholder (each a Seller) desires to Transfer any
or all of its shares of Company Stock (collectively, the Offered
Shares), such Seller shall give written notice (the Offer Notice)
to the Company and to each Stockholder entitled to become the
First Offeree of such Offered Shares, as determined below. Each
Offer Notice shall describe in reasonable detail the number of
shares of each class of Offered Shares, the cash purchase price
requested and all other material terms and conditions of the
proposed Transfer. The Offer Notice shall constitute an
irrevocable offer (a First Offer) to sell all (and not less than
all) of the Offered Shares to the First Offeree(s) at a cash
price equal to the price contained in such Offer Notice and upon
the same terms as the terms contained in such Offer Notice. The
First Offeree(s) shall have the irrevocable right and option,
exercisable as provided below, but not the obligation, to accept
the First Offer as to all (and not less than all) of the Offered
Shares. The First Offeree(s) shall be determined as follows:
(1) If the Seller is a Cash Equity Investor, AT&T PCS shall be
First Offeree;
(2) If the Seller is AT&T PCS, each Cash Equity Investor shall
be the First Offeree; and
(3) If the Seller is any Stockholder other than a Cash Equity
Investor, AT&T PCS shall be the First Offeree.
(2) The option provided for herein shall be exercisable by the
First Offeree(s) by giving written notice (a Purchase Notice),
that the First Offeree desires to purchase all (and not less than
all) of such Offered Shares from the Seller, the Stockholders
(other than the Seller) and the Company not later than ten (10)
business days (the First Offer Period) after the date of the
Offer Notice. If the Cash Equity Investors are First Offeree and
two or more Cash Equity Investors notify the Seller of their
desire to purchase all of the Offered Shares, then each Cash
Equity Investor shall acquire the proportion of such Offered
Shares as the number of shares of Company Stock owned by such
Cash Equity Investor bears to the total number of shares of
Company Stock owned by all Cash Equity Investors who elected to
purchase all of the Offered Shares. If Offered Shares are
purchased by more than one purchaser, the purchase price shall be
allocated among the parties purchasing the shares on the basis of
the number of shares being so purchased. The purchase of the
Offered Shares by the First Offeree(s) shall be closed at the
principal executive offices of the Company on a date specified by
the First Offeree(s) upon at least five (5) business days notice,
that is within thirty (30) days after the expiration of the First
Offer Period; provided, however, that if such purchase is subject
to the consent of the FCC or any public service or public
utilities commission, the purchase of the Offered Shares shall be
closed on the first business day after all such consents shall
have been obtained by Final Order.
(3) If the First Offeree(s) decline (which shall include the
failure to give timely notice of acceptance) to purchase all of
the Offered Shares subject to the First Offer within the First
Offer Period, the Seller shall have the right (for a period of
ninety (90) days following the expiration of the First Offer
Period) to consummate the sale of the Offered Shares to any
Person; provided, however, that the purchase price of such
Offered Shares payable by such Person must be at least equal to
the cash purchase price thereof set forth in the Offer Notice and
all other terms and conditions of any such sale shall not be more
beneficial to such third party than those contained in the Offer
Notice. If any Offered Shares are not sold pursuant to the
provisions of this Section 4.2 prior to the expiration of the
ninety (90) day period specified in the immediately preceding
sentence, such Offered Shares shall become subject once again to
the provisions and restrictions hereof.
(4) The purchase price of any Offered Shares Transferred
pursuant to this Section 4.2 shall be payable in cash by
certified bank check or by wire transfer of immediately available
funds.
4.3 Rights of Inclusion.
(1) No Stockholder shall, directly or indirectly, Transfer, in
any single transaction or series or related transactions to one
or more Persons who are not Affiliated Successors of such
Stockholder (each such Person an Inclusion Event Purchaser)
shares of Series C Preferred Stock or Common Stock (collectively,
Inclusion Stock) in circumstances in which, after giving effect
to such Transfer, whether acting alone or in concert with any
other Stockholder (such parties referred to herein as Selling
Stockholders) would result in such Selling Stockholder(s)
Transferring twenty-five percent (25%) or more of the outstanding
shares of Inclusion Stock outstanding on the date of such
proposed Transfer on a fully diluted basis (excluding for such
purposes the Series A Preferred Stock) (an Inclusion Event),
unless the terms and conditions of such sale to such Inclusion
Event Purchaser shall include an offer to AT&T PCS, the Cash
Equity Investors and the Management Stockholders other than the
Selling Stockholder (each, an Inclusion Event Offeree) to
Transfer to such Inclusion Event Purchasers up to that number of
shares of any class of Inclusion Stock then Beneficially Owned by
each Inclusion Event Offeree that bears the same proportion to
the total number of shares of Inclusion Stock at that time
Beneficially Owned (without duplication) by each such Inclusion
Event Offeree as the number of shares of Inclusion Stock being
Transferred by the Selling Stockholders (including shares of
Inclusion Stock theretofore Transferred if in any applicable
series of related transactions) bears to the total number of
shares of Inclusion Stock at the time Beneficially Owned (without
duplication) by the Selling Stockholders (including shares of
Inclusion Stock theretofore Transferred if in any applicable
series of related transactions). If the Selling Stockholders
receive a bona fide offer from an Inclusion Event Purchaser to
purchase shares of Inclusion Stock in circumstances in which,
after giving effect to such sale would result in an Inclusion
Event, and which offer such Selling Stockholders wish to accept,
the Selling Stockholders shall then cause the Inclusion Event
Purchasers offer to be reduced to writing (which writing shall
include an offer to purchase shares of Inclusion Stock from each
Inclusion Event Offeree according to the terms and conditions set
forth in this Section 4.3) and the Selling Stockholders shall
send written notice of the Inclusion Event Purchasers offer (the
Inclusion Notice) to each Inclusion Event Offeree, which
Inclusion Notice shall specify (i) the names of the Selling
Stockholders, (ii) the names and addresses of the proposed
acquiring Person, (iii) the amount of shares proposed to be
Transferred and the price, form of consideration and other terms
and conditions of such Transfer (including, if in a series of
related transactions, such information with respect to shares of
Inclusion Stock theretofore Transferred), (iv) that the acquiring
Person has been informed of the rights provided for in this
Section 4.3 and has agreed to purchase shares of Inclusion Stock
in accordance with the terms hereof, and (v) the date by which
each other Selling Stockholder may exercise its respective rights
contained in this Section 4.3, which date shall not be less than
thirty (30) days after the giving of the Inclusion Notice. The
Inclusion Notice shall be accompanied by a true and correct copy
of the Inclusion Event Purchasers offer. At any time within
thirty (30) days after receipt of the Inclusion Notice, each
Inclusion Event Offeree may accept the offer included in the
Inclusion Notice for up to such number of shares of Inclusion
Stock as is determined in accordance with this Section 4.3, by
furnishing written notice of such acceptance to each Selling
Stockholder, and delivering, to an escrow agent (which shall be a
bank or a law or accounting firm designated by the Company), on
behalf of the Selling Stockholders, the certificate or
certificates representing the shares of Inclusion Stock to be
sold pursuant to such offer by each Inclusion Event Offeree, duly
endorsed in blank, together with a limited power of attorney
authorizing the escrow agent, on behalf of the Inclusion Event
Offeree, to sell the shares to be sold pursuant to the terms of
such Inclusion Event Purchasers offer.
In the event that the Inclusion Event Purchaser does
not agree to purchase all of the shares of Inclusion Stock
proposed to be sold by the Selling Stockholders and the Inclusion
Event Offeree, then each Selling Stockholder and Inclusion Event
Offeree shall have the right to sell to the Inclusion Event
Purchaser that number of shares of Inclusion Stock as shall be
equal to (x) the number of shares of Inclusion Stock which the
Inclusion Event Purchaser has agreed to purchase times (y) a
fraction, the numerator of which is the number of shares of
Inclusion Stock Beneficially Owned (without duplication) by such
Selling Stockholder or Inclusion Event Offeree and the
denominator of which is the aggregate number of shares of
Inclusion Stock Beneficially Owned (without duplication) by all
Selling Stockholders and Inclusion Event Offeree. If any
Inclusion Event Offeree desires to sell less than its
proportionate amount of shares of Inclusion Stock that it is
entitled to sell pursuant to this Section 4.3, then the Selling
Stockholders and the remaining Inclusion Event Offeree shall have
the right to sell to the Inclusion Event Purchaser an additional
amount of shares of Inclusion Stock as shall be equal to (x) the
number of shares of Inclusion Stock not being sold by any such
Inclusion Event Purchasers times (y) a fraction, the numerator of
which is the number of shares of Inclusion Stock owned such
Selling Stockholder or remaining Inclusion Event Offeree and the
denominator of which is the aggregate number of shares of
Inclusion Stock Beneficially Owned (without duplication) by all
Selling Stockholders and remaining Inclusion Event Offeree. Such
process shall be repeated in series until all of the remaining
Inclusion Event Offeree agree to sell their remaining
proportionate number of shares of Inclusion Stock.
(2) The purchase from each Inclusion Event Offeree pursuant
to this Section 4.3 shall be on the same terms and conditions,
including the price per share received by the Selling
Stockholders and stated in the Inclusion Notice provided to each
Inclusion Event Offeree. In the event that the Inclusion Stock
is Common Stock, all Inclusion Event Offeree shall be required,
as a condition of participating in such transaction, to convert
its Preferred Stock into Common Stock and Transfer Common Stock
to the Inclusion Event Purchaser. In the event that the
Inclusion Stock is Series C Preferred Stock and after giving
effect to the rights of the Inclusion Event Offeree to sell their
pro rata share of Series C Preferred Stock or Common Stock
pursuant to this Section 4.3 the Inclusion Event Purchaser shall
be required to purchase both Series C Preferred Stock and Common
Stock, the purchase price allocable to holders of Series C
Preferred Stock, on the one hand, and to holders of Common Stock,
on the other hand, shall be determined by an independent
committee of the Board of Directors selected from among those
directors who were not designated by any Selling Stockholders or
Inclusion Event Offeree.
(3) Simultaneously with the consummation of the sale of
the shares of Inclusion Stock of the Selling Stockholders and each
Inclusion Event Offeree to the Inclusion Event Purchaser pursuant
to the Inclusion Event Purchasers offer, the Selling Stockholders
shall notify each Inclusion Event Offeree and shall cause the
purchaser to remit to each Inclusion Event Offeree the total
sales price of the shares of Inclusion Stock held by each
Inclusion Event Offeree sold pursuant thereto and shall furnish
such other evidence of the completion and time of completion of
such sale and the terms thereof as may be reasonably requested by
each Inclusion Event Offeree.
(4) If within thirty (30) days after receipt of the Inclusion
Notice, an Inclusion Event Offeree has not accepted the offer
contained in the Inclusion Notice, such Inclusion Event Offeree
shall be deemed to have waived any and all rights with respect to
the sale described in the Inclusion Notice (but not with respect
to any subsequent sale, to the extent this Section 4.3 is
applicable to such subsequent sale) and the Selling Stockholders
shall have sixty (60) days in which to sell not more than the
number of shares of Inclusion Stock described in the Inclusion
Notice, on terms not more favorable to the Selling Stockholders
than were set forth in the Inclusion Notice; provided, however,
that if such purchase is subject to the consent of the FCC or any
public service or public utilities commission, the purchase of
the Offered Shares shall be closed on the first business day
after all such consents shall have been obtained by Final Order.
4.4 Right of First Negotiation. In the event that a Stockholder
desires to Transfer any shares of Common Stock following the IPO
Date in a Transfer described in clauses (x), (y) or (z) of
Section 4.1(b), such Stockholder shall give written notice
thereof to AT&T PCS, such notice to specify, among other things,
the number of shares that such Stockholder desires to sell. For
the applicable first negotiation period hereinafter set forth,
AT&T PCS shall have the exclusive right to negotiate with such
Stockholder with respect to the purchase of such shares; it being
understood and agreed that such exclusive right shall not be
deemed to be a right of first offer or right of first refusal for
the benefit of AT&T PCS and such Stockholder shall have the right
to reject any offer made by AT&T PCS during such applicable first
negotiation period. Upon the expiration of such applicable first
negotiation period, such Stockholder shall have the right (for
the applicable offer period hereinafter set forth with respect to
each applicable first negotiation period), following the
expiration of such applicable first negotiation period, to offer
and sell such shares included in such written notice on such
terms and conditions as shall be acceptable to such Stockholder
in its sole discretion. If any of such shares included in such
written notice are not sold pursuant to the provisions of this
Section 4.4 prior to the expiration of the applicable offer
period, such shares shall become subject once again to the
provision and restrictions hereof.
If a Stockholder desires to Transfer shares of Common Stock
(a) pursuant to a Registration of Common Stock under Section 5 in
an underwritten offering that constitutes a bona fide
distribution of such Common Stock pursuant to such Registration,
the applicable first negotiation period shall be ten (10) days
and the applicable offer period upon the expiration of such first
negotiation period shall be one hundred twenty (120) days, (b)
pursuant to Rule 144, the applicable first negotiation period
shall be three (3) hours (it being understood and agreed that
such Stockholder shall, in addition to giving written notice of
such proposed Transfer by facsimile, use commercially reasonable
efforts to contact AT&T PCS by telephone in accordance with
Section 12.1) and the applicable offer period upon the expiration
of such first negotiation period shall be five (5) business days,
and (c) in any single transaction or series of related
transactions to one or more Persons which will result in the
Transfer by such Stockholder (together with any other Stockholder
participating in such single transaction or series of related
transactions) of not more than ten percent (10%) of the Common
Stock on a fully diluted basis (excluding for such purposes the
Series A Preferred Stock), the applicable first negotiation
period shall be one (1) business day, so long as notice of such
proposed Transfer is given to AT&T PCS prior to 9:00 A.M. on the
day prior to the date of such proposed Transfer (it being
understood and agreed that such Stockholder shall, in addition to
giving written notice of such proposed Transfer by facsimile, use
commercially reasonable efforts to contact AT&T PCS by telephone
in accordance with Section 12.1) and the applicable offer period
upon the expiration of such first negotiation period shall be ten
(10) business days.
4.5 Additional Conditions to Permitted Transfers.
(1) As a condition to any Transfer to an Affiliated Successor
permitted pursuant to Section 4.1, or any Transfer pursuant to
Section 4.2 or Section 4.3, each transferee that is not a party
hereto shall, prior to such Transfer, agree in writing to be
bound by all of the provisions of this Agreement applicable to
the Stockholders (and shall thereby become a Stockholder for all
purposes of this Agreement). Any Transfer without compliance
with such provisions of this Agreement shall be null and void and
such transferee shall have no rights as a Stockholder of the
Company.
(2) Notwithstanding anything to the contrary contained in
this Agreement, each Stockholder agrees that it will not effect a
Transfer of shares of Company Stock to a Prohibited Transferee;
provided, however, that nothing contained in this Section 4.5(b)
shall be construed to prohibit a Transfer of Common Stock by a
Stockholder after the IPO Date pursuant to an underwritten
Registration or in accordance with the provisions of Rule 144.
It shall be deemed a breach of this Section 4.5(b) by a
Stockholder Beneficially Owning more than 10% of the Common Stock
outstanding if any Prohibited Transferee shall acquire, directly
or indirectly, in a private sale Beneficial Ownership of more
than 331/3% of any class of equity securities or equity interest
in, such Stockholder.
(3) [Intentionally Omitted]
4.6 Representations and Warranties. A Stockholder purchasing
shares of Company Stock pursuant to Section 4.2 shall be entitled
to receive representations and warranties from the transferring
Stockholder that such Stockholder has the authority (corporate or
otherwise) to sell such shares, is the sole owner of such shares,
and has good and valid title to such shares, free and clear of
any and all Liens (other than pursuant to this Agreement, the
Restated Certificate or any Related Agreement), and that the sale
of such shares does not violate any agreement to which it is a
party or by which it is bound.
4.7 Stop Transfer.
(1) The Company agrees not to effect any Transfer of shares
of Company Stock by any Stockholder whose proposed Transfer is
subject to Sections 4.2, 4.3 or 4.4 until it has received
evidence reasonably satisfactory to it that the rights provided
to any other Stockholders pursuant to such Sections, if
applicable to such Transfer, have been complied with and
satisfied in all respects. If any portion of such Stockholders
Unfunded Commitment shall remain unpaid on the date of such
proposed Transfer, then, as a condition of such Transfer, such
Person purchasing such Company Stock shall, or another Cash
Equity Investor may, execute an instrument in form satisfactory
to the Company agreeing to pay in full such Stockholders Unfunded
Commitment outstanding on the date of such proposed Transfer,
provided, however, that such Stockholder shall not be released
from its obligation in respect of such Unfunded Commitment. No
Transfer of any shares of Preferred Stock and/or Common Stock
shall be made except in compliance with all applicable securities
laws. Any Transfer made in violation of this Agreement shall be
null and void.
(2) The Company agrees that it will not, without the prior
written consent of AT&T PCS, Transfer, issue or dispose of any
Equity Securities to a Prohibited Transferee except that
purchases of Common Stock by a Prohibited Transferee in
connection with a Registration of Common Stock shall not
constitute a violation of this Section 4.7(b).
5. Registration Rights.
(1) Demand Registration Rights.
(1) Right to Demand Registration. From and after February
4, 2001 and, subject to Section 4.1(d), each of (A) AT&T PCS, (B) a
Qualified Holder, and (C) Management Stockholders that in the
aggregate Beneficially Own at least 50.1% of the shares of Common
Stock then Beneficially Owned by the Management Stockholders
(each a Demanding Stockholder and, collectively, the Demanding
Stockholders) shall have the right to make a written request to
the Company for registration with the Commission, under and in
accordance with the provisions of the Securities Act, of all or
part of their Registrable Securities pursuant to an underwritten
offering (a Demand Registration), which request shall specify the
number of Registrable Securities proposed to be sold by each
Demanding Stockholder; provided, however, that (x) the Company
need not effect a Demand Registration unless the sale of the
Registrable Securities proposed to be sold by the Demanding
Stockholder shall reasonably be expected to result in aggregate
gross proceeds to such Demanding Stockholder of at least $10
million, and (y) if the Board of Directors determines that a
Demand Registration would interfere with any pending or
contemplated material acquisition, disposition, financing or
other material transaction, the Company may defer a Demand
Registration (including by withdrawing any Registration Statement
filed in connection with a Demand Registration); so long as that
the aggregate of all such deferrals shall not exceed one hundred
twenty (120) days in any 360 day period. Demand Registration
shall not be deemed a Demand Registration hereunder until such
Demand Registration has been declared effective by the Commission
(without interference by any stop order, injunction or other
order or requirement of the Commission or other governmental
agency, for any reason), and maintained continuously effective
for a period of at least three (3) months or such shorter period
when all Registrable Securities included therein have been sold
in accordance with such Demand Registration; provided, however,
that a Qualified Holder may, not more frequently than once in any
twelve (12) month period, request that the Demand Registration be
a shelf registration that is maintained continuously effective
for a period of at least six (6) months or such shorter period
when all Registrable Securities included therein have been sold
in accordance with such Demand Registration. A Demanding
Stockholder may make a written request for a Demand Registration
in accordance with the foregoing in respect of Equity Securities
that it intends to convert into shares of Common Stock upon the
effectiveness of the Registration Statement prepared in
connection with such demand, and the Company shall fulfill its
obligations under this Section 5 in a manner that permits such
Demanding Stockholder to exercise its conversion rights in
respect of such Equity Securities and substantially
contemporaneously sell the shares of Common Stock issuable upon
such conversion under such Registration Statement.
The Company will not be obligated to effect more than
two (2) separate Demand Registrations during any twelve (12)
month period; provided, however, that only one (1) request for a
Demand Registration may be exercised by AT&T PCS and/or
Management Stockholders that in the aggregate Beneficially Own at
least 50.1% of the shares of Common Stock then Beneficially Owned
by the Management Stockholders during any twelve (12) month
period.
Within ten (10) days after receipt of the request for a
Demand Registration, the Company will send written notice (the
Demand Notice) of such Registration request and its intention to
comply therewith to all Stockholders who are holders of
Registrable Securities and, subject to Section 5(a)(ii), the
Company will include in such Demand Registration all Registrable
Securities of such Stockholders with respect to which the Company
has received written requests for inclusion therein within twenty
(20) days after the last date such Demand Notice was deemed to
have been given pursuant to Section 12.1.
(2) Priority on Demand Registration. If the managing
underwriter or underwriters advise the Company and the holders of
the Registrable Securities to be registered in writing that in
its or their opinion that, the number of Registrable Securities
proposed to be sold in such Registration and any other securities
of the Company requested or proposed to be included in such
Registration exceeds the number that can be sold in such offering
without (A) creating a substantial risk that the proceeds or
price per share that will be derived from such Registration will
be reduced or that the number of Registrable Securities to be
registered is too large a number to be reasonably sold, or (B)
materially and adversely affecting such Registration in any other
respect, the Company will (x) include in such Registration the
aggregate number of Registrable Securities recommended by the
managing underwriter (the number of Registrable Securities to be
registered for each Stockholder to be reduced pro rata based on
the amount of Registrable Securities each of the Stockholders
requested to be included in such Registration), and (y) not allow
any securities s other than Registrable Securities to be included
in such Registration unless all Registrable Securities requested
to be included shall have been included therein, and then only to
the extent recommended by the managing underwriter or determined
by the Company after consultation with an investment banker of
nationally recognized standing (notification of which number
shall be given by the Company to the holders of Registrable
Securities).
(3) Selection of Underwriters. The offering of such Registrable
Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. The Demanding Stockholder that
initiated such Demand Registration will select a managing
underwriter or underwriters of recognized national standing to
administer the offering, which managing underwriter or
underwriters shall be reasonably acceptable to the Company.
(2) Piggyback Registration Rights.
(1) Right to Piggyback. If the Company proposes to register
any shares of Common Stock (or securities convertible into or
exchangeable for Common Stock) with the Commission under the
Securities Act (other than a Registration on Form S-4 or Form S-
8, or any successor forms), and the Registration form to be used
may be used for the Registration of the Registrable Securities (a
Piggyback Registration), the Company will give written notice (a
Piggyback Notice) to all Stockholders, at least thirty (30) days
prior to the anticipated filing date, of its intention to effect
such a Registration, which notice will specify the proposed
offering price (if determined at that time), the kind and number
of securities proposed to be registered, the distribution
arrangements and will, subject to Section 5(b)(ii), include in
such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests (which
requests have not been withdrawn) for inclusion therein within
twenty (20) days after the last date such Piggyback Notice was
deemed to have been given pursuant to Section 12.1. If at any
time after giving the Piggyback Notice and prior to the effective
date of the Registration Statement filed in connection with such
Registration, the Company determines for any reason not to
register or to delay Registration, the Company may, at its
election, give written notice of such determination to each
holder of Registrable Securities that has requested inclusion of
Registrable Securities in such Registration and (A) in the case
of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection
with such Registration, and (B) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in
registering such other securities.
(2) Priority on Piggyback Registrations. If the managing
underwriter or underwriters, if any, advise the Company and the
holders of Registrable Securities in writing that in its or their
opinion, that the number or kind of securities proposed to be
sold in such Registration (including Registrable Securities to be
included pursuant to Section 5(b)(i)) exceeds the number that can
be sold in such offering without (A) creating a substantial risk
that the proceeds or price per share the Company will derive
from such Registration will be reduced, or that the number of
shares to be registered is too large a number to be reasonably
sold or (B) materially and adversely affecting such Registration
in any other respect, without any reduction in the amount of
securities the Company proposes to issue and sell for its own
account or in the amount of securities any other security holder
proposes to sell for its own account pursuant to a demand
Registration right, the number of Registrable Securities to be
registered for each Demanding Stockholder shall be reduced pro
rata based on the amount of Registrable Securities each of the
Demanding Stockholders requested to be included in such
Registration, to the extent necessary to reduce the number of
Registrable Securities to be registered to the number recommended
by the managing underwriter or determined by the Company after
consultation with an investment banker of nationally recognized
standing (notification of which number shall be given by the
Company to the holders of Registrable Securities of such
determination).
(3) Selection of Underwriters. Except as set forth in Section
5.1(a)(iii), the Company (by action of the Board of Directors)
will select a managing underwriter or underwriters to administer
the offering, which managing underwriter or underwriters will be
of nationally recognized standing.
(4) Registration Procedures. With respect to any Demand
Registration or Piggyback Registration (each, a Registration),
the Company shall, subject to Sections 5(a)(i) and (5)(a)(ii) and
Sections 5(b)(i) and 5(b)(ii), as expeditiously as practicable:
(1) prepare and file with the Commission, as promptly as
reasonably practicable (but in no event more than forty-five (45)
days) after the receipt of the Registration requests under
Sections 5(a) or 5(b), a registration statement or registration
statements (each, a Registration Statement) relating to the
applicable Registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or
methods of distribution thereof; cooperate and assist in any
filings required to be made with the NASD; and use its reasonable
best efforts to cause such Registration Statement to become and
(to the extent provided herein) remain effective; provided,
however, that before filing a Registration Statement or
prospectus related thereto (a Prospectus) or any amendments or
supplements thereto, the Company shall furnish to the holders of
the Registrable Securities covered by such Registration Statement
and the underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the
reasonable review of such holders and underwriters and their
respective counsel, and the Company shall not file any
Registration Statement or amendment thereto or any Prospectus or
any supplement thereto to which the holders of a majority of the
Registrable Securities covered by such Registration Statement or
the underwriters, if any, shall reasonably object;
(2) prepare and file with the Commission such amendments
and supplements to the Registration Statement as may be necessary to
keep each Registration Statement effective for three (3) months
(six (6) months in the case of any shelf registration requested
by a Qualified Holder pursuant to this Section 5) or such shorter
period that will terminate when all Registrable Securities
covered by such Registration Statement have been sold; cause each
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(3) promptly notify the selling holders of Registrable
Securities and the managing underwriters, if any (and, if
requested by any such person or entity, confirm such advice in
writing), (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective; (B) of any request by the Commission
for amendments or supplements to the Registration Statement or
the Prospectus or for additional information; (C) of the issuance
by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any
proceedings for that purpose; (D) if at any time the
representations and warranties of the Company contemplated by
subsection (xiv) of this subsection (d) below cease to be true
and correct; (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and (F) of the
happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document
incorporated therein by reference untrue or which requires the
making of any changes in the Registration Statement, the
Prospectus or any document incorporated therein by reference in
order to make the statements therein not misleading;
(4) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of (I) the Registration
Statement, or (II) the qualification of the Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction at the earliest possible time;
(5) if requested by the managing underwriter or underwriters
or a holder of Registrable Securities being sold in connection with
an underwritten offering, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the
managing underwriters and the holders of a majority of the
Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid
therefor by such underwriters and any other terms of the
underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(6) furnish to each selling holder of Registrable Securities
and each managing underwriter, without charge, at least one signed
copy of the Registration Statement and any amendment thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including
those incorporated by reference);
(7) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such selling holder of
Registrable Securities underwriters may reasonably request in
order to facilitate the public sale or other disposition of the
securities owned by such selling holder;
(8) prior to any public offering of Registrable Securities,
use its reasonable best efforts to register or qualify or cooperate
with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection
with the Registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky
laws of such jurisdictions in the United States as any seller or
underwriter reasonably requests in writing, use its reasonable
best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all
other acts or things reasonably necessary or advisable to enable
the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided,
however, that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then
so qualified or to take any action that would subject it to
taxation or general service of process in any such jurisdiction
where it is not then so subject;
(9) cooperate with the selling holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and
to be in such denominations and registered in such names as the
managing underwriters may request at least two (2) business days
prior to any sale of Registrable Securities to the underwriters;
(10) use its reasonable best efforts to cooperate with any
selling holder to cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities in
the United States as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(11) upon the occurrence of any event contemplated by subsection
(iii)(F) above, promptly prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading;
(12) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed, or, if
not so listed, cause such Registrable Securities to be authorized
for trading on the NASDAQ National Market System if any similar
securities issued by the Company are then so authorized, if
requested by the holders of a majority of such Registrable
Securities or the managing underwriters, if any;
(13) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities;
(14) enter into such customary agreements (including in the case
of a Demand Registration that is an underwritten offering, an
underwriting agreement in customary form) and take all such other
actions reasonably required in connection therewith in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the Registration is
an underwritten Registration, (A) make such representations and
warranties to the holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings; (B) use reasonable best efforts to obtain
opinions of counsel to the Company and updates thereof (which
opinions of counsel shall be in form, scope and substance
reasonably satisfactory to the managing underwriters, if any, and
to the holders of a majority of the Registrable Securities being
sold), addressed to each selling holder and the underwriters, if
any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may
be reasonably requested by such holders and underwriters; (C) use
reasonable best efforts to obtain cold comfort letters and
updates thereof from the Companys independent certified public
accountants addressed to the selling holders of Registrable
Securities and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily
covered in cold comfort letters by underwriters in connection
with primary underwritten offerings; and (D) deliver such
documents and certificates as may be reasonably requested by the
holders of a majority of the Registrable Securities being sold
and the managing underwriters, if any, to evidence compliance
with subsection (xi) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company. All the above in this Section
5(d)(xiv) shall be done at each closing under each underwriting
or similar agreement or as and to the extent required thereunder;
(15) make available for inspection by a representative of each
Demanding Stockholder, any underwriter participating in any
disposition pursuant to such Registration, and any attorney or
accountant retained by the sellers or underwriter, copies or
extracts of all financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably
necessary, in the opinion of the holders or underwriters counsel,
to enable them to fulfill their due diligence responsibilities;
and cause the Companys officers, directors and employees to
supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection
with such Registration Statement; provided, however, that the
Company shall not be required to comply with this paragraph (xv)
unless such person executes confidentiality agreements whereby
such person agrees that any records, information or documents
that are designated by the Company in writing as confidential
shall be kept confidential by such Persons and used only in
connection with the proposed Registration unless disclosure of
such records, information or documents is required by court or
administrative order or any regulatory body having jurisdiction;
and each seller of Registrable Securities agrees that it will,
upon learning that disclosure of such records, information or
documents is sought in a court of competent jurisdiction or by a
governmental agency, give notice to the Company and allow the
Company, at the Companys expense, to undertake appropriate action
to prevent disclosure of any records, information or documents
deemed confidential; provided further, however, notwithstanding
any designation of confidentiality by the Company, confidential
information shall not include information which (i) becomes
generally available to the public other than as a result of a
disclosure by or on behalf of any such Person, or (ii) becomes
available to any such Person on a non-confidential basis from a
source other than the Company or its advisors, provided that such
source is not to such Persons knowledge bound by a
confidentiality agreement with or other obligations of secrecy to
the Company or another party with respect to such information;
(16) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders, earnings statements
satisfying the provisions of Section 11(a) of the Securities Act,
no later than forty-five (45) days after the end of any twelve
(12)-month period (or ninety (90) days, if such period is a
fiscal year) (A) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
or best efforts underwritten offering, or (B) if not sold to
underwriters in such an offering, beginning with the first month
of the Companys first fiscal quarter commencing after the
effective date of the Registration Statement, which statements
shall cover said twelve (12)-month periods; and
(17) promptly prior to the filing of any document that is to
be incorporated by reference into any Registration Statement or
Prospectus (after initial filing of the Registration Statement),
provide copies of such document to counsel to the selling holders
of Registrable Securities and to the managing underwriters, if
any, make the Companys executive officers and other representatives
available for discussion of such document and make such changes in
such document prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request.
The Company may require each seller of Registrable
Securities as to which any Registration is being effected to
furnish to the Company such information regarding the proposed
distribution of such securities as the Company may from time to
time reasonably request in writing. Each holder of Registrable
Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(d)(xi),
such holder shall forthwith discontinue disposition of
Registrable Securities until such holders receipt of the copies
of the supplemented or amended prospectus contemplated by Section
5(d)(xi), or until it is advised in writing (the Advice) by the
Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus; and, if so
directed by the Company, such holder shall deliver to the Company
(at the Companys expense) all copies, other than permanent file
copies then in such sellers possession, of the Prospectus
covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company gives any such
notice, the time periods regarding the maintenance of the
effectiveness of any Registration Statement in Sections 5(d)(ii)
shall be extended by the number of days during the period from
and including the date of the receipt of such notice pursuant to
Section 5(d)(iii)(F) hereof to and including the date when each
seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or
amended prospectuses contemplated by Section 5(d)(xi) or the
Advice.
(5) Indemnification.
(1) In the event of the Registration or qualification of
any Registrable Securities under the Securities Act or any other
applicable securities laws pursuant to the provisions of this
Section 5, the Company agrees to indemnify and hold harmless each
Stockholder thereby offering such Registrable Securities for sale
(an Indemnified Stockholder), underwriter, broker or dealer, if
any, of such Registrable Securities, and each other person, if
any, who controls any such Indemnified Stockholder, underwriter,
broker or dealer within the meaning of the Securities Act or any
other applicable securities laws, from and against any and all
losses, claims, damages, expenses or liabilities (or actions in
respect thereof), joint or several, to which such Indemnified
Stockholder, underwriter, broker or dealer or controlling person
may become subject under the Securities Act or any other
applicable federal or state securities laws or otherwise, insofar
as such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such
Registrable Securities were registered or qualified under the
Securities Act or any other applicable securities laws, any
preliminary prospectus or final prospectus relating to such
Registrable Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or
regulation under the Securities Act or any other applicable
federal or state securities laws applicable to the Company or
relating to any action or inaction required by the Company in
connection with any such Registration or qualification, and will
reimburse each such Indemnified Stockholder, underwriter, broker
or dealer and each such controlling person for any legal or other
expenses reasonably incurred by such Indemnified Stockholder,
underwriter, broker or dealer or controlling person in connection
with investigating or defending any such loss, claim, damage,
expense, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such
loss, claim, damage, expense or liability arises out of or is
based upon an untrue statement or omission contained in such
Registration Statement, such preliminary prospectus, such final
prospectus or such amendment or supplement thereto, made in
reliance upon and in conformity with written information
furnished to the Company by such Indemnified Stockholder,
underwriter, broker, dealer or controlling person specifically
and expressly for use in the preparation thereof or by the
failure of such Indemnified Stockholder, underwriter, broker or
dealer, or controlling person to deliver a copy of the
Registration Statement, such preliminary prospectus, such final
prospectus or such amendment or supplement thereto after the
Company has furnished such party with a sufficient number of
copies of the same and such party failed to deliver or otherwise
provide a copy of the final prospectus to the person asserting an
untrue statement or omission or alleged untrue statement or
omission at or prior to the written confirmation of the sale of
securities to such person, if such statement or omission was in
fact corrected in such final prospectus.
(2) In the case of an underwritten offering in which the
Registration Statement covers Registrable Securities, the Company
agrees to enter into an underwriting agreement in customary form
and substance with such underwriters and to indemnify the
underwriters, their officers and directors, if any, and each
person, if any, who controls such underwriters within the meaning
of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as provided in the preceding
paragraph with respect to the indemnification of the holders of
Registrable Securities; provided, however, the Company shall not
be required to indemnify any such underwriter, or any officer or
director of such underwriter or any person who controls such
underwriter within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act, to the extent that the
loss, claim, damage, expense or liability (or actions in respect
thereof) for which indemnification is sought results from such
underwriters failure to deliver or otherwise provide a copy of
the final prospectus to the person asserting an untrue statement
or omission or alleged untrue statement or omission at or prior
to the written confirmation of the sale of securities to such
person, if such statement or omission was in fact corrected in
such final prospectus.
(3) In the event of the Registration or qualification of any
Registrable Securities of the Stockholders under the Securities
Act or any other applicable federal or state securities laws for
sale pursuant to the provisions hereof, each Indemnified
Stockholder agrees severally, and not jointly, to indemnify and
hold harmless the Company, each person who controls the Company
within the meaning of the Securities Act, and each officer and
director of the Company from and against any losses, claims,
damages, expenses or liabilities (or actions in respect thereof),
joint or several, to which the Company, such controlling person
or any such officer or director may become subject under the
Securities Act or any other applicable securities laws or
otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement of any material fact contained in
any Registration Statement under which such Registrable
Securities were registered or qualified under the Securities Act
or any other applicable securities laws, any preliminary
prospectus or final prospectus relating to such Registrable
Securities, or any amendment or supplement thereto, or arise out
of or are based upon an untrue statement therein or the omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which
untrue statement or omission was made therein in reliance upon
and in conformity with written information furnished to the
Company by such Indemnified Stockholder specifically and
expressly for use in connection with the preparation thereof, and
will reimburse the Company, such controlling person and each such
officer or director for any legal or any other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, expense, liability or
action; provided, however, an Indemnified Stockholders liability
under this Section 5(e)(iii) shall not exceed the net proceeds
received by such Indemnified Stockholder with respect to the sale
of any Registrable Securities.
(4) In the case of an underwritten offering of Registrable
Securities, each holder of a Registrable Security included in a
Registration Statement shall agree to enter into an underwriting
agreement in customary form and substance with such underwriters,
and to indemnify such underwriters, their officers and directors,
if any, and each person, if any, who controls such underwriters
within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as provided in
the preceding paragraph with respect to indemnification by such
holder of the Company, but subject to the same limitation as
provided in Section 5(e)(ii) with respect to indemnification by
the Company of such underwriters, officers, directors and control
persons.
(5) Promptly after receipt by a person entitled to
indemnification under this Section 5(e) (an Indemnified Party) of
notice of the commencement of any action or claim relating to any
Registration Statement filed under this Section 5 as to which
indemnity may be sought hereunder, such Indemnified Party will,
if a claim for indemnification hereunder in respect thereof is to
be made against any other party hereto (an Indemnifying Party),
give written notice to each such Indemnifying Party of the
commencement of such action or claim, but the omission to so
notify each such Indemnifying Party will not relieve any such
Indemnifying Party from any liability which it may have to any
Indemnified Party otherwise than pursuant to the provisions of
this Section 5(e) and shall also not relieve any such
Indemnifying Party of its obligations under this Section 5(e)
except to the extent that any such Indemnifying Party is actually
prejudiced thereby. In case any such action is brought against
an Indemnified Party, and such Indemnified Party notifies an
Indemnifying Party of the commencement thereof, such Indemnifying
Party will be entitled (at its own expense) to participate in
and, to the extent that it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense,
with counsel reasonably satisfactory to such Indemnified Party,
of such action and/or to settle such action and, after notice
from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party
will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof, other than the reasonable
cost of investigation; provided, however, that no Indemnifying
Party shall consent to the entry of any judgment or enter into
any settlement agreement without the prior written consent of the
Indemnified Party unless such Indemnified Party is fully released
and discharged from any such liability, and no Indemnified Party
shall consent to the entry of any judgment or enter into any
settlement of any such action the defense of which has been
assumed by an Indemnifying Party without the consent of each
Indemnifying Party. Notwithstanding the foregoing, the
Indemnified Party shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (a) the
employment of such counsel shall have been authorized in writing
by the Indemnifying Party in connection with the defense of such
suit, action, claim or proceeding; (b) the Indemnifying Party
shall not have employed counsel (reasonably satisfactory to the
Indemnified Party) to take charge of the defense of such action,
suit, claim or proceeding; or (c) such Indemnified Party shall
have reasonably concluded, based upon the advice of counsel, that
there may be defenses available to it which are different from or
additional to those available to the Indemnifying Party which, if
the Indemnifying Party and the Indemnified Party were to be
represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution
of the defenses available to such Indemnified Party. If any of
the events specified in clauses (a), (b) or (c) of the preceding
sentence shall have occurred or shall otherwise be applicable,
then the fees and expenses of one counsel or firm of counsel
selected by a majority in interest of the indemnified parties
(and reasonably acceptable to the Indemnifying Party) shall be
borne by the Indemnifying Party. If, in any such case, the
Indemnified Party employs separate counsel, the Indemnifying
Party shall not have the right to direct the defense of such
action, suit, claim or proceeding on behalf of the Indemnified
Party and the Indemnified Party shall assume such defense and/or
settle such action; provided, however, that an Indemnifying Party
shall not be liable for the settlement of any action, suit,
claim or proceeding effected without its prior written consent,
which consent shall not be unreasonably withheld.
The provisions of this Section 5(e) shall be in addition to
any liability which any party may have to any other party and
shall survive any termination of this Agreement.
(6) Contribution. If for any reason the indemnification
provided for in Section 5(e)(i) or 5(e)(iii) is unavailable to
an Indemnified Party as contemplated therein, then the
Indemnifying Party, in lieu of indemnification shall contribute
to the amount paid or payable by the Indemnified Party as a
result of such loss, claim, damage, expense or liability (or
action in respect thereof) in such proportion as is appropriate
to reflect not only the relative benefits received by the
Indemnified Party and the Indemnifying Party, but also the
relative fault of the Indemnified Party and the Indemnifying
Party, as well as any other relevant equitable considerations,
provided that no Stockholder shall be required to contribute in
an amount greater than the difference between the net proceeds
received by such Stockholder with respect to the sale of any
Registrable Securities and all amounts already contributed by
such Stockholder with respect to such claims, including amounts
paid for any legal or other fees or expenses incurred by such
Stockholder. No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
any such fraudulent misrepresentation. The relative fault of
such Indemnifying Party and Indemnified Party shall be determined
by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties
relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
(7) Registration Expenses. Except as hereinafter provided,
all expenses incident to the Companys performance of or compliance
with this Section 5 will be borne by the Company, including,
without limitation, all Registration and filing fees under the
Securities Act and the Exchange Act, the fees and expenses of the
counsel and accountants for the Company (including the expenses
of any cold comfort letters and special audits required by or
incident to the performance of such persons), all other costs and
expenses of the Company incident to the preparation, printing and
filing under the Securities Act of the Registration Statement
(and all amendments and supplements thereto), and furnishing
copies thereof and of the Prospectus included therein, all out-of-
pocket expenses of underwriters customarily paid for by issuers
to the extent provided for in any underwriting agreement, the
costs and expenses incurred by the Company in connection with the
qualification of the Registrable Securities under the state
securities or blue sky laws of various jurisdictions, the costs
and expenses associated with filings required to be made with the
NASD, the costs and expenses of listing the Registrable
Securities for trading on a national securities exchange or
authorizing them for trading on NASDAQ and all other costs and
expenses incurred by the Company in connection with any
Registration hereunder. In addition, the Company shall pay or
reimburse the sellers of Registrable Securities the reasonable
fees and expenses of one attorney to such sellers incurred in
connection with a registration (collectively, with the expenses
referred to in the immediately preceding sentence, the
Registration Expenses). Except as provided in the immediately
preceding sentence, each Stockholder shall bear the costs and
expenses of any underwriters discounts and commissions, brokerage
fees or transfer taxes relating to the Registrable Securities
sold by such Stockholder and the fees and expenses of any
attorneys, accountants or other representatives retained by the
Stockholder.
(8) Participation in Underwritten Registrations. No
Stockholder may participate in any underwritten Registration
hereunder unless such Stockholder (i) agrees to sell its Registrable
Securities on the basis provided in any customary and reasonable
underwriting arrangements approved by the persons entitled
hereunder to select the underwriter, and (ii) accurately
completes in a timely manner and executes all questionnaires,
powers of attorney, underwriting agreements, indemnities and
other documents customarily required under the terms of such
underwriting arrangements.
(9) Holdback Agreements.
(1) Each holder of Registrable Securities whose securities
are included in a Registration Statement agrees not to effect any
public sale or distribution of the issue being registered or a
similar security of the Company, or any securities convertible
into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during the fifteen (15) days prior to, and during
the ninety (90)-day period (or such longer period as requested by
the managing underwriter or underwriters in the case of an
underwritten public offering) beginning on, the effective date of
such Registration Statement (except as part of such
Registration), if and to the extent requested by the managing
underwriter or underwriters in an underwritten public offering.
(2) The Company agrees not to effect any public sale or
distribution of the issue being registered or a similar security
of the Company, or any securities convertible into or
exchangeable or exercisable for such securities (other than any
such sale or distribution of such securities in connection with
any merger or consolidation by the Company or any Subsidiary or
the acquisition by the Company or any Subsidiary of the capital
stock or substantially all of the assets of any other Person),
during the fifteen (15) days prior to, and during the ninety (90)-
day period beginning on, the effective date of each Demand
Registration.
(10) Public Information Reporting. The Company hereby
covenants and agrees to and with the Stockholders that at all times
following the IPO Date it shall provide and file such financial
and other information concerning the Company as may from time to
time be required by the Commission and any other governmental
authority having jurisdiction, so as to comply with all reporting
requirements under the Exchange Act, and shall, upon request,
state in writing that it has complied with all such requirements,
and further agrees that, for so long as (following the IPO Date)
the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company shall comply in all respects with paragraph
(c)(2) of Rule 144.
6. Disqualifying Transactions.
6.1 Company Conversion Rights. In the event AT&T PCS
terminates its obligations under Section 8.6 pursuant to Section
8.8(c) with respect to any Overlap Territory, the Company shall
have the following rights which may be exercised by the Company in
its sole discretion during the sixty (60) day period commencing on
the date of such termination:
(1) (i) The Company shall have the right in
accordance with the Restated Certificate to cause AT&T PCS and
such Section 4.8 Transferee (as defined in the Restated
Certificate) to exchange either (A) all, or (B) a proportionate
number of shares of Series A Preferred Stock then owned by AT&T
PCS and each Section 4.8 Transferee equal to a fraction, the
numerator of which is the number of POPS in the Overlap Territory
and the denominator of which is the total number of POPS in the
Territory, of the shares of Series A Preferred Stock then owned
by AT&T PCS and each Section 4.8 Transferee for an equivalent
number of shares of Series B Preferred Stock determined in
accordance with the Restated Certificate; and
(ii) The Company shall have the right in
accordance with the Restated Certificate to cause AT&T PCS and
each Section 4.8 Transferee to exchange either (A) all or (B) a
proportionate number equal to a fraction, the numerator of which
is the number of 38 POPs in the Overlap Territory, and the
denominator of which is the total number of POPs in the
Territory, of the shares of Series D Preferred Stock owned by
AT&T PCS on the date hereof (or Series C Preferred Stock or
Common Stock into which such shares shall have been converted)
and that AT&T PCS continues to own on the date such right is
exercised by the Company for that number of shares of Series B
Preferred Stock as shall be equal to the aggregate purchase price
paid by AT&T PCS for all of such shares of Series D Preferred
Stock, Series C Preferred Stock or Common Stock that AT&T PCS or
such Section 4.8 Transferee then owns (including any Series C
Preferred Stock or Common Stock into which such Series D
Preferred Stock shall have been converted) divided by the
liquidation preference of the Series B Preferred Stock determined
in accordance with the Restated Certificate; provided, however,
that (x) if the Company exercises its right under clause (i)(A)
of this Section 6.1(a) it shall be required to exercise its right
under clause (ii)(A) of this Section 6.1(a), and vice versa; and
if the Company exercises its right under clause (i)(B) of the
Section 6.1(a) it shall be required to exercise its right under
clause (ii)(B) of this Section 6.1(a) and vice versa, and (y)
the provisions of this Section 6.1(a) shall not apply to any
Section 4.8 Transferee which is a Cash Equity Investor.
(2) The Company may redeem the shares of Series B Preferred
Stock at any time as provided in the Restated Certificate.
6.2 Joint Marketing Right. During the period commencing on
the date of announcement by AT&T PCS of a transaction meeting the
description of a transaction set forth in clauses (a), (b) and
(c) of the definition of a Disqualifying Transaction (unless AT&T
PCS notifies the Company it has waived its right to declare such
transaction a Disqualifying Transaction in which event, this
Section 6.2 shall not be applicable to such transaction) and
terminating on the later of (x) six (6) months after the date of
consummation of such transaction, and (y) if applicable, the date
by which AT&T PCS is required under applicable law to dispose of
any PCS System or Cellular System serving a Subject Market (the
Section 6.2 Period), the following provisions shall apply:
(1) If AT&T PCS proposes to sell, transfer or assign to any
Person which is not an Affiliate of AT&T PCS any Subject Market,
AT&T PCS shall give written notice (the Company Sale Notice) to
the Company and the Company shall have the right, exercisable by
written notice given within ten (10) days of receipt of the
Company Sale Notice, to elect to cause AT&T PCS to offer for sale
jointly with the Company for a period of one hundred eighty (180)
days the Subject Markets covered by the Company Sale Notice
together with all of the Territory included in the MTA that
includes the Subject Markets (the Joint Marketing Period). In
the event that AT&T PCS has granted similar rights to the rights
set forth in this Section 6.2 to any Permitted Merger Participant
and any Subject Market is also a Subject Market under the terms
of any agreement between AT&T PCS and any such Permitted Merger
Participant, the Company agrees that any territory of the
Permitted Merger Participant that is required under the terms of
such agreement to be offered for sale jointly with any Subject
Markets shall be offered for sale jointly with such Subject
Markets and all of the Territory included in the MTA that
includes such Subject Markets. During the Joint Marketing
Period, AT&T PCS shall not sell the Subject Markets other than in
a transaction that includes the Subject Markets and the Territory
included in the MTA that includes the Subject Markets, provided,
however, that neither AT&T PCS nor the Company shall be obligated
to enter into a transaction for such Subject Markets and such
Territory other than on terms acceptable to each of them in their
sole discretion. This Section 6.2 shall cease to apply to any
Subject Market upon the earlier of (x) if the Company fails to
make the joint marketing election with respect to the applicable
Subject Market within the ten (10) day period referred to above,
the expiration of such ten (10) day period, or (y) if the Company
makes the joint marketing election with respect to the applicable
Subject Market, upon the expiration of the Joint Marketing
Period.
(2) Nothing contained in this Section 6.2 shall (x) be construed
to require AT&T PCS to deliver a Company Sale Notice with respect
to any Subject Market except during the Section 6.2 Period, (y)
extend the obligation of AT&T PCS set forth in this Section 6.2
beyond the expiration of the Section 6.2 Period or (z) apply to
any sale, transfer or assignment of any Subject Market pursuant
to an agreement executed on any date not within the Section 6.2
Period.
(3) Nothing in this Agreement shall be construed to require
AT&T PCS to deliver the notice described in clause (d) of the
definition of a Disqualifying Transaction, including, without
limitation, circumstances in which AT&T PCS or its Affiliates
enters into any transaction meeting the description of a
transaction set forth in clauses (a), (b) and (c) of the
definition of a Disqualifying Transaction.
7. Additional Rights and Covenants.
7.1 [Intentionally Omitted]
7.2 [Intentionally Omitted]
7.3 Access. The Company shall permit, and shall cause each of
its Subsidiaries to permit, upon reasonable notice, during
normal business hours, each Qualified Holder and ▇▇▇▇▇, for so
long as it has the right to an observer to the Board of Directors
pursuant to Section 3.1, and its directors, officers, employees,
attorneys, accountants, representatives, consultants and other
agents, at the sole expense of such Qualified Holder, to (a)
visit and inspect any of the properties and facilities of the
Company and its Subsidiaries, (b) examine and make copies of and
extracts from the corporate and financial records of the Company
and its Subsidiaries, (c) discuss the affairs, finances and
accounts of the Company or any such Subsidiary with any of its
officers, directors and key employees and its independent
accountants, and (d) otherwise investigate the properties,
businesses and operations of the Company and its Subsidiaries, in
each case as such Qualified Holder reasonably deems necessary;
provided, however, that (i) each Qualified Holder may exercise
its rights pursuant to this Section 7.3 no more than three times
in any 12-month period and (ii) ▇.▇. ▇▇▇▇▇▇ shall not have any of
the rights afforded to any Qualified Holder in this Section 7.3.
The Company shall, and shall cause each of its Subsidiaries and
the officers, directors and employees of the Company and its
Subsidiaries to, cooperate fully in connection with such
inspection, examinations and discussions. The presentation of a
copy of this Agreement by any Qualified Holder to the independent
accountants of the Company or any of its Subsidiaries shall
constitute permission by the Company or such Subsidiary to its
independent accountants to participate in discussions with such
Qualified Holder.
7.4 Merger, Sale or Liquidation of the Company.
(1) Except for transactions permitted pursuant to Section 7.11
and to the extent permitted in this Section 7.4, the Company
shall not, and shall not permit any of its Subsidiaries to,
except with the prior written consent of AT&T PCS or in
accordance with Sections 7.4(b) and 7.4(c), effect (i) any
merger, combination or consolidation of the Company or such
Subsidiary with or into any other entity (regardless of whether
the Company or such Subsidiary is the surviving entity in any
such transaction) (any such merger, combination or consolidation
is referred to as a Company Merger), (ii) any sale or disposition
of a substantial portion of its assets (a Company Asset Sale), or
(iii) the liquidation, dissolution or winding up of the Company
or such Subsidiary.
(2) The Company and its Subsidiaries may effect a Company
Merger, without the prior written consent of AT&T PCS, (i) in
which the only constituent corporations are two or more of the
Companys wholly owned Subsidiaries, (ii) in which the only
constituent corporations are the Company and one or more of its
wholly owned Subsidiaries and the Company is the surviving
corporation, or (iii) between a Subsidiary of the Company and
another entity for the purpose of acquiring such other entity;
provided, that (x) such transaction does not affect the capital
structure of the Company, except to the extent the Company issues
common stock to the stockholders of the other entity pursuant to
the terms of such Company Merger, (y) the surviving corporation
is a direct or indirect wholly owned Subsidiary of the Company,
and (z) the consummation of such transaction does not violate
Section 8.1(a).
(3) The Company and its Subsidiaries may effect any of the
transactions described in clauses (i) or (ii) of Section 7.4(a)
(a Sale Transaction), without the prior written consent of AT&T
PCS, if (a) such transaction has no material effect on AT&T PCS
equity interest in the Company (and the seniority thereof) or its
rights under this Agreement, (b) the Companys direct or indirect
interest in its assets is unaffected by such transaction in any
material respect, and (c) such transaction is otherwise
equivalent in all material respects to AT&T PCS to the sale by
each of the other Stockholders of its equity interests in the
Company for cash or marketable securities; provided, that any
such Sale Transaction shall nevertheless be subject to a right
of first offer in accordance with the provisions of Section
7.4(d).
(4) Prior to entering into a Sale Transaction, the Company
shall give written notice (the Sale Notice) to AT&T PCS. Each Sale
Notice shall describe in reasonable detail all material terms of
the proposed Sale Transaction. The Sale Notice shall constitute
an irrevocable offer (a Sale Offer) to enter into the Sale
Transaction with AT&T PCS on the terms set forth in the Sale
Notice. AT&T PCS shall have the irrevocable right and option,
but not the obligation, to accept the Sale Offer in whole but not
in part by giving written notice of its acceptance of such offer
within thirty (30) days of the date of the Sale Notice is given.
The Sale Transaction shall be closed at the principal executive
offices of the Company within thirty (30) days after the
acceptance by AT&T PCS of the Sale Offer; provided, however,
that, if the Sale Transaction is subject to the consent of the
FCC or any public service or public utilities commission, the
Sale Transaction shall be closed on the fifth business day after
all such consents shall have been obtained by Final Order. If
AT&T PCS declines (which shall include the failure to give timely
notice of acceptance) to accept the Sale Offer, the Company shall
have the right (for a period of ninety (90) days following the
expiration of the thirty (30) day acceptance period referred to
above) to close a Sale Transaction on the terms described in the
Sale Offer (except that the price must be at least 95% of the
price set forth in the Sale Offer); provided, however, that, if
the consent of the FCC or any public service or public utilities
commission is required, the Sale Transaction may be closed not
later than the fifth business day after all such consents shall
have been obtained by Final Order. If, after giving a Sale
Offer, the Company does not close a Sale Transaction in
accordance with the terms of the immediately preceding sentence,
the Company shall not effect any Sale Transaction without giving
another Sale Notice in accordance with this Section 7.4(d).
7.5 Wholly-Owned Subsidiaries. All of the Companys
Subsidiaries shall be direct or indirect wholly owned Subsidiaries
of the Company, and the Company shall not, and shall not permit any
Subsidiary to, sell or issue, transfer, encumber or otherwise
dispose of any shares of capital stock of any of the Companys
Subsidiaries to any Person other than the Company and its direct
or indirect wholly owned Subsidiaries, except for a pledge of any
such shares in connection with the incurrence of indebtedness.
7.6 [Intentionally Omitted]
7.7 Confidentiality.
(1) Each party shall, and shall cause each of its Affiliates,
and its and their respective stockholders, members, managers,
directors, officers, employees and agents (collectively
Representatives) to, keep secret and retain in strictest
confidence any and all information relating to the Company or any
other party that is designated in writing by the party providing
such information or the Company as confidential (Confidential
Information) and shall not disclose such information, and shall
cause its Representatives not to disclose such information, to
anyone except such Affiliates, Representatives or any other
Person that agrees in writing to keep in confidence all such
information in accordance with the terms of this Section 7.7.
Each party agrees to use such information received from another
party or the Company only in connection with its ownership
interest in the Company but not for any other purpose. All such
information furnished pursuant to this Agreement shall be
returned promptly to the party to whom it belongs upon request by
such party.
(2) To the fullest extent permitted by law, if a party or any
of its Affiliates or Representatives breaches, or threatens to
commit a breach of, this Section 7.7, the party whose Confidential
Information shall be disclosed, or threatened to be disclosed, shall
have the right and remedy to have this Section 7.7 specifically
enforced by any court having jurisdiction, it being acknowledged and
agreed that money damages will not provide an adequate remedy to such
party. Nothing in this Section 7.7 shall be construed to limit the
right of any party to collect money damages in the event of breach
of this Section 7.7.
(3) Anything else in this Agreement notwithstanding, each party
shall have the right to disclose any information, including
Confidential Information of the other party or such other partys
Affiliates, in any filing with any regulatory agency, court or
other authority or any disclosure to a trustee of public debt of
a party to the extent that the disclosing party determines in
good faith that it is required by Law, regulation or the terms of
such debt to do so; provided, however, that any such disclosure
shall be as limited in scope as possible and shall be made only
after giving the other party as much notice as practicable of
such required disclosure and an opportunity to contest such
disclosure if possible.
7.8 [Intentionally Omitted]
7.9 AT&T PCS Retained Licenses. In the event that AT&T PCS
desires to Transfer all or any of the AT&T PCS Retained Licenses
in the Territory at any time prior to February 4, 2006, AT&T PCS
shall give written notice thereof to the Company at least thirty
(30) days prior to entering into a binding agreement to sell such
AT&T PCS Retained Licenses in the Territory such notice to
specify among other things, the AT&T PCS Retained Licenses in the
Territory that it desires to sell. For a period of thirty (30)
days after the date such notice is given, the Company shall have
the right to negotiate with AT&T PCS with respect to the purchase
of all, but not less than all, of such AT&T Retained Licenses in
the Territory; it being understood and agreed that such right
shall not be deemed to be a right of first offer or right of
first refusal for the benefit of the Company and AT&T PCS shall
have the right to reject any offer made by the Company during
such thirty (30) day period. In the event no binding agreement
to sell all or any of such AT&T PCS Retained Licenses in the
Territory is entered into prior to the expiration of the one
hundred and eighty (180) day period following the expiration of
such (30) day period, such Licenses shall become subject once
again to the provision and restrictions hereof.
7.10 Regulatory Cooperation. Each of the Stockholders severally
agrees to comply with the last sentence of Section 6.7 of the
Securities Purchase Agreement.
7.11 Permitted Transactions. Notwithstanding the terms of
Section 7.4(a) and 8.4(a):
(1) after completion of the Minimum Build-Out Plan and
certification that Company Systems meet the TDMA Quality
Standards, the Company and its Subsidiaries may effect a merger,
combination of consolidation with or into a Permitted Merger
Participant or acquire all or substantially all of the assets of
a Permitted Merger Participant or sell all or substantially all
of the assets of the Company and its Subsidiaries to a Permitted
Merger Participant (any such transaction being referred to as a
Permitted Consolidation Transaction), so long as such transaction
is approved by the Board of Directors and the holders of the
Companys capital stock to the extent such approval is required
pursuant to the Restated Certificate or applicable law; and
(2) the Company may acquire FCC Licenses (each such License
a Permitted Cellular License) authorizing the holder to provide in
a specified geographic area using specified frequencies in
respect of which the Board of Directors has determined that the
acquisition of such License (and any other assets being acquired
together therewith) is a demonstrably superior alternative to
constructing a PCS System in the applicable area within the PCS
Territory, provided that, (i) a majority of the POPs included in
the geographic area covered by such License are within the PCS
Territory, (ii) none of AT&T PCS, any Affiliate thereof or any
AT&T Licensee owns an interest in an FCC License to provide
Commercial Mobile Radio Service in such geographic area, and
(iii) the ownership of such License will not conflict with, or
cause AT&T PCS, any Affiliate thereof or any AT&T Licensee to be
in violation or breach of any agreement, instrument, Law or
License applicable to or binding upon such Person or its assets.
Notwithstanding the foregoing, the Company shall not acquire any
Permitted Cellular License if the acquisition of such License
would adversely affect the Companys ability to satisfy its
obligations under the first sentence of Section 8.1(b).
8. Operating Arrangements.
8.1 Construction of Company Systems.
(1) The Company hereby agrees to construct, or cause its
Subsidiaries to construct, Company Systems covering the Territory
on a schedule no less rapid than is set forth in the Minimum
Build-Out Plan. Company Systems shall be technologically
compatible in all material respects with systems being used in a
Majority of the Southeast Region (including without limitation
for the purpose of facilitating roaming and handoff between
systems), and will to the extent technologically feasible
implement the same User Interface as such systems, with the
intention that the User Interface in Company Systems will not
differ from the User Interface in a Majority of the Southeast
Region in a manner that would be material to customers.
(2) The Company and AT&T PCS hereby agree that the Company
shall assume and be obligated to satisfy the construction requirements
set forth in 47 CFR 24.203 with respect to the AT&T PCS Retained
Licenses in the Territory and the AT&T PCS Contributed Licenses.
The Company and AT&T PCS agree from time to time at the request
of the Company or AT&T PCS, as applicable, to provide the other
with information concerning the status of construction of its PCS
Systems to enable such party to determine the level of compliance
with such construction requirements with respect to the AT&T PCS
Retained Licenses and AT&T PCS Contributed Licenses, as
applicable.
(3) The Company will arrange for all necessary microwave
relocation in connection with the AT&T PCS Contributed Licenses
and pay, assume or (if applicable) reimburse AT&T PCS or its
Affiliates for any obligation to pay, any reasonable costs
incurred by it or AT&T PCS in connection with any such microwave
relocation, provided, that nothing contained herein shall require
the Company to pay any costs incurred in connection with
microwave relocation in connection with the AT&T PCS Retained
Licenses.
8.2 Service Features. Company Systems will offer the Core
Service Features. Company Systems will also offer, at the
written request of AT&T PCS, additional service features that
AT&T PCS has notified the Company it will provide in a Majority
of the Southeast Region, unless the Board of Directors reasonably
determines that the provision of such additional features would
be financially detrimental to the Company. Unless the Board of
Directors makes such a determination, any such additional
features shall be adopted within one hundred twenty (120) days
after the request by AT&T PCS. The Critical Network Elements are
set forth on Schedule XI.
8.3 Quality Standards. The Company shall use commercially
reasonable efforts to cause the Company Systems to comply with
the TDMA Quality Standards. Without limiting the foregoing, with
respect to each material portion of a Company System (such as a
city) that the Company places in commercial service, on or prior
to the first anniversary of the date such material portion is
placed in commercial service, the Company shall cause each such
material portion to achieve a level of compliance with the TDMA
Quality Standards equal to at least the average level of
compliance achieved by comparable PCS and Cellular Systems owned
and operated by AT&T PCS taking into account, among other things,
the relative stage of development thereof. In the event that the
Company fails to achieve such level of compliance, the Company
shall not be deemed to be in material breach of this provision if
such noncompliance is cured within thirty (30) days of notice
thereof from AT&T PCS to the Company, or, if such breach is not
capable of being cured within such thirty (30) day period using
commercially reasonable efforts, within one hundred eighty (180)
days of such notice, provided the Company is using commercially
reasonable efforts to cure such material breach as soon as
reasonably practicable.
8.4 No Change of Business.
(1) Subject to Section 7.11, the Company will not, and will
not permit any of its Subsidiaries to, without obtaining the prior
written consent of AT&T PCS, do any of the following: (i)
conduct, directly or indirectly, any business other than the
Business, (ii) make any material change to the Minimum Build Out
Plan in the Territory, or (iii) effect any transaction, agreement
or arrangement which has or could reasonably be expected to have
the effect of materially impairing or materially limiting the
ability of (x) subscribers to Cellular Systems and PCS Systems in
which AT&T PCS or its Affiliates have an ownership interest to
utilize the Company Systems for roaming, or (y) AT&T PCS or its
Affiliates to resell wireless service on the Company Systems; it
being understood that clause (i) shall not be deemed to restrict
the business of the Company in any Overlap Territory.
(2) [Intentionally Omitted]
(3) If at any time during the term of this Agreement AT&T
PCS and its Affiliates determine to discontinue use of TDMA in a
Majority of the United States: (i) the Company will have the
right to cease to use TDMA and may adopt the new technology
adopted by AT&T PCS and its Affiliates in a Majority of the
United States or implement any other alternative technology in
Company Systems, and, if it exercises such right, the definition
of Company Systems shall be automatically deemed to be modified
by substituting a reference to such new or alternative technology
in lieu of the reference in such definition to TDMA, and (ii) the
obligations of AT&T PCS and its Affiliates pursuant to Section
8.6 shall terminate and be of no further force or effect, unless
within sixty (60) days of notice by AT&T PCS to the Company
specifying that AT&T PCS and its Affiliates have determined to
discontinue use of TDMA in a Majority of the United States, the
Company agrees to implement in Company Systems on a reasonable
schedule the new technology adopted by AT&T PCS and its
Affiliates in a Majority of the United States. In the event AT&T
PCS desires to test any technology that is an alternative to TDMA
in any PCS System or Cellular System contiguous to the Territory,
AT&T PCS hereby agrees to notify the Company at least thirty (30)
days before conducting such test and will conduct such tests in a
manner that does not have a material adverse effect on the
Company.
8.5 Preferred Provider.
(1) The Company and its Subsidiaries shall not market, offer,
provide or resell interexchange services, except (i)
interexchange services that constitute Company Communication
Services and (ii) interexchange services procured from AT&T Corp.
or an Affiliate thereof designated by AT&T Corp. Such
interexchange services shall be provided by AT&T Corp. or such
Affiliate at a reasonable rate per minute, subject to mutual
agreement as to all the terms of the agreement to provide such
services, including, without limitation, the volume commitment
and duration.
(2) With respect to services other than interexchange services,
when the Company or a Subsidiary does not itself develop, or is
not permitted to develop, one or more telecommunications services
that are offered or provided in connection with the conduct of
its Business (including, by way of example, local telephone
services or voicemail), but instead procures such services, the
Company shall request in writing that AT&T PCS provide such
services (directly or through an Affiliate designated by it) and,
provided, that AT&T PCS (or a designated Affiliate) offers to
provide such telecommunication services to the Company on
reasonably competitive terms, the Company or such Subsidiary
shall procure such services from AT&T PCS (or such Affiliate
thereof).
8.6 Exclusivity.
(1) None of the Stockholders or their respective Affiliates
will provide or resell, or act as the agent for any Person offering,
within the Territory, Company Communications Services except
that, AT&T PCS and its Affiliates may (i) resell, or act as the
Companys agent for, Company Communications Services provided by
the Company in accordance with the Resale Agreement (or any other
agreement between AT&T PCS and its Affiliates, on the one hand,
and the Company, on the other hand), including bundling any such
Company Communications Services with other telecommunications
services marketed, offered and provided or resold by such Person,
(ii) provide or resell wireless telecommunications services to or
from specific locations (such as buildings or office complexes),
even if the subscriber equipment used in connection with such
service may be capable of routine movement within a limited area
(such as a building or office complex), and even if such
subscriber equipment may be capable of obtaining other
telecommunications services beyond such limited area (which other
services may include routine movement beyond such limited area)
and handoff between the service to such specific locations and
such other telecommunications services; provided, however, that
if AT&T PCS or any of its Affiliates sells such mobile wireless
subscriber equipment such equipment shall be capable of providing
(but not necessarily on an exclusive basis) Company
Communications Services and (iii) resell Company Communications
Services provided by a Person other than the Company in any
geographical area within the Territory in which the Company has
not placed a Company System into commercial service (it being
understood that in the event that AT&T PCS or any of its
Affiliates that is reselling Company Communication Services of a
Person other than the Company in a geographic area within the
Territory at the time the Company places a portion of a Company
System including such geographic area into commercial service,
AT&T PCS or its Affiliates, as applicable, shall terminate such
resale arrangement with respect to such geographic areas within
thirty (30) days of the date such portion of a Company System is
placed in commercial service). AT&T PCS agrees to provide the
Company with not less than sixty (60) days prior notice of AT&T
PCS intention to engage in any resale activities described in
clause (iii) hereof to provide the Company with the opportunity
to discuss such proposed resale activities with AT&T PCS, such
notice to include (x) a reasonable description of such resale
activities (including, without limitation, the identity, if known
by AT&T PCS at such time, of the Person AT&T PCS intends to
engage to provide such Company Communication Services) and (y)
AT&T PCS confirmation that only dual band/dual mode phones shall
be used in connection with such resale activities. AT&T PCS
further agrees that upon a Company System being placed into
commercial operation in any such geographic area within the
Territory it will transfer all of its subscribers in such
geographic area to the Company System either directly to the
Company or on the terms and subject to the conditions contained
in the Resale Agreement. In connection with any such transfer,
AT&T PCS will use its best efforts to facilitate such transfer,
including cooperating with the Company regarding the form(s) of
notice to be sent to such subscribers informing them of such
transfer. To the extent the other telecommunications services
referred to in clause (ii) of the first sentence of this Section
8.6(a) constitute Company Communications Services, neither AT&T
PCS nor any of its Affiliates may provide or resell, or act as
agent for any Person offering, such other telecommunications
services except in accordance with the terms of clause (i) of the
first sentence of this Section 8.6(a). Nothing herein shall be
construed to limit in any respect any advertising and promotional
and similar activities by AT&T PCS or its Affiliates or any Cash
Equity Investor or any of its Affiliates.
(2) With respect to the markets listed on Schedules 1 and 2 to
the Roaming Agreement, each of AT&T PCS and the Company shall,
and shall cause each of its Affiliates to, in its and such
Affiliates capacity as Home Carrier: (i) program and direct its
authorized dealers to program the subscriber equipment provided
by it or such authorized dealers to its customers, at the time it
is provided to such customers, (to the extent such programming is
technologically feasible) so that the Company or AT&T PCS, as the
case may be, and such Affiliates, in its and such Affiliates
capacity as Serving Carrier, is the preferred provider of service
in the markets listed on such Schedules 1 and 2, and (ii)
refrain, and direct its authorized dealers to refrain, from
inducing any of its customers to change or, except at such
customers request in the event the quality of the Companys
services do not meet industry standards, changing the programming
described in clause (i) above. For the purpose of this Section
8.6(b), the terms Affiliate, Home Carrier and Serving Carrier
shall have the meanings ascribed thereto in the Roaming
Agreement.
8.7 Other Business; Duties; Etc. Except to the extent expressly
set forth in Section 8.6, AT&T PCS and each Cash Equity Investor
and any Person affiliated with AT&T PCS or a Cash Equity Investor
may engage in or possess an interest in other business ventures,
and may engage in any other activities, of every kind and
description (whether or not competitive with the business of the
Company or otherwise affecting the Company), independently or
with others and shall owe no duty or liability to the Company,
the other Stockholders or their Affiliates in connection
therewith. None of the Company or the other Stockholders shall
have any rights in or to such independent ventures or the income
or profits therefrom by virtue of this Agreement or any of the
Related Agreements. Without limiting the generality of the
foregoing, in the event that AT&T PCS or a Cash Equity Investor
or a Person affiliated with AT&T PCS or a Cash Equity Investor
develops inventions which are patentable or are otherwise trade
secrets relevant to the Business, AT&T PCS or such Cash Equity
Investor or affiliated Person shall nevertheless retain ownership
of such invention and may license it to the Company if the
Company so desires and if mutually satisfactory terms are agreed
to. The Company shall also have the right to develop any
inventions related to the Business deemed desirable by it and to
retain title to such inventions. To the extent that, at law or
in equity, AT&T PCS or a Cash Equity Investor or any Person
affiliated with AT&T PCS or a Cash Equity Investor would have
duties (including fiduciary duties) and liabilities to the
Company, or to the Stockholders, different from or in addition to
those provided in this Section 8.7 and Section 8.6 with respect
to the subject matter of such Sections, all rights of the Company
and the Stockholders arising out of such duties and liabilities
are hereby waived and no such Person shall be liable to the
Company or to any Stockholder for its good faith reliance on the
provisions of this Section 8.7.
8.8 Acknowledgments and Termination of Exclusivity.
(1) The Stockholders hereby expressly acknowledge that none
of the Stockholders would have been willing to enter into this
Agreement or make contributions to the capital of the Company,
except for each other Stockholders and its Affiliates willingness
to enter into this Agreement (including without limitation the
provisions set forth in this Section 8) and the Related
Agreements.
(2) Without limiting the foregoing, and without limiting the
remedies that may be available to it at law or in equity, in the
event of a Substantial Company Breach, the obligations of AT&T
PCS and its Affiliates under Section 8.6 shall automatically
terminate and be of no further force or effect.
(3) Upon consummation of a Disqualifying Transaction, AT&T PCS
may, by notice to the Company, terminate its and its Affiliates
obligations under Section 8.6 with respect to any Overlap
Territory, provided that the obligations of AT&T PCS and its
Affiliates pursuant to Section 8.6(b)(ii) shall continue in
effect with respect to the then existing customers of the PCS
Systems and Cellular Systems owned and operated by AT&T PCS and
its Affiliates (and their respective successors pursuant to the
applicable Disqualifying Transaction) before giving effect to
such Disqualifying Transaction, so long as such customers remain
customers of such systems and such systems continue to be owned
or operated by AT&T PCS or its Affiliates. Notwithstanding the
foregoing, in the event that the Company exercises its right
pursuant to Section 6.1 to convert all of the shares of Company
Stock owned by AT&T PCS into Series B Preferred Stock, the
reference in this Section 8.8(c) to the Overlap Territory shall
be deemed to refer to the Territory.
8.9 Equipment, Discounts and Roaming. AT&T PCS acknowledges
and agrees that, subject to the terms of Sections 8.1 and 8.5, the
Company shall have the sole discretion to select (a) the
equipment vendor(s) for the infrastructure to be constructed by
the Company and (b) billing and other vendors providing goods and
services to the Company. If reasonably requested by the Company,
AT&T PCS agrees to use all commercially reasonable efforts to
assist representatives of the Company in obtaining discounts from
any AT&T PCS vendor with whom the Company is negotiating for the
purchase of any such subscriber or infrastructure equipment or
billing services. In addition, AT&T PCS agrees to use all
commercially reasonable efforts to enable the Company to become a
party to the roaming agreements between AT&T PCS and its
Affiliates and operators of other Cellular Systems and PCS
Systems or, subject to the Company agreeing to the obligations
thereunder, entitled to the rights and benefits of AT&T PCS under
such roaming agreements. The two immediately preceding sentences
shall not be construed to require AT&T PCS or its Affiliates to
take any action that AT&T PCS or such Affiliate determines in its
sole discretion to be adverse to its interests.
8.10 ANS Agreement. At the request of the Company, AT&T PCS
shall cause AWS to enter into an Advanced Network Services
Agreement with the Company, substantially in the form of Exhibit C.
8.11 Resale Agreements.
(1) From time to time, upon the request of AT&T PCS, the Company
shall enter into a Resale Agreement relating to the Territory,
with AT&T PCS and any of its Affiliates and, with respect to any
geographic area within the Territory, one other Person designated
by AT&T PCS, provided such other Person is licensed to provide
telecommunications services in such geographic area under the
service marks used by AT&T Corp. and such other Person qualifies
as a reseller under any generally applicable standards the
Company establishes for its resellers from time to time and upon
the request of AT&T PCS, the Company shall enter into an agency
agreement authorizing AT&T PCS and any of its Affiliates and,
with respect to any geographic area within the Territory, one
other Person designated by AT&T PCS, provided such other Person
is licensed to provide telecommunications services in such
geographic area under the service marks used by AT&T Corp. and
such other Person qualifies as an agent under any generally
applicable standards the Company establishes for its agents from
time to time. Any such agency agreements shall provide that the
Company shall pay the agent a commission at the rate then
generally offered to the Companys agents and shall otherwise be
on commercially reasonable terms. At no time shall there be more
than one Person (other than AT&T PCS and its Affiliates)
designated by AT&T PCS as a reseller or an agent with respect to
any geographic area within the Territory.
(2) It is the intention of the parties that, in light of AT&T
PCSs equity interest in the Company and the other arrangements
between AT&T PCS and its Affiliates and the Company (including
the roaming revenues anticipated to be earned by the Company from
subscribers of AT&T PCS and its Affiliates), the rates, terms and
conditions of Service (as defined in the Resale Agreement)
provided by the Company pursuant to the Resale Agreement or any
other agreement between AT&T PCS or such other reseller and the
Company shall be at least as favorable to AT&T PCS or such other
reseller, taken as a whole, as the rates, terms and conditions of
Service, taken as a whole, provided by the Company to any other
Customer (as defined in the Resale Agreement) and, to the extent
permitted by applicable law, such rates, terms and conditions
shall be superior to those provided to any other Customer.
Without limiting the foregoing, the rate plans offered by the
Company pursuant to any Resale Agreement shall be designed to
result in the average actual rate per minute paid by the Reseller
for Service being at least 25% below the weighted average actual
rate per minute billed by the Company to its subscribers for
access and air time, but excluding revenues for features, taxes,
toll or other non-rate items. The Company and Reseller shall
negotiate commercially reasonable reductions to such resale rate
based upon increased volume commitments (including roaming
charges incurred by subscribers of AT&T PCS and its Affiliates).
8.12 Non-Solicitation.
(1) AT&T PCS hereby covenants and agrees that from and after
the date hereof until six months after the date on which it shall
cease to own any Equity Securities that neither AT&T PCS nor its
Affiliates shall solicit for employment any employee of the
Company; provided, however, that, nothing contained in this
Section 8.12(a) shall prevent AT&T PCS or its Affiliates from
engaging in a general solicitation for employment that is not
directed at employees of the Company.
(2) The Company hereby covenants and agrees that from and
after the date hereof until six months after the date on which AT&T
PCS or its Affiliates shall cease to own any Equity Securities that
neither the Company nor its Affiliates shall solicit for employment
any employee of the AT&T PCS or its Affiliates; provided, however,
that nothing contained in this Section 8.12(b) shall prevent the
Company or its Affiliates from engaging in a general solicitation
for employment that is not directed at employees of AT&T PCS and
its Affiliates.
8.13 Co-Location. The Company agrees to permit on commercially
reasonable terms AT&T PCS and its Affiliates to install, operate
and maintain cell site equipment owned or used by AT&T PCS and
its Affiliates in their respective businesses on the towers,
buildings and other locations at which the Companys cell site
equipment is installed, operated and maintained. AT&T PCS and
its Affiliates agree to permit on commercially reasonable terms
the Company to install, operate and maintain cell site equipment
owned or used by the Company in its business on the towers,
buildings and other locations at which AT&T PCS and its
Affiliates cell site equipment is installed, operated and
maintained.
9. After-Acquired Shares; Recapitalization.
9.1 After Acquired Shares; Recapitalization.
(1) All of the provisions of this Agreement shall apply to all
of the shares of Equity Securities now owned or hereafter issued
or transferred to a Stockholder or to his, her or its Affiliated
Successors in consequence of any additional issuance, purchase,
exchange or reclassification of shares of Equity Securities,
corporate reorganization, or any other form of recapitalization,
or consolidation, or merger, or share split, or share dividend,
or which are acquired by a Stockholder or its Affiliated
Successors in any other manner.
(2) Whenever the number of outstanding shares of Equity
Securities is changed by reason of a stock dividend or a
subdivision or combination of shares effected by a
reclassification of shares, each specified number of shares
referred to in this Agreement shall be adjusted accordingly.
9.2 Amendment of Restated Certificate. Whenever the number
of shares of authorized Company Stock is not sufficient in order to
issue shares of Preferred Stock or Common Stock upon conversion
of Preferred Stock or Common Stock in accordance with the
Restated Certificate, (i) the Company shall promptly amend the
Restated Certificate in order to authorize a sufficient number of
shares of Company Stock, and (ii) each Stockholder agrees to vote
its shares of Preferred Stock and Common Stock in favor of any
such amendment.
10. Share Certificates.
10.1 Restrictive Endorsements; Replacement Certificates.
(1) Each certificate representing the shares of Equity
Securities now or hereafter held by a Stockholder (including any
such certificate delivered upon conversion of the Preferred
Stock) or delivered in substitution or exchange for any of the
foregoing certificates shall be stamped with legends in
substantially the following form:
The shares represented by this Certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933, as amended (the Act),
or under any state securities or Blue Sky laws. Said
securities may not be sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of, unless
and until registered under the Act and the rules and
regulations thereunder and all applicable state
securities or Blue Sky laws or exempted therefrom under
the Act and all applicable state securities or Blue Sky
laws.
The shares represented by this Certificate are also
subject to a Stockholders Agreement dated as of
February 4, 1998, as the same may be amended, modified
or supplemented in accordance with the terms thereof, a
copy of which is on file at the offices of the Company
and will be furnished by the Company to the holder
hereof upon written request. Such Stockholders
Agreement provides, among other things, for the
granting of certain restrictions on the sale, transfer,
pledge hypothecation or other disposition of the shares
represented by this Certificate, and that under certain
circumstances, the holder hereof may be required to
sell the shares represented by this Certificate. By
acceptance of this Certificate, each holder hereof
agrees to be bound by the provisions of such
Stockholders Agreement. The Company reserves the
rights to refuse to transfer the shares represented by
this Certificate unless and until the conditions to
transfer set forth in such Stockholders Agreement have
been fulfilled.
Each Stockholder agrees that he, she or it will deliver all
certificates for shares of Equity Securities owned by him, her or
it to the Company for the purpose of affixing such legends
thereto.
10.2 Lost or Destroyed Certificates. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of any certificate representing shares
of Equity Securities subject to this Agreement and of a bond or
other indemnity reasonably satisfactory to the Company, and upon
reimbursement to the Company of all reasonable expenses incident
thereto, and upon surrender of such certificate, if mutilated,
the Company will make and deliver a new certificate of like tenor
in lieu of such lost, stolen, destroyed or mutilated certificate.
11. Equitable Relief. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of
this Agreement and that, in addition to being entitled to
exercise all of the rights provided herein or in the Restated
Certificate or granted by law, including recovery of damages,
equitable relief, including specific performance and injunctive
relief, may be used to enforce the provisions of this Agreement.
12. Miscellaneous.
12.1 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, by
facsimile transmission, 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 AT&T PCS:
c/o AT&T Wireless Services, Inc.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇-Key
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
AT&T Corp.
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Attention: Corporate Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Cash Equity Investor, to its address set forth on Schedule I.
With a copy to:
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Management Stockholder:
c/o Triton PCS, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Kleinbard, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to it:
c/o Triton PCS, Inc.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to each other party sent to the addresses set
forth in this Section 12.1.
12.2 Entire Agreement; Amendment; Consents.
(1) This Agreement, together with the Closing Agreement, dated
as of February 4, 1998, among the Company, the Cash Equity
Investors and the Original Management Stockholders (the Closing
Agreement) constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject
matter hereof.
(2) No change or modification of this Agreement shall be valid,
binding or enforceable unless the same shall be in writing and
signed by the Company and the holders of a majority of the shares
of each class of capital stock held by the parties hereto,
including AT&T PCS, 66 2/3% of the Common Stock Beneficially
Owned by the Cash Equity Investors, and 60.1% of the Common Stock
Beneficially Owned by the Management Stockholders; provided,
however, that in the event any party hereto shall cease to own
any shares of Equity Securities such party hereto shall cease to
be a party to this Agreement and the rights and obligations of
such party hereunder shall terminate, except to the extent
otherwise provided in Section 4.7(a) with respect to any Unfunded
Commitment.
(3) Whenever in this Agreement the consent or approval of a
Stockholder is required, except as expressly provided herein,
such consent or approval may be given or withheld in the sole and
absolute discretion of each Stockholder.
12.3 Term.
(1) Subject to Sections 12.3(b), 12.3(c) and 12.4, this
Agreement shall terminate upon the earliest to occur of any of
the following events:
(1) The consent in writing of all of the parties hereto; or
(2) February 4, 2009; or
(3) One Stockholder shall Beneficially Own all of the Common Stock.
(2) Notwithstanding anything contained herein to the contrary,
(i) the provisions of Sections 3 and 4 shall terminate on the
earlier to occur of a termination pursuant to Section 12.3(a) and
February 4, 2008, and (ii) the provisions of Sections 4.7(b),
7.4, 7.6 and 8.4(a), shall terminate, and neither the Company nor
any Stockholder shall be required to obtain AT&T PCSs prior
written consent as required under such Sections, on the earlier
to occur of (i) a termination pursuant to Section 12.3(a) and
(ii) (x) with respect to the period prior to February 4, 2006,
the date on which AT&T PCS shall cease to Beneficially Own more
than two-thirds of the number of shares of Series A Preferred
Stock that AT&T PCS Beneficially Owned on February 4, 1998, and
(y) with respect to the period on or after February 4, 2006, the
date on which AT&T PCS shall cease to Beneficially Own more than
two-thirds of the number of shares of Common Stock that AT&T PCS
Beneficially Owned on February 4, 1998.
(3) Notwithstanding anything contained herein to the contrary,
in the event the Cash Equity Investors shall Beneficially Own
less than (i) one half but more than one quarter of the number of
shares of Common Stock Beneficially Owned by the Cash Equity
Investors on February 4, 1998, the number of directors the Cash
Equity Investors shall be permitted to designate under Section
3.1(a) shall be reduced to one, and (ii) one-quarter of the
number of shares of Common Stock Beneficially Owned by the Cash
Equity Investors on February 4, 1998, the provisions of Section
3.1(a) shall terminate. In the event the number of directors the
Cash Equity Investors are entitled to designate is reduced
pursuant to Section 12.3(c)(i), one of the directors designated
by the Cash Equity Investors under Section 3.1(a) shall resign
(or the other directors or Stockholders shall remove them from
the Board of Directors) and the remaining directors shall take
such action so that the number of directors constituting the
entire Board of Directors shall be reduced accordingly. In the
event the provisions of Section 3.1(a) are terminated pursuant to
Section 12.3(c)(ii), the directors designated by the Cash Equity
Investors pursuant to Section 3.1(a) shall resign (or the other
directors or Stockholders shall remove them from the Board of
Directors) and the remaining directors shall take such action so
that the number of directors constituting the entire Board of
Directors is reduced by two (2) individuals.
12.4 Survival. Nothing contained in Section 12.3 shall impair
any rights or obligations of any party hereto arising prior to
the time of the termination of this Agreement, or which may arise
by an event causing the termination of this Agreement. The
provisions of Section 5 shall survive any termination of this
Agreement pursuant to Section 12.3 and shall continue in full
force and effect until February 4, 2018. The provisions of
Section 7.7 and Article 12 shall survive the termination of this
Agreement.
12.5 Waiver. No failure or delay on the part of any Stockholder
in exercising any right, power or privilege hereunder, nor any
course of dealing between the Company and any Stockholder shall
operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the
simultaneous or later exercise of any other right, power or
privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights and remedies which any
Stockholder would otherwise have. No notice to or demand on the
Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Stockholders or any of
them to take any other or further action in any circumstances
without notice or demand.
12.6 Obligations Several. The obligations of each Stockholder
under this Agreement shall be several with respect to each such
Stockholder.
12.7 Governing Law. This Agreement shall be governed and
construed in accordance with the law of the State of Delaware.
12.8 Dispute Resolution.
(1) The parties shall use and strictly adhere to the following
dispute resolution processes, except as otherwise expressly
provided in this Section 12.8, to resolve any and all disputes,
controversies or claims, whether based on contract, tort,
statute, fraud, misrepresentation or any other legal or equitable
theory (hereinafter, Dispute(s)), arising out of or relating to
this Agreement (and any prior agreement this Agreement
supersedes), including without limitation, its making,
termination, non-renewal, its alleged breach and the subject
matter of this Agreement (e.g., products or services furnished
hereunder or those related to those furnished):
(2) The parties shall first attempt to settle each Dispute
through good faith negotiations. The aggrieved party shall
initiate such negotiations by giving the other party(ies) written
notice of the existence and nature of the Dispute. The other
party(ies) shall in a writing to the aggrieved party acknowledge
such notice of Dispute within ten (10) business days. Such
acknowledgment may also set forth any Dispute that the
acknowledging party desires to have resolved in accordance with
this Section.
(3) Thereafter, if any Dispute is not resolved by the parties
through negotiation within thirty (30) calendar days of the date
of the notice of acknowledgment, either party may terminate
informal negotiations with respect to that Dispute and request
that the Dispute be submitted to non-binding mediation. Any
mediation of a Dispute under this Section shall be conducted by
the CPR Institute for Dispute Resolution (CPR) in accordance with
the then current CPR Model Mediation Procedure for Business
Disputes (Model Procedures) and the procedures specified in this
Section to the extent that they conflict with, modify or add to
such Model Procedures. Any demand for initiation of mediation of
a Dispute must be given in writing to both the other party(is)
involved and to the CPR and must set forth the nature of the
Dispute. Each party to the mediation shall bear its own expenses
with respect to mediation and the parties shall share equally the
fees and expenses of the CPR and the mediator. The failure by a
party to timely pay its share of the mediation fees and expenses
of the CPR and the mediator shall be a bar to arbitration under
Section 12.8(d) of that partys Dispute(s). Any mediation under
this Section shall be conducted within the State of New York at a
site selected by the mediator that is reasonably convenient to
the parties. Each party shall be represented in the mediation by
representatives having final settlement authority with respect to
the Dispute(s). All information and documents disclosed in
mediation by any party shall remain private and confidential to
the disclosing party and may not be disclosed by any party
outside the mediation. No privilege or right with respect to any
information or document disclosed in mediation shall be waived or
lost by such disclosure.
(4) Any Dispute not finally resolved after negotiation and
mediation in accordance with Section 12.8(b) and 12.8(c) shall,
upon the written demand of any involved party delivered to the
other party(is) and the CPR, be finally resolved through binding
arbitration in accordance with the then current CPR Non-
Administered Arbitration Rules (Arbitration Rules) and the
procedures specified in this Section to the extent that they
conflict with, modify or add to such Arbitration Rules. Any
Dispute of any other party not finally resolved after negotiation
and mediation pursuant to this Section may be made a part of the
arbitration demanded by another party, provided that the written
notice of demand for arbitration of that Dispute is received by
the CPR before selection of an arbitrator by the CPR. Any demand
for arbitration of a Dispute received by the CPR after the
selection of the arbitrator must be resolved through a separate
arbitration proceeding in accordance with this Section. Each
party shall bear its own expenses with respect to arbitration and
the parties shall share equally the fees and expenses of the CPR
and the arbitrator. Unless otherwise mutually agreed by the
parties in writing, the arbitration shall be conducted by one (1)
neutral arbitrator. The arbitration shall be conducted in the
State of New York at a site selected by the arbitrator that is
reasonably convenient to the parties. The arbitrator shall be
bound by and strictly enforce the terms of the Agreement and may
not limit, expand, or otherwise modify the terms of this
Agreement. The arbitrator shall make a good faith effort to
apply applicable law, but an arbitration decision and award shall
not be subject to review because of errors of law. The
arbitrator shall have the sole authority to resolve issues of the
arbitrability of any Dispute, including the applicability or
running of any statute of limitation. The arbitrator shall not
have power to award damages in connection with any Dispute in
excess of actual compensatory damages or to award punitive
damages and each party irrevocably waives any claim thereto.
The arbitrator shall not have the power to order pre-hearing
discovery of documents or the taking of depositions. The
arbitrator may compel, to the extent provided by the FAA (as
hereinafter defined), attendance of witnesses and the production
of documents at the hearing. The arbitrators decision and award
shall be made and delivered to the parties within six (6) months
of selection of the arbitrator by the CPR and judgment on the
award by the arbitrator may be entered by any court having
jurisdiction thereof.
(5) This Section shall be interpreted, governed by and enforced
in accordance with the United States Arbitration Act, 9 U.S.C.
Sections 114 (the Federal Arbitration Act or FAA). The laws of
the State of New York, except those pertaining to choice of law,
arbitration of disputes and those pertaining to the time limits
for bringing an action that conflict with the terms of this
Dispute Resolution provision, shall govern all other substantive
matters pertaining to the interpretation and enforcement of the
other terms of this Agreement with respect to any Dispute. Any
party to a Dispute, which is the subject of a notice initiating
the Dispute resolution procedures under this Section, may seek a
temporary injunction in any state or federal court of competent
jurisdiction to the limited extent necessary to preserve the
status quo during the pendency of final resolution of a Dispute
in accordance with this Section. If court proceedings to stay
litigation of a Dispute or compel arbitration of a Dispute are
necessary, the party who unsuccessfully opposes such proceedings
shall pay all associated costs, expenses, and attorneys fees that
the other party reasonably incurs in connection with such court
proceedings. An order to pay such costs, expenses and attorney
fees shall become part of any decision and award of the
arbitrator of the Dispute. An arbitrator appointed pursuant to
Section 12.8(d) to resolve a Dispute may also issue such
injunctive orders and shall have the power to modify or dissolve
the injunctive order of any court to the extent it pertains to
the Dispute which the arbitrator has been selected to finally
resolve. The parties, their representatives, other participants,
and the mediator and arbitrator shall hold the existence,
content, and result of the mediation and arbitration of a Dispute
in confidence except to the limited extent necessary to enforce a
final settlement agreement or to obtain and secure enforcement of
or a judgment on an arbitration decision and award.
(6) The statute(s) of limitation applicable to any Dispute
shall be tolled upon initiation of the Dispute resolution procedures
under this Section and shall remain tolled until the Dispute is
resolved by mediation or arbitration under this Section. Tolling
shall cease if the aggrieved party with a Dispute does not
initiate mediation within sixty (60) calendar days after good
faith negotiations are terminated by any party and, after
mediation of a Dispute, if the aggrieved party with a Dispute
does not initiate a demand for arbitration within sixty (60)
calendar days after mediation is terminated. However, any
Dispute is forever barred that has not expressly been made the
subject of the written notice required under Section 12.8(b)
above within 365 days after the date the Party asserting the
Dispute first knows or should have known of the existence of the
acts or omissions that give rise to such Dispute.
(7) Unless the parties mutually agree in writing, Disputes
relating to trademarks (including service marks), patents and
copyrights shall not be resolved in accordance with the Dispute
resolution procedures set forth in this Section and shall be
resolved as otherwise provided in this Agreement.
(8) The Company and each of the Stockholders hereby irrevocably
consents to the exclusive jurisdiction of the state or federal
courts in the State of New York, and all state or federal courts
competent to hear appeals therefrom, over any actions which may
be commenced against any of them under or in connection with this
Agreement. The Company and each Stockholder hereby irrevocably
waive, to the fullest extent permitted by applicable law, any
objection which any of them 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
in the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. The
Company and each Stockholder hereby agree 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. The Company
and each Stockholder hereby consent to process being served by
any party to this Agreement in any actions by the transmittal of
a copy thereof in accordance with the provisions of Section 12.1.
12.9 Benefit and Binding Effect; Severability. This Agreement
shall be binding upon and shall inure to the benefit of the
Company, its successors and assigns, and each of the Stockholders
and their respective executors, administrators and personal
representatives and heirs and permitted assigns. If any term or
other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy or any
listing requirement applicable to the Common Stock, all other
terms and provisions of this Agreement shall nevertheless remain
in full force and effect. Upon such determination that any term
or other provision is invalid, illegal or incapable of being
enforced, the parties hereto affected by such determination in
any material respect 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 in order that the
provisions hereof are given effect as originally contemplated to
the greatest extent possible.
12.10 Amendment of Bylaws. The Stockholders agree that the
terms of this Agreement shall supersede any inconsistent
provision that is contained in the Restated Bylaws and, to the
extent required by Delaware law or the Restated Bylaws, this
Agreement shall be deemed to constitute a written action taken by
the Stockholders of the Company and shall be deemed an amendment
of the Restated Bylaws.
12.11 Authorized Agent of AT&T PCS. AT&T PCS hereby
authorizes Wireless PCS, Inc. as its agent, with full power to
execute, in the name of and on behalf of AT&T PCS, the Related
Agreements to which AT&T PCS is a party and any and all other
documents that AT&T PCS is required to execute and deliver, and
to give and receive all notices, requests, consents, amendments,
demands and other communications to or from AT&T PCS, hereunder
or thereunder. Each party hereto (other than AT&T PCS) shall be
entitled to rely on the full power and authority of Wireless PCS,
Inc. to act on behalf of AT&T PCS in accordance with this
Section 12.11. Nothing contained in this Section 12.11 shall
relieve AT&T PCS from complying with its obligations under this
Agreement or any of the Related Agreements to which it is a
party.
12.12 FCC Approval. Notwithstanding anything contained in
this Agreement to the contrary, no transaction or action
contemplated herein shall be consummated and no interests or
rights transferred, converted or exchanged prior to receiving FCC
approval with respect thereto to the extent such approval is
necessary.
12.13 Expenses. The Company shall pay the reasonable fees
and expenses of counsel to the Stockholders incurred in
connection with the preparation, negotiation and execution of
this Agreement and of any amendment or modification hereof.
Except as provided in Sections 5(g) and 12.14, all other
attorneys fees incurred by the Stockholders in connection with
this Agreement (including, without limitation, in the preparation
of notices (and responses thereto) and consents) shall be borne
by the Stockholder(s) incurring such fees.
12.14 Attorneys Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party
shall be entitled to recover reasonable attorneys fees in
addition to any other available remedy.
12.15 Headings. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect
the construction or interpretation of any provision of this
Agreement.
12.16 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.
[signature pages follow]
[signature pages to First Amended and Restated Stockholders Agreement]
IN WITNESS WHEREOF, each of the parties has executed or
caused this Agreement to be executed by its duly authorized
officers as of the date first written above.
AT&T WIRELESS PCS, LLC
By: /S/
------------------------------------
Name:
Title:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc., its
general partner
By: /S/
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Name:
Title:
▇.▇. ▇▇▇▇▇▇ INVESTMENT CORPORATION
By: /S/
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Name:
Title:
SIXTY WALL STREET SBIC FUND, L.P.
By:Sixty Wall Street SBIC Corporation,
its general partner
By: /S/
-----------------------------------
Name:
Title:
PRIVATE EQUITY INVESTORS III, L.P.
By:▇▇▇▇▇ ▇. ▇▇▇▇▇ Associates III,
L.L.C., its general partner
By: /S/
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Name:
Title:
EQUITY-LINKED INVESTORS-II
By:▇▇▇▇▇ ▇. ▇▇▇▇▇ Associates-II, its
general partner
By: /S/
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Name:
Title:
TORONTO DOMINION CAPITAL (U.S.A.),
INC.
By: /S/
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Name:
Title:
FIRST UNION CAPITAL PARTNERS, INC.
By: /S/
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Name:
Title:
DAG-TRITON PCS, L.P.
By:Duff ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC, its
general partner
By: /S/
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Name:
Title:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee
under Amended and Restated Common
Stock Trust Agreement for
Management Employees and
Independent Directors dated June
26, 1998
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CEDAR GROVE PARTNERS
By:/S/
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Title:
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SCHEDULE I
Cash Equity Investors:
CB Capital Investors, L.P. Toronto Dominion Capital (USA) Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Investment Corporation Toronto Dominion Capital (USA) Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 38th Floor ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Sixty Wall Street SBIC Fund, L.P. First Union Capital Partners, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Private Equity Investors III, L.P. Dag-Triton PCS, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇
Equity-Linked Investors
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
SCHEDULE II
Management Stockholders
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Independent Directors
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE III
Stockholders
Series A Perferred Stock
AT&T Wireless PCS, Inc. 786,252.64
Total 786,252.64
Series D Perferred Stock
AT&T Wireless PCS, Inc. 543,683.47
Total 543,683.47
Class A Common Stock (previously Series C Preferred Stock)
CB Capital Investors, L.P. 12,270,744
▇.▇. ▇▇▇▇▇▇ Investment Corporation 2,456,109
Sixty Wall Street SBIC Fund, L.P. 122,663
Private Equity Investors III, L.P. 5,951,372
Equity-Linked Investors-II 5,951,372
Toronto Dominion Capital (USA) Inc. 2,975,698
First Union Capital Partners, Inc. 4,079,877
DAG-Triton PCS, L.P. 1,858,127
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 115,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 57,500
▇▇▇▇ ▇▇▇▇▇▇▇ 23,000
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, as JT TEN 9,200
Cedar Grove Partners 23,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 23,000
Total 35,916,663
Class A Common Stock (previously Common Stock)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,513,875
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee 423,828
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,885,406
▇▇▇▇▇ ▇▇▇▇▇ 349,541
▇▇▇▇▇ ▇▇▇▇▇ 181,055
▇▇▇▇▇▇▇ ▇▇▇▇▇ 120,347
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 120,347
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 42,366
▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇ ▇▇▇▇▇ 42,366
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇ ▇▇▇▇▇ 42,366
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 42,366
▇.▇. ▇▇▇▇▇▇▇▇ 42,366
▇▇▇▇▇ ▇▇▇▇▇▇ 42,366
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 22,643
▇▇▇▇ ▇▇▇▇▇▇▇ 22,643
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 32,447
▇▇▇▇▇ ▇▇▇▇▇▇▇ 18,524
Total 6,283,779
Total Class A Common Stock 42,200,442
Class B Non-Voting Common Stock (previously Series C Preferred Stock)
▇.▇. ▇▇▇▇▇▇ Investment Corporation 7,820,268
Sixty Wall Street SBIC Fund, L.P. 390,559
Total 8,210,827
SCHEDULE IV
Core Features
Below is a list and description of the Core Features that Licensee
agrees to implement in accordance with Section 8.2 of this Agreement.
These definitions are functional descriptions of the Core Features, and
the parties agree that such Core Features shall be implemented using
the Critical Network Elements identified in Schedule XI hereto. Licensee
further agrees to implement additional features in accordance with Section
8.2 of this agreement.
1. Call Delivery
This capability permits a PCS customer to receive incoming calls to
his or her phone while in his or her home market or while roaming in any
part of the Licensees Wireless Network or the AWS Wireless network
(together, the Mobile Wireless Network).
2. Roaming - Do Not Disturb
This capability permits a PCS customer, who would normally receive all
incoming calls while visiting a Mobile Switching Center that is part of the
Mobile Wireless Network, to temporarily inhibit the delivery of such calls.
Activating this capability has no impact on calls via the roamer access
ports.
3. Call Forwarding
A. Call Forwarding Immediate
This capability permits a PCS customer to send all incoming calls
destined for the PCS customers PCS phone to another phone number
specified by the PCS customer. Activating this capability has no
impact on the PCS customers ability to originate calls. When this
capability is activated, calls are forwarded regardless of whether
the PCS customer is located within his or her local market or
whether the customer is roaming outside of such local market.
B. Call Forwarding Busy
This capability permits a PCS customer to send all incoming calls
destined for his or her PCS phone to another phone number specified
by the PCS customer when the PCS customer is engaged in a call.
C. Call Forwarding No Answer
This capability permits a PCS customer to send all incoming calls
destined for his or her PCS phone to another phone number specified
by the PCS customer when the PCS customer does not answer or when
the PCS customers PCS phone does not respond to a page.
4. Call Waiting
This capability permits a PCS customer to receive incoming call
even though a call may already be in progress.
5. Voicemail
This capability forwards a PCS customers incoming calls which are
not answered by the PCS customer, and for which no other explicit
treatment has been activated (for example, those described in items above),
to a voice storage and retrieval system. This capability also permits a
PCS customer to subsequently retrieve messages from the PCS customers
voice mail box.
6. Three Way Calling
This capability permits a PCS customer to add a third party to an
active two party call.
7. Message Waiting Indicator
This capability is an enhancement to PCS voice mail, and provides
the PCS customer with the current status of the number of unheard voice
mail messages waiting in his or her PCS voice mail box.
8. Calling Number Identification
This capability identifies for the PCS customer either the telephone
number or the stored name (in the PCS phone) of the person who is calling.
It also permits a PCS customer to inhibit the ability of a person to whom
PCS customer is placing a call from identifying either the telephone
number or the name of such PCS customer who is placing the call.
9. Wireless Office Service (WOS)
A. PCS/PBX Interworking
This capability permits WOS customers to have just one published
number that delivers all incoming calls to both the PCS and PBX
phone.
B. Private Number Plan
This capability permits a defined group of customers to call defined
private network extensions by using an abbreviated unique dialing
pattern (four digit dialing).
C. Private Networks
This capability permits a WOS customer to have his or her own private
or semiprivate PCS system.
D. Location ID
This capability permits the PCS customer to identify the nature of
the system (private, public, or residential) that the PCS customer
is using, by displaying the systems name on the PCS phone.
10. Sleep Mode
This capability permits an IS 136 PCS phone to operate in a power
savings mode when camping on an IS 136 system, thereby allowing the
battery standby time to increase.
11. PCS Messaging
This capability will permit a caller to deliver both numeric and
alphanumeric messages of up to eighty characters to an IS 136 PCS phone.
If the PCS customer to whom the message has been delivered has his or
her phone off or is not in the IS 136 coverage area, then messages are
stored for future delivery.
MessageFlash software permits alphanumeric messages to be sent from
a computer via a standard modem to the customer.
E-Mail messaging teleservice allowing an IS-136 phone to have an
E-Mail address.
12. Authentication
This capability allows for the validation of the IS-136 phones
identity.
Text Dispatch Service permits people to call an operator (provided
by or on behalf of the Company) and dictate a message which can then be
converted to an alphanumeric message and delivered to the customer.
SCHEDULE V
A. Genreal Minimum Buildout Plan (1)
Phase I 4.4 Million pops (40% total pops) within 2 years of
closing of the Securities Purchase Agreement.
11 cities with 3.4 million pops.
Buildout core metro area and suburbs.
Greenville, South Carolina
Spartanburg, South Carolina
Richmond, Virginia
Petersburg, Virginia
Charlottesville, Virginia
Columbia, South Carolina
Florence, South Carolina
Charleston, South Carolina
Anderson, South Carolina
Augusta, Georgia
Roanoke, Virginia
Over 600 miles of interstate and other primary and key
secondary roads with an additional 1.0 million pops.
I-95 Charleston to Savannah
I-85 Atlanta to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
I-95 Richmond to Fredericksburg
I-64 Charlottesville to ▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇ to Charleston
I-77 Columbia to Rockhill
I-20 Atlanta border (Augusta) to Florence
(1) This section A constitues the minimum buildout plan for the PCS
Territory; provided, that this Section A shall only cover the minimum
buildout for that portion of the PCS Territory for which a separate
minimum buildout plan is not specified in this Schedule V, as amended
from time to time. All percentages of pops for any portion of the PCS
Territory required to be covered under this Section A shall be measured
separately, in accordance with this Section A, and shall exclude any pops
required to be covered pursuant to any minimum buildout plan specified for
any other portion of the PCS Territory in this Schedule V, as amended from
time to time.
PHASE II Additional 2.2 million pops (20% total pops) within
3-1/2 years of closing of the Securities Purchase Agreement.
Key secondary cities and connecting highway corridors as
defined by marketing and competitive situation.
PHASE III Final 1.8 million pops (17% total pops) within 5 years of
closing of the Securities Purchase Agreement.
B. Minimum Buildout Plan for Norfolk, Virginia BTA (2)
1.4 million pops (80% of total pops) in the Norfolk, VA BTA within
5 years of closing of the Securities Purchase Agreement, With such
minimum build-out bench marks within such five year period as shall
be mutually agreed to by AT&T PCS and the company.
C. Minimum Buildout Plan for Athens, GA BTA and Each of ▇▇▇▇▇ County,
GA, Chatham County, GA, Effingham County, GA and Liberty County, GA
Within the Atlanta MTA, Collectively (3).
PHASE I 206,000 pops (40% total Pops) within 2 years of closing
of the Securities Purchase Agreement.
PHASE II Additional 103,000 pops (20% total pops) within 3-1/2
years of closing of Securities Purchase Agreement.
PHASE III Final 104,000 pops (20% total pops) within 5 years of
closing of Securities Purchase Agreement.
(2) All percentages of pops for the Norfolk, Virginia BTA required to
be covered under this Section B shall be measured only with respect to
the Norfolk, VA BTA, in accordance with Section B.
(3) All percentages of pops for the Athens, GA BTA and each ▇▇▇▇▇ County,
GA Chatham County, GA, Effingham County, GA and Liberty County, GA within
the Atlanta MTA required to be covered under this Section C shall be
measured only with respect to the Athens, GA BTA and such counties, in
accordance with this Section C.
SCHEDULE VI
I. From Washington MTA BTA Market Designator
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ B479
II. From Richmond MTA
Danville, VA B104
Lynchburg, VA B266
Martinsville, VA B284
Norfolk-Virginia Beach, Neport News,
Hampton, VA ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ B374
Roanoke, VA B376
Stauton-Waynesboro, VA B430
III. From Knoxville MTA
Kingsport, Johnson City, TN-Bristol VA ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ B295
IV. From ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ (Beaufort, Hampton, ▇▇▇▇▇▇,
▇▇▇▇▇, Effingham, Chatham and Liberty
Counties) ▇▇▇▇
▇▇▇▇▇▇, ▇▇ B022
V. From ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ B091
▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇, ▇▇ B177
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ B178
▇▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇, ▇▇ B382
▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ B478
SCHEDULE VII
Quality and Reporting Standards
General Overview
This Schedule VII sets out the Network and Reporting Standards with
which Licensee shall comply pursuant to Section 8.2 of this Agreement.
These Standards set out the network performance metrics and the process
by which such metrics will be established, measured and reported. All
metrics which represent a defined standard of quality for acceptable
network operations have, or will have, specific targets which the Licensee
must comply with in accordance with the following network standards.
I. Network Standards
There are three categories of Network Standards: network quality (the
Network Quality Category); system performance (the System Performance
Category); and audio quality (the Audio Quality Category) (each hereafter
referred to generally as a Category). For each Category of Network
Standards, specific metrics have been identified to measure performance
in each such Category. The detailed description of how to measure and
interpret the metrics for each Category is set our in the following AWS
documents (each referred to generally as a Network Standards Document).
Network Quality Category: Document ES-4034. Revision 1.1 dated
July 30, 1997 entitled Network Quality Scorecard User Guide (as
referred to as the Network Quality Standards Document). This
document is a collection of key network performance and traffic
indicators (metrics) that are measured and reported on a regular
basis. Included in this category, Licensee shall perform the ANS
Consistency Test, as attached to this Schedule VII.
System Performance Category: OSS draft document, Revision 0.7, dated
June 17, 1997 entitled Key Metrics for System Performance Document
(as referred to as the System Performance Standards Document). This
document identifies the network-wide key metrics for Ericsson and
Lucent switching systems, as well as cell sites, which will provide
a high level assessment of the system.
Audio Quality Category: Document PP-4027E, Revision 1.1, dated May
30, 1996 entitled, Audio Quality Measurement (AQM) (as referred to
as the Augio Quality Standards Document). This document provides the
basis for assessing the quality of RF transmission by describing the
standards for performing audio quality measurements and the reporting
of their results. AWS measures the metrics for the Audio Quality
Category using the Radio Quality Scorecard. The Radio Quality
Scorecard is comprised of performance statistics derived from
driving the PCS system using the Buzzard tool or a tool with
similar measurement and reporting capability.
These Network Standards Documents are collectively attached to this Schedule
VII which, subject to the terms and conditions of this Agreement including,
without limitation, this Schedule VII, is hereby incorporated into and
forms a part of this Agreement. In the event of any inconsistency between
any part of a Network Standards Document and the provisions of this Schedule
VII, the provisions of this Schedule VII shall govern.
Notwithstanding anything else in the Agreement including, without limitation,
this schedule VII, the parties acknowledge and confirm that the Network
Standards Documents represent the standards and metrics currently
identified by AWS as applicable to each Category. Target values for
key quality related metrics are contained herein and Licensee agrees to
comply with the specific metric target values as specified in Schedule VII.
In addition, the parties acknowledge and confirm that the Network Standards
Documents are subject to revision and the Licensee shall comply with
subsequent revisions to these Network Standards Documents, as well as with
Call Center Quality Standards which will constitute an additional
Category once they are formally implemented, in accordance with Section
8.2 of this Agreement.
Set out below is a brief description of each Category of Network Standard
and the currently established metrics for each such Category.
II. Targets for Network Standards
Licensee shall meet the following targets for Key metrics which
represent overall network and system quality. These targets are
subject ot revision and shall be implemented in accordance with Section
8.2 of this Agreement.
% Established Call: The percentage of call attempts to and from
a mobile phone that result in a successful voice channel assignment.
The target goal for this metric is 93%.
% Dropped Calls: The percentage of established calls, as defined
below, which terminate abnormally. The target, goal for this metric
is a drop call rate of 1.7% or less.
% Handoff Failures: The target goal for this metric is a handoff
failure rate of 1.5%.
Failure per Erang: The ratio of failed calls to carried traffic,
where failed calls are measured utilizing switch counters for
originating and terminating traffic and carried traffic is measure
in erlangs.
Switch Outage Time: The amount of time (in minutes) in a month when
subscribers are impacted by a cellular switch outage. Target for
this metric is 10 minutes per switch per year, with all ten minutes
occuring the maintenance window between 12:00 am and 5:00 am.
% Blocking - Cell Routes: Percentage of time all cellular traffic
channels (voice paths in a trunk group) are unavailable within a
given measurement interval. Target for this metric is 5%.
% Blocking - Network Routes: Percentage of time all network
traffic channels are unavailable within the measurement interval.
Target for this metric is 5%.
ANS Consistency Test: The percentage of successful ANS feature
deliveries, based on the following sequence: feature activation/
deactivation (when applicable), test call, correct response, and
call termination. The target goal for this metric is 96% for all
ANS features. This target metric includes feature delivery failures
due to call processing failures (i.e. call delivery, call origination,
handoff failures, or dropped calls. These failures are estimated
to be approximately 4%.).
III. Reporting Standards
Licensee agrees to comply with the reporting requirements as specified in
the Network Standards Documents and as specified below.
Except as specified Audio Quality Network Standards, Licensee will
submit the metric reports required pursuant to this Schedule VII
(the Results) to AWS no less than quarterly.
With respect to Audio Quality Network Standards, Licensee shall only
submit with less than 10,000 subscribers, Licensee shall only submit
Results on a semi-annual basis.
Licensee shall submit all Results by the fifteenth day of the month
following the end of the applicable reporting period.
Licensee will report the Results to AWS on an aggregated national
basis; the aggregated national Results will reflect the distribution
of the metric measured accross Licensees Territory. Licensee may
also be required to provide a breakdown, by market, of any metric.
SCHEDULE IX
Capital Budgets
(To be agreed upon prior to Closing)
TRITON PCS, INCORPORATED
1999 Capital Budget Estimate
Buildout Summary
POPS (Millions) CELL SITES
Build Additional Primary Metro Cities 1.2 ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Buildout Minimal 120
Secondary Markets Buildout 1.0 150
---------- -----
TOTAL 2.2 435
Capital Summary
# Sites Capital
New Cell Site @ $300,000 150 $45,000,000
Co-Location @ $250,000 250 $62,500,000
Rooftop Sites @ $250,000 35 $8,750,000
--------- ------------
TOTAL CELL SITES 435 $116,250,000
Switch Software $2,567,000
Switch Maintenance Fees $170,000
MCS ENI $768,000
------------
TOTAL SWITCH $3,505,000
Spectrum Clearing $650,000
Cost Sharing $3,750,000
Engineering & Operations Capital $1,200,000
Office Capital $4,000,000
------------
TOTAL CAPITAL $129,355,000