Exhibit 10.24
TELECORP PCS, INC.
RESTRICTED STOCK PLAN
SHARE GRANT AGREEMENT
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THIS AGREEMENT is entered into by and between TeleCorp PCS, Inc., a
Delaware Corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the
Company (hereinafter the "Executive").
WHEREAS, the Company adopted the TeleCorp PCS, Inc. 1998 Restricted Stock
Plan (the "Plan") on July 16, 1998 in order to be able to award certain
preferred and common shares of the Company to certain executives of the Company
so as to give them a proprietary interest in the Company's success and to ensure
their continuation as employees of the Company; and
WHEREAS, the Executive renders important services to the Company or a
subsidiary of the Company, and the Company desires to award shares to the
Executive under the Plan;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
1. Issuance of Grant Shares. The Company hereby grants to the Executive
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and the Executive hereby accepts from the Company upon the terms and conditions
hereinafter set forth, 2,287.21 shares of Series E Preferred Stock of the
Company and 3,459.45 shares of Class A Voting Common Stock of the Company (the
"Grant Shares"). The effective date of issuance of the Grant Shares is the date
hereof. Upon execution of this Agreement, the Company hereby agrees to issue to
the Executive one or more certificates in her name for the ▇▇▇▇▇ Shares. The
Grant Shares will be validly issued and outstanding, fully paid and non-
assessable. The Grant Shares will be held by the Company in the name of the
Executive until fully vested pursuant to Section 4, below.
2. Other Conditions and Limitations. The Grant Shares are granted on the
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condition that the receipt of the Grant Shares hereunder shall be for investment
purposes and not with a view to resale or distribution, except that such
condition shall be inoperative if the reoffering of
Grant Shares is registered under the Securities Act of 1933, as amended, or if
in the opinion of counsel for the Company such Grant Shares may be resold
without registration.
3. Relationship to Plan. The Grant Shares granted pursuant to this
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Agreement have been granted pursuant to the Plan and are in all respects subject
to the terms, conditions and definitions of the Plan. The Executive hereby
accepts the Grant Shares subject to all the terms and provisions of the Plan and
agrees that all decisions and the interpretations of the Plan by the
Compensation Committee of the Board of Directors of the Company (the
"Committee") shall be final, binding and conclusive upon the Executive and her
heirs.
4. Forfeiture of Grant Shares. The Grant Shares shall vest in accordance
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with the schedule set forth on Schedule B of the Plan. In addition, the
following forfeiture provisions are hereby imposed upon the Grant Shares and
shares issued in respect of such Grant Shares as share dividends or as share
splits, or otherwise (the term "Grant Shares" as used in this Agreement to
include all such shares):
(a) Except as provided in paragraph (b), the Executive must remain
employed by the Company or any of its subsidiaries during the vesting
periods set forth on Schedule B of the Plan to vest in such Grant Shares.
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If the Executive fails to satisfy such requirements and is not otherwise
vested under paragraph (b), the Executive shall forfeit and transfer to one
or more persons designated by the Committee, all unvested Grant Shares
granted pursuant to this Agreement.
(b) If the Executive's employment with the Company or one of its
subsidiaries terminates prior to vesting in any Grant Shares issued
pursuant to this Agreement by reason of her retirement under a retirement
plan maintained by the Company or one of its subsidiaries, the Committee
may, in its sole discretion, specify that the Executive become vested at
that time, at a future date or upon the completion of such other conditions
as the Committee, in its sole discretion, may provide.
(c) Executive further agrees that the Grant Shares shall be subject
to repurchase by the Company at a repurchase price of $.01 per share in
accordance with the terms of Exhibit A attached hereto.
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(d) Within 30 days of an event giving rise to a forfeiture under
paragraphs (a) or (b) hereof, the Executive shall deliver to one or more
persons specified by the Committee, all certificates representing the Grant
Shares which have been forfeited together with stock powers validly
assigning such Grant Shares to such other persons as the Committee may
designate. The Company shall make no payment to the Executive with respect
to any Grant Shares so forfeited.
(e) If the Executive fails to comply with any of the provisions of
this Section 4, the Company, at its option and in addition to its other
remedies, may suspend the rights of the Executive to vote and to receive
future dividends on the Grant Shares which have been forfeited or may
refuse to register on its books any transfer or change in the ownership of
the Grant Shares which have been forfeited or in the right to vote thereon,
until the provisions of this Section 4 are complied with to the
satisfaction of the Company. To ensure compliance with the terms of this
Agreement, the Company may issue to its transfer agent appropriate stop
transfer instructions with respect of the Grant Shares (including without
limitation any vested Grant Shares).
5. Nontransferability of Shares. Any Grant Shares which are not vested,
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as specified in Section 4 above, shall be non-transferable by the Executive.
Transfer of Grant Shares which are vested is further restricted pursuant to the
terms of a Stockholders' Agreement by and among Executive, the Company, AT&T
PCS, TWR Cellular and the Cash Equity Investors, TeleCorp Investors and
Management Stockholders identified therein, executed as of the date hereof (the
"Stockholders' Agreement").
6. Legends. Each certificate representing Grant Shares shall contain
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legends in substantially the form set forth in Section 4.1(a) and (b) of the
Stockholders' Agreement.
7. Rights as Shareholder. Except as otherwise provided in the Plan or
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this Agreement, the Executive shall have all of the rights of a shareholder of
the Company with respect to the Grant Shares registered in her name, including
the right to vote such Grant Shares and receive the dividends and other
distributions paid or made with respect to such Grant Shares.
8. No Employment Commitment; Tax Treatment. Nothing herein contained
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shall be deemed to be or constitute an agreement or commitment by the Company to
continue the Executive in its employ. The Company makes no representation about
the tax treatment to the
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Executive with respect to receiving, holding or disposing of the Grant Shares,
and the Executive represents that she has had the opportunity to discuss such
treatment (including the application of Section 83 of the Code) with her tax
adviser.
9. Governing Law. This Agreement shall be subject to and construed in
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accordance with the law of Commonwealth of Delaware.
10. Withholding Tax. The Company shall have the right to require the
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Executive to pay the Company the amount of any taxes which the Company is or
will be required to withhold with respect to the Grant Shares.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement in duplicate on this 16th day of July, 1998.
TELECORP PCS, INC. EXECUTIVE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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Exhibit A
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Definitions.
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"Base Shares" means 2,330.79 shares of Class A Voting
Common Stock and 2,287.21 shares of Series E Preferred Stock or,
if the Supplemental Shares have theretofore been repurchased
pursuant to Section (b)(1)(i) or (b)(2), 2,232.45 shares of Class
A Voting Common Stock and 2,192.43 shares of Series E Preferred
Stock.
"Company Merger" shall mean any merger, combination or
consolidation of the Company or one of its subsidiaries with or
into any other entity (regardless of who survives).
"Company Asset Sale" shall mean any sale or disposition
of a substantial portion of the Company's assets.
"Deemed Per Share Value" means (A) in the case of an
Extraordinary Event specified in clause (x) or (y) of the
definition thereof, (1) the fair market value of all of the
assets of the Company and its Subsidiaries at the time of any
calculation of such value, less (x) any expenses which would be
incurred solely in connection with the disposition of such
assets, (y) the aggregate amount of all liabilities of the
Company and (z) the aggregate redemption price of all outstanding
shares of all series of Preferred Stock of the Company that are
not then convertible into Common Stock at the option of the
holder thereof (or if any such series is not then redeemable, the
aggregate liquidation preference thereof), all as determined in
good faith by the Board of Directors, divided by (2) the number
of shares of Common Stock outstanding on a Fully Diluted Basis,
and (B) in the case of an Extraordinary Event specified in clause
(z) of the definition thereof, the per share offering price of
the Common Stock issued in connection with the public offering
occurring on the IPO Date.
"Extraordinary Event" means (x) the consummation of a
Company Merger after giving effect to which the cash equity
investors (as defined by the Company) in the aggregate shall
beneficially own on a Fully Diluted Basis less than 33% of the
capital stock or other equity interests in the surviving entity,
(y) the consummation of a Company Asset Sale or (z) the
occurrence of the IPO Date.
"Extraordinary Event Shares" means a number of Grant
Shares equal to 1,128.66 shares of Class A Voting Common Stock,
or, if the Supplemental Shares have theretofore been repurchased,
1,081.04 shares of Class A Voting Common Stock.
"Fully Diluted Basis" means, with respect to the shares
of Common Stock outstanding, all of the shares of all classes of
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Common Stock then outstanding (regardless of whether subject to
repurchase), plus all the shares of Common Stock issuable upon
the exercise of outstanding options or convertible securities
that are then convertible into Common Stock at the option of the
holder thereof; provided that for the purpose of calculating the
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number of shares of Common Stock outstanding on a Fully Diluted
Basis in order to determine whether the Internal Rate of Return
pursuant to Section (b) (3) equals (A) more than 30% but less
than 35%, none of the Extraordinary Event Shares shall be deemed
to be outstanding, and (B) 35% or more, one-half of the
Extraordinary Event Shares shall be deemed to be outstanding.
"IPO Date" shall mean the first date on which (a) the
Class A Voting Common Stock shall have been registered pursuant
to an effective registration statement under the Securities Act
of 1933, (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 Voting 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.
"Supplemental Closing" shall mean the consummation by
the Company or one of its wholly-owned subsidiaries of an
acquisition of F-Block PCS Licenses in respect of one million or
more POPs from Mercury PCS, LLC or its designee.
1. "Subsidiaries" means any entity in which the
Company owns, directly or indirectly, 50% or more of the voting
power of the voting equity securities or equity interests.
"Supplemental Shares" means 94.78 shares of Series E
Preferred Stock and 145.96 shares of Class A Voting Common Stock.
Repurchase Of Shares.
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Repurchase Upon Termination. Following the termination
of Executive's employment with the Company, for any reason, each
Executive shall sell to the Company, and the Company shall
purchase from each Executive, at a repurchase price of $.01 per
share: (i) first, if and only if the termination occurs prior to
January 23, 2000, Executive's Supplemental Shares; (ii) second,
if and only if the termination occurs prior to the occurrence of
an Extraordinary Event, Executive's Extraordinary Event Shares;
(iii) third, if and only if the termination occurs after the
occurrence of an Extraordinary Event, Executive's Extraordinary
Event Shares that have not theretofore vested
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pursuant to this Agreement; and (iv) fourth, Executive's Base
Shares that have not theretofore vested pursuant to this
Agreement.
Repurchase In Absence Of Supplemental Closing. If and
only if the Supplemental Closing shall not have occurred on or
before January 23, 2000, each Executive shall sell to the
Company, and the Company shall purchase from each Executive, her
Supplemental Shares.
Repurchase Upon Extraordinary Event. Upon the
occurrence of an Extraordinary Event, Executive shall sell to the
Company, and the Company shall purchase from Executive, the
percentage of her Extraordinary Event Shares set forth opposite
the Internal Rate of Return realized by the Cash Equity Investors
(as defined by that certain Stockholders' Agreement by and among
AT&T Wireless PCS, Inc., the Cash Equity Investors, Management
Stockholders and TeleCorp PCS, Inc., dated as of July 17, 1998)
as set forth on the chart below in connection with the applicable
Extraordinary Event:
Internal Rate of
Return Realized by Percentage of Extraordinary
Cash Equity Investors Event Shares to be Repurchased
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Less than 30% 100%
30% or more but less than 35% 50%
35% or more 0%
For the purpose of this paragraph, the Cash Equity Investors
will be deemed to have "realized an Internal Rate of Return" of any
percentage specified, as of any date, when (i) the aggregate amount of
all distributions actually made in respect of the Cash Equity
Investors' Series C Preferred Stock and Common Stock, plus an amount
equal to interest thereon at the rate of 10% per annum, compounded
annually, from the date each such distribution is made to and
including the date of the calculation, plus the aggregate redemption
price of all outstanding shares of Series C Preferred Stock then
Beneficially Owned by the Cash Equity Investors, plus the product of
the Deemed Per Share Value multiplied by the number of shares of all
classes of Common Stock then owned by the Cash Equity Investors, is
equal to (ii) the aggregate amount of all capital contributions made
by the Cash Equity Investors, plus an amount equal to interest thereon
at such percentage per annum, compounded annually, from the date each
such capital contribution is made to and including such date of
calculation.
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The Grant Shares repurchased pursuant hereto are sometimes
referred to, collectively, as the "Repurchased Shares."
Closing Of Repurchase; Assignment Of Repurchase Right. The closing of
a purchase and sale of Repurchased Shares shall take place on a date mutually
agreed by the Executive and the Company, but in no event later than 30 days
after (i) in the case of Section (b)(1), the date Executive's employment with
the Company terminates or, (ii) in the case of Section (b)(2), January 23, 2000,
or (iii) in the case of Section (b)(3), the occurrence of the Extraordinary
Event. At each such closing, the Company shall deliver to the Executive a check
in the amount of the aggregate repurchase price and, upon delivery thereof, the
Company shall become the legal and beneficial owner of the Repurchased Shares
and all rights and interests therein or relating thereto, and the Company shall
have the right to retain and transfer to its own name the shares of Preferred
Stock and/or Common Stock being repurchased by the Company. Whenever the Company
shall have the right to repurchase Preferred Stock and/or Common Stock
hereunder, such Grant Shares shall be returned to the Plan and may be reissued
by the Company.
Escrow Of Shares. The Certificate(s) representing all shares, subject to
repurchase pursuant to Section (b) shall be held by the Secretary of the Company
as escrow holder (the "Escrow Holder"), along with a stock power executed by the
Executive in blank. The Escrow Holder is hereby directed to permit transfer of
such shares only in accordance with this Agreement. In the event further
instructions are desired by the Escrow Holder, she shall be entitled to rely
upon written directions of the Committee. The Escrow Holder shall have no
liability for any act or omission hereunder while acting in good faith in the
exercise of her own judgment. If the Company or any assignee repurchases any of
the Grant Shares pursuant to this Agreement, the Escrow Holder, upon receipt of
written notice of such repurchase from the proposed transferee, shall take all
steps necessary to accomplish such repurchase. From time to time, upon
Executive's request, the Escrow Holder shall: (i) cancel the certificate(s) held
by the Escrow Holder and representing Grant Shares, (ii) cause new
certificate(s) to be issued representing the number of Grant Shares no longer
subject to repurchase pursuant to this Agreement, which certificate(s) the
Escrow Holder shall deliver to Executive, and (iii) cause new certificate(s) to
be issued representing the balance of the Grant Shares, which certificate(s)
shall be held in escrow by the Escrow Holder in accordance with the provisions
of this Section (d). Subject to the terms hereof, Executive shall have all the
rights of a stockholder with respect to the Grant Shares while they are held in
escrow, including without limitation, the right to vote the Grant Shares and
receive any cash dividends declared thereon. If, from time to time during the
term of the Company's repurchase right, there is (i) any stock dividend, stock
split or other change in the Grant Shares, or (ii) any merger or sale of all or
substantially all of the assets or other acquisition of the Company, any and all
new, substituted or additional securities to which Executive is entitled by
reason of her ownership of the Grant Shares shall be immediately subject to this
escrow, deposited with the Escrow Holder and included thereafter as "Grant
Shares" for purposes of this Agreement and the Company's repurchase right.
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After the IPO Date, Executive shall have the right to exchange certificates
evidencing the number of Grant Shares no longer subject to repurchase pursuant
to this Agreement, for certificates that do not contain a restrictive legend.
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STOCKHOLDERS' AGREEMENT
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STOCKHOLDERS' AGREEMENT, dated as of July 17, 1998 (this "Agreement"), by
and among AT&T WIRELESS PCS INC., a Delaware corporation (together with its
Affiliated Successors, "AT&T PCS"), TWR CELLULAR, INC., a Delaware corporation
(together with its Affiliated Successors, "TWR Cellular"), 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
Management Stockholders (defined below), TELECORP PCS, INC., a Delaware
corporation (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇, an employee of the Company (the
"Executive"). Each of the foregoing, together with all others who, in
connection with a Transfer (as hereinafter defined) are required to become a
party to this Agreement (other than the Company), or with the consent of the
Board of Directors (as hereinafter defined) are issued shares of Company Stock
and are required as a condition of such issuance to become a party to this
Agreement, are sometimes referred to herein, individually, as a "Stockholder"
and, collectively, as the "Stockholders." Capitalized terms used and not
defined herein shall have the meaning set forth in the Stockholders' Agreement
by and between AT&T PCS, Cash Equity Investors, Management Stockholders and the
Company (the "Joint Venture Stockholders' Agreement").
RECITALS
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WHEREAS, pursuant to the terms of a Share Grant Agreement by and between
Executive and the Company, of even date herewith, Executive has been granted by
the Company 2,287.21 shares of Series E Preferred Stock and 3,459.45 shares of
Class A Voting Common Stock (collectively, the "Grant Shares"); and
WHEREAS, the parties desire to enter into this Agreement to impose certain
restrictions with respect to the voting rights of the Grant Shares and the sale,
transfer or other disposition of the Grant Shares on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE I
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Management of Company
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Section 1.1 Board of Directors. Subject to Section 1.9, the Board of
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Directors shall consist of thirteen (13) directors; provided, however, that the
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number of directors constituting the Board of Directors shall be reduced in the
circumstances set forth in this Section 1.1. Executive hereby agrees that she
will vote all of her shares of Class A Voting Common Stock Beneficially Owned or
held of record by her (whether now owned or hereafter acquired), in person or by
proxy, to cause the election of directors and thereafter the continuation in
office of such directors as follows:
(a) three (3) individuals selected by holders of a Majority in
Interest of
the Class A Voting Common Stock Beneficially Owned by the Cash Equity Investors,
in their sole discretion;
(b) ▇▇▇▇▇▇ ▇▇▇▇▇ (so long as he is an officer of the Company and the
Management Agreement shall be in full force and effect);
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (so long as he is an officer of the Company and
the Management Agreement shall be in full force and effect);
(d) two (2) individuals (the "Series A Preferred Directors") elected
by AT&T PCS in its capacity as holder of Series A Preferred Stock so long as it
and TWR Cellular has the right to elect two directors in accordance with the
Restated Certificate; and
(e) (i) three (3) individuals selected by the holders of the Voting
Preference Stock, which three (3) individuals shall be reasonably acceptable to
holders of a Majority in Interest of the Class A Voting Common Stock
Beneficially Owned by the Cash Equity Investors, and (ii) three (3) individuals
selected by the holders of the Voting Preference Stock, which three (3)
individuals shall be reasonably acceptable to holders of a Majority in Interest
of the Class A Voting Common Stock Beneficially Owned by the Cash Equity
Investors and AT&T PCS, in the reasonable discretion of such Cash Equity
Investors, on the one hand, and AT&T PCS, on the other hand.
In the event that ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇ shall cease to be an officer of the
Company, or the Management Agreement shall cease to be in full force and effect,
such individuals shall resign (or the holders of the Voting Preference Stock
shall remove her) from the Board of Directors and the holders of the Voting
Preference Stock shall select a replacement or replacements who shall be
acceptable to a Majority in Interest of the Cash Equity Investors, AT&T PCS ,and
TWR Cellular, in each case in its sole discretion. In the event that AT&T PCS
shall cease to be entitled to elect the Series A Preferred Directors, such
directors shall resign (or the other directors or Stockholders shall remove
them) from the Board of Directors and the remaining directors shall take such
action so that the number of directors constituting the entire Board of
Directors shall be reduced accordingly. In the event that any Cash Equity
Investor that has an Unfunded Commitment shall fail to satisfy any such portion
of its Unfunded Commitments when due in accordance with Section 2.2 of the
Securities Purchase Agreement or Section 3.10 of the Joint Venture Stockholders'
Agreement, and such failure is not cured by such Cash Equity Investor within
thirty-five (35) days thereof, then, until such failure is cured, the member of
the Board of Directors who is designated by, or Affiliated with, such Cash
Equity Investor (whether as an employee, partner, member, stockholder or
otherwise) shall resign from the Board of Directors and the Person(s) who
designated such member shall select an individual acceptable to AT&T PCS in its
sole discretion.
Each of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Dominion and Northwood shall have the
right, so long as it Beneficially Owns at least 5,000 shares of Series C
Preferred Stock and 5,000 shares of Class A Voting Common Stock to designate one
(1) person who shall be entitled to attend the Board of Directors Meeting as an
observer, including meetings during which the Company's annual budget is
discussed and presented. Such observer shall have
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the right to receive all of the Board of Directors materials and shall also have
the right to meet quarterly with the management of the Company to consult on the
business affairs of the Company. In addition, so long as AT&T PCS and TWR
Cellular have the right to designate two directors in accordance with the
Restated Certificate, up to two (2) AT&T PCS regional directors (in regions
overlapping with or in geographic proximity to the Territory) shall have the
right to attend each meeting of the Board of Directors as an observer.
Any nomination or designation of directors and the acceptance thereof
pursuant to Section 1.1 shall be evidenced in writing.
Section 1.2 Removal; Filling of Vacancies. Except as set forth in
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Section 1.1, Executive agrees she will not vote any shares of Class A Voting
Common Stock Beneficially Owned by her, to vote for the removal without cause of
any director designated by any other Stockholder in accordance with Section 1.1.
Any Stockholder or group of Stockholders who has the right to designate any
member(s) of the Board of Directors shall have the right to replace any
member(s) so designated by it (whether or not such member is removed from the
Board of Directors with or without cause or ceases to be a member of the Board
of Directors by reason of death, disability or for any other reason) upon
written notice to the other Stockholders, the Company and the members of the
Board of Directors which notice shall set forth the name of the member(s) being
replaced and the name of the new member(s); provided, however, that if a
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director designated pursuant to (x) Section 1.1(e)(i) is replaced by the holders
of Voting Preference Stock, the individual designated by the holders of Voting
Preference Stock to replace such director must be acceptable to the Cash Equity
Investors in accordance with the terms of Section 1.1(e)(i), and (y) Section
1.1(e)(ii) is replaced by the holders of Voting Preference Stock, the individual
designated by the holders of Voting Preference Stock to replace such director
must be acceptable to the Cash Equity Investors and AT&T PCS in accordance with
the terms of Section 1.1(e)(ii). Executive agrees to vote her shares of Class A
Voting Common Stock, or shall otherwise take any action as is necessary, to
cause the election of any successor director designated by any Stockholder
pursuant to this Section 1.2. The holders of the Voting Preference Stock, agree
that during the three (3) year period commencing on the date hereof they will
not (i) remove the individuals nominated by them pursuant to Sections 1.1(e)(i)
and 1.1(e)(ii), or (ii) nominate for election any individuals other than the
individuals initially selected by them and approved in accordance with said
Sections 1.1(e)(i) and (e)(ii), subject to the agreements of such individuals to
serve on the Board of Directors.
Section 1.3 Initial Directors. In accordance with Section 228 of the
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Delaware General Corporation Law and pursuant to the provisions of Section 1.1
of this Agreement, Executive hereby consents to the election of and does hereby
elect in accordance with Section 1.1 hereof the persons designated in Schedule
II hereof as directors of the Company. Such persons shall hold office until
their successors are duly elected and qualified, except as otherwise provided in
this Agreement, the Joint Venture Stockholders'
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Agreement or the Restated Certificate or the Restated By-Laws.
Section 1.4 Business of the Company. The business and affairs of the
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Company shall be conducted by the officers of the Company under the supervision
of the Board of Directors, substantially in accordance with operating and
capital expenditure budgets approved by the Board of Directors from time to
time. Executive hereby approves the five (5) year build-out plan for the
Business and the capital budget for the first two (2) years of the Business in
the forms attached as Schedule IX of the Joint Venture Stockholders' Agreement.
Section 1.5 Required Votes. (a) All actions of the Board of Directors
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of the Company shall require the vote of at least a majority of the entire Board
of Directors, unless otherwise required by Law, the Restated Certificate, the
Restated By-Laws, the Joint Venture Stockholders' Agreement or this Agreement.
(b) None of the following transactions or actions shall be
entered into or taken by the Company, unless (i) voted for or consented to by
the vote of at least three (3) of the five (5) directors designated pursuant to
Sections 1.1(a) and (d) and six (6) of the eight (8) directors designated
pursuant to Sections 1.1(b), (c) and (e) of the Board of Directors of the
Corporation.
1. The sale, transfer, assignment or other disposition of
any material portion of the assets of the Company or
any of its Subsidiaries other than in the ordinary
course of business;
2. The merger, combination or consolidation of the Company
or any of its Subsidiaries with or into any other
entity, regardless of whether the Company or any such
Subsidiary is the surviving entity in any such merger,
combination or consolidation, the acquisition of any
businesses by the Corporation, the formation of any
partnership or joint venture involving the Company, or
the liquidation, dissolution or winding up of the
Company or any of its Subsidiary;
3. Any offering or issuance of additional shares of
Preferred Stock, Voting Preference Stock or Common
Stock of, or any other securities or ownership
interests in, the Company or any of its Subsidiaries,
including, without limitation, warrants, options or
other rights convertible or exchangeable into Preferred
Stock, Voting Preference Stock or Common Stock of, or
other securities or ownership interests in, the Company
or any of its Subsidiaries except as contemplated by
the Securities Purchase Agreement or the declaration of
any dividends thereon.
4. The repurchase by the Company of any Company Stock
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(other than shares of Class A Voting Common Stock or
Series E Preferred Stock purchased from former
employees of the Company);
5. The authorization or adoption of any amendment to the
Restated Certificate, Restated By-laws or any
constituent document of the Company or any of its
Subsidiaries;
6. The hiring or termination of any executive officer of
the Company;
7. The approval of, or amendment to, any operating or
capital budget of the Company or any of its
Subsidiaries;
8. The incurrence by the Company or any of its
Subsidiaries, whether directly or indirectly, of any
indebtedness for borrowed money or capital leases in
any calendar quarter in excess of $1,000,000;
9. Any agreement or arrangement, written or oral, to pay
any director, officer, agent or employee of the Company
or any of its Subsidiaries $200,000 or more on an
annual basis or any loan, lease, contract or other
transaction with any employee of the Company or any of
its Subsidiaries with an annual salary in excess of
$200,000 or with any director or officer of the Company
or any member of any such Person's Immediate Family;
10. The making of, or commitment to make, any capital
expenditures involving a payment or liability in any
one year of $1,000,000 or more in the aggregate by the
Company or any of its Subsidiaries;
11. The initiation of any bankruptcy proceeding,
dissolution or liquidation of the Company or any of its
Subsidiaries; and
12. The entering into any contract, agreement or
understanding to do any of the foregoing.
Notwithstanding the foregoing, any amendment, modification, waiver or
termination of the Management Agreement shall require the affirmative vote or
consent of a majority of the Board of Directors (excluding Messrs. Vento and
▇▇▇▇▇▇▇▇).
Section 1.6 Transactions between the Company and the Stockholders or
------- --- --------------------------------------------------------
their Affiliates. Except for this Agreement, the Joint Venture Stockholders'
----------------
Agreement, the Securities Purchase Agreement and the Related Agreements and the
transactions contemplated hereby and thereby and any other arms-length
agreements or transactions
-5-
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; provided, however, that for purposes of this Section
1.6 the directors designated pursuant to Section 1.1(e) (ii) and Section 1.9(a)
(ii) shall not be deemed to have been designated by the Cash Equity Investors,
AT&T PCS or the holders of the Voting Preference Stock.
Section 1.7 Board Committees. 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) shall be established, which
committee shall be comprised of five (5) individuals as follows: one (1) of the
Series A Preferred Directors, one of the directors selected by the Cash Equity
Investors pursuant to Section 1.1(a), ▇▇. ▇▇▇▇▇ (so long as he is an officer of
the Company), one (1) of the directors selected pursuant to Section 1.1(e)(i)
and one (1) of the directors selected pursuant to Section 1.1(e)(ii).
Section 1.8 Voting Agreements and Voting Trusts. Except as disclosed on
------- --- -----------------------------------
Schedule X of the Joint Venture Stockholders' Agreement or referred to in this
Section 1.8, Executive agrees that she will not, directly or indirectly, deposit
any of her shares of Series E 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. Each
of AT&T PCS and TWR Cellular 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. Each holder of Voting Preference Stock
shall vote all shares of Voting Preference Stock owned by her in accordance with
the vote of holders of a majority of the shares of Voting Preference Stock.
Section 1.9 Board of Directors After Voting Preference Stock. Effective
----------- ------------------------------------------------
on the later to occur of (x) the date that holders of shares of Voting
Preference Stock shall vote as a class with holders of Class A Voting Common
Stock, and (y) immediately prior to the IPO Date, the Board of Directors shall
consist of seven (7) directors, Executive hereby agrees that she will vote all
of the shares Class A Voting Common Stock owned or held of record by her
(whether now owned or hereafter acquired), in person or by proxy, to cause the
election of directors as follows:
(a) (i) two (2) individuals selected by holders of a Majority in
Interest of the Common Stock Beneficially Owned by the Cash Equity Investors, in
their sole discretion and (ii) two (2) additional individuals selected by
holders of a Majority in Interest of the Common Stock held by the Cash Equity
Investors, which two (2) additional individuals shall be acceptable to the
Management Stockholders (in each case so long as each is an officer of the
Company) and AT&T PCS, in the discretion of the Management
-6-
Stockholders, on the one hand, and AT&T PCS, on the other hand;
(b) Two (2) individuals employed by the Company and selected by
the Management Stockholders (in each case so long as the Management Stockholders
are officers of the Company), one of whom shall be acceptable to holders of a
Majority in Interest of the Class A Voting Common Stock Beneficially Owned by
the Cash Equity Investors and AT&T PCS, in the reasonable discretion of such
Cash Equity Investors, on the one hand, and AT&T PCS on the other hand; and
(c) One (1) individual elected by AT&T PCS in its capacity as
holder of Series A Preferred Stock so long as it has the right to elect one
director in accordance with the Restated Certificate.
In the event that an individual selected by the Management Stockholders
pursuant to clause (b) above shall cease to be an officer of the Company, such
----------
individual shall resign (or the other directors or Stockholders shall remove
her) from the Board of Directors and the Board of Directors shall select a
replacement from the executives of the Company who shall be reasonably
acceptable to a Majority in Interest of the Cash Equity Investors, on the one
hand, and AT&T PCS, on the other hand, in each case in its sole discretion. In
the event that AT&T PCS and TWR Cellular shall cease to be entitled to elect one
(1) Series A Preferred Director, such director shall resign (or the other
directors or Stockholders shall remove her) 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.
ARTICLE II
----------
Transfer of Shares
------------------
Section 2.1 General.
------- ---
(a) Executive agrees that at all times prior to the IPO Date she
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
Grant Shares which have vested (the "Vested Shares"), except after complying
first with Section 2.2 and next with Section 2.3, if applicable.
(b) Executive agrees that at all times on and after the IPO Date
she shall not, directly or indirectly, transfer any of the Vested Shares except
after complying first with Section 2.2 and next with Section 2.3, if applicable,
provided, however, Executive shall not be required to comply with Section 2.2 if
-------- -------
she first complies with the applicable provisions of Section 2.4 in connection
with Transfers of Common Stock pursuant to Rule 144, or in any single
transaction or series of related transactions to one or more persons which
results in the Transfer by Executive (together with any other stockholder of the
Company participating in such single transaction or series of related
transactions) of not
-7-
more than ten percent (10%) of the Common Stock on a fully diluted basis
(excluding for such purposes the Series A Preferred Stock).
(c) Prior to the IPO Date, Executive agrees that she will not
transfer any Vested Shares of Preferred Stock held by her except after complying
with Section 2.2; it being understood that on and after the IPO Date, Executive
may transfer her Vested Shares of Preferred Stock free from any restrictions on
transfer of such shares under this Agreement, but subject at all times to the
restrictions imposed by federal and state securities laws.
Section 2.2 Right of First Offer.
------- ---
(a) If Executive desires to Transfer any or all of her Vested
Shares of Preferred Stock or Common Stock (collectively, the "Offered Shares"),
she 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 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" shall be AT&T PCS.
(b) The option provided for herein shall be exercisable by the
First Offeree 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, to 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. The purchase of the Offered Shares by the First Offeree shall
be closed at the principal executive offices of the Company on a date specified
by the First Offeree 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.
(c) If the First Offeree declines (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 2.2 prior to the expiration of the ninety (90) day period
specified in the immediately preceding sentence, such Offered
-8-
Shares shall become subject once again to the provisions and restrictions
hereof; 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.
(d) The purchase price of any Offered Shares Transferred
pursuant to this Section 2.2 shall be payable in cash by certified bank check or
by wire transfer of immediately available funds.
Section 2.3 Rights of Inclusion.
-----------
(a) Executive shall not, directly or indirectly, Transfer, in
any single transaction or series of related transactions to one or more Persons
(each such Person an "Inclusion Event Purchaser") shares of any series or class
of stock issued by the Company (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 any
such class of Inclusion Stock outstanding on the date of such proposed Transfer
on a fully diluted basis (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 (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
(as defined in the Securities Exchange Act of 1934) 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 Purchaser's 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 2.3) and the Selling Stockholders shall
send written notice of the Inclusion Event Purchaser's 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 2.3 and has agreed to purchase shares of Inclusion Stock in accordance
with the terms hereof, and (v)
-9-
the date by which each other Selling Stockholder may exercise its respective
rights contained in this Section 2.3, 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 Purchaser's
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 2.3, 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 Inclusion),
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 Purchaser's 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 Offerees, 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 Offerees. 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
2.3, then the Selling Stockholders and the remaining Inclusion Event Offerees
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 Offerees. Such process shall be
repeated in series until all of the remaining Inclusion Event Offerees agree to
sell their remaining proportionate number of shares of Inclusion Stock.
(b) The purchase from each Inclusion Event Offeree pursuant to
this Section 2.3 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.
(c) 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
Purchaser's offer, the Selling Stockholders shall notify each Inclusion Event
Offeree and shall cause the purchaser to
-10-
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.
(d) 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 2.3 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.
Section 2.4 Right of First Negotiation. In the event that Executive
------- --- --------------------------
desires to Transfer any shares of Common Stock following the IPO Date in a
Transfer described in Section 2.1(b), she shall give written notice thereof to
AT&T PCS, such notice to specify, among other things, the number of shares that
she desires to sell. For the applicable first negotiation period hereinafter
set forth, AT&T PCS shall have the exclusive right to negotiate with Executive
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 Executive 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,
Executive 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 Executive in her sole discretion. If any of such shares
included in such written notice are not sold pursuant to the provisions of this
Section 2.4 prior to the expiration of the applicable offer period, such shares
shall become subject once again to the provision and restrictions hereof.
If Executive desires to Transfer shares of Common Stock pursuant to Rule
144, the applicable first negotiation period shall be three (3) hours (it being
understood and agreed that Executive shall, in addition to giving written notice
of such proposed Transfer by facsimile, use commercially reasonable efforts to
contact AT&T PCS by telephone) and the applicable offer period upon the
expiration of such first negotiation period shall be five (5) business days, and
in any single transaction or series of related transactions to one or more
persons which will result in the Transfer by Executive (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
-11-
prior to 9:00 A.M. on the day prior to the date of such proposed Transfer (it
being understood and agreed that Executive shall, in addition to giving written
notice of such proposed Transfer by facsimile, use commercially reasonable
efforts to contact AT&T PCS by telephone) and the applicable offer period upon
the expiration of such first negotiation period shall be ten (10) business days.
Section 2.5 Additional Conditions to Permitted Transfers.
------- ---
(a) Upon any Transfer pursuant to Section 2.2 or Section 2.3,
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
Executive (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.
(b) Notwithstanding anything to the contrary contained in this
Agreement, Executive agrees that she will not effect a Transfer of shares of
Company Stock to anyone prohibited by the Company; provided, however, that
-------- -------
nothing contained in this Section 2.5(b) shall be construed to prohibit a
Transfer of Common Stock by Executive after the IPO Date pursuant to an
underwritten registration or in accordance with the provisions of Rule 144.
Section 2.6 Representations and Warranties. A Stockholder purchasing
------- --- ------------------------------
shares of Company Stock pursuant to Section 2.2 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.
Section 2.7 Stop-Transfer.
------- ---
(a) The Company agrees not to effect any Transfer of shares of
Company Stock by Executive whose proposed Transfer is subject to Sections 2.2,
2.3 or 2.4 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. 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.
ARTICLE III
-----------
After-Acquired Shares; Recapitalization
---------------------------------------
Section 3.1 After Acquired Shares; Recapitalization
------- ---
(a) 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 Executive or to
-12-
her 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 Executive or
her Affiliated Successors in any other manner.
(b) 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.
Section 3.2 Amendment of Restated Certificate. Whenever the number of
------- --- ---------------------------------
shares of authorized Common Stock is not sufficient in order to issue shares of
Common Stock upon conversion of Preferred 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 Common Stock, and (ii)
Executive agrees to vote her shares of Preferred Stock and Common Stock in favor
of such amendment.
ARTICLE IV
----------
Share Certificates
------------------
Section 4.1 Restrictive Endorsements; Replacement Certificates. 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:
(a) "The shares represented by this Certificate are subject to a
Stockholders' Agreement dated as of July 17, 1998, 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"; and
(b) "The securities 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."
-13-
Executive agrees that she will deliver all certificates for shares of
Equity Securities owned by her to the Company for the purpose of affixing such
legends thereto.
(c) 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.
ARTICLE V
---------
Miscellaneous
-------------
Section 5.1 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 or TWR Cellular:
c/o AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Telephone:
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-14-
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Cash Equity Investor, to its address set forth on Schedule
I.
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Management Stockholder or to the Company, to the address
set forth in the Securities Purchase Agreement. If to Executive, to the address
set forth in the Share Grant Agreement.
With a copy to each other party sent to the addresses set forth in
this Section 5.1.
Section 5.2 Waiver failure or delay on the part of any Stockholder in
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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.
Section 5.3 Modification. The terms and provisions of any change or
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modification to the Joint Venture Stockholders' Agreement made effective
pursuant to Section 12(b) of the Joint Venture Stockholders' Agreement, shall be
reflected in full in this Agreement as of the same was approved by the parties
hereto.
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Section 5.4 Obligations Several. The obligations of each Stockholder
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under this Agreement shall be several with respect to each such Stockholder.
Section 5.5 Governing Law. This Agreement shall be governed and
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construed in accordance with the law of the State of Delaware.
Section 5.6 Benefit and Binding Effect; Severability. This Agreement
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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.
Section 5.7 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed or consent this
Agreement to be executed by its duly authorized officers as of the date first
written above.
TELECORP PCS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
EXECUTIVE: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
By execution hereof, the Company and Executive agree that AT&T PCS, TWR
Cellular, the Cash Equity Investors and the Management Stockholders are to be
bound by the obligations in, and entitled to the benefits of, this Agreement by
virtue of their respective execution of that certain Agreement by and among them
and the Company dated as of the date of the Joint Venture Stockholders'
Agreement.
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Schedule I
Cash Equity Investors
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CB Capital Investors, L.P.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Equity-Linked Investors-II
Private Equity Investors III, L.P.
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ Communications Partners, L.P.
HCP Capital Fund, L.P.
One Galleria Tower
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Attn: ▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Whitney Equity Partners, L.P.
J.H. Whitney III, ▇.▇.
▇▇▇▇▇▇▇ Strategic Partners III, L.P.
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Entergy Technology Holding Company
Three Financial Centre
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Media/Communications Partners III Limited Partnership
Media/Communications Investors Limited Partnership
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
One Liberty Fund III, L.P.
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Toronto Dominion Investments, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to)
Toronto Dominion Investments, Inc.
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▇▇▇▇▇ ▇▇▇▇
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Northwood Ventures LLC
Northwood Capital Partners LLC
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▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule II
Initial Directors
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