Exhibit 10.5
PUT RIGHTS AGREEMENT
THIS AGREEMENT, dated as of December 22, 2000, among AT&T Wireless
Services, Inc., a Delaware corporation (the "Buyer") on the one hand and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇" and together with Vento,
the "Sellers") on the other hand
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS ▇▇▇▇▇▇▇▇ owns the ▇▇▇▇▇▇▇▇ Shares (as defined) and
WHEREAS Vento owns the Vento Shares (as defined) and
WHEREAS Sellers wish to have the right to sell the TeleCorp Shares (as
defined) to the Buyer for the Put Price;
NOW THEREFORE the parties hereto agree as follows in return for the
respective promises and subject to the terms and conditions set forth below.
Section 2. Definitions.
"Average Last Trade Price" at any Closing means the average last sale
price for the twenty (20) consecutive trading days ending three (3) trading days
immediately before the Closing, which price shall be adjusted as appropriate for
stock splits, stock dividends, recapitalizations, mergers and similar
transactions and for ex-dividend trading.
"Exercise Period" means the period that commences on the Put Date and
expires on July 31, 2005, except that if a Price Interval has occurred before
July 31, 2004, then the Exercise Period shall expire on July 31, 2004, and if a
Price Interval first occurs after July 31, 2004 but before July 21, 2005, then
the Exercise Period shall expire ten days after the last day of the first Price
Interval to occur.
"Lien" means any mortgage, lien, pledge, charge, security interest,
right of first refusal or other right of others therein, or encumbrance of any
nature whatsoever.
"Management Agreement" means that certain Management Agreement between
TeleCorp Management Corp., Inc. and TeleCorp dated as of November 1, 2000.
"Price Interval" means a period of twenty (20) consecutive trading
days during which the average last sale price for TeleCorp Class A Common Stock
is at least $16.30 (which price shall be adjusted as appropriate for stock
splits, stock dividends, recapitalizations, mergers and similar transactions and
for ex-dividend trading).
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"Qualifying Stock" means fully paid and nonassessable shares of AT&T
Wireless Tracking Stock (or any successor security that is publicly traded and
the average daily trading volume of which has been at least two million shares
during the 30-day period before issuance to the Sellers) that (a) provided a
Seller is not an Affiliate of the issuer of such shares or is an Affiliate of
such issuer solely because of his beneficial ownership of the capital stock of
such issuer, are not "restricted securities" as defined in Rule 144 under the
Securities Act of 1933 or (b) with respect to the resale of which a registration
statement has been declared effective.
"Put Date" means August 1, 2003.
"Put Price" means the product of the number of Put Shares and the
lesser of (i) the Average Last Trade Price of TeleCorp Shares before the Closing
at which they are to be sold to the Buyer and (ii) $18.30 (which price shall be
adjusted for stock splits, stock dividends, recapitalizations, mergers and
similar transactions.
"Put Shares" means that number of TeleCorp Shares that ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇ cause the Buyer to purchase pursuant to Section 3 hereof.
"▇▇▇▇▇▇▇▇ Shares" means up to 2,003,901 shares of TeleCorp Class A
Common Stock that (i) are owned by ▇▇▇▇▇▇▇▇ on the date hereof and (ii) will not
be subject to repurchase by TeleCorp pursuant to Section 7 of the Management
Agreement on the Put Date.
"TeleCorp Shares" means the ▇▇▇▇▇▇▇▇ Shares and the Vento Shares.
"TeleCorp" means TeleCorp PCS, Inc., a Delaware corporation, or any
successor thereof.
"Vento Shares" means 2,917,988 shares of TeleCorp Class A Common Stock
that (i) are owned by Vento on the date hereof and (ii) will not be subject to
repurchase by TeleCorp pursuant to Section 7 of the Management Agreement on the
Put Date.
Section 3. The Put.
At any time during the Exercise Period, each of Sellers may elect,
each on one occasion only, to cause the Buyer to purchase (which purchase shall
be subject to the condition, which may be waived by the Buyer in its discretion,
that the representations and warranties required to be delivered to the Buyer
pursuant to Section 4.2 are all true at the time of such purchase) his
respective Put Shares, for an aggregate price equal to the Put Price, which may
be paid at Buyer's option in any combination of cash or Qualifying Stock valued
at the Average Last Trade Price of the Qualifying Stock before the Closing when
it will be issued. In order to exercise the election referred to above, Sellers
(or either of them, if he is the only one electing to cause the Buyer to
purchase Put Shares pursuant to this Section 2) must deliver written notice
thereof to the Buyer, which notice must be received by the Buyer during the
Exercise Period. Such notice shall be irrevocable upon receipt by the Buyer.
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Section 4. Notices.
Any notice hereunder shall be deemed received by the addressee thereof
(i) on the day that it is actually received by the addressee or sent to the
addressee by fax to the fax number set forth below or (ii) on the next business
day following the day it is delivered to a reputable courier service for
next-day delivery to the addressee at the address set forth below. Addresses and
fax numbers are set forth below for:
The Buyer:
AT&T Wireless Services, Inc.
▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
AT&T Wireless Services, Inc.
▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: D. ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ or ▇▇▇▇▇:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The addresses and fax numbers set forth above may be amended by notice
delivered as aforesaid by the amending party to the other parties and shall be
effective upon deemed receipt thereof by the other parties.
Section 5. Closings.
5.1 After the receipt of a notice pursuant to Section 2 hereof by the
requisite persons named therein to receive notice, the parties hereto shall use
reasonable best efforts including reasonable best efforts to obtain all required
regulatory approvals, to consummate such closing (each a "Closing") of the
purchase of TeleCorp Shares, as appropriate, as soon as practicable and in any
event within five business days after such receipt if no regulatory approval is
required. Buyer shall give notice to Sellers within ten business days of receipt
of a notice pursuant to Section 2 hereof of the portion (by dollar value) of the
purchase price that will consist of Qualifying Stock. If any regulatory approval
is required, an application for such regulatory approval shall be filed no later
than 15 days following the date of such receipt and the Closing with respect
thereto shall occur no later than five business days following the receipt of
all required regulatory approvals by final nonappealable order. Any closing
shall be subject to the condition precedent that all required consents or
approvals from any governmental entity shall have been obtained by final
nonappealable order. As used herein, "final nonappealable order" when referring
to an order of the FCC shall mean a preliminary grant which is not reversed,
stayed, enjoined, set aside, annulled, or suspended within the deadline, if any,
provided by applicable statute or regulation, and with respect to which no
timely request for stay, motion or petition for reconsideration or rehearing,
application or request for review, or notice of appeal or other judicial
petition for review is pending, and as to which the time for filing any such
request, motion, petition, application, appeal, or notice, and for the entry of
an order staying, reconsidering, or reviewing on the FCC's or other regulatory
authority's own motion, has expired and which preliminary grant is not subject
to conditions that in the aggregate would have a material adverse effect on the
Buyer.
5.2 At the Closing, each Seller transferring TeleCorp Shares shall
represent and warrant to the Buyer in writing (i) that he is the sole beneficial
and record owner thereof and has good and marketable title thereto free and
clear of all Liens (other than Liens (a) arising out of this Agreement or (b)
arising out of the Securities Act of 1933, as amended) and (ii) that he has full
power and authority to sell the TeleCorp Shares without conflict with the terms
of any material agreement, law, order or instrument binding upon him. Each
Seller shall deliver such customary instruments of assignment with respect to
the transfers at the Closing as the Buyer shall reasonably request, including
certificates evidencing the TeleCorp Shares transferred endorsed in blank.
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5.3 If the Buyer elects to deliver Qualifying Stock in accordance with
Section 2, then the Buyer shall give written notice of such fact at least 20
calendar days prior to the Closing and shall represent and warrant to the
recipient thereof in writing that such Qualifying Stock has been duly authorized
and validly issued and is fully paid and nonassessable and either (i) the resale
thereof is the subject of any effective registration statement or (ii) such
Qualifying Stock is not a "restricted security" as defined in Rule 144 under the
Securities Act of 1933, as amended and (iii) to the best of its knowledge the
Seller is not an Affiliate of the issuer of the Qualifying Stock (except by
virtue of Seller's ownership of such issuer's stock.)
Section 6. Miscellaneous.
6.1 This Agreement and the other agreements referred to herein and
contemplated hereby, together with any schedules and exhibits hereto and
thereto, contain the entire agreement and understanding of the parties relating
to the subject matter hereof and supersede all prior negotiations, proposals,
offers, agreements and understandings (written or oral) relating to such subject
matter.
6.2 Neither this Agreement nor any provision hereof may be amended or
modified except in a writing signed by all the parties hereto. No failure or
delay of any party in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce any such right
or power, preclude any other further exercise thereof or the exercise of any
other right or power. No waiver by any party of any departure by any other party
from any provision of this Agreement shall be effective unless the same shall be
in a writing signed by the party against which enforcement of such waiver or
consent is sought, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given. No
notice or similar communication by any party to another shall entitle such other
party to any other or further notice or similar communication in similar or
other circumstances, except as specifically provided herein.
6.3 The parties acknowledge that money damages may not be an adequate
remedy for violations of this Agreement and that any party may, in its sole
discretion, in an arbitration or a court of competent jurisdiction to the extent
permitted hereunder, apply for specific performance or injunctive or other
relief as such arbitration or court may deem just and proper in order to enforce
this Agreement or to prevent violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such
relief.
6.4 All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall, unless
otherwise specifically provided herein, be cumulative and not alternative, and
the exercise or beginning of the exercise of any thereof by a party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
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6.5 This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and permitted assigns. No
Seller may assign its rights or delegate its duties under this Agreement without
the written consent of the Buyer. The Buyer may assign its rights or delegate
its duties under this Agreement without the consent of any Seller but no such
assignment or delegation shall in and of itself reduce the Buyer's obligations
hereunder.
6.6 This Agreement is entered into solely for the benefit of the
parties and no person other than the parties, their respective successors and
permitted assigns, may exercise any right or enforce any obligation hereunder.
6.7 Each party will execute and deliver such further documents and
take such further actions as any other party may reasonably request consistent
with the provisions hereof in order to effect the intent and purposes of this
Agreement.
6.8 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
6.9 If any term of this Agreement or the application thereof to any
party or any circumstance shall be held invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such term to the other
parties or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by applicable law.
6.10 This Agreement does not create a partnership or agency
relationship among the parties, or any other relationship between the parties
except as expressly set forth herein. No party shall have any right or authority
to assume, create or incur any liability or obligation, express or implied, in
the name or on behalf of any other party.
6.11 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one instrument.
6.12 The captions used herein are for convenience of reference only
and shall not affect the interpretation or construction hereof. All pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the context may require. Unless otherwise
specified, (a) the terms "hereof," "herein" and similar terms refer to this
Agreement as a whole, (b) references herein to Sections refer to sections of
this Agreement and (c) the word "including" connotes the words "including
without limitation" unless the context requires otherwise.
6.13 If Buyer makes any offer to purchase outstanding shares of
capital stock of TeleCorp, and the Sellers are prevented from accepting such
offer solely because of the restrictions imposed by the Stockholders Agreement,
then the Buyer shall waive its waiveable rights (and cause its Affiliates to
waive their rights) under the Stockholders Agreement to the extent necessary to
allow the Sellers to accept such offer.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
AT&T Wireless Services, Inc.
By:
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Name:
Title:
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