Exhibit 10.44
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT effective as of November 13, 2000, by and among
Tritel, Inc., a Delaware corporation and wholly-owned subsidiary of TeleCorp
PCS, Inc. ("Tritel"), Airwave Communications, LLC, a Mississippi limited
liability company ("Airwave"), the entities set forth on Schedule I (the
"Airwave Investor Indemnitors"), and Digital PCS, LLC, a Mississippi limited
liability company ("Digital") (each of the foregoing a "Party" and collectively
the "Parties").
WHEREAS, Tritel became a wholly-owned subsidiary of TeleCorp PCS,
Inc., a Delaware corporation ("TeleCorp"), pursuant to a merger (the "Merger")
that was consummated on November 13, 2000 (the "Merger Date");
WHEREAS, Tritel, Digital, Airwave, and the Airwave Investor
Indemnitors are parties to the Securities Purchase Agreement dated as of May 20,
1998 (the "Securities Purchase Agreement");
WHEREAS, Tritel, Digital, ▇.▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ are parties to a License Purchase Agreement dated as of May
20, 1999 (the "License Purchase Agreement");
WHEREAS, the individuals and entities set forth on Schedule III are
the current members of Digital (the "Digital Members");
WHEREAS, shares of Tritel Class A Common Stock (the "Tritel Shares"),
were held in escrow pursuant to the Securities Purchase Agreement and the
License Purchase Agreement to secure certain indemnification obligations; and
WHEREAS, as a result of the Merger each Tritel Share has been
converted into the right to receive 0.76 shares of TeleCorp Class A Common Stock
(the "TeleCorp Shares");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
ACKNOWLEDGEMENTS OF THE PARTIES
Section 1.01 The Parties acknowledge the following:
(a) The Merger resulted in a Reconciliation Date, as defined in the
Securities Purchase Agreement and the License Purchase Agreement, on the Merger
Date.
(b) As of the Reconciliation Date, 7,270,843.24 Tritel Shares issued in
the name of the Airwave Investor Indemnitors (the "Airwave Escrowed Shares")
were held in escrow (the "Airwave Escrow") pursuant to the provisions of Section
8.9 of the Securities Purchase Agreement and the provisions of the Collateral
Agency Agreement dated January 7, 1999, inter alia, to indemnify a Section 8.5
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Indemnified Party against any Section 8.5 Losses (as such terms are defined in
the Securities Purchase Agreement) incurred on or before the Reconciliation Date
(the "Airwave Indemnity Obligation").
(c) As of the Reconciliation Date, 1,480,697 Tritel Shares issued in
the name of Digital (the "Digital Escrowed Shares") were held in escrow (the
"Digital Escrow") under the provisions of Section 7.6 of the License Purchase
Agreement to indemnify a Section 7.2 Indemnified Party against any Section 7.2
Losses (as such terms are defined in the License Purchase Agreement) incurred on
or before the Reconciliation Date (the "Digital Indemnity Obligation").
(d) As of the Reconciliation Date, the outstanding principal amount of
the Old Mercury Note (as defined in the Securities Purchase Agreement) was
$2,500,000, and accrued and unpaid interest thereon was $439,721. Said principal
amount includes an advance of $343,598 to be provided by Tritel to Digital on
the date this Agreement is executed by the Parties hereto and an advance of
$50,000 to be provided by Tritel to Airwave on the date this Agreement is
executed by the Parties. Tritel, Airwave and Digital agree that $938,982 of the
Old Mercury Note shall be repaid by Airwave and $2,000,739 of the Old Mercury
Note shall be repaid by Digital.
(e) Pursuant to the terms of the Merger, each Tritel Share, including
the Airwave Escrowed Shares and the Digital Escrowed Shares, was converted,
effective on the Reconciliation Date, into 0.76 TeleCorp Shares. (Generic
references in this Agreement to specific numbers of Tritel Shares, Airwave
Escrowed Shares, Distributed Airwave Escrowed Shares, Retained Airwave Escrowed
Shares, Digital Escrowed Shares, Distributed Digital Escrowed Shares, and
Retained Digital Escrowed Shares refer to such shares prior to their conversion
into TeleCorp Shares.)
ARTICLE II
TREATMENT OF SHARES CURRENTLY IN ESCROW
Section 2.01 Retention of Shares in Escrow.
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(a) 1,246,211 of the Airwave Escrowed Shares (the "Retained Airwave
Escrowed Shares") shall be retained in escrow pursuant to the terms of an escrow
agreement in the form of Exhibit A hereto pursuant to which Firstar Bank, N.A.
(the "Airwave Escrow Agent") shall serve as escrow agent (the "Airwave Escrow
Agreement"), and which Tritel, the Airwave Escrow Agent and the Airwave Investor
Indemnitors shall execute simultaneously with the execution of this Agreement.
(b) 253,789 of the Digital Escrowed Shares (the "Retained Digital
Escrowed Shares") shall be retained in escrow pursuant to the terms of an escrow
agreement in the form of
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Exhibit B hereto pursuant to which Firstar Bank, N.A. (the "Digital Escrow
Agent") shall serve as escrow agent (the "Digital Escrow Agreement"), and which
Digital, Tritel, and the Digital Escrow Agent shall execute simultaneously with
the execution of this Agreement.
Section 2.02 Notice and Procedure: Airwave Escrow. Capitalized terms
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in this Section 2.02 not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Securities Purchase Agreement.
(a) During the period commencing on the "Airwave Escrow Termination
Date" (as hereinafter defined) and ending at 5:00 pm, New York City Time, on the
date which is five (5) business days following the Airwave Escrow Termination
Date, Tritel shall give each Airwave Investor Indemnitor a Section 8.5 Notice of
any Section 8.5 Losses incurred by a Section 8.5 Indemnified Party as of the
Reconciliation Date and shall simultaneously provide the Airwave Escrow Agent
with a certificate signed by the Secretary of Tritel (i) stating that Tritel has
provided the Airwave Investor Indemnitors with notice pursuant to Section
2.02(a) of this Agreement, and (ii) setting forth the dollar amount to which
Tritel claims Tritel is entitled. Failure to provide such notices by 5:00 pm,
New York City Time, on the date which is five (5) business days following the
Airwave Escrow Termination Date, shall result in the immediate termination of
the Airwave Escrow and the distribution by the Airwave Escrow Agent of all
Retained Airwave Escrowed Shares to the Airwave Investor Indemnitors so as to
provide each Airwave Investor Indemnitor with the Allocated Retained Airwave
Escrowed Shares (as defined herein) applicable to each Airwave Investor
Indemnitor (as more fully set forth in the Airwave Escrow Agreement), free and
clear of any liens, claims or encumbrances, including the Airwave Indemnity
Obligation, other than any pledge of such shares to Ericsson under the Pledge
Agreements dated January 7, 1999 (the "Ericsson Pledge Agreements"). As used
herein, the "Airwave Escrow Termination Date" shall mean the earlier to occur of
(x) the date the Airwave Investor Indemnitors and Tritel definitively agree in
writing that all the matters related to the Airwave Indemnity Obligation have
been dismissed, settled or otherwise finally disposed of, and (y) October 15,
2001.
(b) If any Airwave Investor Indemnitor notifies Tritel within ten
business days following receipt of the Section 8.5 Notice of such Airwave
Investor Indemnitor's disagreement with respect to the noticed Section 8.5 Loss
and simultaneously provides the Airwave Escrow Agent with a certificate signed
by such Airwave Investor Indemnitor stating that such Airwave Investor
Indemnitor has provided Tritel with notice pursuant to Section 2.02(b) of this
Agreement, then the Allocated Retained Airwave Escrowed Shares (as defined
herein) applicable to each Airwave Investor Indemnitor providing such notice
shall remain in the Airwave Escrow and notwithstanding any provision in the
Securities Purchase Agreement and without limitation of Section 4.01 herein, the
Parties shall submit such disagreement to binding arbitration pursuant to
ARTICLE IV hereof to determine (i) if there were any Section 8.5 Losses incurred
as of the Reconciliation Date and arising out of or resulting from the matters
specified in Sections 8.5(i) and (ii) of the Securities Purchase Agreement and
if so, the amount of such Loss, (ii) the number of Retained Airwave Escrowed
Shares, if any, to be transferred to the Section 8.5 Indemnified Party in order
to satisfy such incurred Section 8.5 Loss, and (iii) any other matter related to
the Retained Airwave Escrowed Shares. Any Retained Airwave Escrowed Shares not
required to remain in the Airwave Escrow by this clause (b), shall be
distributed pursuant to Section 2.01(b) of the Airwave Escrow Agreement.
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(c) The Parties agree that neither the entering into of this Agreement,
any delay in undertaking the distribution process specified in Section 8.9(b) of
the Securities Purchase Agreement, the extension of the Airwave Escrow beyond
the Reconciliation Date, the retention in the Airwave Escrow of the Retained
Airwave Escrowed Shares, nor the distribution from the Airwave Escrow of the
Distributed Airwave Shares (as provided for in Section 2.04 hereof) shall have
any bearing on the determination by the arbitrator of the matters set forth in
Section 2.02(b) hereof, and no Party hereto shall be estopped from asserting any
claim, or any defense to such claim with respect to all indemnifiable matters
pursuant to the Securities Purchase Agreement. Notwithstanding the foregoing,
the Parties agree that no claim shall be made with respect to the Distributed
Airwave Shares or the Retained Airwave Escrowed Shares distributed pursuant to
the last sentence of Section 2.02(b).
Section 2.03 Notice and Procedure: Digital Escrow. Capitalized terms
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in this Section 2.03 not otherwise defined in this Agreement shall have the
meanings ascribed to them in the License Purchase Agreement.
(a) A Digital Member may elect by written notice to Digital, Tritel and
the Digital Escrow Agent, to require Digital and the Digital Escrow Agent to
record beneficial ownership of such Digital Member's Allocated Retained Digital
Escrowed Shares (as set forth on Schedule IV in such Digital Member's name).
Such Digital Member shall execute and deliver to the other Parties and the
Digital Escrow Agent an executed counterpart of the Digital Escrow Agreement and
this Agreement together with a certificate stating that (i) such Digital Member
shall be bound by this Agreement and the Digital Escrow Agreement, (ii) as of
the date of such beneficial transfer of record, the representations set forth in
Section 3.01 and Section 3.02 hereof are true and correct, and (iii) such
Digital Member shall succeed to the rights and obligations of Digital hereunder
with respect to the Allocated Retained Digital Escrowed Shares of such Digital
Member. Digital and any Digital Member who pursuant to this Section 2.03(a)
elects to have beneficial ownership of Retained Digital Escrowed Shares recorded
in such Digital Member's name, are hereinafter each referred to as a "Digital
Investor Indemnitor" and collectively as the "Digital Investor Indemnitors."
(b) During the period commencing on the "Digital Escrow Termination
Date" (as hereinafter defined) and ending at 5:00 pm, New York City Time on the
date which is five (5) business days following the Digital Escrow Termination
Date, Tritel shall give each Digital Investor Indemnitor a Section 7.2 Notice of
any Section 7.2 Losses incurred by a Section 7.2 Indemnified Party as of the
Reconciliation Date and shall simultaneously provide the Digital Escrow Agent
with a certificate signed by the Secretary of Tritel (i) stating that Tritel has
provided the Digital Investor Indemnitors with notice pursuant to Section
2.03(b) of this Agreement, and (ii) setting forth the dollar amount to which
Tritel claims Tritel is entitled. Failure to provide such notices by 5:00 pm,
New York City Time on the date which is five (5) business days following the
Digital Escrow Termination Date, shall result in the immediate termination of
the Digital Escrow and the distribution by the Digital Escrow Agent of all
Retained Digital Escrowed Shares to the Digital Investor Indemnitors so as to
provide each Digital Investor Indemnitor with the Allocated Retained Digital
Escrowed Shares (as defined herein) applicable to each Digital Investor
Indemnitor (as more fully set forth in the Digital Escrow Agreement), free and
clear of any liens, claims or encumbrances, including the Digital Indemnity
Obligation. As used herein, the Digital Escrow Termination Date shall mean the
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earlier to occur of (x) the date the Digital Investor Indemnitors and Tritel
definitively agree in writing that all the matters related to the Digital
Indemnity Obligation have been dismissed, settled, or otherwise finally disposed
of, and (y) October 15, 2001.
(c) If any Digital Investor Indemnitor notifies Tritel within ten
business days following receipt of the Section 7.2 Notice of such Digital
Investor Indemnitor's disagreement with respect to the noticed Section 7.2 Loss
and simultaneously provides the Digital Escrow Agent with a certificate signed
by such Digital Investor Indemnitor stating that such Digital Investor
Indemnitor has provided Tritel with notice pursuant to Section 2.03(c) of this
Agreement, then the Allocated Retained Digital Escrowed Shares (as defined
herein) applicable to each Digital Investor Indemnitor providing such notice
shall remain in the Digital Escrow and notwithstanding any provision in the
License Purchase Agreement and without limitation of Section 4.01 herein, the
Parties shall submit such disagreement to binding arbitration pursuant to
ARTICLE IV hereof to determine (i) if there were any Section 7.2 Losses incurred
as of the Reconciliation Date and arising out of or resulting from the matters
specified in Sections 7.2(i) and (ii) of the License Purchase Agreement and if
so, the amount of such Loss, (ii) the number of Retained Digital Escrowed
Shares, if any, to be transferred to the Section 7.2 Indemnified Party in order
to satisfy such incurred Section 7.2 Loss, and (iii) any other matter related to
the Retained Digital Escrowed Shares. Any Retained Digital Escrowed Shares not
required to remain in the Digital Escrow by this clause (c), shall be
distributed pursuant to Section 2.01(b) of the Digital Escrow Agreement.
(d) The Parties agree that neither the entering into of this Agreement,
any delay in undertaking the distribution process specified in Section 7.6(b) of
the License Purchase Agreement, the extension of the Digital Escrow beyond the
Reconciliation Date, the retention in the Digital Escrow of the Retained Digital
Escrowed Shares, nor the distribution from the Digital Escrow of the Distributed
Digital Shares (as provided for in Section 2.04 hereof) shall have any bearing
on the determination by the arbitrator of the matters set forth in Section
2.03(c) hereof, and no Party hereto shall be estopped from asserting any claim,
or any defense to such claim with respect to all indemnifiable matters pursuant
to the License Purchase Agreement. Notwithstanding the foregoing, the Parties
agree that no claim shall be made with respect to the Distributed Digital Shares
or the Retained Digital Escrowed Shares distributed pursuant to the last
sentence of Section 2.03(c).
Section 2.04 Distribution of Shares.
----------------------
(a) Capitalized terms in this Section 2.04(a) not otherwise defined in
this Agreement shall have the meanings ascribed to them in the Securities
Purchase Agreement. Tritel, Airwave, and the Airwave Investor Indemnitors hereby
agree to instruct Trustmark National Bank, N.A. ("Trustmark"), in substantially
the form of the Letter of Instruction attached hereto as Exhibit C, and agree to
execute any documents reasonably requested by Trustmark in connection with such
instruction, to:
(i) release 6,024,632.24 of the Airwave Escrowed Shares (the
"Distributed Airwave Shares") from the Airwave Escrow, to convert such
shares into TeleCorp Shares as provided for in Exhibit C, and to transfer
such shares to the Airwave Investor
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Indemnitors in accordance with their Allocated Distributed Airwave Escrowed
Shares (as defined herein), and
(ii) convert the Retained Airwave Escrowed Shares into TeleCorp Shares
as provided for in Exhibit C, and to transfer such converted shares to the
Airwave Escrow Agent to be held pursuant to the Airwave Escrow Agreement,
in each case free and clear of all liens, claims and encumbrances (including,
without limitation, any Airwave Indemnity Obligation) other than the Ericsson
Pledge Agreement, and free of any restrictive legend (other than any legend
required by Rule 145 promulgated under the Securities Act of 1933).
(b) Capitalized terms in this Section 2.04(b) not otherwise defined in
this Agreement shall have the meanings ascribed to them in the License Purchase
Agreement. Tritel and the Digital Investor Indemnitors hereby agree to instruct
▇▇▇▇▇ in substantially the form of the Letter of Instruction attached hereto as
Exhibit D to:
(i) release 1,226,908 of the Digital Escrowed Shares (the "Distributed
Digital Shares") from the Digital Escrow, to convert such shares into
TeleCorp Shares as provided for in Exhibit D, and to transfer (x) 1,039,085
of such shares to the Digital Investor Indemnitors in accordance with their
Allocated Distributed Digital Escrowed Shares (as defined herein), and (y)
187,823 of such shares to Tritel (with the acknowledgment that 127,830
shares are being transferred on behalf of Digital and 59,993 shares are
being transferred on behalf of Airwave) in full payment and satisfaction of
both the Old Mercury Note and accrued and unpaid interest thereon as of the
Merger Date, and
(ii) convert the Retained Digital Escrowed Shares into TeleCorp Shares
as provided for in Exhibit D and to transfer such converted Retained
Digital Escrowed Shares to the Digital Escrow Agent to be held pursuant to
the Digital Escrow Agreement,
in each case, free and clear of all liens, claims and encumbrances (including,
without limitation, any Digital Indemnity Obligation), and free of any
restrictive legend (other than any legend required by Rule 145 promulgated under
the Securities Act of 1933). Simultaneous with the distribution of the
Distributed Airwave Shares and the Distributed Digital Shares, Tritel shall
advance $343,598 to Digital and $50,000 to Airwave, which payment shall be
deemed an advance under the Old Mercury Note.
Section 2.05 Release.
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(a) Upon transfer of the Airwave Escrowed Shares in accordance with the
terms of this Agreement, Trustmark shall be released from and against any and
all claims by the Parties for any losses, damages, liabilities and expenses,
whether known or unknown, incurred by any of the Parties on or prior to such
transfer of Airwave Escrowed Shares under and pursuant to the terms of the
Securities Purchase Agreement.
(b) Upon transfer of the Digital Escrowed Shares in accordance with the
terms of this Agreement, ▇▇▇▇▇ shall be released from and against any and all
claims by the Parties for
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any losses, damages, liabilities and expenses, whether known or unknown,
incurred by any of the Parties on or prior to such transfer of Digital Escrowed
Shares with respect to any and all actions by ▇▇▇▇▇ as Escrow Holder of the
Digital Escrowed Shares under and pursuant to the terms of the License Purchase
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Authority. Each Party hereto represents and warrants
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that:
(a) such Party has full corporate or other requisite power, authority,
and capacity, to execute and deliver this Agreement and the Airwave Escrow
Agreement or the Digital Escrow Agreement, as the case may be (collectively, the
"Agreements"), to perform such Party's obligations under the Agreements and to
consummate the transactions contemplated by the Agreements;
(b) the execution and delivery of the Agreements by such Party and the
performance of such Party's obligations under the Agreements have been duly and
validly authorized by all necessary corporate or other requisite action;
(c) the Agreements have been duly executed and delivered by such Party
and constitute valid and binding obligations of such Party enforceable against
such Party in accordance with their terms.
Section 3.02 No Conflict. Each Party hereto represents and warrants
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that neither the execution and delivery of the Agreements by such Party nor the
performance by such Party of the transactions contemplated hereby will:
(a) violate or conflict with any of the provisions of the Articles of
Incorporation or By-Laws or other governing organizational document of such
Party; or
(b) violate or conflict with any provision of any law or order
applicable to such Party, or require any consent or approval of, filing with or
notice to any governmental or regulatory body.
Section 3.03 Beneficial Ownership of Airwave Escrowed Shares.
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(a) Each Airwave Investor Indemnitor represents and warrants that
Schedule I accurately and completely sets forth the number of Distributed
Airwave Escrowed Shares which are beneficially owned by such Airwave Investor
Indemnitor free and clear of any liens or encumbrances other than the Airwave
Escrow and the Ericsson Pledge Agreements (the "Allocated Distributed Airwave
Escrowed Shares" of such Airwave Investor Indemnitor), subject to the terms and
conditions of this Agreement and the Exhibits hereto.
(b) Each Airwave Investor Indemnitor represents and warrants that
Schedule II accurately and completely sets forth the number of Retained Airwave
Escrowed Shares which
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are beneficially owned by such Airwave Investor Indemnitor free and clear of any
liens or encumbrances other than the Airwave Escrow and the Ericsson Pledge
Agreements (the "Allocated Retained Airwave Escrowed Shares" of such Airwave
Investor Indemnitor), subject to the terms and conditions of this Agreement and
the Exhibits hereto.
Section 3.04 Beneficial Ownership of Digital Escrowed Shares.
------------------------------------------------
(a) Digital represents and warrants that Schedule III accurately and
completely sets forth the number of Digital Escrowed Shares which are
beneficially owned by the Digital Members free and clear of any liens or
encumbrances other than the Digital Escrow (the "Allocated Distributed Digital
Escrowed Shares" of the Digital Members) subject to the terms and conditions of
this Agreement and the Exhibits hereto.
(b) Digital represents and warrants that Schedule IV accurately and
completely sets forth the number of Retained Digital Escrowed Shares which are
beneficially owned by the Digital Members free and clear of any liens or
encumbrances other than the Digital Escrow (the "Allocated Retained Digital
Escrowed Shares" of the Digital Members) subject to the terms and conditions of
this Agreement and the Exhibits hereto.
ARTICLE IV
DISPUTE RESOLUTION
Section 4.01 Arbitration. The Parties agree that (i) the matters set
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forth in 2.02(b) and 2.03(c); (ii) any controversy, claim or dispute arising out
of or relating to the construction, interpretation, performance, breach,
termination, enforceability or validity of this Agreement, the Airwave Escrow
Agreement or the Digital Escrow Agreement (collectively, the "Escrow
Agreements"); or (iii) the arbitration provisions contained herein, including
without limitation the determination of whether a Party has waived its rights to
arbitration hereunder or the enforceability of the arbitration provisions
hereunder, shall be determined by arbitration in accordance with, and based upon
the procedures set forth in, this ARTICLE IV (the foregoing (i), (ii) and (iii)
are hereinafter collectively referred to as the "Arbitration Matters"). The
Parties waive any objection to the arbitration for failure to join Trustmark,
▇▇▇▇▇ (in his capacity as Escrow Holder of the Digital Escrowed Shares under and
pursuant to the terms of the License Purchase Agreement), the Airwave Escrow
Agent or the Digital Escrow Agent as necessary parties to arbitration.
Section 4.02 Forum and Choice of Law. The arbitration shall take place
-----------------------
in Jackson, Mississippi. Except as provided in this Agreement, the arbitration
provisions of the State of Mississippi, Miss. Code ▇▇▇. (S) 11-15-1, et seq.
(the "Mississippi Arbitration Act") govern the Arbitration. To the extent a
conflict exists between the provisions of the Miss. Arbitration Act and this
Agreement, the provisions of this Agreement control. The arbitrators shall
determine the extent to which any issue is subject to arbitration and such
determination shall be made in accordance with the Mississippi Arbitration Act
and New York substantive law. As between and among the Parties, the arbitrators
shall have the power to require pre-hearing discovery, and the Parties shall be
entitled to obtain discovery, to the same extent as permitted under the Miss.
Rules of Civil Procedure, including without limitation, the exchange of
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documents and the noticing and taking of depositions. Notwithstanding the
foregoing, the arbitrators selected under Section 4.03 may limit the number,
scope and timing of depositions, interrogatories or any other pre-hearing
discovery which would otherwise be available under the Miss. Rules of Civil
Procedure, including reduction of time limitations. The Parties shall instruct
the arbitrators to set any limits on pre-hearing discovery within ten (10)
business days of the selection of the third arbitrator (the "Discovery
Commencement Date"). The aforementioned discovery rules shall be provided to
the Parties in writing on or before the Discovery Commencement Date. The
Parties shall have one hundred and twenty (120) days from and after the
Discovery Commencement Date to complete their discovery (the "Discovery
Completion Date"). The arbitrators shall not have the authority to extend the
Discovery Completion Date, provided, however, that the arbitrators may extend
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the Discovery Completion Date where the conduct of a Party other than the Party
seeking an extension has impeded or delayed the discovery of the Party seeking
the extension. To enforce the rights of the Parties to obtain discovery,
including without limitation of non-parties, the arbitrators and the parties to
the arbitration may utilize the subpoena power provided by the Miss. Arbitration
Act. The arbitrators shall apply and be bound by the Federal Rules of Evidence
(as interpreted by the 2nd Circuit Court of Appeals) to all evidentiary matters
arising during any arbitration hearing. With the exception to the law governing
the issue of the extent to which any issue is subject to arbitration, the rules
governing discovery and the rules governing evidence, as set forth above, the
law governing any claims or disputes arising out of or relating to the Escrow
Agreements shall be governed by the laws of the State of New York, without
regard to conflict of laws or choice of law rules, and the Arbitrators shall
follow and be bound by such laws. To the extent there is a conflict between the
Miss. Arbitration Act and New York law concerning the extent to which any issue
is subject to arbitration, the Miss. Arbitration Act shall be applied. To the
extent there is a conflict between the substantive law of the State of New York
and either the Federal Rules of Evidence or the Miss. Rules of Civil Procedure,
the substantive law of the State of New York shall be applied. To the extent
that a conflict exists between the provisions of the Agreement and either the
New York substantive law, the Miss. Rules of Civil Procedure, or the Federal
Rules of Evidence, the provisions of this Agreement control.
Section 4.03 Selection and Duties of Arbitrators. The arbitration
-----------------------------------
proceeding shall be conducted before a panel of three arbitrators to be selected
in accordance with the procedures set forth in this Section 4.03. Within fifteen
(15) business days of the date upon which an Airwave Investor Indemnitor or a
Digital Investor Indemnitor provides notice under Section 2.02 (b) or Section
2.03(c) of this Agreement, the Airwave Investor Indemnitors and Digital Investor
Indemnitors, as applicable, shall select one (1) arbitrator and Tritel shall
select one (1) arbitrator. The Parties shall instruct the two arbitrators
selected to select a third arbitrator within five (5) business days of their
selection. Airwave and Digital shall not be entitled to select an arbitrator. If
the arbitrators selected by the Parties pursuant to this Section 4.03 are unable
or fail to agree upon the third arbitrator, the third arbitrator shall be
selected by the American Arbitration Association upon application made to it for
such purpose by the Parties. Each of the three arbitrators selected pursuant to
this Section must (1) be either (a) an attorney who has practiced law for at
least 15 years, working in either general commercial litigation or general
corporate matters or (b) a retired judge, and (2) must be under the age of 68
when appointed.
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Section 4.04 Arbitration Decision and Award. The Parties shall
------------------------------
instruct the arbitrators to conduct a hearing commencing on the fifth (5th)
business day following the Discovery Completion Date. The Parties shall instruct
the arbitrators to provide the Parties with five (5) days prior notice of the
date, time and place of the hearing. The hearing shall be conducted over a
period of days determined by the arbitrators but in no event shall the hearing
be conducted over a period of more than four (4) days. The arbitrators shall
only have the authority to render a decision concerning the Arbitration Matters.
The Parties shall instruct the arbitrators, to the extent practical, to render a
written decision no more than fourteen (14) business days following the
completion of the hearing. The written decision shall be delivered to the
Parties, the Digital Escrow Agent and the Airwave Escrow Agent. The arbitrators
shall have the authority to order and award equitable relief, injunctive relief,
specific performance, and/or compensatory damages. Notwithstanding any provision
in this Agreement, to the extent a Party seeks to pursue a claim for punitive
damages, such claim must be commenced in a court of competent jurisdiction
following any arbitration award pursuant to this ARTICLE IV. The arbitrators'
decision and any award contained therein shall be final, binding and conclusive
on the Parties subject to review or reversal by a court only to the extent and
only on the grounds provided in the Miss. Arbitration Act. The Parties
acknowledge and agree that the arbitration decision and award shall be entitled
to be enforced to the fullest extent permitted by law and entered in any court
of competent jurisdiction. The Parties further agree that a judgment of the
court shall be entered upon the award made pursuant to the arbitration in the
Circuit Court of the First Judicial District of ▇▇▇▇▇ County Mississippi, where
any review of the award shall be conducted.
Section 4.05 Confidentiality. The Parties and the Escrow Agents
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agree that they shall not disclose the contents of the arbitration or discovery
obtained from other parties to the arbitration, unless and only to the extent
required to enforce or challenge the arbitration award, as required by law, or
as necessary for required filings, tax returns, reports or audits.
Section 4.06 Expenses. Each party to any arbitration shall bear its
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own expense in relation thereto, including but not limited to such party's
attorneys' fees. The arbitrators shall negotiate their compensation (the
"Arbitrators' Compensation") with the Parties prior to their engagement as
arbitrators. The three arbitrators shall include in their written decision an
allocation of the Arbitrators' Compensation among Tritel, the Airwave Investor
Indemnitors and the Digital Investor Indemnitors; provided, however, that the
Airwave Investor Indemnitors and the Digital Investor Indemnitors, as
applicable, shall allocate any amount of the Arbitrators' Compensation allocated
to the Airwave Investor Indemnitors and the Digital Investor Indemnitors based
upon their pro rata ownership in Digital or Airwave, as applicable, as of
November 13, 2000.
Section 4.07 Severability. If any part of this ARTICLE IV is held to
------------
be unenforceable, it shall be severed and shall not affect either the duty to
arbitrate hereunder or any other part of this ARTICLE IV.
10
ARTICLE V
MISCELLANEOUS
Section 5.01 Exchange of Shares. Tritel covenants and agrees to assist
------------------
Digital and the Airwave Investor Indemnitors with the exchange of the Digital
Escrowed Shares and the Airwave Escrowed Shares, including but not limited to
instructing the applicable transfer agent to expedite the exchange of the
Digital Escrowed Shares and the Airwave Escrowed Shares.
Section 5.02 Amendment. This Agreement may be amended, supplemented,
---------
or modified only by a written instrument duly executed by or on behalf of each
Party hereto.
Section 5.03 Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which will be deemed an original, but all of
which together when executed and delivered to and by each Party, will constitute
one and the same instrument.
Section 5.04 Headings. The headings used in this Agreement have been
--------
inserted for convenience of reference only and do not define or limit the
provisions hereof.
Section 5.05 Invalid Provisions. If any provision of this Agreement is
------------------
held to be illegal, invalid or unenforceable under any applicable present or
future law, and if the rights or obligations of any Party hereto under this
Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
Section 5.06 No Assignment; Binding Effect. Neither this Agreement nor
-----------------------------
any right, interest or obligation hereunder may be assigned by any Party without
the prior written consent of each Party hereto and any attempt to do so will be
void, except for assignments and transfers by operation of law. Subject to the
preceding sentence, this Agreement is binding upon, inures to the benefit of and
is enforceable by the Parties hereto and their respective successors and
assigns.
Section 5.07 Notice. All notices, requests and other communications
------
required to be sent hereunder must be in writing and will be deemed to have been
duly given only if provided personally or by confirmed facsimile transmission or
mailed (postage prepaid, certified or registered, return receipt requested) to
the Parties at the following addresses or facsimile numbers:
11
If to Tritel to:
Tritel Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
TeleCorp PCS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Airwave Investor Indemnitors, to:
Mercury PCS Investors, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Associates, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
12
M3, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ Communications, LLC
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
DC Investment Partners Exchange Fund, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FCA Venture Partners I, L.P.
By: DC Investment Partners, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 601-351-2424
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to Southern Farm Bureau Life Insurance Company, to:
Southern Farm Bureau Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
13
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇▇▇▇▇▇ ▇▇▇▇▇▇' ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
If to Airwave, to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: _______________
Attn: ▇.▇. ▇▇▇▇▇▇, ▇▇.
with a copy to:
Young, Williams, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
If to Digital, to:
Digital PCS, LLC
c/o Southern Farm Bureau Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
14
with a copy to:
Young ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Airwave Escrow Agent, to:
Firstar Bank, N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
If to the Digital Escrow Agent, to:
Firstar Bank, N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices, requests and other communications will (i) if provided
personally to the address as provided in this Section 5.07, be deemed given upon
delivery, (ii) if provided by facsimile transmission to the facsimile number as
provided in this Section 5.07, be deemed given upon confirmation of receipt and
(iii) if provided by mail in the manner described above to the address as
provided in this Section 5.07, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other person to whom a copy of such notice is to be provided pursuant to
this Section 5.07). Any Party from time to time may change its address,
facsimile number or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Party hereto in the manner
set forth herein.
Section 5.08 No Third Party Beneficiary. The terms and provisions of
--------------------------
this Agreement are intended solely for the benefit of the Parties and their
respective successors or
15
permitted assigns, and it is not the intention of the Parties to confer third-
party beneficiary rights upon any other person.
Section 5.09 Time of Essence. With regard to all dates and time
---------------
periods set forth or referred to in this Agreement, time is of the essence.
Section 5.10 Waiver. Any term or condition of this Agreement may be
------
waived at any time by the Party that is entitled to the benefit thereof, but no
such waiver shall be effective unless expressly and unambiguously set forth in a
written instrument duly executed by or on behalf of the Party waiving such term
or condition. No waiver by any Party of any term or condition of this Agreement,
in any one or more instances, shall be deemed to be or construed as a waiver of
the same or any other term or condition of this Agreement on any future
occasion. All remedies, either under this Agreement or by law or otherwise
afforded, will be cumulative and not alternative.
Section 5.11 Whole Agreement. This Agreement supersedes and replaces
---------------
all prior discussions and agreements between the Parties with respect to the
subject matter hereof, and contains the sole and entire agreement between the
Parties with respect to the subject matter hereof and all prior agreements,
understandings, representations and warranties are incorporated in this
Agreement, provided, however, that Article VIII of the Securities Purchase
Agreement and Article VII of the License Purchase Agreement shall remain in full
force and effect, subject only to the amendments to the terms thereto contained
in this Agreement.
16
IN WITNESS WHEREOF, the Parties hereto duly authorized and executed
this Agreement on March 12, 2001.
Tritel, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: President, Treasurer & Chief
Financial Officer
Airwave Communications, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President, General Counsel
& Secretary
Digital PCS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President, General Counsel
& Secretary
AIRWAVE INVESTOR INDEMNITORS
Mercury PCS Investors, LLC
By: MSM, Inc., Manager
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
-------------------------------
Title:
------------------------------
17
▇▇▇▇▇▇▇ Associates, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Managing Partner
M3, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
------------------------------------
Name:
-------------------------------
Title:
------------------------------
▇▇▇▇▇▇▇ Communications, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member Manager
DC Investment Partners Exchange Fund, L.P.
By: D.C. Investment Partners Fund, LLC,
it's General Partner
Name: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
-------------------------------
Title:
------------------------------
18
FCA Venture Partners I, L.P.
By: DC Investment Partners Fund, LLC,
Its General Partner
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
Southern Farm Bureau Life Insurance Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President, General Counsel &
Secretary
19
Schedule I
Distributed Airwave Escrowed Shares
-----------------------------------
Name Number of Tritel Shares = Number of TeleCorp Shares
Held Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 1,174,164.57 892,365
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 11,736.15 8,919
-------------------------------------------------------------------------------------------------
M3, LLC 654,009.33 497,047
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 469,663.01 356,944
-------------------------------------------------------------------------------------------------
DC Investment Partners Exchange 117,419.77 89,239
Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 58,705.40 44,616
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 3,538,934.01 2,689,590
-------------------------------------------------------------------------------------------------
Total 6,024,632.24 4,578,720
-------------------------------------------------------------------------------------------------
20
Schedule II
Retained Airwave Escrowed Shares
--------------------------------
Name Number of Tritel Shares = Number of TeleCorp Shares
Held Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 242,879 184,589
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 2,428 1,844
-------------------------------------------------------------------------------------------------
M3, LLC 135,284 102,816
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 97,152 73,836
-------------------------------------------------------------------------------------------------
DC Investment Partners Exchange 24,287 18,458
Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 12,144 9,229
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 732,037 556,348
-------------------------------------------------------------------------------------------------
Total 1,246,211 947,120
-------------------------------------------------------------------------------------------------
21
Schedule III
Beneficial Ownership of Distributed Digital Escrowed Shares
-----------------------------------------------------------
Name Tritel Shares Beneficially Held = Number of TeleCorp Shares
Beneficially Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 178,501 135,661
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 1,785 1,357
-------------------------------------------------------------------------------------------------
M3, LLC 99,425 75,563
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 72,145 54,830
-------------------------------------------------------------------------------------------------
DC Investment Partners 17,850 13,567
Exchange Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 8,924 6,782
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 543,608 413,142
-------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇, ▇▇. 38,949 29,601
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 38,949 29,601
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 38,949 29,601
-------------------------------------------------------------------------------------------------
Total 1,039,085 789,705
-------------------------------------------------------------------------------------------------
22
Schedule IV
Beneficial Ownership of Retained Digital Escrowed Shares
--------------------------------------------------------
Name Tritel Shares Beneficially Held = Number of TeleCorp Shares
Beneficially Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 42,043 31,952
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 420 319
-------------------------------------------------------------------------------------------------
M3, LLC 23,418 17,798
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 16,817 12,781
-------------------------------------------------------------------------------------------------
DC Investment Partners 4,205 3,195
Exchange Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 2,102 1,598
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 126,717 96,304
-------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 12,689 9,644
-------------------------------------------------------------------------------------------------
Total 253,789 192,879
-------------------------------------------------------------------------------------------------
23
Exhibit A
AIRWAVE ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of __________, 2001 is entered into by
and among Tritel, Inc., a Delaware corporation and wholly-owned subsidiary of
TeleCorp PCS, Inc. ("Tritel"), the entities set forth on Schedule I ( the
------
"Airwave Investor Indemnitors") and Firstar Bank, N.A., having an address of 101
-----------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, as escrow agent (the "Escrow Agent")
------------
(each of the foregoing a "Party" and collectively the "Parties"). Capitalized
----- -------
terms not otherwise defined herein shall have the meanings ascribed to them in
the Settlement Agreement (as defined herein) or the Securities Purchase
Agreement (as defined herein) as applicable.
WHEREAS, Tritel and the Airwave Investor Indemnitors are parties to a
Settlement Agreement, dated as of the date hereof (the "Settlement Agreement");
WHEREAS, Tritel and the Airwave Investor Indemnitors are parties to
the Securities Purchase Agreement dated as of May 20, 1998 (the "Securities
----------
Purchase Agreement");
------------------
WHEREAS, Tritel became a wholly-owned subsidiary of TeleCorp PCS,
Inc., a Delaware corporation ("TeleCorp"), pursuant to a merger (the "Merger")
-------- ------
that was consummated on November 13, 2000;
WHEREAS, pursuant to the terms of the Merger, each share of Tritel
Class A Common Stock ("Tritel Shares") was converted, effective on the
-------------
Reconciliation Date, into 0.76 shares of TeleCorp Class A Voting Common Stock
("TeleCorp Shares");
-----------------
WHEREAS, the Parties hereto wish to designate the Escrow Agent to
administer an escrow for the benefit of the Parties hereto on the terms and
subject to the conditions set forth in this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Escrow Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW
Section 1.01 Appointment of the Escrow Agent; Deposit of Escrowed
----------------------------------------------------
Shares.
------
Tritel and the Airwave Investor Indemnitors hereby constitute and appoint the
Escrow Agent as, and the Escrow Agent hereby agrees to assume and perform the
duties of, escrow agent under and pursuant to this Escrow Agreement. The Parties
shall arrange for the Escrow Agent to
A-1
receive 1,246,211 Tritel Shares, or in the event shares are delivered in the
form of TeleCorp Shares, 947,120 TeleCorp Shares (such shares and the TeleCorp
Shares into which they are converted being the "Escrowed Shares").
---------------
Section 1.02 Stock Certificates for Escrowed Shares. In the event the
--------------------------------------
Escrow Agent receives the Escrowed Shares in the form of Tritel Shares, the
Escrow Agent shall, promptly following the receipt of such Tritel Shares, take
any and all action necessary to obtain stock certificates reflecting the
conversion, pursuant to the Merger, of the Tritel Shares that constitute
Escrowed Shares into TeleCorp Shares.
Section 1.03 The Escrow Fund. The Escrowed Shares, any cash resulting
---------------
from the disposition of the Escrowed Shares pursuant to Section 1.05 herein, any
stock dividends paid on any Escrowed Shares, or any rights or securities into
which the Escrowed Shares are convertible or have been converted, and all
earnings on any of the foregoing (collectively, the "Escrow Fund") shall be held
-----------
by the Escrow Agent as a trust fund in separate accounts maintained for the
purpose, on the terms set forth in, and subject to the conditions of, this
Escrow Agreement. The Escrow Fund shall be divided into seven (7) accounts, each
of which shall be an account for a separate Airwave Investor Indemnitor and
which shall contain the number of Escrowed Shares set forth next to the name of
the Airwave Investor Indemnitor on Schedule I hereto (each an "Account"). The
--------
Escrow Agent shall maintain accurate and current balance information with regard
to each Account and shall maintain each Account separately. The Escrow Fund
shall not be subject to lien or attachment by any creditor of any party hereto
and shall be used solely for the purpose set forth in this Escrow Agreement.
Amounts held in the Escrow Fund shall not be available to, and shall not be used
by, the Escrow Agent to set off any obligations of any Party hereto owing to the
Escrow Agent in any capacity.
Section 1.04 Investment of the Escrow Fund. The Escrow Agent shall
-----------------------------
invest and reinvest all cash funds, if any, held from time to time as part of
the Escrow Fund, in its discretion, in demand or time deposits in, certificates
of deposit of or bankers' acceptances issued by a depository institution or
trust company incorporated under the laws of the United States of America, any
State thereof or the District of Columbia or such other investments as the
Parties shall approve in writing. If the Escrow Agent is so required to invest
the Escrow Fund, then the Escrow Agent shall invest all or any part of the
Escrow Fund in such a manner so as to distribute the Escrow Fund as provided
herein in immediately available funds, or, if the Escrow Fund consists of
securities, the Escrow Agent shall make such distributions by transferring
certificates representing such securities.
Section 1.05 Sale of Escrowed Shares. Promptly upon the Escrow Agent's
-----------------------
receipt of written instructions from any Airwave Investor Indemnitor to sell a
specified number of Escrowed Shares, the Escrow Agent shall execute the sale
requested by such instructions; provided, however, that the Escrow Agent shall
--------- --------
not in a single sale or series of sales, sell a number of Escrowed Shares on
behalf of an Airwave Investor Indemnitor that is greater than the number of
Escrowed Shares in the Account of such Airwave Investor Indemnitor, and provided
--------
further, that the proceeds of any sale pursuant to this Section 1.05 shall
-------
immediately become part of such Account.
A-2
Section 1.06 Notice. Upon the Escrow Agent's receipt of any notice or
------
certificate provided for in this Escrow Agreement, the Escrow Agent shall
promptly provide a copy of such notice or certificate to each Party.
ARTICLE II
DISTRIBUTION OF THE ESCROW FUND
Section 2.01 Claim, Objection and Resolution Certificates.
--------------------------------------------
(a) The Escrow Agent shall distribute to each of the Airwave Investor
Indemnitors the portion of the Escrow Fund in the Account held for such Airwave
Investor Indemnitor, on the sixth day after the "Airwave Escrow Termination
Date" (as hereinafter defined) (subject to delays in delivering stock
certificates not caused by the Escrow Agent), unless the Escrow Agent has
------
received during the period commencing on the Airwave Escrow Termination Date and
ending at 5:00 pm, New York City Time on the date which is five (5) business
days following the Airwave Escrow Termination Date, a certificate signed by the
Secretary of Tritel (i) stating that Tritel has provided the Airwave Investor
Indemnitors with notice pursuant to Section 2.02(a) of the Settlement Agreement,
and (ii) setting forth the dollar amount to which Tritel claims Tritel is
entitled (a "Claim Certificate"). As used herein, the "Airwave Escrow
-----------------
Termination Date" shall mean the earlier to occur of (x) the date the Airwave
Investor Indemnitors and Tritel definitively agree in writing that all the
matters related to the Airwave Indemnity Obligation have been dismissed, settled
or otherwise finally disposed of; or (y) October 15, 2001.
(b) If Tritel has timely provided a Claim Certificate, on the eleventh
business day following the Escrow Agent's receipt of such Claim Certificate
(subject to delays in delivering stock certificates not caused by the Escrow
Agent), the Escrow Agent shall (i) distribute to Tritel from the Escrow Fund by
deducting from the Account of each Airwave Investor Indemnitor such Airwave
Investor Indemnitor's pro rata share of such distribution (x) the dollar amount
set forth in the Claim Certificate, or, in the event that an Account does not
contain sufficient cash, (y) the number of Escrowed Shares which if sold at the
"Market Price" (as hereinafter defined), would equal the dollar amount set forth
in the Claim Certificate after deducting the cost of commissions for such sale,
rounded up to the nearest whole TeleCorp Share, and (ii) shall distribute to
each Airwave Investor Indemnitor the remaining balance in the Account of such
Airwave Investor Indemnitor; provided, however, that notwithstanding the
-------- -------
foregoing, the Escrow Agent shall not make such distribution to Tritel pursuant
to (i) above from the Account of any Airwave Investor Indemnitor which on or
prior to the tenth business day following the Escrow Agent's receipt of a Claim
Certificate provides the Escrow Agent with a certificate stating that such
Airwave Investor Indemnitor has provided Tritel with notice pursuant to Section
2.02(b) of the Settlement Agreement (an "Objection Certificate"). For purposes
---------------------
of this Section 2.01, "Market Price" means the average of the closing prices for
TeleCorp Shares for the ten consecutive trading days commencing 15 days before
the date on which payment is made.
(c) Notwithstanding any provision in this Escrow Agreement, upon the
Escrow Agent's receipt, at any time, of a certificate signed by the other
Parties hereto (i) stating
A-3
that all indemnifiable matters pursuant to the Securities Purchase Agreement
have been resolved, and (ii) setting forth instructions for the distribution of
the Escrow Fund (a "Resolution Certificate"), the Escrow Agent shall promptly
---------- -----------
distribute the Escrow Fund in accordance with the instructions contained in such
certificate and this Escrow Agreement shall terminate.
(d) In the event any Airwave Investor Indemnitor timely provides an
Objection Certificate, the Escrow Agent shall retain in escrow the portion of
the Escrow Fund in the Account of such Airwave Investor Indemnitor(s) until the
Escrow Agent receives (i) a Resolution Certificate, or (ii) instructions for the
distribution of the Escrow Fund from a three member panel certifying that it is
the board of arbitration that has been selected pursuant to ARTICLE IV of the
Settlement Agreement, in which case the Escrow Agent shall promptly comply with
such instructions.
ARTICLE III
TERMINATION
Section 3.01 Termination. This Escrow Agreement and the Escrow
-----------
Agent's obligations hereunder shall terminate upon a distribution of the Entire
Escrow Fund made pursuant to Section 2.01 of this Escrow Agreement.
ARTICLE IV
THE ESCROW AGENT
Section 4.01 Duties and Obligations of the Escrow Agent. The duties
------------------------------------------
and obligations of the Escrow Agent shall be limited to, and determined solely
by, the provisions of this Escrow Agreement and the notices delivered in
accordance herewith, and other than as provided herein with regard to references
to the Agreement, the Escrow Agent is not charged with knowledge of, or any
duties or responsibilities in respect of, any other agreement or document. In
furtherance and not in limitation of the foregoing:
(i) the Escrow Agent shall not be liable for any loss of interest
sustained as a result of investments made hereunder, if any, in accordance
with the terms hereof, including any liquidation of any investment of the
Escrow Fund prior to its maturity effected in order to make a payment
required by the terms of this Escrow Agreement;
(ii) the Escrow Agent shall be fully protected in relying in good faith
upon any written certification, notice, direction, request, waiver,
consent, receipt or other document that the Escrow Agent reasonably
believes to be genuine and duly authorized, executed and delivered;
(iii) the Escrow Agent shall not be liable for any error of judgment, or
for any act done or omitted by it, or for any mistake in fact or law, or
for anything that it may do or refrain from doing in connection herewith;
provided, however, that notwithstanding any other provision in this Escrow
-------- -------
Agreement, the Escrow Agent shall be liable for its willful misconduct, bad
faith or gross negligence or breach of this Escrow Agreement;
A-4
(iv) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to the
construction of any of the provisions of this Escrow Agreement or its
duties hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered by it in good
faith in accordance with the opinion of such counsel;
(v) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately preceding
clause, in good faith be uncertain as to its duties or rights hereunder, it
shall be entitled to refrain from taking any action in that instance and
its sole obligation, in addition to those of its duties hereunder as to
which there is no such uncertainty, shall be to keep safely all property
held in the Escrow Fund until it shall be directed otherwise in a
Resolution Certificate or by a final arbitration decision or award issued
pursuant to Article IV of the Agreement; provided, however, that in the
-------- -------
event that the Escrow Agent has not received such written direction or
arbitration decision or award within one hundred eighty (180) calendar days
after requesting the same, it shall have the right to interplead Tritel and
the Airwave Investor Indemnitors in an arbitration proceeding to be
conducted in accordance with Article IV of the Agreement;
(vi) the Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either
directly or by or through agents or attorneys selected with reasonable
care;
(vii) nothing in this Escrow Agreement shall be deemed to impose upon
the Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction other than the state of New
York; and
(viii) the Escrow Agent shall not be responsible for and shall not be
under a duty to examine or pass upon the validity, binding effect, execution or
sufficiency of this Escrow Agreement or of any agreement amendatory or
supplemental hereto.
Section 4.02 Cooperation. Tritel and the Airwave Investor Indemnitors
-----------
shall provide to the Escrow Agent all instruments and documents within their
respective powers to provide that are necessary for the Escrow Agent to perform
the Escrow Agent's duties and responsibilities hereunder.
Section 4.03 Fees and Expenses; Indemnity. The Escrow Agent shall be
----------------------------
entitled to receive a monthly fee of $175 for each full month that the Escrow
Agent serves as the Escrow Agent under this Agreement. Such fee shall be payable
semi-annually with the first payment payable on the date hereof. Such first
payment shall be non-refundable, regardless of the date on which this Escrow
Agreement terminates. Tritel shall pay half of such fee and the Airwave Investor
Indemnitors shall each pay an equal portion of the remaining half of such fee.
Tritel and the Airwave Investor Indemnitors shall reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any loss, damages, cost or
expense, including but not limited to reasonable attorneys' fees, reasonably
incurred by the Escrow Agent in connection with the Escrow Agent's performance
of its duties and obligations under this Escrow Agreement, as well as the
reasonable costs and expenses of defending against any claim or liability
relating to this
A-5
Escrow Agreement; provided, however, that notwithstanding the foregoing, Tritel
-------- -------
and the Airwave Investor Indemnitors shall not be required to indemnify the
Escrow Agent for any such loss, liability, cost or expense arising as a result
of the Escrow Agent's willful misconduct, bad faith or gross negligence or
breach of this Escrow Agreement.
Section 4.04 Resignation and Removal of the Escrow Agent. The Escrow
-------------------------------------------
Agent may resign upon thirty (30) days' prior written notice to Tritel and the
Airwave Investor Indemnitors. In addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument jointly signed by Tritel
and the Airwave Investor Indemnitors and delivered to the Escrow Agent.
Notwithstanding the foregoing, no such resignation or removal shall be effective
until a successor escrow agent has acknowledged its appointment as such as
provided in paragraph (b) below. In either event, upon the effective date of
such resignation or removal, the Escrow Agent shall deliver the property
comprising the Escrow Fund to such successor escrow agent, together with such
records maintained by the Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow Fund as such successor may
reasonably request.
(a) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (b) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be, because Tritel
and the Airwave Investor Indemnitors are unable to agree on a successor escrow
agent, or for any other reason, the Escrow Agent may select a successor escrow
agent and any such resulting appointment shall be binding upon all of the
parties to this Escrow Agreement.
(b) Upon written acknowledgment by a successor escrow agent appointed
in accordance with the foregoing provisions of this Section 4.04 of its
agreement to serve as escrow agent hereunder and the receipt of the property
then comprising the Escrow Fund, the Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Escrow
Agreement, except as otherwise provided herein, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
ARTICLE V
MISCELLANEOUS
Section 5.01 Amendment. This Escrow Agreement may be amended,
---------
supplemented or modified only by a written instrument duly executed by or on
behalf of each Party hereto.
Section 5.02 Counterparts. This Escrow Agreement may be executed in
------------
any number of counterparts, each of which will be deemed an original, but all of
which, when executed and delivered to and by each Party, together will
constitute one and the same instrument.
Section 5.03 GOVERNING LAW; JURISDICTION. THIS ESCROW AGREEMENT SHALL
---------------------------
BE DEEMED TO HAVE BEEN CONSUMMATED IN NEW
A-6
YORK COUNTY, IN THE STATE OF NEW YORK. ALL DISPUTES AND PROCEEDINGS BY AND
BETWEEN THE PARTIES WILL BE SOLELY GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICTS AND CHOICE OF LAW RULES. THE PARTIES AND THE ESCROW AGENT AGREE THAT
ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS ESCROW
AGREEMENT, OR THE CONSTRUCTION, INTERPRETATION, PERFORMANCE, BREACH,
TERMINATION, ENFORCEABILITY OR VALIDITY OF THE ESCROW AGREEMENTS OR THE
ARBITRATION PROVISIONS CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION THE
DETERMINATION OF THE SCOPE OF THIS ESCROW AGREEMENT TO ARBITRATE, SHALL BE
DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROVISION SET FORTH
IN ARTICLE IV OF THE AGREEMENT.
Section 5.04 Headings. The headings used in this Escrow Agreement have
--------
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
Section 5.05 Invalid Provisions. If any provision of this Escrow
------------------
Agreement is held to be illegal, invalid or unenforceable under any applicable
present or future law, and if the rights or obligations of any party hereto
under this Escrow Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Escrow Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining provisions of
this Escrow Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Escrow Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
Section 5.06 No Assignment; Binding Effect. Neither this Escrow
-----------------------------
Agreement nor any right, interest or obligation hereunder may be assigned by any
Party without the prior written consent of each Party hereto and any attempt to
do so will be void, except for assignments and transfers by operation of law.
Subject to the preceding sentence, this Escrow Agreement is binding upon, inures
to the benefit of and is enforceable by the Parties hereto and their respective
successors and assigns.
Section 5.07 Notices. All notices, requests and other communications
-------
required to be sent hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or by confirmed facsimile transmission
or mailed (postage prepaid, certified or registered, return receipt requested)
to the Parties at the following addresses or facsimile numbers:
A-7
If to Tritel to:
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
TeleCorp PCS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Airwave Investor Indemnitors, to:
Mercury PCS Investors, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Associates, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
A-8
M3, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ Communications, LLC
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
DC Investment Partners Exchange Fund, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FCA Venture Partners I, L.P.
By: DC Investment Partners, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 601-351-2424
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to Southern Farm Bureau Life Insurance Company, to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A-9
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
If to Airwave Escrow Agent, to:
Firstar Bank N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 5.07, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5.07, be deemed given upon confirmation of receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 5.07, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other person to whom a copy of such notice is to be delivered pursuant to
this Section 5.07). Any Party from time to time may change its address,
facsimile number or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Parties hereto in the
manner set forth herein.
Section 5.08 No Third Party Beneficiary. The terms and provisions of
--------------------------
this Escrow Agreement are intended solely for the benefit of the Parties and
their respective successors or permitted assigns, and it is not the intention of
the Parties to confer third-party beneficiary rights upon any other person.
Section 5.09 Waiver. Any term or condition of this Escrow Agreement
------
may be waived at any time by the Party that is entitled to the benefit thereof,
but no such waiver shall be effective unless expressly set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by any Party of any term or condition of this Escrow
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term or condition of this Escrow Agreement on
any future occasion. All remedies, either under this Escrow Agreement or by law
or otherwise afforded, will be cumulative and not alternative.
A-10
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first above written.
Tritel, Inc.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
AIRWAVE INVESTOR INDEMNITORS
Mercury PCS Investors, LLC
By: MSM, Inc., Manager
Name:
-----------------------------
Title:
----------------------------
▇▇▇▇▇▇▇ Associates, LLC
By:
----------------------------------
Name:
-------------------------------
Title:
------------------------------
M3, LLC
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-11
▇▇▇▇▇▇▇ Communications, LLC
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
DC Investment Partners Exchange Fund, L.P.
By: DC Investment Partners, LLC,
it's General Partner
Name:
--------------------------------
Title:
-------------------------------
FCA Venture Partners I, L.P.
By: DC Investment Partners, LLC,
Its General Partner
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
Southern Farm Bureau Life Insurance Company
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-12
Escrow Agent
Firstar Bank N.A.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-13
Schedule I to Exhibit A
Airwave Investor Indemnitors
----------------------------
Name Number of Tritel Shares Held = Number of TeleCorp Shares
Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 242,879 184,589
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 2,428 1,844
-------------------------------------------------------------------------------------------------
M3, LLC 135,284 102,816
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 97,152 73,836
-------------------------------------------------------------------------------------------------
DC Investment Partners Exchange 24,287 18,458
Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 12,144 9,229
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 732,037 556,348
-------------------------------------------------------------------------------------------------
Total 1,246,211 947,120
-------------------------------------------------------------------------------------------------
A-14
Exhibit B
DIGITAL ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of __________, 2001 is entered into by
and among Tritel, Inc., a Delaware corporation and wholly-owned subsidiary of
TeleCorp PCS, Inc. ("Tritel"), Digital PCS, LLC, a Mississippi limited liability
------
company ("Digital"), and Firstar Bank, N.A., having an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, Corporate Trust Department, as escrow agent (the
"Escrow Agent") (each of the foregoing a "Party" and collectively the
------------- -----
"Parties"). Capitalized terms not otherwise defined herein shall have the
-------
meanings ascribed to them in the Settlement Agreement (as defined herein) or the
License Purchase Agreement (as defined herein) as applicable.
WHEREAS, Tritel and Digital and the Escrow Agent are parties to a
Settlement Agreement, dated as of the date hereof (the "Settlement Agreement");
WHEREAS, Tritel and Digital are parties to the License Purchase
Agreement dated as of May 20, 1999 (the "License Purchase Agreement");
--------------------------
WHEREAS, Tritel became a wholly-owned subsidiary of TeleCorp PCS,
Inc., a Delaware corporation ("TeleCorp"), pursuant to a merger (the "Merger")
-------- ------
that was consummated on November 13, 2000;
WHEREAS, pursuant to the terms of the Merger, each share of Tritel
Class A Common Stock ("Tritel Shares"), was converted, effective on the
-------------
Reconciliation Date, into 0.76 shares of TeleCorp Class A Voting Common Stock
("TeleCorp Shares");
-----------------
WHEREAS, the Parties hereto wish to designate the Escrow Agent to
administer an escrow for the benefit of the Parties hereto on the terms and
subject to the conditions set forth in this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Escrow Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW
Section 1.01 Appointment of the Escrow Agent; Deposit of Escrowed
----------------------------------------------------
Shares. Tritel and Digital hereby constitute and appoint the Escrow
------
Agent as, and the Escrow Agent hereby agrees to assume and perform the duties
of, escrow agent under and pursuant to this Escrow Agreement. The Parties shall
arrange for the Escrow Agent to receive 253,789 Tritel
B-1
Shares, or in the event shares are delivered in the form of TeleCorp Shares,
192,879 TeleCorp Shares (such shares and the TeleCorp Shares into which they are
converted being the "Escrowed Shares").
---------------
Section 1.02 Stock Certificates for Escrowed Shares. In the event the
--------------------------------------
Escrow Agent receives the Escrowed Shares in the form of Tritel Shares, the
Escrow Agent shall, promptly following the receipt of such Tritel Shares, take
any and all action necessary to obtain stock certificates reflecting the
conversion, pursuant to the Merger, of the Tritel Shares that constitute
Escrowed Shares into TeleCorp Shares.
Section 1.03 The Escrow Fund. The Escrowed Shares, any cash
---------------
resulting from the disposition of the Escrowed Shares pursuant to Section 1.05
herein, any stock dividends paid on any Escrowed Shares, or any rights or
securities into which the Escrowed Shares are convertible or have been
converted, and all earnings on any of the foregoing (collectively, the "Escrow
------
Fund") shall be held by the Escrow Agent as a trust fund on the terms set forth
----
in, and subject to the conditions of, this Escrow Agreement. Any of the persons
set forth on Schedule I hereto (each a "Digital Member") may elect by written
--------------
notice to Digital, Tritel and the Escrow Agent, to require Digital and the
Digital Escrow Agent to record beneficial ownership of such the number of
Escrowed Shares set forth next to the name of the Digital Member on Schedule I
hereto. Such Digital Member shall execute and deliver to the Parties to the
Settlement Agreement and to the Escrow Agent an executed counterpart of this
Agreement and the Settlement Agreement together with a certificate stating that
(i) such Digital Member shall be bound by this Agreement and the Settlement
Agreement, (ii) as of the date of such beneficial transfer of record, the
representations set forth in Section 3.01 and Section 3.02 of the Settlement
Agreement are true and correct, and (iii) such Digital Member shall succeed to
the rights and obligations of Digital hereunder with respect to the Allocated
Retained Digital Escrowed Shares of such Digital Member. Digital and any
Digital Member who so elects to have beneficial ownership of Retained Digital
Escrowed Shares recorded in such Digital Member's name are hereinafter each
referred to as a "Digital Investor Indemnitor" and collectively as the "Digital
--------------------------- -------
Investor Indemnitors." Upon an election pursuant to this Section 1.03, a
--------------------
separate account shall be established for each Digital Investor Indemnitor and
shall contain the number of Escrowed Shares set forth next to the name of the
Digital Investor Indemnitor on Schedule I hereto (each an "Account"). The
-------
Escrow Agent shall maintain accurate and current balance information with regard
to each Account and shall maintain each Account separately. The Escrow Fund
shall not be subject to lien or attachment by any creditor of any Party hereto
and shall be used solely for the purpose set forth in this Escrow Agreement.
Amounts held in the Escrow Fund shall not be available to, and shall not be used
by, the Escrow Agent to set off any obligations of any Party hereto owing to the
Escrow Agent in any capacity.
Section 1.04 Investment of the Escrow Fund. The Escrow Agent shall
-----------------------------
invest and reinvest all cash funds, if any, held from time to time as part of
the Escrow Fund, in its discretion, in demand or time deposits in, certificates
of deposit of or bankers' acceptances issued by a depository institution or
trust company incorporated under the laws of the United States of America, any
State thereof or the District of Columbia or such other investments as the
Parties shall approve in writing. If the Escrow Agent is so required to invest
the Escrow Fund, then the Escrow Agent shall invest all or any part of the
Escrow Fund in such a manner so as to distribute the Escrow Fund as provided
herein in immediately available funds, or, if the Escrow
B-2
Fund consists of securities, the Escrow Agent shall make such distributions by
transferring certificates representing such securities.
Section 1.05 Sale of Escrowed Shares. Promptly upon the Escrow
-----------------------
Agent's receipt of written instructions from any Digital Investor
Indemnitor to sell a specified number of Escrowed Shares, the Escrow Agent shall
execute the sale requested by such instructions; provided, however, that the
--------- --------
Escrow Agent shall not in a single sale or series of sales, sell a number of
Escrowed Shares on behalf of a Digital Investor Indemnitor that is greater than
the number of Escrowed Shares in the Account of such Digital Investor
Indemnitor, and provided further, that the proceeds of any sale pursuant to this
-------- --------
Section 1.05 shall immediately become part of such Account.
Section 1.06 Notice. Upon the Escrow Agent's receipt of any notice
------
or certificate provided for in this Escrow Agreement, the Escrow Agent shall
promptly provide a copy of such notice or certificate to each Party.
ARTICLE II
DISTRIBUTION OF THE ESCROW FUND
Section 2.01 Claim, Objection and Resolution Certificates.
--------------------------------------------
(a) The Escrow Agent shall distribute to each of the Digital Investor
Indemnitors the portion of the Escrow Fund in the Account held for such Digital
Investor Indemnitor, on the sixth day after the "Digital Escrow Termination
Date" (as hereinafter defined) (subject to delays in delivering stock
certificates not caused by the Escrow Agent), unless the Escrow Agent
------
has received during the period commencing on the Digital Escrow Termination Date
and ending at 5:00 pm, New York City Time on the date which is five (5) business
days following the Digital Escrow Termination Date, a certificate signed by the
Secretary of Tritel (i) stating that Tritel has provided the Digital Investor
Indemnitors with notice pursuant to Section 2.03(b) of the Settlement Agreement,
and (ii) setting forth the dollar amount to which Tritel claims Tritel is
entitled (a "Claim Certificate"). As used herein, the "Digital Escrow
-----------------
Termination Date" shall mean the earlier to occur of (x) the date the Digital
Investor Indemnitors and Tritel definitively agree in writing that all the
matters related to the Digital Indemnity Obligation have been dismissed, settled
or otherwise finally disposed of; or (y) October 15, 2001.
(b) If Tritel has timely provided a Claim Certificate, on the eleventh
business day following the Escrow Agent's receipt of such Claim Certificate
(subject to delays in delivering stock certificates not caused by the Escrow
Agent), the Escrow Agent shall (i) distribute to Tritel from the Escrow Fund by
deducting from the Account of each Digital Investor Indemnitor such Digital
Investor Indemnitor's pro rata share of such distribution (x) the dollar amount
set forth in the Claim Certificate, or, in the event that an Account does not
contain sufficient cash, (y) the number of Escrowed Shares which if sold at the
Market Price (as hereinafter defined), would equal the dollar amount set forth
in the Claim Certificate after deducting the cost of commissions for such sale,
rounded up to the nearest whole TeleCorp Share, and (ii) shall distribute to
each Digital Investor Indemnitor the remaining balance in the
B-3
Account of such Digital Investor Indemnitor; provided, however, that
-------- -------
notwithstanding the foregoing, the Escrow Agent shall not make such distribution
to Tritel pursuant to (i) above from the Account of any Digital Investor
Indemnitor which on or prior to the tenth business day following the Escrow
Agent's receipt of a Claim Certificate provides the Escrow Agent with a
certificate stating that such Digital Investor Indemnitor has provided Tritel
with notice pursuant to Section 2.03(c) of the Settlement Agreement (an
"Objection Certificate"). For purposes of this Section 2.01, "Market Price"
---------------------
means the average of the closing prices for TeleCorp Shares for the ten
consecutive trading days commencing 15 days before the date on which payment is
made.
(c) Notwithstanding any provision in this Escrow Agreement to the
contrary, upon the Escrow Agent's receipt, at any time, of a certificate signed
by all of the other Parties hereto (i) stating that all indemnifiable matters
pursuant to the License Purchase Agreement have been resolved, and (ii) setting
forth instructions for the distribution of the Escrow Fund (a "Resolution
----------
Certificate"), the Escrow Agent shall promptly distribute the Escrow Fund in
-----------
accordance with the instructions contained in such certificate and this Escrow
Agreement shall terminate.
(d) In the event any Digital Investor Indemnitor timely provides an
Objection Certificate, the Escrow Agent shall retain in escrow the portion of
the Escrow Fund in the Account of such Digital Investor Indemnitor(s) until the
Escrow Agent receives (i) a Resolution Certificate, or (ii) instructions for the
distribution of the Escrow Fund from a three member panel certifying that it is
the board of arbitration that has been selected pursuant to ARTICLE IV of the
Settlement Agreement, in which case the Escrow Agent shall promptly comply with
such instructions.
ARTICLE III
TERMINATION
Section 3.01 Termination. This Escrow Agreement and the Escrow Agent's
-----------
obligations hereunder shall terminate upon a distribution of the entire Escrow
Fund made pursuant to Section 2.01 of this Escrow Agreement.
ARTICLE IV
THE ESCROW AGENT
Section 4.01 Duties and Obligations of the Escrow Agent. The duties and
------------------------------------------
obligations of the Escrow Agent shall be limited to, and determined solely by,
the provisions of this Escrow Agreement and the notices delivered in accordance
herewith, and other than as provided herein with regard to references to the
Agreement, the Escrow Agent is not charged with knowledge of, or any duties or
responsibilities in respect of, any other agreement or document. In furtherance
and not in limitation of the foregoing:
(i) the Escrow Agent shall not be liable for any loss of interest
sustained as a result of investments made hereunder, if any, in accordance
with the terms hereof,
B-4
including any liquidation of any investment of the Escrow Fund prior to its
maturity effected in order to make a payment required by the terms of this
Escrow Agreement;
(ii) the Escrow Agent shall be fully protected in relying in good
faith upon any written certification, notice, direction, request, waiver,
consent, receipt or other document that the Escrow Agent reasonably
believes to be genuine and duly authorized, executed and delivered;
(iii) the Escrow Agent shall not be liable for any error of judgment,
or for any act done or omitted by it, or for any mistake in fact or law, or
for anything that it may do or refrain from doing in connection herewith;
provided, however, that notwithstanding any other provision in this Escrow
-------- -------
Agreement, the Escrow Agent shall be liable for its willful misconduct,
bad faith or gross negligence or breach of this Escrow Agreement;
(iv) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to the
construction of any of the provisions of this Escrow Agreement or its
duties hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered by it in good
faith in accordance with the opinion of such counsel;
(v) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately preceding
clause, in good faith be uncertain as to its duties or rights hereunder, it
shall be entitled to refrain from taking any action in that instance and
its sole obligation, in addition to those of its duties hereunder as to
which there is no such uncertainty, shall be to keep safely all property
held in the Escrow Fund until it shall be directed otherwise in a
Resolution Certificate or by a final arbitration decision or award issued
pursuant to Article IV of the Agreement; provided, however, that in the
-------- -------
event that the Escrow Agent has not received such written direction or
arbitration decision or award within one hundred eighty (180) calendar days
after requesting the same, it shall have the right to interplead Tritel and
the Digital Investor Indemnitors in an arbitration proceeding to be
conducted in accordance with Article IV of the Agreement;
(vi) the Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either
directly or by or through agents or attorneys selected with reasonable
care;
(vii) nothing in this Escrow Agreement shall be deemed to impose upon
the Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction other than the state of New
York; and
(viii) the Escrow Agent shall not be responsible for and shall not be
under a duty to examine or pass upon the validity, binding effect,
execution or sufficiency of this Escrow Agreement or of any agreement
amendatory or supplemental hereto.
Section 4.02 Cooperation. Tritel and the Digital Investor
-----------
Indemnitors shall provide to the Escrow Agent all instruments and documents
within their respective powers to
B-5
provide that are necessary for the Escrow Agent to perform the Escrow Agent's
duties and responsibilities hereunder.
Section 4.03 Fees and Expenses; Indemnity. The Escrow Agent shall be
----------------------------
entitled to receive a monthly fee of $175 for each full month that the
Escrow Agent serves as the Escrow Agent under this Agreement. Such fee shall be
payable semi-annually with the first payment payable on the date hereof. Such
first payment shall be non-refundable, regardless of the date on which this
Escrow Agreement terminates. Tritel shall pay half of such fee and the Digital
Investor Indemnitors shall each pay an equal portion of the remaining half of
such fee. Tritel and the Digital Investor Indemnitors shall reimburse and
indemnify the Escrow Agent for, and hold it harmless against, any loss, damages,
cost or expense, including but not limited to reasonable attorneys' fees,
reasonably incurred by the Escrow Agent in connection with the Escrow Agent's
performance of its duties and obligations under this Escrow Agreement, as well
as the reasonable costs and expenses of defending against any claim or liability
relating to this Escrow Agreement; provided, however, that notwithstanding the
-------- -------
foregoing, Tritel and the Digital Investor Indemnitors shall not be required to
indemnify the Escrow Agent for any such loss, liability, cost or expense arising
as a result of the Escrow Agent's willful misconduct, bad faith or gross
negligence or breach of this Escrow Agreement.
Section 4.04 Resignation and Removal of the Escrow Agent. The Escrow
-------------------------------------------
Agent may resign upon thirty (30) days' prior written notice to Tritel and the
Digital Investor Indemnitors. In addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument jointly signed by Tritel
and the Digital Investor Indemnitors and delivered to the Escrow Agent.
Notwithstanding the foregoing, no such resignation or removal shall be effective
until a successor escrow agent has acknowledged its appointment as such as
provided in paragraph (b) below. In either event, upon the effective date of
such resignation or removal, the Escrow Agent shall deliver the property
comprising the Escrow Fund to such successor escrow agent, together with such
records maintained by the Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow Fund as such successor may
reasonably request.
(a) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (b) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be, because Tritel
and the Digital Investor Indemnitors are unable to agree on a successor escrow
agent, or for any other reason, the Escrow Agent may select a successor escrow
agent and any such resulting appointment shall be binding upon all of the
parties to this Escrow Agreement.
(b) Upon written acknowledgment by a successor escrow agent appointed
in accordance with the foregoing provisions of this Section 4.04 of its
agreement to serve as escrow agent hereunder and the receipt of the property
then comprising the Escrow Fund, the Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Escrow
Agreement, except as otherwise provided herein, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
B-6
ARTICLE V
MISCELLANEOUS
Section 5.01 Amendment. This Escrow Agreement may be amended,
---------
supplemented or modified only by a written instrument duly executed by or on
behalf of each Party hereto.
Section 5.02 Counterparts. This Escrow Agreement may be executed in
------------
any number of counterparts, each of which will be deemed an original, but all of
which, when executed and delivered to and by each Party, together will
constitute one and the same instrument.
Section 5.03 GOVERNING LAW; JURISDICTION. THIS ESCROW AGREEMENT SHALL
---------------------------
BE DEEMED TO HAVE BEEN CONSUMMATED IN NEW YORK COUNTY, IN THE STATE OF NEW YORK.
ALL DISPUTES AND PROCEEDINGS BY AND BETWEEN THE PARTIES WILL BE SOLELY GOVERNED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW
YORK WITHOUT REGARD TO ITS CONFLICTS AND CHOICE OF LAW RULES. THE PARTIES AND
THE ESCROW AGENT AGREE THAT ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR
RELATING TO THIS ESCROW AGREEMENT, OR THE CONSTRUCTION, INTERPRETATION,
PERFORMANCE, BREACH, TERMINATION, ENFORCEABILITY OR VALIDITY OF THE ESCROW
AGREEMENTS OR THE ARBITRATION PROVISIONS CONTAINED THEREIN, INCLUDING WITHOUT
LIMITATION THE DETERMINATION OF THE SCOPE OF THIS ESCROW AGREEMENT TO ARBITRATE,
SHALL BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROVISION
SET FORTH IN ARTICLE IV OF THE AGREEMENT.
Section 5.04 Headings. The headings used in this Escrow Agreement
--------
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
Section 5.05 Invalid Provisions. If any provision of this Escrow
------------------
Agreement is held to be illegal, invalid or unenforceable under any applicable
present or future law, and if the rights or obligations of any party hereto
under this Escrow Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Escrow Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining provisions of
this Escrow Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Escrow Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
Section 5.06 No Assignment; Binding Effect. Neither this Escrow
-----------------------------
Agreement nor any right, interest or obligation hereunder may be assigned
by any Party without the prior
B-7
written consent of each party hereto and any attempt to do so will be void,
except for assignments and transfers by operation of law. Subject to the
preceding sentence, this Escrow Agreement is binding upon, inures to the benefit
of and is enforceable by the Parties hereto and their respective successors and
assigns.
Section 5.07 Notices. All notices, requests and other communications
-------
required to be sent hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or by confirmed facsimile transmission
or mailed (postage prepaid, certified or registered, return receipt requested)
to the Parties at the following addresses or facsimile numbers:
If to Tritel to:
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
TeleCorp PCS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Digital, to:
Digital PCS, LLC
c/o Southern Farm Bureau Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
B-8
with a copy to:
Young, Williams, Henderson, & ▇▇▇▇▇▇▇▇ P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
If to Escrow Agent, to:
Firstar Bank, N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 5.07, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5.07, be deemed given upon confirmation of receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 5.07, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other person to whom a copy of such notice is to be delivered pursuant to
this Section 5.07). Any Party from time to time may change its address,
facsimile number or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Party hereto in the manner
set forth herein.
Section 5.08 No Third Party Beneficiary. The terms and provisions of
--------------------------
this Escrow Agreement are intended solely for the benefit of the Parties and
their respective successors or permitted assigns, and it is not the intention of
the Parties to confer third-party beneficiary rights upon any other person.
Section 5.09 Waiver. Any term or condition of this Escrow Agreement
------
may be waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless expressly set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by any Party of any term or condition of this Escrow
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term or condition of this Escrow Agreement on
any future occasion. All remedies, either under this Escrow Agreement or by law
or otherwise afforded, will be cumulative and not alternative.
B-9
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first above written.
Tritel, Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Digital PCS, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Firstar Bank N.A., as Escrow Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-10
Schedule I to Exhibit B
Digital Members and Retained Digital Escrowed Shares
----------------------------------------------------
Name Tritel Shares Beneficially Held = Number of TeleCorp Shares
Beneficially Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 42,043 31,952
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 420 319
-------------------------------------------------------------------------------------------------
M3, LLC 23,418 17,798
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 16,817 12,781
-------------------------------------------------------------------------------------------------
DC Investment Partners 4,205 3,195
Exchange Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 2,102 1,598
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 126,717 96,304
-------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 12,689 9,644
-------------------------------------------------------------------------------------------------
Total 253,789 192,879
-------------------------------------------------------------------------------------------------
B-11
Exhibit C
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
March___, 2001
Trustmark National Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Dear ▇▇. ▇▇▇▇▇▇:
This letter shall serve to notify you under that certain Collateral Agency
Agreement dated as of January 7, 1999, among Trustmark National Bank, N.A.,
Tritel, Inc. ("Tritel") and Ericsson Inc. ("Ericsson") as amended by that
certain First Amendment to Collateral Agency Agreement dated the ___ day of
_______________, 2001 (the "Collateral Agency Amendment"), that a dispute has
arisen and is continuing in respect of an indemnification obligation of Airwave
Communications, LLC ("Airwave") to Tritel pursuant to the Securities Purchase
Agreement. Tritel and the members of Airwave (the "Airwave Investor
Indemnitors") have entered into a settlement agreement dated as of the ___ day
of _________________ (the "Settlement Agreement") under the terms of which
1,246,211 shares of Tritel Class A common stock (947,120 shares of TeleCorp PCS,
Inc. Class A voting common stock ("TeleCorp Shares")) shall be delivered to
Firstar Bank, N.A. (the "New Escrow Agent") to hold in a new escrow in favor of
Tritel.
Tritel hereby directs you to deliver instructions to the appropriate
transfer agent to cause the shares represented by the Tritel stock certificates
set forth on Schedule I hereto (the "Tritel Certificates") (i) to be converted
into TeleCorp Shares and to be reissued in the names of the Old Mercury
Stockholders or their designees as set forth on, and in the denominations
specified in, Schedule II hereto and (ii) to have the new stock certificates
representing such TeleCorp Shares (the "New Certificates") returned to you.
Tritel further directs you to promptly, and in any event within five (5)
days after your receipt of the New Certificates from the transfer agent, (i)
distribute the New Certificates representing the shares described in Part A of
Schedule II hereto to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) distribute the New Certificates
representing the shares described in Part B of Schedule II hereto to Firstar
Bank, N.A., Corporate Trust Department, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇; and (iii) provide written notice to Ericsson that you
have delivered the New Certificates to Firstar Bank, N.A. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇.
C-1
The undersigned officer of Tritel hereby certifies that the statements
contained herein are true and correct as of the date hereof. Terms used herein
and not defined shall have the specific meanings set forth in the Collateral
Agency Agreement.
Tritel, Inc.
By:_________________________________
Printed Name:________________________
Title:_______________________________
C-2
SCHEDULE I TO EXHIBIT C
Shareholder Certificate # Class #of Tritel Shares
----------- ------------- ----- -----------------
▇▇▇▇▇▇▇ Associates, LLC TA0181 A 14,164.15
▇▇▇▇▇▇▇ Associates, LLC TD18 D 958.34
DC Investment Partners Exchange Fund, LP TA0188 A 141,706.77
DC Investment Partners Exchange Fund, LP TD27 D 9,587.82
FCA Venture Partners I, LP TA0198 A 70,849.40
FCA Venture Partners I, LP TD29 D 4,793.64
M3, LLC TA0184 A 789,293.33
M3, LLC TD23 D 53,403.25
▇▇▇▇▇▇▇ Communications, LLC TA0186 A 566,815.01
▇▇▇▇▇▇▇ Communications, LLC TD25 D 38,350.46
Mercury PCS Investors, LLC TA0193 A 1,417,043.57
Mercury PCS Investors, LLC TD31 D 95,876.57
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ A 4,270,971.01
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ D 288,972.09
C-3
SCHEDULE II TO EXHIBIT C
TeleCorp TeleCorp
Class A Common Class F Common
------------------------------------------------------
PART A
------
Shares to be Delivered to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
--------
Southern Farm Bureau Life Insurance Co. 2,907,011 2,196
M3, LLC --- 405
Bear ▇▇▇▇▇▇▇ Security Corp. 537,226 ---
▇▇▇▇▇▇▇ Communications, LLC 385,797 291
DC Investment Partners Exchange Fund, LP 96,452 72
FCA Venture Partners I, LP 48,222 36
▇▇▇▇▇▇▇ Associates, LLC 9,641 7
Mercury PCS Investors, LLC --- 728
Bear ▇▇▇▇▇▇▇ Security Corp. 964,501 ---
------------------------------------------------------
4,948,850 3,735
PART B
------
Shares to be Delivered to New Escrow Agent
------------------------------------------
Southern Farm Bureau Life Insurance Co. 556,348
M3, LLC 102,816
▇▇▇▇▇▇▇ Communications, LLC 73,836
DC Investment Partners Exchange Fund, LP 18,458
FCA Venture Partners I, LP 9,229
▇▇▇▇▇▇▇ Associates, LLC 1,844
Mercury PCS Investors, LLC 184,589
--------------------------
947,120
C-4
Exhibit D
March ___, 2001
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Secretary
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇:
You are currently holding securities issued in the name of Digital PCS, LLC
("Digital") as security for certain indemnification obligations of Digital under
the terms of that certain License Purchase Agreement (the "License Purchase
Agreement") dated May 20, 1999 between Digital, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇. ▇.
▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇, Inc. ("Tritel").
This shall serve to notify you that a dispute has arisen and is continuing
between Digital and Tritel in respect of the indemnification obligations of
Digital under the License Purchase Agreement. Tritel and Digital have entered
into a Settlement Agreement dated as of the __ day of March, 2001, (the
"Settlement Agreement") under the terms of which 253,789 shares of Tritel Class
A Common Stock (192,879 shares of TeleCorp PCS, Inc. ("TeleCorp") Class A Voting
Common Stock ("TeleCorp Shares")) shall be delivered to Firstar Bank, N.A. to
hold in a new escrow in favor of Tritel.
Tritel hereby directs you to deliver instructions to the appropriate transfer
agent to cause the shares represented by the Tritel stock certificates set forth
on Schedule I hereto (the "Tritel Certificates") (i) to be converted into
TeleCorp Shares and to be reissued in the names of the Old Mercury Stockholders
or their designees as set forth on, and in the denominations specified in,
Schedule II hereto and (ii) to have the new stock certificates representing such
TeleCorp Shares (the "New Certificates") returned to you.
Tritel further directs you to promptly, and in any event within five (5) days
after your receipt of the New Certificates from the transfer agent, (i)
distribute the New Certificates representing the shares described in Part A of
Schedule II hereto to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (ii) distribute the New Certificates
representing the shares described in Part B of Schedule II hereto to Firstar
Bank, N.A., Corporate Trust Department, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇.
D-1
The undersigned officer or representative of Tritel and Digital hereby certify
that the statements contained herein are true and correct as of the date hereof.
Digital PCS, LLC Tritel, Inc.
By:_________________________________ By:_________________________________
Printed Name:________________________ Printed Name:________________________
Title:_______________________________ Title:_______________________________
D-2
SCHEDULE I TO EXHIBIT D
# Shares
--------
Retire to Treasury 142,745
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 29,601
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 29,601
▇. ▇. ▇▇▇▇▇▇, ▇▇. 29,601
Southern Farm Bureau Life Insurance Company 413,142
M3, LLC 75,563
▇▇▇▇▇▇▇ Communications, LLC 54,830
DC Investment Partners Exchange Fund, L.P. 13,567
FCA Venture Partners I, L.P. 6,782
▇▇▇▇▇▇▇ Associates, LLC 1,357
Mercury PCS Investors, LLC 135,661
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 9,644
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 9,644
▇. ▇. ▇▇▇▇▇▇, ▇▇. 9,644
Southern Farm Bureau Life Insurance Company 96,304
M3, LLC 17,798
▇▇▇▇▇▇▇ Communications, LLC 12,781
DC Investment Partners Exchange Fund, L.P. 3,195
FCA Venture Partners, LLC 1,598
▇▇▇▇▇▇▇ Associates, LLC 319
Mercury PCS Investors, LLC 31,952
---------
Total 1,125,329
D-3
SCHEDULE II TO EXHIBIT D
Part A
------
Shares to be Delivered c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 29,601
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 29,601
▇. ▇. ▇▇▇▇▇▇, ▇▇. 29,601
Southern Farm Bureau Life Insurance Company 413,142
M3, LLC 75,563
▇▇▇▇▇▇▇ Communications, LLC 54,830
DC Investment Partners Exchange Fund, L.P. 13,567
FCA Venture Partners I, L.P. 6,782
▇▇▇▇▇▇▇ Associates, LLC 1,357
Mercury PCS Investors, LLC 135,661
-------
Total 789,705
Part B
------
Shares to be Delivered to Firstar Bank, N.A., Corporate Trust Department
------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 9,644
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 9,644
▇. ▇. ▇▇▇▇▇▇, ▇▇. 9,644
Southern Farm Bureau Life Insurance Company 96,304
M3, LLC 17,798
▇▇▇▇▇▇▇ Communications, LLC 12,781
DC Investment Partners Exchange Fund, L.P. 3,195
FCA Venture Partners I, L.P. 1,598
▇▇▇▇▇▇▇ Associates, LLC 319
Mercury PCS Investors, LLC 31,952
-------
192,879
Total
D-4
EXECUTION COPIES
of
EXHIBITS
D-5
Execution Copy
AIRWAVE ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of March 12, 2001 is entered into by
and among Tritel, Inc., a Delaware corporation and wholly-owned subsidiary of
TeleCorp PCS, Inc. ("Tritel"), the entities set forth on Schedule I ( the
------
"Airwave Investor Indemnitors") and Firstar Bank, N.A., having an address of 101
-----------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, as escrow agent (the "Escrow Agent")
------------
(each of the foregoing a "Party" and collectively the "Parties"). Capitalized
----- -------
terms not otherwise defined herein shall have the meanings ascribed to them in
the Settlement Agreement (as defined herein) or the Securities Purchase
Agreement (as defined herein) as applicable.
WHEREAS, Tritel and the Airwave Investor Indemnitors are parties to a
Settlement Agreement, dated as of the date hereof (the "Settlement Agreement");
WHEREAS, Tritel and the Airwave Investor Indemnitors are parties to
the Securities Purchase Agreement dated as of May 20, 1998 (the "Securities
----------
Purchase Agreement");
------------------
WHEREAS, Tritel became a wholly-owned subsidiary of TeleCorp PCS,
Inc., a Delaware corporation ("TeleCorp"), pursuant to a merger (the "Merger")
-------- ------
that was consummated on November 13, 2000;
WHEREAS, pursuant to the terms of the Merger, each share of Tritel
Class A Common Stock ("Tritel Shares") was converted, effective on the
-------------
Reconciliation Date, into 0.76 shares of TeleCorp Class A Voting Common Stock
("TeleCorp Shares");
-----------------
WHEREAS, the Parties hereto wish to designate the Escrow Agent to
administer an escrow for the benefit of the Parties hereto on the terms and
subject to the conditions set forth in this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Escrow Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW
Section 1.01 Appointment of the Escrow Agent; Deposit of Escrowed
----------------------------------------------------
Shares.
------
Tritel and the Airwave Investor Indemnitors hereby constitute and appoint the
Escrow Agent as, and the Escrow Agent hereby agrees to assume and perform the
duties of, escrow agent under
1
and pursuant to this Escrow Agreement. The Parties shall arrange for the Escrow
Agent to receive 1,246,211 Tritel Shares, or in the event shares are delivered
in the form of TeleCorp Shares, 947,120 TeleCorp Shares (such shares and the
TeleCorp Shares into which they are converted being the "Escrowed Shares").
---------------
Section 1.02 Stock Certificates for Escrowed Shares. In the event
--------------------------------------
the Escrow Agent receives the Escrowed Shares in the form of Tritel Shares, the
Escrow Agent shall, promptly following the receipt of such Tritel Shares, take
any and all action necessary to obtain stock certificates reflecting the
conversion, pursuant to the Merger, of the Tritel Shares that constitute
Escrowed Shares into TeleCorp Shares.
Section 1.03 The Escrow Fund. The Escrowed Shares, any cash resulting
---------------
from the disposition of the Escrowed Shares pursuant to Section 1.05 herein, any
stock dividends paid on any Escrowed Shares, or any rights or securities into
which the Escrowed Shares are convertible or have been converted, and all
earnings on any of the foregoing (collectively, the "Escrow Fund") shall be held
-----------
by the Escrow Agent as a trust fund in separate accounts maintained for the
purpose, on the terms set forth in, and subject to the conditions of, this
Escrow Agreement. The Escrow Fund shall be divided into seven (7) accounts, each
of which shall be an account for a separate Airwave Investor Indemnitor and
which shall contain the number of Escrowed Shares set forth next to the name of
the Airwave Investor Indemnitor on Schedule I hereto (each an "Account"). The
-------
Escrow Agent shall maintain accurate and current balance information with regard
to each Account and shall maintain each Account separately. The Escrow Fund
shall not be subject to lien or attachment by any creditor of any party hereto
and shall be used solely for the purpose set forth in this Escrow Agreement.
Amounts held in the Escrow Fund shall not be available to, and shall not be used
by, the Escrow Agent to set off any obligations of any Party hereto owing to the
Escrow Agent in any capacity.
Section 1.04 Investment of the Escrow Fund. The Escrow Agent shall
-----------------------------
invest and reinvest all cash funds, if any, held from time to time as part of
the Escrow Fund, in its discretion, in demand or time deposits in, certificates
of deposit of or bankers' acceptances issued by a depository institution or
trust company incorporated under the laws of the United States of America, any
State thereof or the District of Columbia or such other investments as the
Parties shall approve in writing. If the Escrow Agent is so required to invest
the Escrow Fund, then the Escrow Agent shall invest all or any part of the
Escrow Fund in such a manner so as to distribute the Escrow Fund as provided
herein in immediately available funds, or, if the Escrow Fund consists of
securities, the Escrow Agent shall make such distributions by transferring
certificates representing such securities.
Section 1.05 Sale of Escrowed Shares. Promptly upon the Escrow Agent's
-----------------------
receipt of written instructions from any Airwave Investor Indemnitor to sell a
specified number of Escrowed Shares, the Escrow Agent shall execute the sale
requested by such instructions; provided, however, that the Escrow Agent shall
--------- --------
not in a single sale or series of sales, sell a number of Escrowed Shares on
behalf of an Airwave Investor Indemnitor that is greater than the number of
Escrowed Shares in the Account of such Airwave Investor Indemnitor, and provided
--------
further, that the proceeds of any sale pursuant to this Section 1.05 shall
--------
immediately become part of such Account.
2
Section 1.06 Notice. Upon the Escrow Agent's receipt of any notice
------
or certificate provided for in this Escrow Agreement, the Escrow Agent shall
promptly provide a copy of such notice or certificate to each Party.
ARTICLE II
DISTRIBUTION OF THE ESCROW FUND
Section 2.01 Claim, Objection and Resolution Certificates.
--------------------------------------------
(a) The Escrow Agent shall distribute to each of the Airwave Investor
Indemnitors the portion of the Escrow Fund in the Account held for such Airwave
Investor Indemnitor, on the sixth day after the "Airwave Escrow Termination
Date" (as hereinafter defined) (subject to delays in delivering stock
certificates not caused by the Escrow Agent), unless the Escrow Agent has
------
received during the period commencing on the Airwave Escrow Termination Date and
ending at 5:00 pm, New York City Time on the date which is five (5) business
days following the Airwave Escrow Termination Date, a certificate signed by the
Secretary of Tritel (i) stating that Tritel has provided the Airwave Investor
Indemnitors with notice pursuant to Section 2.02(a) of the Settlement Agreement,
and (ii) setting forth the dollar amount to which Tritel claims Tritel is
entitled (a "Claim Certificate"). As used herein, the "Airwave Escrow
-----------------
Termination Date" shall mean the earlier to occur of (x) the date the Airwave
Investor Indemnitors and Tritel definitively agree in writing that all the
matters related to the Airwave Indemnity Obligation have been dismissed, settled
or otherwise finally disposed of; or (y) October 15, 2001.
(b) If Tritel has timely provided a Claim Certificate, on the eleventh
business day following the Escrow Agent's receipt of such Claim Certificate
(subject to delays in delivering stock certificates not caused by the Escrow
Agent), the Escrow Agent shall (i) distribute to Tritel from the Escrow Fund by
deducting from the Account of each Airwave Investor Indemnitor such Airwave
Investor Indemnitor's pro rata share of such distribution (x) the dollar amount
set forth in the Claim Certificate, or, in the event that an Account does not
contain sufficient cash, (y) the number of Escrowed Shares which if sold at the
"Market Price" (as hereinafter defined), would equal the dollar amount set forth
in the Claim Certificate after deducting the cost of commissions for such sale,
rounded up to the nearest whole TeleCorp Share, and (ii) shall distribute to
each Airwave Investor Indemnitor the remaining balance in the Account of such
Airwave Investor Indemnitor; provided, however, that notwithstanding the
-------- --------
shall not make such distribution to Tritel pursuant to (i) above from the
Account of any Airwave Investor Indemnitor which on or prior to the tenth
business day following the Escrow Agent's receipt of a Claim Certificate
provides the Escrow Agent with a certificate stating that such Airwave Investor
Indemnitor has provided Tritel with notice pursuant to Section 2.02(b) of the
Settlement Agreement (an "Objection Certificate"). For purposes of this Section
---------------------
2.01, "Market Price" means the average of the closing prices for TeleCorp Shares
for the ten consecutive trading days commencing 15 days before the date on which
payment is made.
(c) Notwithstanding any provision in this Escrow Agreement, upon the
Escrow Agent's receipt, at any time, of a certificate signed by the other
Parties hereto (i) stating
3
that all indemnifiable matters pursuant to the Securities Purchase Agreement
have been resolved, and (ii) setting forth instructions for the distribution of
the Escrow Fund (a "Resolution Certificate"), the Escrow Agent shall promptly
---------- -----------
distribute the Escrow Fund in accordance with the instructions contained in such
certificate and this Escrow Agreement shall terminate.
(d) In the event any Airwave Investor Indemnitor timely provides an
Objection Certificate, the Escrow Agent shall retain in escrow the portion of
the Escrow Fund in the Account of such Airwave Investor Indemnitor(s) until the
Escrow Agent receives (i) a Resolution Certificate, or (ii) instructions for the
distribution of the Escrow Fund from a three member panel certifying that it is
the board of arbitration that has been selected pursuant to ARTICLE IV of the
Settlement Agreement, in which case the Escrow Agent shall promptly comply with
such instructions.
ARTICLE III
TERMINATION
Section 3.01 Termination. This Escrow Agreement and the Escrow Agent's
-----------
obligations hereunder shall terminate upon a distribution of the Entire Escrow
Fund made pursuant to Section 2.01 of this Escrow Agreement.
ARTICLE IV
THE ESCROW AGENT
Section 4.01 Duties and Obligations of the Escrow Agent. The duties
------------------------------------------
and obligations of the Escrow Agent shall be limited to, and determined solely
by, the provisions of this Escrow Agreement and the notices delivered in
accordance herewith, and other than as provided herein with regard to references
to the Agreement, the Escrow Agent is not charged with knowledge of, or any
duties or responsibilities in respect of, any other agreement or document. In
furtherance and not in limitation of the foregoing:
(i) the Escrow Agent shall not be liable for any loss of interest
sustained as a result of investments made hereunder, if any, in accordance
with the terms hereof, including any liquidation of any investment of the
Escrow Fund prior to its maturity effected in order to make a payment
required by the terms of this Escrow Agreement;
(ii) the Escrow Agent shall be fully protected in relying in good
faith upon any written certification, notice, direction, request, waiver,
consent, receipt or other document that the Escrow Agent reasonably
believes to be genuine and duly authorized, executed and delivered;
(iii) the Escrow Agent shall not be liable for any error of judgment,
or for any act done or omitted by it, or for any mistake in fact or law, or
for anything that it may do or refrain from doing in connection herewith;
provided, however, that notwithstanding any other provision in this
-------- -------
Escrow Agreement, the Escrow Agent shall be liable for its willful
misconduct, bad faith or gross negligence or breach of this Escrow
Agreement;
4
(iv) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to the
construction of any of the provisions of this Escrow Agreement or its
duties hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered by it in good
faith in accordance with the opinion of such counsel;
(v) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately preceding
clause, in good faith be uncertain as to its duties or rights hereunder, it
shall be entitled to refrain from taking any action in that instance and
its sole obligation, in addition to those of its duties hereunder as to
which there is no such uncertainty, shall be to keep safely all property
held in the Escrow Fund until it shall be directed otherwise in a
Resolution Certificate or by a final arbitration decision or award issued
pursuant to Article IV of the Agreement; provided, however, that in the
-------- -------
event that the Escrow Agent has not received such written direction or
arbitration decision or award within one hundred eighty (180) calendar days
after requesting the same, it shall have the right to interplead Tritel and
the Airwave Investor Indemnitors in an arbitration proceeding to be
conducted in accordance with Article IV of the Agreement;
(vi) the Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either
directly or by or through agents or attorneys selected with reasonable
care;
(vii) nothing in this Escrow Agreement shall be deemed to impose upon
the Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction other than the state of New
York; and
(viii) the Escrow Agent shall not be responsible for and shall not be
under a duty to examine or pass upon the validity, binding effect,
execution or sufficiency of this Escrow Agreement or of any agreement
amendatory or supplemental hereto.
Section 4.02 Cooperation. Tritel and the Airwave Investor Indemnitors
-----------
shall provide to the Escrow Agent all instruments and documents within their
respective powers to provide that are necessary for the Escrow Agent to perform
the Escrow Agent's duties and responsibilities hereunder.
Section 4.03 Fees and Expenses; Indemnity. The Escrow Agent shall be
----------------------------
entitled to receive a monthly fee of $175 for each full month that the Escrow
Agent serves as the Escrow Agent under this Agreement. Such fee shall be payable
semi-annually with the first payment payable on the date hereof. Such first
payment shall be non-refundable, regardless of the date on which this Escrow
Agreement terminates. Tritel shall pay half of such fee and the Airwave Investor
Indemnitors shall each pay an equal portion of the remaining half of such fee.
Tritel and the Airwave Investor Indemnitors shall reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any loss, damages, cost or
expense, including but not limited to reasonable attorneys' fees, reasonably
incurred by the Escrow Agent in connection with the Escrow Agent's performance
of its duties and obligations under this Escrow Agreement, as well as the
reasonable costs and expenses of defending against any claim or liability
relating to this
5
Escrow Agreement; provided, however, that notwithstanding the foregoing, Tritel
-------- -------
and the Airwave Investor Indemnitors shall not be required to indemnify the
Escrow Agent for any such loss, liability, cost or expense arising as a result
of the Escrow Agent's willful misconduct, bad faith or gross negligence or
breach of this Escrow Agreement.
Section 4.04 Resignation and Removal of the Escrow Agent. The Escrow
-------------------------------------------
Agent may resign upon thirty (30) days' prior written notice to Tritel and the
Airwave Investor Indemnitors. In addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument jointly signed by Tritel
and the Airwave Investor Indemnitors and delivered to the Escrow Agent.
Notwithstanding the foregoing, no such resignation or removal shall be effective
until a successor escrow agent has acknowledged its appointment as such as
provided in paragraph (b) below. In either event, upon the effective date of
such resignation or removal, the Escrow Agent shall deliver the property
comprising the Escrow Fund to such successor escrow agent, together with such
records maintained by the Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow Fund as such successor may
reasonably request.
(a) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (b) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be, because Tritel
and the Airwave Investor Indemnitors are unable to agree on a successor escrow
agent, or for any other reason, the Escrow Agent may select a successor escrow
agent and any such resulting appointment shall be binding upon all of the
parties to this Escrow Agreement.
(b) Upon written acknowledgment by a successor escrow agent appointed
in accordance with the foregoing provisions of this Section 4.04 of its
agreement to serve as escrow agent hereunder and the receipt of the property
then comprising the Escrow Fund, the Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Escrow
Agreement, except as otherwise provided herein, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
ARTICLE V
MISCELLANEOUS
Section 5.01 Amendment. This Escrow Agreement may be amended,
---------
supplemented or modified only by a written instrument duly executed by or on
behalf of each Party hereto.
Section 5.02 Counterparts. This Escrow Agreement may be executed in
------------
any number of counterparts, each of which will be deemed an original, but all of
which, when executed and delivered to and by each Party, together will
constitute one and the same instrument.
Section 5.03 GOVERNING LAW; JURISDICTION. THIS ESCROW AGREEMENT SHALL
---------------------------
BE DEEMED TO HAVE BEEN CONSUMMATED IN NEW
6
YORK COUNTY, IN THE STATE OF NEW YORK. ALL DISPUTES AND PROCEEDINGS BY AND
BETWEEN THE PARTIES WILL BE SOLELY GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICTS AND CHOICE OF LAW RULES. THE PARTIES AND THE ESCROW AGENT AGREE THAT
ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS ESCROW
AGREEMENT, OR THE CONSTRUCTION, INTERPRETATION, PERFORMANCE, BREACH,
TERMINATION, ENFORCEABILITY OR VALIDITY OF THE ESCROW AGREEMENTS OR THE
ARBITRATION PROVISIONS CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION THE
DETERMINATION OF THE SCOPE OF THIS ESCROW AGREEMENT TO ARBITRATE, SHALL BE
DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROVISION SET FORTH
IN ARTICLE IV OF THE AGREEMENT.
Section 5.04 Headings. The headings used in this Escrow Agreement have
--------
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
Section 5.05 Invalid Provisions. If any provision of this Escrow
------------------
Agreement is held to be illegal, invalid or unenforceable under any applicable
present or future law, and if the rights or obligations of any party hereto
under this Escrow Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Escrow Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining provisions of
this Escrow Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Escrow Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
Section 5.06 No Assignment; Binding Effect. Neither this Escrow
-----------------------------
Agreement nor any right, interest or obligation hereunder may be assigned by any
Party without the prior written consent of each Party hereto and any attempt to
do so will be void, except for assignments and transfers by operation of law.
Subject to the preceding sentence, this Escrow Agreement is binding upon, inures
to the benefit of and is enforceable by the Parties hereto and their respective
successors and assigns.
Section 5.07 Notices. All notices, requests and other communications
-------
required to be sent hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or by confirmed facsimile transmission
or mailed (postage prepaid, certified or registered, return receipt requested)
to the Parties at the following addresses or facsimile numbers:
7
If to Tritel to:
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
TeleCorp PCS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Airwave Investor Indemnitors, to:
Mercury PCS Investors, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Associates, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
8
M3, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Communications, LLC
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
DC Investment Partners Exchange Fund, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FCA Venture Partners I, L.P.
By: DC Investment Partners, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 601-351-2424
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to Southern Farm Bureau Life Insurance Company, to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
9
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
If to Airwave Escrow Agent, to:
Firstar Bank N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 5.07, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5.07, be deemed given upon confirmation of receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 5.07, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other person to whom a copy of such notice is to be delivered pursuant to
this Section 5.07). Any Party from time to time may change its address,
facsimile number or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Parties hereto in the
manner set forth herein.
Section 5.08 No Third Party Beneficiary. The terms and provisions of
--------------------------
this Escrow Agreement are intended solely for the benefit of the Parties and
their respective successors or permitted assigns, and it is not the intention of
the Parties to confer third-party beneficiary rights upon any other person.
Section 5.09 Waiver. Any term or condition of this Escrow Agreement
------
may be waived at any time by the Party that is entitled to the benefit thereof,
but no such waiver shall be effective unless expressly set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by any Party of any term or condition of this Escrow
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term or condition of this Escrow Agreement on
any future occasion. All remedies, either under this Escrow Agreement or by law
or otherwise afforded, will be cumulative and not alternative.
10
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first above written.
Tritel, Inc.
By:
-------------------------
Name:
--------------------
Title:
-------------------
AIRWAVE INVESTOR INDEMNITORS
Mercury PCS Investors, LLC
By: MSM, Inc., Manager
Name:
--------------------
Title:
-------------------
▇▇▇▇▇▇▇ Associates, LLC
By:
-------------------------
Name:
--------------------
Title:
-------------------
M3, LLC
By:
-------------------------
Name:
--------------------
Title:
-------------------
11
▇▇▇▇▇▇▇ Communications, LLC
By:
---------------------------
Name:
----------------------
Title:
---------------------
DC Investment Partners Exchange Fund, L.P.
By: DC Investment Partners, LLC,
it's General Partner
Name:
----------------------
Title:
---------------------
FCA Venture Partners I, L.P.
By: DC Investment Partners, LLC,
Its General Partner
By:
---------------------------
Name:
----------------------
Title:
---------------------
Southern Farm Bureau Life Insurance Company
By:
---------------------------
Name:
----------------------
Title:
---------------------
12
Escrow Agent
Firstar Bank N.A.
By:
---------------------------
Name:
----------------------
Title:
---------------------
13
Schedule I
Airwave Investor Indemnitors
----------------------------
Name Number of Tritel Shares Held = Number of TeleCorp Shares
Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 242,879 184,589
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 2,428 1,844
-------------------------------------------------------------------------------------------------
M3, LLC 135,284 102,816
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 97,152 73,836
-------------------------------------------------------------------------------------------------
DC Investment Partners Exchange 24,287 18,458
Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 12,144 9,229
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 732,037 556,348
-------------------------------------------------------------------------------------------------
Total 1,246,211 947,120
-------------------------------------------------------------------------------------------------
14
Execution Copy
DIGITAL ESCROW AGREEMENT
This ESCROW AGREEMENT, dated as of March 12, 2001 is entered into by
and among Tritel, Inc., a Delaware corporation and wholly-owned subsidiary of
TeleCorp PCS, Inc. ("Tritel"), Digital PCS, LLC, a Mississippi limited liability
------
company ("Digital"), and Firstar Bank, N.A., having an address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, Corporate Trust Department, as escrow agent (the
"Escrow Agent") (each of the foregoing a "Party" and collectively the
------------- -----
"Parties"). Capitalized terms not otherwise defined herein shall have the
-------
meanings ascribed to them in the Settlement Agreement (as defined herein) or the
License Purchase Agreement (as defined herein) as applicable.
WHEREAS, Tritel and Digital and the Escrow Agent are parties to a
Settlement Agreement, dated as of the date hereof (the "Settlement Agreement");
WHEREAS, Tritel and Digital are parties to the License Purchase
Agreement dated as of May 20, 1999 (the "License Purchase Agreement");
--------------------------
WHEREAS, Tritel became a wholly-owned subsidiary of TeleCorp PCS,
Inc., a Delaware corporation ("TeleCorp"), pursuant to a merger (the "Merger")
-------- ------
that was consummated on November 13, 2000;
WHEREAS, pursuant to the terms of the Merger, each share of Tritel
Class A Common Stock ("Tritel Shares"), was converted, effective on the
-------------
Reconciliation Date, into 0.76 shares of TeleCorp Class A Voting Common Stock
("TeleCorp Shares");
-----------------
WHEREAS, the Parties hereto wish to designate the Escrow Agent to
administer an escrow for the benefit of the Parties hereto on the terms and
subject to the conditions set forth in this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Escrow Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW
Section 1.01 Appointment of the Escrow Agent; Deposit of Escrowed
----------------------------------------------------
Shares. Tritel and Digital hereby constitute and appoint the Escrow Agent as,
------
and the Escrow Agent hereby agrees to assume and perform the duties of, escrow
agent under and pursuant to this
1
Escrow Agreement. The Parties shall arrange for the Escrow Agent to receive
253,789 Tritel Shares, or in the event shares are delivered in the form of
TeleCorp Shares, 192,879 TeleCorp Shares (such shares and the TeleCorp Shares
into which they are converted being the "Escrowed Shares").
---------------
Section 1.02 Stock Certificates for Escrowed Shares. In the event the
--------------------------------------
Escrow Agent receives the Escrowed Shares in the form of Tritel Shares, the
Escrow Agent shall, promptly following the receipt of such Tritel Shares, take
any and all action necessary to obtain stock certificates reflecting the
conversion, pursuant to the Merger, of the Tritel Shares that constitute
Escrowed Shares into TeleCorp Shares.
Section 1.03 The Escrow Fund. The Escrowed Shares, any cash resulting
---------------
from the disposition of the Escrowed Shares pursuant to Section 1.05 herein, any
stock dividends paid on any Escrowed Shares, or any rights or securities into
which the Escrowed Shares are convertible or have been converted, and all
earnings on any of the foregoing (collectively, the "Escrow Fund") shall be
-----------
held by the Escrow Agent as a trust fund on the terms set forth in, and subject
to the conditions of, this Escrow Agreement. Any of the persons set forth on
Schedule I hereto (each a "Digital Member") may elect by written notice to
--------------
Digital, Tritel and the Escrow Agent, to require Digital and the Digital Escrow
Agent to record beneficial ownership of such the number of Escrowed Shares set
forth next to the name of the Digital Member on Schedule I hereto. Such Digital
Member shall execute and deliver to the Parties to the Settlement Agreement and
to the Escrow Agent an executed counterpart of this Agreement and the Settlement
Agreement together with a certificate stating that (i) such Digital Member shall
be bound by this Agreement and the Settlement Agreement, (ii) as of the date of
such beneficial transfer of record, the representations set forth in Section
3.01 and Section 3.02 of the Settlement Agreement are true and correct, and
(iii) such Digital Member shall succeed to the rights and obligations of Digital
hereunder with respect to the Allocated Retained Digital Escrowed Shares of such
Digital Member. Digital and any Digital Member who so elects to have beneficial
ownership of Retained Digital Escrowed Shares recorded in such Digital Member's
name are hereinafter each referred to as a "Digital Investor Indemnitor" and
---------------------------
collectively as the "Digital Investor Indemnitors." Upon an election pursuant
----------------------------
to this Section 1.03, a separate account shall be established for each Digital
Investor Indemnitor and shall contain the number of Escrowed Shares set forth
next to the name of the Digital Investor Indemnitor on Schedule I hereto (each
an "Account"). The Escrow Agent shall maintain accurate and current balance
-------
information with regard to each Account and shall maintain each Account
separately. The Escrow Fund shall not be subject to lien or attachment by any
creditor of any Party hereto and shall be used solely for the purpose set forth
in this Escrow Agreement. Amounts held in the Escrow Fund shall not be available
to, and shall not be used by, the Escrow Agent to set off any obligations of any
Party hereto owing to the Escrow Agent in any capacity.
Section 1.04 Investment of the Escrow Fund. The Escrow Agent shall
-----------------------------
invest and reinvest all cash funds, if any, held from time to time as part of
the Escrow Fund, in its discretion, in demand or time deposits in, certificates
of deposit of or bankers' acceptances issued by a depository institution or
trust company incorporated under the laws of the United States of America, any
State thereof or the District of Columbia or such other investments as the
Parties shall approve in writing. If the Escrow Agent is so required to invest
the Escrow Fund, then the Escrow Agent shall invest all or any part of the
Escrow Fund in such a manner so as to
2
distribute the Escrow Fund as provided herein in immediately available funds,
or, if the Escrow Fund consists of securities, the Escrow Agent shall make such
distributions by transferring certificates representing such securities.
Section 1.05 Sale of Escrowed Shares. Promptly upon the Escrow Agent's
-----------------------
receipt of written instructions from any Digital Investor Indemnitor to sell a
specified number of Escrowed Shares, the Escrow Agent shall execute the sale
requested by such instructions; provided, however, that the Escrow Agent shall
--------- --------
not in a single sale or series of sales, sell a number of Escrowed Shares on
behalf of a Digital Investor Indemnitor that is greater than the number of
Escrowed Shares in the Account of such Digital Investor Indemnitor, and provided
--------
further, that the proceeds of any sale pursuant to this Section 1.05 shall
--------
immediately become part of such Account.
Section 1.06 Notice. Upon the Escrow Agent's receipt of any notice or
------
certificate provided for in this Escrow Agreement, the Escrow Agent shall
promptly provide a copy of such notice or certificate to each Party.
ARTICLE II
DISTRIBUTION OF THE ESCROW FUND
Section 2.01 Claim, Objection and Resolution Certificates.
--------------------------------------------
(a) The Escrow Agent shall distribute to each of the Digital Investor
Indemnitors the portion of the Escrow Fund in the Account held for such Digital
Investor Indemnitor, on the sixth day after the "Digital Escrow Termination
Date" (as hereinafter defined) (subject to delays in delivering stock
certificates not caused by the Escrow Agent), unless the Escrow Agent has
------
received during the period commencing on the Digital Escrow Termination Date and
ending at 5:00 pm, New York City Time on the date which is five (5) business
days following the Digital Escrow Termination Date, a certificate signed by the
Secretary of Tritel (i) stating that Tritel has provided the Digital Investor
Indemnitors with notice pursuant to Section 2.03(b) of the Settlement Agreement,
and (ii) setting forth the dollar amount to which Tritel claims Tritel is
entitled (a "Claim Certificate"). As used herein, the "Digital Escrow
-----------------
Termination Date" shall mean the earlier to occur of (x) the date the Digital
Investor Indemnitors and Tritel definitively agree in writing that all the
matters related to the Digital Indemnity Obligation have been dismissed, settled
or otherwise finally disposed of; or (y) October 15, 2001.
(b) If Tritel has timely provided a Claim Certificate, on the eleventh
business day following the Escrow Agent's receipt of such Claim Certificate
(subject to delays in delivering stock certificates not caused by the Escrow
Agent), the Escrow Agent shall (i) distribute to Tritel from the Escrow Fund by
deducting from the Account of each Digital Investor Indemnitor such Digital
Investor Indemnitor's pro rata share of such distribution (x) the dollar amount
set forth in the Claim Certificate, or, in the event that an Account does not
contain sufficient cash, (y) the number of Escrowed Shares which if sold at the
Market Price (as hereinafter defined), would equal the dollar amount set forth
in the Claim Certificate after deducting the cost of commissions for such sale,
rounded up to the nearest whole TeleCorp
3
Share, and (ii) shall distribute to each Digital Investor Indemnitor the
remaining balance in the Account of such Digital Investor Indemnitor;
provided, however, that notwithstanding the foregoing, the Escrow Agent shall
-------- --------
not make such distribution to Tritel pursuant to (i) above from the Account of
any Digital Investor Indemnitor which on or prior to the tenth business day
following the Escrow Agent's receipt of a Claim Certificate provides the Escrow
Agent with a certificate stating that such Digital Investor Indemnitor has
provided Tritel with notice pursuant to Section 2.03(c) of the Settlement
Agreement (an "Objection Certificate"). For purposes of this Section 2.01,
---------------------
"Market Price" means the average of the closing prices for TeleCorp Shares for
the ten consecutive trading days commencing 15 days before the date on which
payment is made.
(c) Notwithstanding any provision in this Escrow Agreement to the
contrary, upon the Escrow Agent's receipt, at any time, of a certificate signed
by all of the other Parties hereto (i) stating that all indemnifiable matters
pursuant to the License Purchase Agreement have been resolved, and (ii) setting
forth instructions for the distribution of the Escrow Fund (a "Resolution
----------
Certificate"), the Escrow Agent shall promptly distribute the Escrow Fund in
-----------
accordance with the instructions contained in such certificate and this Escrow
Agreement shall terminate.
(d) In the event any Digital Investor Indemnitor timely provides an
Objection Certificate, the Escrow Agent shall retain in escrow the portion of
the Escrow Fund in the Account of such Digital Investor Indemnitor(s) until the
Escrow Agent receives (i) a Resolution Certificate, or (ii) instructions for the
distribution of the Escrow Fund from a three member panel certifying that it is
the board of arbitration that has been selected pursuant to ARTICLE IV of the
Settlement Agreement, in which case the Escrow Agent shall promptly comply with
such instructions.
ARTICLE III
TERMINATION
Section 3.01 Termination. This Escrow Agreement and the Escrow Agent's
-----------
obligations hereunder shall terminate upon a distribution of the entire Escrow
Fund made pursuant to Section 2.01 of this Escrow Agreement.
ARTICLE IV
THE ESCROW AGENT
Section 4.01 Duties and Obligations of the Escrow Agent. The duties and
------------------------------------------
obligations of the Escrow Agent shall be limited to, and determined solely by,
the provisions of this Escrow Agreement and the notices delivered in accordance
herewith, and other than as provided herein with regard to references to the
Agreement, the Escrow Agent is not charged with knowledge of, or any duties or
responsibilities in respect of, any other agreement or document. In furtherance
and not in limitation of the foregoing:
4
(i) the Escrow Agent shall not be liable for any loss of interest
sustained as a result of investments made hereunder, if any, in accordance with
the terms hereof, including any liquidation of any investment of the Escrow Fund
prior to its maturity effected in order to make a payment required by the terms
of this Escrow Agreement;
(ii) the Escrow Agent shall be fully protected in relying in good
faith upon any written certification, notice, direction, request, waiver,
consent, receipt or other document that the Escrow Agent reasonably believes to
be genuine and duly authorized, executed and delivered;
(iii) the Escrow Agent shall not be liable for any error of judgment,
or for any act done or omitted by it, or for any mistake in fact or law, or for
anything that it may do or refrain from doing in connection herewith; provided,
--------
however, that notwithstanding any other provision in this Escrow Agreement, the
-------
Escrow Agent shall be liable for its willful misconduct, bad faith or gross
negligence or breach of this Escrow Agreement;
(iv) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to the
construction of any of the provisions of this Escrow Agreement or its duties
hereunder, and it shall incur no liability and shall be fully protected in
respect of any action taken, omitted or suffered by it in good faith in
accordance with the opinion of such counsel;
(v) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately preceding
clause, in good faith be uncertain as to its duties or rights hereunder, it
shall be entitled to refrain from taking any action in that instance and its
sole obligation, in addition to those of its duties hereunder as to which there
is no such uncertainty, shall be to keep safely all property held in the Escrow
Fund until it shall be directed otherwise in a Resolution Certificate or by a
final arbitration decision or award issued pursuant to Article IV of the
Agreement; provided, however, that in the event that the Escrow Agent has not
-------- -------
received such written direction or arbitration decision or award within one
hundred eighty (180) calendar days after requesting the same, it shall have the
right to interplead Tritel and the Digital Investor Indemnitors in an
arbitration proceeding to be conducted in accordance with Article IV of the
Agreement;
(vi) the Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through agents or attorneys selected with reasonable care;
(vii) nothing in this Escrow Agreement shall be deemed to impose upon
the Escrow Agent any duty to qualify to do business or to act as a fiduciary or
otherwise in any jurisdiction other than the state of New York; and
(viii) the Escrow Agent shall not be responsible for and shall not be
under a duty to examine or pass upon the validity, binding effect, execution or
sufficiency of this Escrow Agreement or of any agreement amendatory or
supplemental hereto.
5
Section 4.02 Cooperation. Tritel and the Digital Investor Indemnitors
-----------
shall provide to the Escrow Agent all instruments and documents within their
respective powers to provide that are necessary for the Escrow Agent to perform
the Escrow Agent's duties and responsibilities hereunder.
Section 4.03 Fees and Expenses; Indemnity. The Escrow Agent shall be
----------------------------
entitled to receive a monthly fee of $175 for each full month that the Escrow
Agent serves as the Escrow Agent under this Agreement. Such fee shall be payable
semi-annually with the first payment payable on the date hereof. Such first
payment shall be non-refundable, regardless of the date on which this Escrow
Agreement terminates. Tritel shall pay half of such fee and the Digital Investor
Indemnitors shall each pay an equal portion of the remaining half of such fee.
Tritel and the Digital Investor Indemnitors shall reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any loss, damages, cost or
expense, including but not limited to reasonable attorneys' fees, reasonably
incurred by the Escrow Agent in connection with the Escrow Agent's performance
of its duties and obligations under this Escrow Agreement, as well as the
reasonable costs and expenses of defending against any claim or liability
relating to this Escrow Agreement; provided, however, that notwithstanding the
-------- -------
foregoing, Tritel and the Digital Investor Indemnitors shall not be required to
indemnify the Escrow Agent for any such loss, liability, cost or expense arising
as a result of the Escrow Agent's willful misconduct, bad faith or gross
negligence or breach of this Escrow Agreement.
Section 4.04 Resignation and Removal of the Escrow Agent. The Escrow
-------------------------------------------
Agent may resign upon thirty (30) days' prior written notice to Tritel and the
Digital Investor Indemnitors. In addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument jointly signed by Tritel
and the Digital Investor Indemnitors and delivered to the Escrow Agent.
Notwithstanding the foregoing, no such resignation or removal shall be effective
until a successor escrow agent has acknowledged its appointment as such as
provided in paragraph (b) below. In either event, upon the effective date of
such resignation or removal, the Escrow Agent shall deliver the property
comprising the Escrow Fund to such successor escrow agent, together with such
records maintained by the Escrow Agent in connection with its duties hereunder
and other information with respect to the Escrow Fund as such successor may
reasonably request.
(a) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (b) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be, because Tritel
and the Digital Investor Indemnitors are unable to agree on a successor escrow
agent, or for any other reason, the Escrow Agent may select a successor escrow
agent and any such resulting appointment shall be binding upon all of the
parties to this Escrow Agreement.
(b) Upon written acknowledgment by a successor escrow agent appointed
in accordance with the foregoing provisions of this Section 4.04 of its
agreement to serve as escrow agent hereunder and the receipt of the property
then comprising the Escrow Fund, the Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Escrow
Agreement, except as otherwise provided herein, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
6
ARTICLE V
MISCELLANEOUS
Section 5.01 Amendment. This Escrow Agreement may be amended,
---------
supplemented or modified only by a written instrument duly executed by or on
behalf of each Party hereto.
Section 5.02 Counterparts. This Escrow Agreement may be executed in
------------
any number of counterparts, each of which will be deemed an original, but all of
which, when executed and delivered to and by each Party, together will
constitute one and the same instrument.
Section 5.03 GOVERNING LAW; JURISDICTION. THIS ESCROW AGREEMENT SHALL
---------------------------
BE DEEMED TO HAVE BEEN CONSUMMATED IN NEW YORK COUNTY, IN THE STATE OF NEW YORK.
ALL DISPUTES AND PROCEEDINGS BY AND BETWEEN THE PARTIES WILL BE SOLELY GOVERNED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW
YORK WITHOUT REGARD TO ITS CONFLICTS AND CHOICE OF LAW RULES. THE PARTIES AND
THE ESCROW AGENT AGREE THAT ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR
RELATING TO THIS ESCROW AGREEMENT, OR THE CONSTRUCTION, INTERPRETATION,
PERFORMANCE, BREACH, TERMINATION, ENFORCEABILITY OR VALIDITY OF THE ESCROW
AGREEMENTS OR THE ARBITRATION PROVISIONS CONTAINED THEREIN, INCLUDING WITHOUT
LIMITATION THE DETERMINATION OF THE SCOPE OF THIS ESCROW AGREEMENT TO ARBITRATE,
SHALL BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE ARBITRATION PROVISION
SET FORTH IN ARTICLE IV OF THE AGREEMENT.
Section 5.04 Headings. The headings used in this Escrow Agreement have
--------
been inserted for convenience of reference only and do not define or limit the
provisions hereof.
Section 5.05 Invalid Provisions. If any provision of this Escrow
------------------
Agreement is held to be illegal, invalid or unenforceable under any applicable
present or future law, and if the rights or obligations of any party hereto
under this Escrow Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Escrow Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (iii) the remaining provisions of
this Escrow Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Escrow Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
Section 5.06 No Assignment; Binding Effect. Neither this Escrow
-----------------------------
Agreement nor any right, interest or obligation hereunder may be assigned
by any Party without the prior
7
written consent of each party hereto and any attempt to do so will be void,
except for assignments and transfers by operation of law. Subject to the
preceding sentence, this Escrow Agreement is binding upon, inures to the benefit
of and is enforceable by the Parties hereto and their respective successors and
assigns.
Section 5.07 Notices. All notices, requests and other communications
-------
required to be sent hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or by confirmed facsimile transmission
or mailed (postage prepaid, certified or registered, return receipt requested)
to the Parties at the following addresses or facsimile numbers:
If to Tritel to:
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with copies to:
TeleCorp PCS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Digital, to:
Digital PCS, LLC
c/o Southern Farm Bureau Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
8
with a copy to:
Young, Williams, Henderson, & ▇▇▇▇▇▇▇▇ P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
If to Escrow Agent, to:
Firstar Bank, N.A.
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 5.07, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5.07, be deemed given upon confirmation of receipt, and
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 5.07, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other person to whom a copy of such notice is to be delivered pursuant to
this Section 5.07). Any Party from time to time may change its address,
facsimile number or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Party hereto in the manner
set forth herein.
Section 5.08 No Third Party Beneficiary. The terms and provisions of
--------------------------
this Escrow Agreement are intended solely for the benefit of the Parties and
their respective successors or permitted assigns, and it is not the intention of
the Parties to confer third-party beneficiary rights upon any other person.
Section 5.09 Waiver. Any term or condition of this Escrow Agreement
------
may be waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless expressly set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by any Party of any term or condition of this Escrow
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same or any other term or condition of this Escrow Agreement on
any future occasion. All remedies, either under this Escrow Agreement or by law
or otherwise afforded, will be cumulative and not alternative.
9
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first above written.
Tritel, Inc.
By:
-------------------------
Name:
--------------------
Title:
-------------------
Digital PCS, LLC
By:
-------------------------
Name:
--------------------
Title:
-------------------
Firstar Bank N.A., as Escrow Agent
By:
-------------------------
Name:
--------------------
Title:
-------------------
10
Schedule I
Digital Members and Retained Digital Escrowed Shares
----------------------------------------------------
Name Tritel Shares Beneficially Held = Number of TeleCorp Shares
Beneficially Held
-------------------------------------------------------------------------------------------------
Mercury PCS Investors, LLC 42,043 31,952
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Associates, LLC 420 319
-------------------------------------------------------------------------------------------------
M3, LLC 23,418 17,798
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Communications, LLC 16,817 12,781
-------------------------------------------------------------------------------------------------
DC Investment Partners 4,205 3,195
Exchange Fund, L.P.
-------------------------------------------------------------------------------------------------
FCA Venture Partners I, L.P. 2,102 1,598
-------------------------------------------------------------------------------------------------
Southern Farm Bureau 126,717 96,304
-------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 12,689 9,644
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 12,689 9,644
-------------------------------------------------------------------------------------------------
Total 253,789 192,879
-------------------------------------------------------------------------------------------------
11
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
March 12, 2001
Trustmark National Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Dear ▇▇. ▇▇▇▇▇▇:
This letter shall serve to notify you under that certain Collateral Agency
Agreement dated as of January 7, 1999, among Trustmark National Bank, N.A.,
Tritel, Inc. ("Tritel") and Ericsson Inc. ("Ericsson") as amended by that
certain First Amendment to Collateral Agency Agreement dated the 12th day of
March, 2001 (the "Collateral Agency Amendment"), that a dispute has arisen and
is continuing in respect of an indemnification obligation of Airwave
Communications, LLC ("Airwave") to Tritel pursuant to the Securities Purchase
Agreement. Tritel and the members of Airwave (the "Airwave Investor
Indemnitors") have entered into a settlement agreement dated as of the 12th day
of March (the "Settlement Agreement") under the terms of which 1,246,211 shares
of Tritel Class A common stock (947,120 shares of TeleCorp PCS, Inc. Class A
voting common stock ("TeleCorp Shares")) shall be delivered to Firstar Bank,
N.A. (the "New Escrow Agent") to hold in a new escrow in favor of Tritel.
Tritel hereby directs you to deliver instructions to the appropriate
transfer agent to cause the shares represented by the Tritel stock certificates
set forth on Schedule I hereto (the "Tritel Certificates") (i) to be converted
into TeleCorp Shares and to be reissued in the names of the Old Mercury
Stockholders or their designees as set forth on, and in the denominations
specified in, Schedule II hereto and (ii) to have the new stock certificates
representing such TeleCorp Shares (the "New Certificates") returned to you.
Tritel further directs you to promptly, and in any event within five (5)
days after your receipt of the New Certificates from the transfer agent, (i)
distribute the New Certificates representing the shares described in Part A of
Schedule II hereto to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) distribute the New Certificates
representing the shares described in Part B of Schedule II hereto to Firstar
Bank, N.A., Corporate Trust Department, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇; and (iii) provide written notice to Ericsson that you
have delivered the New Certificates to Firstar Bank, N.A. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇.
1
The undersigned officer of Tritel hereby certifies that the statements
contained herein are true and correct as of the date hereof. Terms used herein
and not defined shall have the specific meanings set forth in the Collateral
Agency Agreement.
Tritel, Inc.
By:
---------------------------------
Printed Name:
-----------------------
Title:
------------------------------
2
SCHEDULE I
Shareholder Certificate # Class #of Tritel Shares
----------- ------------- ----- -----------------
▇▇▇▇▇▇▇ Associates, LLC TA0181 A 14,164.15
▇▇▇▇▇▇▇ Associates, LLC TD18 D 958.34
DC Investment Partners Exchange Fund, LP TA0188 A 141,706.77
DC Investment Partners Exchange Fund, LP TD27 D 9,587.82
FCA Venture Partners I, LP TA0198 A 70,849.40
FCA Venture Partners I, LP TD29 D 4,793.64
M3, LLC TA0184 A 789,293.33
M3, LLC TD23 D 53,403.25
▇▇▇▇▇▇▇ Communications, LLC TA0186 A 566,815.01
▇▇▇▇▇▇▇ Communications, LLC TD25 D 38,350.46
Mercury PCS Investors, LLC TA0193 A 1,417,043.57
Mercury PCS Investors, LLC TD31 D 95,876.57
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ A 4,270,971.01
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ D 288,972.09
3
SCHEDULE II
TeleCorp TeleCorp
Class A Common Class F Common
------------------------------------------------------
PART A
------
Shares to be Delivered to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
--------
Southern Farm Bureau Life Insurance Co. 2,907,011 2,196
M3, LLC --- 405
Bear ▇▇▇▇▇▇▇ Security Corp. 537,226 ---
▇▇▇▇▇▇▇ Communications, LLC 385,797 291
DC Investment Partners Exchange Fund, LP 96,452 72
FCA Venture Partners I, LP 48,222 36
▇▇▇▇▇▇▇ Associates, LLC 9,641 7
Mercury PCS Investors, LLC --- 728
Bear ▇▇▇▇▇▇▇ Security Corp. 964,501 ---
------------------------------------------------------
4,948,850 3,735
PART B
------
Shares to be Delivered to New Escrow Agent
------------------------------------------
Southern Farm Bureau Life Insurance Co. 556,348
M3, LLC 102,816
▇▇▇▇▇▇▇ Communications, LLC 73,836
DC Investment Partners Exchange Fund, LP 18,458
FCA Venture Partners I, LP 9,229
▇▇▇▇▇▇▇ Associates, LLC 1,844
Mercury PCS Investors, LLC 184,589
--------------------------
947,120
4
March 12, 2001
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Secretary
Tritel, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
You are currently holding securities issued in the name of Digital PCS, LLC
("Digital") as security for certain indemnification obligations of Digital under
the terms of that certain License Purchase Agreement (the "License Purchase
Agreement") dated May 20, 1999 between Digital, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇. ▇.
▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇, Inc. ("Tritel").
This shall serve to notify you that a dispute has arisen and is continuing
between Digital and Tritel in respect of the indemnification obligations of
Digital under the License Purchase Agreement. Tritel and Digital have entered
into a Settlement Agreement dated as of the 12th day of March, 2001, (the
"Settlement Agreement") under the terms of which 253,789 shares of Tritel Class
A Common Stock (192,879 shares of TeleCorp PCS, Inc. ("TeleCorp") Class A Voting
Common Stock ("TeleCorp Shares")) shall be delivered to Firstar Bank, N.A. to
hold in a new escrow in favor of Tritel.
Tritel and Digital hereby direct you to deliver Tritel stock certificate number
TA-0448 representing 1,125,329 shares of TeleCorp Class A Voting Common Stock
(the "Existing Certificate"), together with any accompany stock powers, to the
appropriate transfer agent with instructions to (i) have the shares represented
by such certificate converted into TeleCorp Shares and to be re-issued in the
names of the parties as set forth on (or retired to treasury, as the case may
be), and in the denominations specified in, Schedule I hereto and (ii) to have
the new stock certificates representing such TeleCorp Shares (the "New
Certificates") returned to you.
Tritel further directs you to promptly, and in any event within five (5) days
after your receipt of the New Certificates from the transfer agent, (i)
distribute the New Certificates representing the shares described in Part A of
Schedule II hereto to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) distribute the New Certificates
representing the shares described in Part B of Schedule II hereto to Firstar
Bank, N.A., Corporate Trust Department, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇.
1
The undersigned officer or representative of Tritel and Digital hereby certify
that the statements contained herein are true and correct as of the date hereof.
Digital PCS, LLC Tritel, Inc.
By:_________________________________ By:_________________________________
Printed Name:________________________ Printed Name:________________________
Title:_______________________________ Title:_______________________________
2
SCHEDULE I
# Shares
--------
Retire to Treasury 142,745
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 29,601
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 29,601
▇. ▇. ▇▇▇▇▇▇, ▇▇. 29,601
Southern Farm Bureau Life Insurance Company 413,142
Bear ▇▇▇▇▇▇▇ Security Corp. 75,563
▇▇▇▇▇▇▇ Communications, LLC 54,830
DC Investment Partners Exchange Fund, L.P. 13,567
FCA Venture Partners I, L.P. 6,782
▇▇▇▇▇▇▇ Associates, LLC 1,357
Bear ▇▇▇▇▇▇▇ Security Corp. 135,661
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 9,644
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 9,644
▇. ▇. ▇▇▇▇▇▇, ▇▇. 9,644
Southern Farm Bureau Life Insurance Company 96,304
M3, LLC 17,798
▇▇▇▇▇▇▇ Communications, LLC 12,781
DC Investment Partners Exchange Fund, L.P. 3,195
FCA Venture Partners, LLC 1,598
▇▇▇▇▇▇▇ Associates, LLC 319
Mercury PCS Investors, LLC 31,952
---------
Total 1,125,329
3
SCHEDULE II
Part A
------
Shares to be Delivered c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 29,601
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 29,601
▇. ▇. ▇▇▇▇▇▇, ▇▇. 29,601
Southern Farm Bureau Life Insurance Company 413,142
Bear ▇▇▇▇▇▇▇ Security Corp. 75,563
▇▇▇▇▇▇▇ Communications, LLC 54,830
DC Investment Partners Exchange Fund, L.P. 13,567
FCA Venture Partners I, L.P. 6,782
▇▇▇▇▇▇▇ Associates, LLC 1,357
Bear ▇▇▇▇▇▇▇ Security Corp. 135,661
-------
Total 789,705
Part B
------
Shares to be Delivered to Firstar Bank, N.A., Corporate Trust Department
------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 9,644
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 9,644
▇. ▇. ▇▇▇▇▇▇, ▇▇. 9,644
Southern Farm Bureau Life Insurance Company 96,304
M3, LLC 17,798
▇▇▇▇▇▇▇ Communications, LLC 12,781
DC Investment Partners Exchange Fund, L.P. 3,195
FCA Venture Partners I, L.P. 1,598
▇▇▇▇▇▇▇ Associates, LLC 319
Mercury PCS Investors, LLC 31,952
-------
192,879
Total