Exhibit 10.17
DRAFT NO. 2
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SECURITIES PURCHASE AGREEMENT
by and among
US UNWIRED INC.
and
TCW LEVERAGED INCOME TRUST, L.P.,
TCW LEVERAGED INCOME TRUST II, L.P.,
TCW SHARED OPPORTUNITY FUND III, L.P.,
TCW SHARED OPPORTUNITY FUND IIB, LLC,
TCW SHARED OPPORTUNITY FUND II, L.P.,
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.,
TCW/CRESCENT MEZZANINE TRUST II, and
▇▇▇▇▇ UNIVERSITY THIRD CENTURY FUND
____________________________________
Dated February 15, 2000
____________________________________
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Table of Contents
Article 1 DEFINITIONS.............................................................................. 1
1.1 Definitions........................................................................ 1
1.2 Accounting Terms................................................................... 11
Article 2 PURCHASE AND SALE OF PREFERRED STOCK..................................................... 12
2.1 Purchase and Sale of Preferred Stock............................................... 12
2.2 Charter Amendment.................................................................. 12
Article 3 CONDITIONS TO THE OBLIGATION OF THE PURCHASER TO CLOSE................................... 12
3.1 Representations and Warranties True................................................ 12
3.2 Compliance with this Agreement..................................................... 12
3.3 Officer's Certificate.............................................................. 13
3.4 Secretary's Certificate............................................................ 13
3.5 Documents.......................................................................... 13
3.6 Purchase Permitted by Applicable Laws; Legal Investment............................ 13
3.7 Filing of Charter Amendment and other Amendments................................... 13
3.8 Opinion of Counsel................................................................. 13
3.9 Approval of Counsel to the Purchaser............................................... 13
3.10 Consents and Approvals............................................................. 13
3.11 No Material Adverse Change......................................................... 14
3.12 Due Diligence...................................................................... 14
3.13 Conduct of Business................................................................ 14
3.14 Registration Rights Agreement...................................................... 14
3.15 Shareholders Agreement............................................................. 14
3.16 Charter and By-Laws of the Company................................................. 14
3.17 No Litigation...................................................................... 14
3.18 No Default or Breach............................................................... 14
3.19 HSR Act............................................................................ 15
3.20 Sprint PCS Agreement............................................................... 15
Article 4 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE..................................... 15
4.1 Representations and Warranties True................................................ 15
4.2 Compliance with this Agreement..................................................... 15
4.3 Issuance Permitted by Applicable Laws.............................................. 15
4.4 Approval of Counsel to the Company................................................. 15
4.5 Consents and Approvals............................................................. 16
4.6 HSR Act............................................................................ 16
Article 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................ 16
5.1 Corporate Existence and Power...................................................... 16
5.2 Corporate Authorization; No Contravention.......................................... 16
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5.3 Governmental Authorization; Third Party Consents................................... 17
5.4 Binding Effect..................................................................... 17
5.5 No Legal Bar....................................................................... 17
5.6 Litigation......................................................................... 18
5.7 No Default or Breach............................................................... 18
5.8 Title to Properties; Leases........................................................ 18
5.9 Taxes.............................................................................. 19
5.10 Financial Condition................................................................ 19
5.11 No Material Adverse Change......................................................... 20
5.12 Offering Documents................................................................. 20
5.13 Environmental Matters.............................................................. 20
5.14 Investment Company................................................................. 21
5.15 Affiliates and Subsidiaries........................................................ 21
5.16 Capitalization..................................................................... 21
5.17 Solvency........................................................................... 21
5.18 Private Offering................................................................... 21
5.19 Broker's, Finder's or Similar Fees................................................. 22
5.20 Full Disclosure.................................................................... 22
5.21 No Undisclosed Financial Liabilities............................................... 22
5.22 Material Contracts................................................................. 22
5.23 Internal Controls.................................................................. 22
5.24 ERISA.............................................................................. 23
5.25 Labor Relations.................................................................... 23
5.26 Personal Property.................................................................. 23
5.27 Intellectual Property.............................................................. 23
5.28 FCC Matters; Operation and Condition of the Systems................................ 24
Article 6 REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER............................ 25
6.1 Existence and Power................................................................ 25
6.2 Authorization; No Contravention.................................................... 25
6.3 Binding Effect..................................................................... 26
6.4 No Legal Bar....................................................................... 26
6.5 Purchase for Own Account........................................................... 26
6.6 Broker's, Finder's or Similar Fees................................................. 27
Article 7 INDEMNIFICATION.......................................................................... 27
7.1 Indemnification by the Company..................................................... 27
7.2 Notification....................................................................... 28
7.3 Registration Rights Agreement...................................................... 28
Article 8 AFFIRMATIVE COVENANTS.................................................................... 29
8.1 Financial Statements............................................................... 29
8.2 Certificates; Other Information.................................................... 30
8.3 Preservation of Corporate Existence................................................ 30
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8.4 Payment of Obligations............................................................ 30
8.5 Compliance with Laws.............................................................. 31
8.6 Notices........................................................................... 31
8.7 Reservation of Shares............................................................. 31
8.8 Inspection........................................................................ 31
8.9 Registration and Listing.......................................................... 32
8.10 Sprint PCS Agreement.............................................................. 32
Article 9 NEGATIVE COVENANTS...................................................................... 32
9.1 Consolidations and Mergers........................................................ 32
9.2 Transactions with Affiliates...................................................... 33
9.3 No Inconsistent Agreements........................................................ 33
9.4 LEC Unwired....................................................................... 34
Article 10 DISPOSITIONS............................................................................ 34
10.1 Dispositions by the Purchaser..................................................... 34
10.2 Equity Put Option................................................................. 35
Article 11 MISCELLANEOUS........................................................................... 37
11.1 Survival of Provisions............................................................ 37
11.2 Notices........................................................................... 37
11.3 Successors and Assigns............................................................ 38
11.4 Amendment and Waiver.............................................................. 38
11.5 Counterparts...................................................................... 39
11.6 Headings.......................................................................... 39
11.7 Determinations.................................................................... 39
11.8 Governing Law..................................................................... 39
11.9 Severability...................................................................... 39
11.10 Rules of Construction............................................................. 39
11.11 Remedies.......................................................................... 39
11.12 Entire Agreement.................................................................. 40
11.13 Attorneys' Fees................................................................... 40
11.14 Publicity......................................................................... 40
11.15 Expenses.......................................................................... 40
SCHEDULES
Schedule 2.1 Purchase Price and Ownership Allocation
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EXHIBITS
Exhibit A Form of Charter Amendment
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Warrant
Exhibit D Form of Shareholders Agreement
Exhibit E Form of Opinion of Counsel
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SECURITIES PURCHASE AGREEMENT, dated February 15, 2000, by and among
US Unwired Inc., a Louisiana corporation (the "Company"), and TCW Leveraged
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Income Trust, L.P., TCW Leveraged Income Trust II, L.P., TCW Shared Opportunity
Fund III, L.P., TCW Shared Opportunity Fund IIB, LLC, TCW Shared Opportunity
Fund II, L.P., TCW/Crescent Mezzanine Partners II, L.P., TCW/Crescent Mezzanine
Trust II, each of which is a Delaware entity, and ▇▇▇▇▇ University Third Century
Fund (collectively the "Purchaser").
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The Company proposes that the Company issue to the Purchaser and that
the Purchaser purchase, up to 50,000 shares of the Company's Senior Redeemable
Convertible Preferred Stock, Series B, no par value (the "Preferred Shares"),
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upon the terms and subject to the conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
Article 1
DEFINITIONS
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1.1 Definitions. As used in this Agreement, and unless the context
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requires a different meaning, the following terms have the meanings indicated:
"1997 Audited Financials" has the meaning assigned to that term
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in Section 5.10.
"1998 Audited Financials" has the meaning assigned to that term
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in Section 5.10.
"1999 Interim Financials" has the meaning assigned to that term
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in Section 5.10.
"Affiliate" has the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act; provided that the
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Purchaser shall not be deemed to be an "Affiliate" of the Company.
"Agreement" means this Agreement as the same may be amended,
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supplemented or modified in accordance with the terms hereof.
"Assets" has the meaning assigned to that term in Section 5.8(a).
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"Business Day" means any day other than a Saturday, Sunday or
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other day on which commercial banks in the City of New York, New York are
authorized or required by law or executive order to close.
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"Business Plan" has the meaning assigned to that term in Section
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5.26.
"Charter Amendment" means the Amendment to Articles of
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Incorporation of the Company (the form of which is attached hereto as Exhibit A)
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to be adopted by the Board of Directors and shareholders of the Company and
filed with the Secretary of State of the State of Louisiana.
"Class A Common Stock" means the Class A common stock, par value
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$.01 per share of the Company.
"Class B Common Stock" means the Class B common stock, par value
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$.01 per share, of the Company.
"Closing" has the meaning assigned to that term in Section 2.3.
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"Closing Date" means the date specified in Section 2.3.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the Securities and Exchange Commission or any
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similar agency then having jurisdiction to enforce the Securities Act.
"Commission Documents" means all registration statements, proxy
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statements, reports and other documents (and all amendments thereto), required
to be filed by the Company under the Securities Act or the Exchange Act.
"Common Stock" means the Class A Common Stock, the Class B Common
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Stock and each other class of capital stock of the Company that does not have a
preference over any other class of capital stock of the Company as to dividends
or upon liquidation, dissolution or winding up of the Company and in each case,
shall include any other class of capital stock of the Company into which such
stock is reclassified or reconstituted.
"Communications Act" has the meaning assigned to that term in
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Section 5.25.
"Communications Licenses" means all licenses, waivers, consents,
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permits or other authorizations issued or granted by the FCC or any other state
or local Governmental Authority in connection with ownership and operation of
the cellular, paging, PCS Services, LMDS, local exchange, long distance and
Internet services provided by the Company and its Subsidiaries, including Sprint
PCS Licenses.
"Company" has the meaning assigned to that term in the recitals
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to this Agreement.
3
"Condition of the Company" means the assets, business, properties or
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financial or other condition of the Company and its Subsidiaries taken as a
whole.
"Consolidated Net Worth" means, as of the date of determination with
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respect to any Person, the consolidated stockholders' equity of such Person and
its Subsidiaries, determined in accordance with GAAP.
"Contact List" has the meaning assigned to that term in Section
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10.1(a).
"Contingent Obligation" means, as applied to any Person, any direct or
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indirect liability of that Person with respect to any Indebtedness, lease,
dividend, guaranty, letter of credit or other obligation (the "primary
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obligation") of another Person (the "primary obligor"), including, without
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limitation, any obligation of such first-mentioned Person, whether or not
contingent, (a) to purchase, repurchase or otherwise acquire such primary
obligations or any property constituting direct or indirect security therefor,
or (b) to advance or provide funds (i) for the payment or discharge of any such
primary obligation, or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, or (c) to purchase property, securities or services primarily for the
purpose of assuring the beneficiary of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or
(d) otherwise to assure or hold harmless the beneficiary of any such primary
obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the Company in good faith.
"Contractual Obligations" means as to any Person, any provision of any
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security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Credit Agreement" means, collectively, (i) that certain Credit
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Agreement, dated as of October 1, 1999, by and among the Company and CoBank,
ACB, as Administrative Agent and a lender; The Bank of New York, a Documentation
Agent and a lender; BNY Capital Markets, Inc., a Co-Arranger; First Union
Capital Markets Corp., a Syndication Agent and a Co-Arranger; First Union
National Bank, a lender; and the other lenders party signatory thereto,
providing for up to $130.0 million of term and revolving credit borrowings, (ii)
that certain Loan and Security Agreement, dated as of July 22, 1998, by and
among LEC Unwired, AT&T Commercial Finance Corporation and the financial
institutions named therein, providing for up to $15.0 million of credit
borrowings, (iii) that certain Subordinated Loan and Security Agreement, dated
as of July 22, 1998, by and among LEC Unwired, AT&T Commercial Finance
Corporation and the financial institutions named
4
therein, providing for up to $3.0 million of credit borrowings, and (iv) that
certain Commercial Business Loan Agreement for Term Loans dated January 12, 2000
among Whitney National Bank, the Company and Cameron Communications Corporation
(and the Construction Loan Agreement in the form of Exhibit A thereto), in each
case including any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"Demand Group" has the meaning assigned to that term in Section
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10.2(a).
"Demand Notice" has the meaning assigned to that term is Section
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10.2(a).
"Discount Note Documents" means (i) the DLJ Purchase Agreement,
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(ii) the Offering Memorandum, (iii) that certain A/B Exchange Registration
Rights Agreement, dated as of October 29, 1999, by and among the Company, LA
Unwired, Unwired Telecom, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
First Union Securities, Inc. and BNY Capital Markets, Inc., (iv) that certain
Indenture, dated as of October 29, 1999, by and among the Company, LA Unwired,
Unwired Telecom and State Street Bank and Trust Company, providing for the
issuance of an aggregate of $400,000,000 in principal amount at maturity of the
Company's 13 3/8% Senior Subordinated Discount Notes due 2009, (v) that certain
Pledge and Security Agreement, dated as of October 29, 1999, between LA Unwired
and State Street Bank and Trust Company, and (vi) that certain Intercreditor
Agreement, dated as of October 29, 1999, between State Street Bank and Trust
Company, and CoBank, ACB and acknowledged by LA Unwired.
"DLJ Purchase Agreement" means that certain Purchase Agreement,
----------------------
dated as of October 26, 1999, by and among the Company, ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇ Securities Corporation, First Union Securities, Inc. and BNY Capital
Markets, Inc., relating to an aggregate of $400,000,000 in principal amount at
maturity of the Company's 13 3/8% Senior Subordinated Discount Notes due 2009.
"Documents" has the meaning assigned to that term in Section
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5.19.
"DTC" means the Depositary Trust Company.
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"Environmental Claims" means any notification, whether formal or
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informal, written or oral, pursuant to Environmental Laws or principles of
common law relating to pollution, or protection of the environment or health and
safety, that any of the current or past operations of the Company or any of its
Subsidiaries, or any by-product thereof, or any of the property currently or
formerly owned, leased or operated by the Company or any of its Subsidiaries, or
the operations or property of any predecessor of the Company or any of its
Subsidiaries, is or may be implicated in or subject to any Claim,
5
Requirements of Law, hearing, notice, agreement or evaluation by any
Governmental Authority or any other Person.
"Environmental Compliance Costs" means any expenditures, costs,
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assessments or expenses (including any expenditures, costs, assessments or
expenses in connection with the conduct of any Remedial Action, as well as
reasonable fees, disbursements and expenses of attorneys, experts, personnel and
consultants), whether direct or indirect, necessary to cause the operations,
real property, assets, equipment or facilities owned, leased, operated or used
by the Company or any of its Subsidiaries, or the property of any predecessor of
the Company or any of its Subsidiaries, to be in compliance with any and all
requirements of Environmental Laws, principles of common law concerning
pollution, protection of the environment or health and safety, or Permits issued
pursuant to Environmental Laws; provided, however, that Environmental Compliance
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Costs do not include expenditures, costs, assessments or expenses necessary in
connection with normal maintenance of such real property, assets, equipment or
facilities or the replacement of equipment in the normal course of events due to
ordinary wear and tear.
"Environmental Laws" means any federal, state, territorial,
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provincial, parish or local law, common law doctrine, rule, order, decree,
judgment, injunction, license, permit or regulation relating to environmental
matters, including those pertaining to land use, air, soil, surface water,
ground water (including the protection, cleanup, removal, remediation or damage
thereof), public or employee health or safety or any other environmental matter,
together with any other laws (federal, state, territorial, provincial or local)
relating to emissions, discharges, releases or threatened releases of any
contaminant including, without limitation, medical, biological, biohazardous or
radioactive waste and materials, into ambient air, land, surface water,
groundwater, personal property or structures, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, discharge or handling of any contaminant, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. (S) 9601 et seq.), the Hazardous Material
-- ---
Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource Conservation and
-- ---
Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water Pollution Control
-- ---
Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C. (S) 1251 et
-- --- --
seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et seq.), the
--- -- ---
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. (S) 121 et seq.),
-- ---
the Asbestos Hazard Emergency Response Act (15 U.S.C. (S) et seq.); the Safe
-- ---
Drinking Water Act (42 U.S.C. (S) 300F et seq.); the Oil Pollution Act of 1990
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(33 U.S.C. (S) 2701 et seq.); and the Occupational Safety and Health Act (29
-- ---
U.S.C. (S) 651 et seq.), as such laws have been amended or supplemented and any
-- ---
analogous future federal, or present or future state or local laws, statutes and
regulations promulgated thereunder.
"ERISA" means the Employee Retirement Income Security Act of
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1974, as amended.
6
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations of the Commission promulgated thereunder.
"F-block License" means a license awarded by the FCC to provide
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PCS Services in the frequency block 1890-1895 MHZ paired with 1970-1975 MHZ.
"FCC" means the Federal Communications Commission.
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"FCC Rules" has the meaning assigned that term in Section 5.25.
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"Financial Liabilities" has the meaning assigned that term in
---------------------
Section 5.20.
"Fund Securities Purchase Agreement" means the Securities
----------------------------------
Purchase Agreement dated as of October 29, 1999 by and between the Company and
The 1818 Fund III, L.P.
"GAAP" means generally accepted accounting principles in effect
----
from time to time.
"Governmental Authority" means the government of any nation,
----------------------
state or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Hazardous Materials" means those substances that are regulated
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by, or form the basis of liability under, any Environmental Laws.
"Hazardous Substance" means any toxic waste, pollutant,
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contaminant, hazardous substance, toxic substance, hazardous waste, special
waste, industrial substance or waste, petroleum or petroleum-derived substance
or waste, radioactive substance or waste, or any constituent of any such
substance or waste, or any other substance regulated under or defined by any
Environmental Law.
"Holder", with respect to Preferred Shares or Common Stock issued
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upon conversion of the Preferred Shares or upon exercise of any warrants, means
the initial purchaser of the Preferred Shares and any subsequent direct or
indirect transferee of such securities; provided that the term Holder shall not
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include any Person who owns such securities if such securities have been
registered under the Securities Act or have been transferred to such Person
after such securities has been the subject of a distribution to the public
pursuant to Rule 144 under the Securities Act (or any successor provision) or
otherwise distributed under circumstances not requiring a legend.
7
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
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of 1976, as amended, and the rules and regulations of the Federal Trade
Commission thereunder.
"Indebtedness" means as to any Person, without duplication, (a)
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all obligations of such Person for borrowed money (including, without
limitation, reimbursement and all other obligations with respect to surety
bonds, letters of credit and bankers' acceptances, whether or not matured), (b)
all obligations evidenced by notes, bonds, debentures or similar instruments,
(c) all obligations to pay the deferred purchase price of property or services,
except trade accounts payable and accrued liabilities arising in the ordinary
course of business, (d) all interest rate and currency swaps and similar
agreements under which payments are obligated to be made, whether periodically
or upon the happening of a contingency, (e) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (f) all obligations under leases which
have been or should be, in accordance with GAAP, recorded as capital leases, (g)
all indebtedness secured by any Lien (other than Liens in favor of lessors under
leases other than leases included in clause (f)) on any property or asset owned
or held by that Person regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is non-recourse to the credit of that
Person, (h) all obligations of such Person to reimburse or prepay any bank or
other Person in respect of amounts paid under a letter of credit, banker's
acceptance or similar instrument, (i) all capital stock issued by such Person
subject to mandatory redemption that is not contingent upon future events or
circumstances, and (j) any Contingent Obligation.
"Indemnified Party" has the meaning assigned to that term in
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Section 7.1.
"Intellectual Property" has the meaning assigned to that term in
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Section 5.26.
"IPO" means the date on which the Company (a) becomes a
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"reporting company," as defined under Section 12(g) of the Exchange Act, with
all of its filings with the Commission being current, and (b) has completed one
or more underwritten offerings of Common Stock registered under the Securities
Act with at least $50 million, in the aggregate, of gross proceeds.
"LA Unwired" means Louisiana Unwired, LLC, a Louisiana limited
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liability company.
"Leases" means any leases of property, whether real, personal or
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mixed, and all amendments thereto, and shall include all use or occupancy
agreements.
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"LEC Unwired" means LEC Unwired, LLC, a Louisiana limited
-----------
liability company.
"Liabilities" has the meaning assigned to that term in Section
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7.1.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
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assignment, encumbrance, lien (statutory or other) or preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including, without limitation, those created by, arising under or
evidenced by, any conditional sale or other title retention agreement, the
interest of a lessor under a capitalized lease obligation, or any financing
lease having substantially the same economic effect as any of the foregoing).
"LMDS" means local multipoint distribution services, a form of
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wireless communications.
"Meretel" means Meretel Communications Limited Partnership, a
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Louisiana partnership in commendam.
"Nonparticipating Holders" has the meaning assigned to that term
------------------------
in Section 10.1(a).
"Offering Memorandum" means that certain Offering Memorandum,
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dated as of October 26, 1999, relating to an aggregate of $400,000,000 in
principal amount at maturity of the Company's 13 3/8% Senior Subordinated
Discount Notes due 2009.
"Options" has the meaning assigned to that term in Section 5.15.
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"Participating Holder" has the meaning assigned to that term in
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Section 10.2(a).
"PCS Services" means the provision of personal communications
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service, a form of wireless communications.
"Permits" means all licenses, franchises, permits and
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authorizations of any governmental bodies as are necessary for the lawful
conduct of the business of the Company or any of its Subsidiaries.
"Per Share Equity Value" has the meaning assigned to that term in
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the Fund Securities Purchase Agreement.
"Person" means any individual, firm, corporation, partnership,
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limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
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"PORTAL" means Private Offerings, Resales and Trading through
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Automated Linkages.
"Preferred Shares" has the meaning assigned to that term in the
----------------
recitals to this Agreement.
"Preferred Stock" means the Company's Senior Redeemable
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Convertible Preferred Stock, Series A and B, no par value, collectively.
"Preferred Stock, Series A" means the Company's Senior Redeemable
-------------------------
Convertible Preferred Stock, Series A, no par value per share.
"Preferred Stock, Series B" means the Company's Senior Redeemable
-------------------------
Convertible Preferred Stock, Series B, no par value per share.
"Prohibitive Event" has the meaning assigned to that term in
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Section 10.2(a).
"Purchase Price" has the meaning assigned to that term in Section
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2.1(a).
"Purchaser" has the meaning assigned to that term in the recitals
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to this Agreement.
"Put Price" has the meaning assigned to that term in the Fund
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Securities Purchase Agreement.
"Real Property" means all of the fee estates and buildings and
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other fixtures and improvements thereon, leasehold interests, easements,
licenses, rights to access, rights-of-way, and other real property interests
which are owned or used by the Company or any of its Subsidiaries, as of the
date hereof, in the operations of the business of the Company and its
Subsidiaries, plus such additions thereto and deletions therefrom arising in the
ordinary course of business between the date hereof and the Closing Date.
"Redemption Date" has the meaning assigned to that term in
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Section 10.2(a).
"Registration Rights Agreement" means the Registration Rights
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Agreement, as amended, in substantially the form attached hereto as Exhibit B.
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"Release" means any release, spill, emission, leaking, pumping,
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injection, deposit, disposal, discharge, dispersal, leaching or migration into
or through the indoor or outdoor environment or into, through or out of any
property, including the
10
movement of Hazardous Substances through or in the air, soil, surface water,
ground water or property.
"Remedial Action" means all actions, whether voluntary or
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involuntary, reasonably necessary to comply with, or discharge any obligation
under, Environmental Laws to (i) clean up, remove, treat, cover or in any other
way adjust Hazardous Substances in the indoor or outdoor environment; (ii)
prevent or control the Release of Hazardous Substances so that they do not
migrate or endanger or threaten to endanger public health or welfare or the
environment; or (iii) perform remedial studies, investigations, restoration and
post-remedial studies, investigations and monitoring on, about or in any real
property.
"Required Redemption Notice" has the meaning assigned to that
--------------------------
term in Section 10.2(a).
"Requirements of Law" means as to any Person, the Articles of
-------------------
Incorporation and By-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Securities Act" means the Securities Act of 1933, as amended,
--------------
and the rules and regulations of the Commission promulgated thereunder.
"Shareholders Agreement" means the Shareholders Agreement, as
----------------------
amended, in substantially the form attached hereto as Exhibit D.
---------
"Solvent" means, with respect to any Person, that the fair
-------
saleable value on a going concern basis of the assets and property of such
Person is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature. In computing the amount
of contingent or unliquidated liabilities at any time, such liabilities will be
computed as the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that is probable to become an
actual or matured liability.
"Sprint PCS" means, collectively, Sprint Spectrum L.P., a
----------
Delaware limited partnership, and SprintCom, Inc., a Kansas corporation.
"Sprint PCS Agreement" means, collectively, (i) the Sprint PCS
--------------------
Management Agreement among Wirelessco, L.P., Sprint Spectrum L.P., SprintCom,
Inc. and LA Unwired dated February 8, 1999, including Addendum I, Addendum II,
the Sprint Trademark and Service ▇▇▇▇ License Agreement, and Sprint Spectrum
Trademark and Service ▇▇▇▇ License Agreement; (ii) the Sprint PCS Management
Agreement, among
11
Wirelessco, L.P., Sprint Spectrum L.P., SprintCom, Inc. and LA Unwired dated
June 8, 1998, including Addendum I, Addendum II, the Sprint Trademark and
Service ▇▇▇▇ License Agreement, and Sprint Spectrum Trademark and Service ▇▇▇▇
License Agreement; and (iii) the Sprint PCS Management Agreement among
Wirelessco, L.P., Sprint Spectrum L.P., SprintCom, Inc. and Meretel dated June
8, 1999, including Addendum I, the Sprint Trademark and Service ▇▇▇▇ License
Agreement, and Sprint Spectrum Trademark and Service ▇▇▇▇ License Agreement.
"Subsidiary" means, with respect to any Person, another Person of
----------
which 50% or more of the voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such first-mentioned Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company. "Subsidiaries" of the Company shall also include LA Unwired, LEC
Unwired, and Unwired Telecom but shall not include Texas Unwired.
"Texas Unwired" means Texas Unwired, a Louisiana general
-------------
partnership.
"Unwired Telecom" means Unwired Telecom Corp., a Louisiana
---------------
corporation.
"USTs" means any underground or aboveground storage tanks or
----
related piping or dispensers.
"Voting Stock" means, with respect to any Person, any securities
------------
or similar instruments of such Person whose holders are entitled under ordinary
circumstances to vote for the election of directors of such Person (irrespective
of whether at such time securities or similar instruments of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
"Warrants" mean the warrants exercisable into shares of Common
--------
Stock of the Company, at an exercise price of $.01 per warrant, in substantially
the form attached hereto as Exhibit C.
---------
1.2 Accounting Terms. All accounting terms used herein not expressly
----------------
defined in this Agreement shall have the respective meanings given to them in
accordance with sound accounting practice. The term "sound accounting practice"
shall mean such accounting practice as, in the opinion of the independent
accountants regularly retained by the Company, conforms at the time to GAAP
applied on a consistent basis except for changes with which such accountants
concur.
12
Article 2
PURCHASE AND SALE OF PREFERRED STOCK
------------------------------------
2.1 Purchase and Sale of Preferred Stock.
------------------------------------
(a) Subject to the terms and conditions herein set forth, the
Company agrees that it will issue to the Purchaser, and the Purchaser agrees
that it will acquire from the Company, at the Closing, 50,000 shares of
Preferred Stock, Series B (the "Preferred Shares") for a purchase price of
----------------
$5,000,000 (the "Purchase Price"), in cash, by wire transfer of immediately
--------------
available funds to an account designated by the Company in a notice delivered to
the Purchaser one Business Day prior to the Closing Date. The allocation among
the Purchaser of payment of the Purchase Price and the ownership of the
Preferred Shares is set forth in Schedule 2.1 hereto.
------------
2.2 Charter Amendment. The Preferred Shares shall have the rights
-----------------
and preferences set forth in the Charter Amendment.
2.3 Closing. Subject to Articles 3 and 4, the purchase and issuance
-------
of the Preferred Shares shall take place at the closing (the "Closing") to be
-------
held at the offices of the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on February 15, 2000, or such other location or later
date on or prior to February 15, 2000 as the parties may agree (the "Closing
-------
Date"), at 10:00 a.m., Lake Charles, Louisiana time. At the Closing, subject to
----
the terms and conditions set forth herein, the Company shall sell the Preferred
Shares to the Purchaser by delivering to the Purchaser Preferred Shares
registered in the name of the Purchaser or its designee, free and clear of any
Lien, and the Purchaser shall purchase the Preferred Shares.
Article 3
CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE
-----------------------------
The obligation of the Purchaser to purchase the Preferred Shares,
to pay the Purchase Price at the Closing and to perform any of its obligations
hereunder shall be subject to the satisfaction or waiver of the following
conditions on or before the Closing Date:
3.1 Representations and Warranties True. The representations and
-----------------------------------
warranties of the Company contained in Article 5 hereof shall be true and
correct in all material respects at and as of the Closing Date as if made at and
as of such date.
3.2 Compliance with this Agreement. The Company shall have performed
------------------------------
and complied with all of its agreements and conditions set forth or contemplated
herein that
13
are required to be performed or complied with by the Company on or before the
Closing Date.
3.3 Officer's Certificate. The Purchaser shall have received a
---------------------
certificate, dated the Closing Date and signed by the President or the Chief
Financial Officer of the Company, certifying that the conditions set forth in
Sections 3.1 and 3.2 hereof have been satisfied on and as of such date.
3.4 Secretary's Certificate. The Purchaser shall have received a
-----------------------
certificate, dated the Closing Date and signed by the Secretary or an Assistant
Secretary of the Company, certifying the truth and correctness of attached
copies of the Articles of Incorporation and By-laws of the Company and
resolutions of the Board of Directors of the Company approving this Agreement
and the transactions contemplated hereby.
3.5 Documents. The Purchaser shall have received copies of such
---------
documents as it reasonably may request in connection with the sale of the
Preferred Shares and the transactions contemplated hereby, all in form and
substance reasonably satisfactory to such Purchaser.
3.6 Purchase Permitted by Applicable Laws; Legal Investment. The
-------------------------------------------------------
acquisition of and payment for the Preferred Shares to be acquired by the
Purchaser hereunder and the consummation of the transactions contemplated
hereby: (a) shall not be prohibited by any applicable law or governmental
regulation; (b) shall not subject the Purchaser to any penalty or, in its
reasonable judgment, other onerous condition under or pursuant to any applicable
law or governmental regulation; and (c) shall be permitted by the laws and
regulations of the jurisdictions to which it is subject.
3.7 Filing of Charter Amendment and other Amendments. The Charter
------------------------------------------------
Amendment shall have been duly filed by the Company with the Secretary of State
of the State of Louisiana and shall be effective.
3.8 Opinion of Counsel. The Purchaser shall have received the
------------------
opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel
to the Company, dated the Closing Date, with respect to the matters set forth in
Exhibit E hereto.
---------
3.9 Approval of Counsel to the Purchaser. All actions and
------------------------------------
proceedings hereunder and all documents required to be delivered by the Company
hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been reasonably
acceptable to counsel to the Purchaser as to their form and substance.
3.10 Consents and Approvals. All consents, exemptions,
----------------------
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons, including, with respect to
Contractual Obligations of the Company, necessary or
14
required in connection with the execution, delivery or performance by the
Company or enforcement against the Company of this Agreement, the Preferred
Shares, the Registration Rights Agreement, the Warrants or the Shareholders
Agreement shall have been obtained and be in full force and effect, and the
Purchaser shall have been furnished with appropriate evidence thereof.
3.11 No Material Adverse Change. Since October 29, 1999, there shall
--------------------------
have been no material adverse change, nor shall any such change be threatened,
in the Condition of the Company since that date.
3.12 Due Diligence. The Purchaser shall have completed its due
-------------
diligence review of the assets, business, properties, pending litigations,
prospects, operations and financial and other Condition of the Company, and
shall be reasonably satisfied with the results of such review.
3.13 Conduct of Business. The Company shall have conducted its
-------------------
business in the ordinary course from the date hereof to the Closing Date, and no
extraordinary or other material transactions not in the ordinary course of
business shall have occurred without the Purchaser's consent.
3.14 Registration Rights Agreement. The Company and the other parties
-----------------------------
to the Registration Rights Agreement (other than the Purchaser) shall have duly
executed and delivered to the Purchaser the amendment to the Registration Rights
Agreement.
3.15 Shareholders Agreement. The Company and the other parties to the
----------------------
Shareholders Agreement (other than the Purchaser) shall have duly executed and
delivered to the Purchaser the amendment to the Shareholders Agreement.
3.16 Charter and By-Laws of the Company. The Articles of
----------------------------------
Incorporation and By-Laws of the Company, each as amended as of the Closing
Date, shall be in a form reasonably acceptable to the Purchaser.
3.17 No Litigation. No action, suit, proceeding, claim or dispute
-------------
shall have been brought or otherwise arisen at law, in equity, in arbitration or
before any Governmental Authority against the Company or any of its Subsidiaries
which would, if adversely determined, (i) have a material adverse effect on the
Condition of the Company or (ii) have a material adverse effect on the ability
of the Company to perform its obligations under this Agreement, the Preferred
Shares, the Registration Rights Agreement, the Warrants or the Shareholders
Agreement.
3.18 No Default or Breach. Neither the Company nor any of its
--------------------
Subsidiaries shall have been in default under or with respect to any Contractual
Obligation in any respect, which, individually or together with all such
defaults, would be materially adverse to the Condition of the Company or which
could materially adversely affect the
15
ability of the Company to perform its obligations under this Agreement, the
Preferred Shares, the Registration Rights Agreement, the Warrants or the
Shareholders Agreement.
3.19 HSR Act. If a filing under the HSR Act is required, the waiting
-------
period under the HSR Act with respect to the Preferred Shares to be acquired by
such Purchaser shall have expired or been terminated.
3.20 Sprint PCS Agreement. The Sprint PCS Agreement is in full force
--------------------
and effect and binding upon the parties thereto in accordance with its terms.
Neither the Company nor any of its Subsidiaries, nor to the knowledge of the
Company or its Subsidiaries, any other party to such agreement, is in material
default thereunder, nor does any condition exist that with notice or lapse of
time or both, would constitute a material default thereunder. Neither the
Company nor any of its Subsidiaries has any knowledge of any proposed, pending
or likely cancellation or termination of such agreement.
Article 4
CONDITIONS TO THE OBLIGATION
OF THE COMPANY TO CLOSE
------------------------------
The obligations of the Company to issue and sell the Preferred Shares
to the Purchaser, and to consummate the transactions contemplated herein on the
Closing Date with respect to the Purchaser, shall be subject to the satisfaction
or waiver of the following conditions on or before the Closing Date:
4.1 Representations and Warranties True. The representations and
-----------------------------------
warranties of the Purchaser contained in Article 6 hereof shall be true and
correct in all material respects at and as of the Closing Date as if made at and
as of such date.
4.2 Compliance with this Agreement. The Purchaser shall have
------------------------------
performed and complied with all of its agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by the
Purchasers on or before the Closing Date.
4.3 Issuance Permitted by Applicable Laws. The issuance of the
-------------------------------------
Preferred Shares and the consummation of the transactions contemplated hereby by
the Company: (a) shall not be prohibited by any applicable law or governmental
regulation; (b) shall not subject the Company to any penalty or, in its
reasonable judgment, other onerous condition under or pursuant to any applicable
law or governmental regulation; and (c) shall be permitted by the laws and
regulations of the jurisdictions in which is it subject.
4.4 Approval of Counsel to the Company. All actions and proceedings
----------------------------------
hereunder and all documents required to be delivered by the Purchaser hereunder
or in connection with the consummation of the transactions contemplated hereby,
and all other
16
related matters, shall have been reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel to the Company, as to their
form and substance.
4.5 Consents and Approvals. All consents, exemptions,
----------------------
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons necessary or required in connection
with the execution, delivery or performance by such Purchaser or enforcement
against such Purchaser of this Agreement shall have been obtained and be in full
force and effect, and the Company shall have been furnished with appropriate
evidence thereof.
4.6 HSR Act. If a filing under the HSR Act is required, the waiting
-------
period under the HSR Act with respect to the Preferred Shares to be acquired by
such Purchaser shall have expired or been terminated.
Article 5
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
-------------------------
The Company hereby represents and warrants to the Purchaser as
follows:
5.1 Corporate Existence and Power. The Company, and each of its
-----------------------------
Subsidiaries:
(a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization;
(b) has (i) full corporate (or other organizational) power and
authority and (ii) all governmental licenses, authorizations, consents and
approvals, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently, or is currently
proposed to be, engaged;
(c) is duly qualified as a foreign person, licensed and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification; and
(d) is in material compliance with all Requirements of Law;
except, in the case of (c) or (d) of this Section 5.1, to the extent that the
failure to do so would not have a material adverse effect on the Condition of
the Company.
5.2 Corporate Authorization; No Contravention. The execution,
-----------------------------------------
delivery and performance by the Company of this Agreement, the Registration
Rights Agreement, the Warrants, the Shareholders Agreement and the transactions
contemplated hereby and thereby,
17
including the issuance of the Preferred Shares and the Common Stock issuable
upon the conversion of the Preferred Shares or upon exercise of the Warrants:
(a) is within the Company's corporate power and authority and has
been duly authorized by all necessary corporate action;
(b) will not violate, conflict with or result in any breach or
contravention of or the creation of any Lien under, any Contractual Obligation
of the Company or any of its Subsidiaries, or any order or decree directly
relating to the Company or any of its Subsidiaries; and
(c) has been duly authorized by the Board of Directors of the
Company and no other corporate proceedings on the part of the Company or its
stockholders are necessary to authorize or approve the Agreement, the
Registration Rights Agreement, the Warrants, the Shareholders Agreement or the
transactions contemplated hereby and thereby.
5.3 Governmental Authorization; Third Party Consents. No approval,
------------------------------------------------
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person, is necessary or required
in connection with the execution, delivery or performance by the Company or
enforcement against the Company of this Agreement, the Preferred Shares, the
Registration Rights Agreement, the Warrants, the Shareholders Agreement or the
transactions contemplated hereby or thereby.
5.4 Binding Effect. This Agreement has been duly executed and
--------------
delivered by the Company, and at the Closing the Registration Rights Agreement
and the Preferred Shares will be duly executed and delivered by the Company.
This Agreement constitutes the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability. At the Closing, the Registration Rights
Agreement, the Preferred Shares, the Shareholders Agreement and, upon issuance
of Warrants in accordance with the terms of this Agreement, the Warrants will
each constitute the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except as enforcement may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
5.5 No Legal Bar. Neither the execution, delivery and performance of
------------
this Agreement, the Registration Rights Agreement, the Warrants and the
Shareholders Agreement nor the issuance or performance of the terms of the
Preferred Shares will violate any Requirement of Law or any Contractual
Obligation of the Company or any of its Subsidiaries.
18
5.6 Litigation.
----------
(a) There are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Company, threatened, at law, in equity,
in arbitration or before any Governmental Authority against the Company or any
of its Subsidiaries:
(i) with respect to this Agreement, the Preferred Shares,
the Registration Rights Agreement, the Warrants or the Shareholders Agreement or
any of the transactions contemplated hereby or thereby; or
(ii) which would, if adversely determined, (i) have a
material adverse effect on the Condition of the Company or (ii) have a material
adverse effect on the ability of the Company to perform its obligations under
this Agreement, the Preferred Shares, the Registration Rights Agreement, the
Warrants or the Shareholders Agreement.
(b) No injunction, writ, temporary restraining order, decree or
any order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery and
performance of this Agreement, the Preferred Shares, the Registration Rights
Agreement, the Warrants or the Shareholders Agreement.
5.7 No Default or Breach. No event has occurred and is continuing
--------------------
(or is likely to occur as a result of the Company entering into this
transaction) under this Agreement, the Discount Note Documents, the Preferred
Shares, the Registration Rights Agreement, the Warrants or the Shareholders
Agreement which constitutes a default under or breach of any of the provisions
of Article 8 or 9. Neither the Company nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any respect,
which, individually or together with all such defaults, would have a material
adverse effect on the Condition of the Company or on the ability of the Company
to perform its obligations under this Agreement, the Preferred Shares, the
Registration Rights Agreement, the Warrants or the Shareholders Agreement.
5.8 Title to Properties; Leases.
---------------------------
(a) The Company and its Subsidiaries have good indefeasible,
marketable and insurable title to all such Real Property (other than leasehold
real property) and good title to all of its other owned property and assets,
tangible and intangible (collectively, the "Assets") that are material to the
------
business of the Company and its Subsidiaries taken as a whole; all of the Assets
are so owned, in each case, free and clear of all Liens other than Liens granted
pursuant to the Credit Agreement and Liens granted by LA Unwired to the FCC in
connection with the procurement of certain Communication Licenses. All
improvements on the real property owned or leased by the Company and its
Subsidiaries are in material compliance with applicable zoning, building,
wetlands and land use laws, ordinances and regulations and applicable title
covenants, conditions, restrictions and
19
reservations in all respects necessary to conduct the business of the Company
and its Subsidiaries as presently conducted, or proposed to be conducted, on or
prior to the Closing Date. All such improvements comply in all material respects
with all Requirements of Law and Permits. All of the transmitting towers, ground
radials, guy anchors, transmitting buildings and related improvements, if any,
located on the real property owned or leased by the Company and the Company
Subsidiaries are located entirely on such real property or in areas where a
Subsidiary has a valid easement to locate such items. All such transmitting
towers, ground radials, guy anchors, transmitting buildings and related
improvements and other material items of personal property, including equipment,
are in a state of repair and maintenance and operating condition so as to permit
the business of the Company and its Subsidiaries to be operated in all material
respects in accordance with the terms and conditions of all applicable
Requirements of Law and Permits.
(b) Each Lease under which the Company or any of its
Subsidiaries holds real property constituting a part of the Assets is in full
force and effect, and the Company or such Subsidiary has a valid leasehold
interest in and enjoys peaceful and undisturbed possession or a valid easement
right under all Leases pursuant to which it holds any such real property,
subject to the terms of each Lease and applicable Requirements of Law. Neither
the Company nor, to the Company's knowledge, any other party thereto, has failed
to duly comply with all of the material terms and conditions of each such Lease
or has done or performed, or failed to do or perform (and no claim is pending
or, to the knowledge of the Company, threatened to the effect that the Company
has not so complied, done and performed or failed to do and perform) any act
which would invalidate or provide grounds for the other party thereto to
terminate (with or without notice, passage of time or both) such Leases or
impair the rights or benefits, or increase the costs, of the Company under any
of such Leases in any material respect.
5.9 Taxes. The Company and its Subsidiaries have filed or caused to
-----
be filed, or have properly filed extensions for, all income tax returns which
are required to be filed and have paid or caused to be paid all taxes as shown
on said returns and on all assessments received by it to the extent that such
taxes have become due, except taxes the validity or amount of which is being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside. The Company and its Subsidiaries have
paid or caused to be paid, or have established reserves that the Company
reasonably believes to be adequate for all income tax liabilities applicable to
the Company and its Subsidiaries for all fiscal years which have not been
examined and reported on by the taxing authorities (or closed by applicable
statutes).
5.10 Financial Condition. The Company heretofore has delivered to the
-------------------
Purchaser true and correct copies of audited consolidated financial statements
of the Company and its Subsidiaries as of December 31, 1997 (the "1997 Audited
Financials") and December 31, 1998 (the "1998 Audited Financials"), and the
unaudited consolidated financial statements of the Company and its Subsidiaries
as of September 30, 1999 (the "1999 Interim Financials"). The 1997 Audited
Financials, 1998 Audited Financials and 1999
20
Interim Financials have been prepared in accordance with GAAP applied
consistently and present fairly the consolidated financial condition of the
Company as of the dates thereof and the consolidated results of operations of
the Company for the period, or portion thereof, then ended (except in the case
of the 1999 Interim Financials, for normal year-end adjustment and the absence
of footnotes).
5.11 No Material Adverse Change. Since October 29, 1999 there has not
--------------------------
been any material adverse change, nor to the knowledge of the Company is any
such change threatened, in the Condition of the Company.
5.12 Offering Documents. The Offering Memorandum did not contain any
------------------
untrue statement of a material fact nor omit to state a material fact necessary
to make the statements when made, in the light of the circumstances under which
they were made, not misleading. The Revenues, Pre-corporate EBITDA and Ending
Subscribers (as those terms are used in the Offering Memorandum) as of December
31, 1998 and June 30, 1999, set forth in the "Certain Financial Information"
table in the Offering Memorandum are complete and accurate.
5.13 Environmental Matters.
---------------------
(a) Neither the Company nor any of its Subsidiaries is or has
been in violation in any material respect of any applicable Environmental Law.
(b) The Company and its Subsidiaries have all material Permits
required pursuant to Environmental Laws that are material to the conduct of the
business of the Company or any of its Subsidiaries, all such Permits are in full
force and effect, no action, cause of action, suit, claim, complaint, demand,
litigation or legal, administrative or arbitral proceeding or investigation to
revoke, limit or modify any of such Permits is pending and the Company and each
of its Subsidiaries is in compliance in all material respects with all terms and
conditions thereof.
(c) Neither the Company nor any of its Subsidiaries has
received, or will receive due to the consummation of this transaction, any
Environmental Claim.
(d) The Company and its Subsidiaries have filed all notices
required under Environmental Laws indicating the past or present Release,
generation, treatment, storage or disposal of Hazardous Substances.
(e) Neither the Company nor any of its Subsidiaries has
entered into any written agreement with any Governmental Authority or any other
Person by which the Company or any of the Subsidiaries has assumed
responsibility, either directly or as a guarantor or surety, for the remediation
of any condition arising from or relating to a Release or threatened Release of
Hazardous Substances into the environment.
21
(f) To the knowledge of the Company or any of its Subsidiaries,
there is not now and has not been at any time in the past a Release or
threatened Release of Hazardous Substances for which the Company or any of its
Subsidiaries may be directly or indirectly responsible individually, or together
with all such other Releases or threatened Releases, in an amount in excess of
$500,000.
5.14 Investment Company. Neither the Company nor any Person
------------------
controlling the Company is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.15 Affiliates and Subsidiaries. Schedule 5.15 sets forth a complete
---------------------------
and accurate list of all of the Affiliates and Subsidiaries of the Company
together with their respective jurisdictions of incorporation or organization
and the percentage ownership interests held in each such Affiliate or Subsidiary
by the Company or any other Person.
5.16 Capitalization. As of the date hereof, the authorized capital
--------------
stock of the Company consists of 100,000,000 shares of Class A Common Stock,
60,000,000 shares of Class B Common Stock and 40,000,000 shares of Preferred
Stock of which, as of the date hereof, no shares of Class A Common Stock,
11,250,000 shares of Class B Common Stock, and 500,000 shares of Preferred
Stock, Series A are issued and outstanding. Except as set forth on Schedule
5.16, there are no shares of capital stock of the Company reserved for issuance.
All of the outstanding shares of capital stock of the Company have been duly
authorized and are fully paid and non-assessable. The Preferred Shares, when
issued upon payment of the Purchase Price, and the shares of Class A Common
Stock when issued upon conversion of the Preferred Shares or upon exercise of
the Warrants, will be duly authorized, and, in each case, validly issued, fully
paid and nonassessable. Except for the Preferred Shares and the Warrants, the
Preferred Stock , Series A and related warrants and outstanding options to
purchase (i) an aggregate of 498,000 shares of Class A Common Stock at an
exercise price of $6.00 per share and (ii) an aggregate of 606,800 shares of
Class A Common Stock at an exercise price of $26.55 per share (the "Options"),
-------
there are no options, warrants or other rights to purchase shares of capital
stock or other securities of the Company, nor is the Company obligated in any
manner to issue shares of its capital stock or other securities. Except as
contemplated hereby and for relevant state and federal securities laws, there
are no restrictions on the transfer of shares of capital stock of the Company.
5.17 Solvency. On and as of the Closing Date, after giving effect to
--------
the transactions contemplated in this Agreement, the Company will be Solvent.
5.18 Private Offering. No form of general solicitation or general
----------------
advertising was used by the Company or, to its knowledge, its representatives in
connection with the offer or sale of the Preferred Shares. No registration of
the Preferred Shares pursuant to the provisions of the Securities Act or any
state securities or "blue sky" laws will be required by the offer, sale or
issuance of the Preferred Shares pursuant to this Agreement. The Company agrees
that neither it, nor anyone acting on its behalf, will offer or sell the
22
Preferred Shares or any other security so as to require the registration of the
Preferred Shares pursuant to the provisions of the Securities Act or any state
securities or "blue sky" laws, unless such Preferred Shares are so registered.
5.19 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable in connection
with the transactions contemplated hereby based on any agreement, arrangement or
understanding with the Company or any of its Subsidiaries, or any action taken
by any such entity.
5.20 Full Disclosure. No statement by the Company contained in this
---------------
Agreement or any other documents, certificates, notices or consents
(collectively, "Documents") delivered to the Purchaser in connection with the
---------
purchase and sale of the Preferred Shares at or prior to the Closing contains
(or will contain) an untrue statement of a material fact or omits (or will omit)
to state a material fact required to be stated therein or necessary to make the
statements made, in the light of the circumstances in which made, not materially
false or misleading.
5.21 No Undisclosed Financial Liabilities. Except as set forth on
------------------------------------
Schedule 5.21, the Company and its Subsidiaries, after giving effect to the
transactions contemplated hereby, will not have any material direct or indirect
indebtedness, liability (including, without limitation, product liability or
warranty claim), obligation, whether known or unknown, fixed or unfixed,
contingent or otherwise, and whether or not of a kind required by GAAP to be set
forth on a financial statement (collectively "Financial Liabilities"), other
---------------------
than (i) Liabilities fully and adequately reflected on the 1999 Interim
Financials, (ii) those incurred since September 30, 1999 in the ordinary course
of business, and (iii) Liabilities incurred pursuant to this Agreement, the
Credit Agreement, the Discount Note Documents, the Registration Rights
Agreement, the Warrants or the Shareholders Agreement.
5.22 Material Contracts. Neither the Company nor any of its
------------------
Subsidiaries, nor, to the knowledge of the Company or any of its Subsidiaries,
any other party to such contracts, agreements and commitments, is in default
under any material contract, agreement, or commitment, including the Sprint PCS
Agreement, nor does any condition exist that with notice or lapse of time, or
both, would constitute a default thereunder. Neither the Company nor any of its
Subsidiaries has any knowledge of any proposed, pending or likely cancellation
or termination of any such material contract, agreement or commitment.
5.23 Internal Controls. The Company and the Subsidiaries maintain a
-----------------
system of internal accounting controls sufficient to provide reasonable
assurances that: (a) transactions are executed in accordance with management's
general or specific authorization; (b) transactions are recorded as necessary
(i) to permit preparation of financial statements in conformity with generally
accepted accounting principles and (ii) to maintain accountability for assets;
(c) access to assets is permitted only in accordance with management's general
or specific authorization; and (d) the recorded accountability for assets
23
is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any material differences.
5.24 ERISA. Neither the Company nor any of the Subsidiaries has
-----
violated any provisions of ERISA, or the rules and regulations promulgated
thereunder, except for such violations which would not, individually or in the
aggregate, have a material adverse effect on the Condition of the Company. If
any plan subject to ERISA is adopted, the execution and delivery of this
Agreement and the sale of the Preferred Shares will not involve any non-exempt
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code.
5.25 Labor Relations. Except to the extent set forth in Schedule
---------------
5.29, (a) neither the Company nor any of its Subsidiaries is a party to any
collective bargaining agreement, (b) the Company and each of its Subsidiaries is
in compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, including but
not limited to, the Workers Adjustment and Retraining Notification Act, and
neither the Company nor any of its Subsidiaries is engaged in any unfair labor
practice, (c) there is no unfair labor practice complaint against the Company or
any of its Subsidiaries or pending before the National Labor Relations Board,
(d) there is no labor strike, dispute, slowdown or stoppage actually pending or,
to the best of the Company's or any Subsidiary's knowledge, threatened against
or affecting the Company or any of its Subsidiaries, (e) with respect to the
Company or any of its Subsidiaries, no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending or exists
and, to the best of the Company's or any Subsidiary's knowledge, no claim
therefor is threatened, and (f) neither the Company nor any of its Subsidiaries
has experienced any work stoppage or other labor difficulty since inception.
5.26 Personal Property. All Personal Property has been maintained in
-----------------
a manner consistent with the Company's past practices and with industry
standards, and the assets used in conjunction with the Communications Licenses
are sufficient to permit the Company to operate in accordance with the
Communications Act of 1934, as amended by the Telecommunications Act of 1996, as
amended (the "Communications Act") or the current rules, regulations and
------------------
policies of the FCC (the "FCC Rules") and with all other applicable Requirements
---------
of Law.
5.27 Intellectual Property. The Company or a Subsidiary has good and
---------------------
marketable title to all patents and trademarks, service marks, slogans, trade
names, logos, jingles, assumed names, fictional business names, copyrights,
licenses, permits and other similar intellectual property rights and interests
applied for, issued to or presently owned or used by the Company or any of its
Subsidiaries (other than programming and its contents used but not owned by the
Company or its Subsidiaries) which are material to the operation of its business
(together with the good will associated therewith, the "Intellectual Property"),
---------------------
free and clear of all Liens and, to the extent necessary, such Intellectual
Property has been duly registered in, filed in or issued by the United States
Copyright Office or the United
24
States Patent and Trademark Office, as appropriate, the appropriate offices in
the various states of the United States and the appropriate offices of such
other jurisdictions where such registration, filing or issuance is necessary to
protect such Intellectual Property from infringement and for the conduct of the
business of the Company and its Subsidiaries.
5.28 FCC Matters; Operation and Condition of the Systems.
---------------------------------------------------
(a) The Company and its Subsidiaries have all requisite power
and authority and hold all Communications Licenses required under the
Communications Act, the FCC Rules or other state or local laws or rules to own
and operate their properties and to carry on the business of the Company and its
Subsidiaries as now conducted. To the best of the Company's knowledge, the
Company and its Subsidiaries, together with Sprint PCS, hold all Communications
Licenses required under the Communications Act, the FCC Rules or other state or
local laws or rules to own and operate the properties and carry on the PCS
Services in the Company's market area.
(b) The Company and its Subsidiaries are not parties to, nor to
the best knowledge of the Company and each Subsidiary is there threatened, any
investigation, notice of apparent liability, violation, forfeiture or other
notice, order or complaint issued by or before any court or regulatory body,
including the FCC, or of any other proceeding (other than proceedings of general
applicability) that could in any manner threaten or adversely affect the
validity or continued effectiveness of the Communications Licenses of the
Company and its Subsidiaries, nor to the best knowledge of the Company.
(c) The Company and its Subsidiaries are in compliance with the
Communications Licenses, the Communications Act, the FCC Rules or other state or
local laws or rules in all material respects. The Company and its Subsidiaries,
in their ownership and operation of the business of the Company and the
Subsidiaries, are operating only those facilities for which an appropriate
license, waiver, consent, permit or other authorization has been obtained and is
in effect, and the Subsidiaries and the Company are meeting the conditions of
such Communications Licenses.
(d) The Company and the Subsidiaries are not aware of any
facts, and the Company and the Subsidiaries have received no notice or other
communication, indicating that the Company and the Subsidiaries, in their
ownership and operation of the business of the Company and the Subsidiaries, are
not in compliance with all requirements of (i) applicable FCC Rules or the
Communications Act, or (ii) applicable state and local statutes, regulations and
ordinances. Except as set forth on Schedule 5.32(f), neither the Company nor any
Subsidiary is aware of any facts, and the Company and the Subsidiaries have
received no notice or communication, formal or informal, indicating that the FCC
is considering modifying, revoking, suspending, canceling, rescinding or
terminating any Communications License.
25
(e) The Company and its Subsidiaries have all the licenses,
waivers, consents, permits or other authorizations issued or granted by the
relevant state authorities in connection with the ownership and operation of the
cellular, paging, PCS Services, LMDS, local exchange, long distance or Internet
services provided, or to be provided, by the Company and its Subsidiaries, and
for all communication sites to be constructed by the Company, the Company has or
will obtain all zoning and other municipal approvals necessary for the
construction of such sites, other than such zoning and approvals the failure of
which to obtain would not have a material adverse effect on the Condition of the
Company.
(f) No consent, waiver or other action of, or filing or
notification to, the FCC is required for the consummation of the transactions
contemplated hereby.
Article 6
REPRESENTATIONS AND WARRANTIES
AND COVENANTS OF THE PURCHASER
------------------------------
The Purchasers represents and warrants to, and covenants and agrees
with, the Company as follows:
6.1 Existence and Power. The Purchaser:
-------------------
(a) is duly organized and validly existing under the laws of the
jurisdiction of its organization; and
(b) has the power and authority to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently, or is currently proposed to be, engaged.
6.2 Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by the Purchaser of this Agreement:
(a) is within the Purchaser's power and authority and has been
duly authorized by all necessary action;
(b) does not contravene the terms of the Purchaser's
organizational documents or any amendment thereof; and
(c) will not violate, conflict with or result in any breach or
contravention of or the creation of any Lien under, any Contractual Obligation
of the Purchaser, or any order or decree directly relating to the Purchaser.
26
6.3 Binding Effect. This Agreement and, when executed by the Company
--------------
on the Closing Date, the Registration Rights Agreement and the Shareholders
Agreement have been duly executed and delivered by the Purchaser, and constitute
the legal, valid and binding obligations of the Purchaser enforceable against it
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
6.4 No Legal Bar. The execution, delivery and performance of this
------------
Agreement, the Registration Rights Agreement and the Shareholders Agreement will
not violate any Requirement of Law or any Contractual Obligation of the
Purchaser.
6.5 Purchase for Own Account. The Preferred Shares (including, for
------------------------
purposes of this Section 6.5, any Class A Common Stock issuable upon conversion
of the Preferred Shares or upon exercise of the Warrants) to be acquired by the
Purchaser pursuant to this Agreement are being acquired for its own account and
with no intention of distributing or reselling such securities or any part
thereof in any transaction that would be in violation of the securities laws of
the United States of America, or any state, without prejudice, however, to the
rights of the Purchaser at all times to sell or otherwise dispose of all or any
part of the Preferred Shares under an effective registration statement under the
Securities Act, or under an exemption from such registration available under the
Securities Act, and subject, nevertheless, to the disposition of the Purchaser's
property being at all times within its control. If the Purchaser should in the
future decide to dispose of any Preferred Shares, the Purchaser understands and
agrees that it may do so only in compliance with the Securities Act and
applicable state securities laws, as then in effect. If the Purchaser should
decide to dispose of any Preferred Shares, other than pursuant to the provisions
of the Registration Rights Agreement, the Purchaser, if requested by the
Company, will have the obligation in connection with such disposition, at the
Purchaser's expense, of delivering an opinion of counsel of recognized standing
in securities law, in connection with such disposition to the effect that the
proposed disposition of the Preferred Shares would not be in violation of the
Securities Act or any applicable state securities laws and, assuming such
opinion is required and is otherwise appropriate in form and substance under the
circumstances, the Company will accept, and will recommend to any applicable
transfer agent or trustee for any of the Preferred Shares that it accept, such
opinion. The Purchaser agrees to the imprinting, so long as required by law, of
a legend on certificates representing all of the Preferred Shares and the shares
of Common Stock issued on conversion thereof or upon exercise of the Warrants
substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
27
STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
6.6 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable in connection
with the transactions contemplated hereby based on any agreement, arrangement or
understanding with the Purchaser or any action taken by the Purchaser.
Article 7
INDEMNIFICATION
---------------
7.1 Indemnification by the Company. In addition to all other sums due
------------------------------
hereunder or provided for in this Agreement, the Company agrees to indemnify and
hold harmless the Purchaser and its Affiliates and their respective officers,
directors, agents, employees, subsidiaries, partners and controlling persons
(each, an "Indemnified Party") to the fullest extent permitted by law from and
-----------------
against any and all losses, claims, damages, expenses (including reasonable
fees, disbursements and other charges of counsel) or other liabilities
("Liabilities") resulting from any breach of any covenant, agreement,
-----------
representation or warranty of the Company in this Agreement or any legal,
administrative or other actions (including actions brought by the Company or any
equity holders of the Company or derivative actions brought by any Person
claiming through the Company or in the Company's name), proceedings or
investigations (whether formal or informal), or written threats thereof, based
upon, relating to or arising out of this Agreement, the Preferred Shares, the
Registration Rights Agreement, the Warrants, and the Shareholders Agreement or
the transactions contemplated hereby or thereby, or any Indemnified Party's role
therein or in the transactions contemplated hereby or thereby; provided,
--------
however, that the Company shall not be liable under this Section 7.1: (a) for
-------
any amount paid in settlement of claims without the Company's consent (which
consent shall not be unreasonably withheld or delayed), or (b) to the extent
that it is finally judicially determined that such Liabilities resulted
primarily from the willful misconduct, bad faith or gross negligence of such
Indemnified Party; provided, further, that if and to the extent that such
-------- -------
indemnification is unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of such indemnified
liability permissible under applicable laws. In connection with the obligation
of the Company to indemnify for expenses as set forth above, the Company further
agrees promptly to reimburse each Indemnified Party for all such expenses
(including reasonable fees, disbursements and other charges of counsel) as such
expenses are incurred by such Indemnified Party; provided, however, that if an
-------- -------
Indemnified Party is reimbursed hereunder for any expenses, such reimbursement
of expenses shall be refunded promptly to the Company to the extent it is
finally judicially determined that the Liabilities in question resulted
primarily from the willful misconduct, bad faith or gross negligence of such
Indemnified Party.
28
7.2 Notification. Each Indemnified Party under this Article 7 will,
------------
promptly after the receipt of notice of the commencement of any action or other
proceeding against such Indemnified Party in respect of which indemnity may be
sought from the Company under this Article 7, notify the Company in writing of
the commencement thereof. The failure of any Indemnified Party to so notify the
Company of any such action shall not relieve the Company from any liability
which it may have to such Indemnified Party (a) other than pursuant to this
Article 7, or (b) under this Article 7 unless, and only to the extent that, such
omission results in the Company's forfeiture of substantive rights or defenses.
In case any such action or other proceeding shall be brought against any
Indemnified Party and it shall notify the Company of the commencement thereof,
the Company shall be entitled to participate therein and, to the extent that it
may wish, to assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party; provided, however, that any Indemnified Party may, at
-------- -------
its own expense, retain separate counsel to participate in such defense.
Notwithstanding the foregoing, in any action or proceeding in which both the
Company and an Indemnified Party is, or is reasonably likely to become, a party,
such Indemnified Party shall have the right to employ separate counsel at the
Company's expense and to control its own defense of such action or proceeding
if, in the reasonable opinion of counsel to such Indemnified Party, (a) there
are or may be legal defenses available to such Indemnified Party or to other
indemnified parties that are different from or additional to those available to
the Company, or (b) any conflict or potential conflict exists between the
Company and such Indemnified Party that would make such separate representation
advisable; provided, however, that in no event shall the Company be required to
-------- -------
pay fees and expenses under this Article 7 for more than one firm of attorneys
in any jurisdiction in any one legal action or group of related legal actions.
The Company agrees that the Company will not, without the prior written consent
of the Purchaser, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding relating to the matters
contemplated hereby (if any Indemnified Party is a party thereto or has been
actually threatened to be made a party thereto) unless such settlement,
compromise or consent includes an unconditional release of the Purchaser and
each other Indemnified Party from all liability arising or that may arise out of
such claim, action or proceeding. The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may have
at common law, by separate agreement or otherwise.
7.3 Registration Rights Agreement. Notwithstanding anything to the
-----------------------------
contrary in this Article 7, the indemnification and contribution provisions of
the Registration Rights Agreement shall govern any claim made with respect to
registration statements filed pursuant thereto or sales made thereunder.
29
Article 8
AFFIRMATIVE COVENANTS
---------------------
The Company hereby covenants and agrees (a) with the Purchaser, with
respect to all of this Article 8, and (b) with any other Holder, with respect to
all of this Article 8 except Sections 8.1(c), (d) and (e), 8.8, and 8.9:
8.1 Financial Statements. The Company shall promptly deliver to the
--------------------
Purchaser and (except with respect to Section 8.1(c), (d) and (e)) any other
Holder:
(a) as soon as available, but not later than ninety (90) days
after the end of each fiscal year of the Company, a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income and cash
flows for such fiscal year, setting forth, in each case, in comparative form,
the figures for the previous year, all in reasonable detail and accompanied by a
management discussion and analysis of the operations of the Company and its
Subsidiaries for such fiscal year and by the opinion of Ernst & Young (or any
successor thereto) or another nationally recognized independent public
accounting firm, which report shall state that such consolidated financial
statements present fairly the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with respect to which such accounting firm concurs); provided, however,
-------- -------
that the delivery of a copy of the Company's Annual Report on Form 10- K shall
satisfy the requirements of this Section 8.1(a);
(b) commencing with the fiscal period ending on March 31, 2000
as soon as available, but in any event not later than forty-five (45) days after
the end of each of the first three fiscal quarters of each year, the unaudited
consolidated balance sheet of the Company and its Subsidiaries, and the related
consolidated statements of income and cash flow for such quarter and for the
period commencing on the first day of the fiscal year and ending on the last day
of such quarter, all certified by an appropriate officer of the Company;
provided, however that the delivery of a copy of the Company's Quarterly Report
-------- -------
on Form 10-Q shall satisfy the requirements of this Section 8.1(b);
(c) commencing with the month ending on March 31, 2000 as soon
as available, but in any event not later than thirty (30) days after the end of
each month, the unaudited monthly and year-to-date financial statements setting
forth, in each case, in comparative form, the figures for the previous year and
the budget figures, all certified by an appropriate officer of the Company;
(d) as soon as available and in any event not later than thirty
(30) days prior to the end of each fiscal year, the budget of the Company and
its Subsidiaries for the next succeeding fiscal year, including cash flow
projection and operating budget, calculated monthly, and, as soon as available,
any updates or revisions to such financial plan;
30
(e) annual budgets and such other financial and operating data
of the Company and its Subsidiaries, as the Purchaser reasonably may request, to
the extent that such information is formally prepared for the Company's
Chairman, President, Board of Directors, banks, other lenders, holders of
securities of the Company, the Commission or the financial community;
(f) at any time when it is not subject to Section 13 or 15(d) of
the Exchange Act, upon request, to the Purchaser and prospective purchasers of
the Preferred Shares, information of the type that would satisfy the requirement
of subsection (d)(4)(i) of Rule 144A (or any similar successor provision) under
the Securities Act; and
(g) except as otherwise provided in Section 8.1(a) and (b),
promptly after the same are filed, copies of all Commission Documents.
8.2 Certificates; Other Information. The Company shall furnish to
-------------------------------
the Purchaser and to any other Holder:
(a) concurrently with the delivery of the financial statements
referred to in Section 8.1(a) or 8.1(b), a certificate of the Company's Chief
Financial Officer stating that to the best of knowledge of such officer there is
no default under or breach of Articles 8 and 9, except as specified in such
certificates; and
(b) promptly upon receipt, copies of all accountants' management
letters and all certificates relating to compliance, defaults, material
litigation, and other material adverse changes.
8.3 Preservation of Corporate Existence. The Company shall:
-----------------------------------
(a) preserve and maintain in full force and effect its corporate
or organizational existence and good standing under the laws of its jurisdiction
of incorporation or organization, except as permitted by Section 9.1;
(b) preserve and maintain in full force and effect all material
rights, privileges, qualifications, licenses and franchises necessary in the
normal conduct of its business; and
(c) use its reasonable efforts to preserve its business
organization.
8.4 Payment of Obligations. The Company shall, and shall cause each
----------------------
of its Subsidiaries to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by
31
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary;
(b) all lawful claims which the Company and each of its
Subsidiaries is obligated to pay, which are due and which, if unpaid, might by
law become a Lien upon its property, unless the same are being contested in good
faith by appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary; and
(c) all payments of principal of and interest on Indebtedness
when due (giving effect to any grace periods relating thereto).
8.5 Compliance with Laws. The Company shall comply, and shall cause
--------------------
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law and with the directions of any Governmental Authority having
jurisdiction over it or its business, except the failure to so comply would not
have a material adverse effect on the Condition of the Company.
8.6 Notices. Upon knowledge of the Chief Executive Officer, the
-------
President or the Chief Financial Officer of the Company of the events described
below, the Company shall give written notice within 15 days to the Purchaser of
any (a) material default or event of default under any material Contractual
Obligation of the Company or any of its Subsidiaries, or (b) material dispute,
litigation, investigation, proceeding or suspension which may exist at any time
against the Company, any of its Subsidiaries, or any of its or their assets, in
each case accompanied by a statement setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take with
respect thereto.
8.7 Reservation of Shares. The Company shall at all times (i) reserve
---------------------
and keep available out of its authorized Class A Common Stock, solely for the
purpose of issue or delivery upon conversion of the Preferred Shares, and (ii)
keep available out of its authorized Class A Common Stock, solely for the
purpose of issue or delivery upon exercise of the Warrants as provided in the
Charter Amendment and the Warrants, such number of shares of Class A Common
Stock as shall then be issuable or deliverable upon the conversion of all
outstanding Preferred Shares and upon the exercise of all outstanding Warrants.
Such shares of Class A Common Stock shall, when issued or delivered in
accordance with the Charter Amendment or Warrants, be duly and validly issued
and fully paid and non-assessable. The Company shall issue the Class A Common
Stock into which the Preferred Shares are convertible or Warrants are
exercisable upon the proper surrender of the Preferred Shares in accordance with
the provisions of the Charter Amendment or the Warrants and shall otherwise
comply with the terms thereof.
8.8 Inspection. The Company will permit, and will cause each of its
----------
Subsidiaries to permit, representatives of the Purchaser to visit and inspect
any of its properties, to examine its corporate, financial and operating records
and make copies thereof
32
or abstracts therefrom, and to discuss its affairs, finances and accounts with
their respective directors, officers and independent public accountants, all at
such reasonable times during normal business hours and as often as may be
reasonably requested, upon reasonable advance notice to the Company, and all at
the expense of the Purchaser.
8.9 Registration and Listing. If any shares of Class A Common Stock
------------------------
required to be reserved for purposes of conversion of the Preferred Shares or
exercise of the Warrants, as provided in the Charter Amendment or the Warrants,
require registration with or approval of any Governmental Authority under any
Federal or state or other applicable law before such Class A Common Stock may be
issued or delivered upon conversion or exercise, the Company will endeavor in
good faith and as expeditiously as possible to cause such Class A Common Stock
to be duly registered or approved, as the case may be, unless such registration
or approval is required solely because of a breach of the Purchaser's
representation contained in Section 6.5. In the event that the Class A Common
Stock is quoted or listed on any national securities exchange, the Company, if
permitted by the rules of such system or exchange, will quote or list and keep
quoted or listed on such exchange, upon official notice of issuance, all Class A
Common Stock issuable or deliverable upon conversion of the Preferred Shares or
upon exercise of the Warrants. In addition, at the request of the Purchaser, the
Company will endeavor in good faith and as expeditiously as possible, to use its
best efforts to obtain private placement numbers for the Preferred Shares and
the Class A Common Stock issued upon conversion of the Preferred Shares or upon
exercise of the Warrants, assigned by the CUSIP Service Bureau of Standard &
Poor's ratings group and make such securities PORTAL and DTC eligible.
8.10 Sprint PCS Agreement. The Company shall notify the Purchaser as
--------------------
soon as possible of (a) any material change or development, or threatened
material change or development, with respect to the Sprint PCS Agreement or with
respect to the transactions contemplated by the Sprint PCS Agreement, or (b) any
material adverse change in the Company's or any Subsidiary's relationship with
Sprint PCS.
Article 9
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees with the Purchaser and each
Holder that so long as any Preferred Shares are outstanding:
9.1 Consolidations and Mergers. The Company shall not merge,
--------------------------
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whenever acquired), and the Company shall not allow any of
its Subsidiaries to merge or consolidate with or into any other Person except
the Company or another Subsidiary of the Company, except the Company may
consolidate or merge with or into, or sell all or substantially all of its
assets to, any Person if:
33
(a) The corporation or partnership formed by such consolidation
or surviving such merger or the Person which acquires all or substantially all
of the assets of the Company shall be (after giving effect to such transaction)
a Solvent corporation or partnership organized or formed, as the case may be,
and existing under, the laws of the United States, any state thereof, or the
District of Columbia, and shall expressly assume in writing all of the
obligations of the Company under this Agreement, the Preferred Shares, the
Registration Rights Agreement, the Warrants and the Shareholders Agreement;
(b) immediately after giving effect to such transaction, no
default under, or breach of, the provisions of Articles 8 and 9 exists;
(c) the corporation or partnership formed by or surviving any
such transaction or the Person which acquires all or substantially all of the
assets of the Company shall have a Consolidated Net Worth at least equal to the
Consolidated Net Worth of the Company immediately prior to such transaction; and
(d) the Company shall have furnished to the Holders (i) an
opinion of counsel satisfactory to a majority in interest of the holders of
Preferred Stock addressing the matters (other than Solvency) set forth in clause
(a) above, and (ii) a certificate of the Chief Financial Officer of the Company
to the effect that such transaction has been consummated in compliance with the
foregoing requirements; provided that nothing in this Section 9.1 shall affect
the rights of any Holder under this Agreement, the Preferred Shares, the
Registration Rights Agreement, the Warrants and the Shareholders Agreement.
9.2 Transactions with Affiliates. Except as described in the
----------------------------
Offering Memorandum under the caption "Certain Relationships and Related
Transactions -- Affiliate Transactions", the Company shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction with any Affiliate
of the Company or of any such Subsidiary, unless such transaction is on terms no
less favorable to the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time of such transaction in an arm's- length
transaction with a Person that is not an Affiliate of the Company or of such
Subsidiary. The Company shall not, and shall not permit any of its Subsidiaries
to, amend or modify any material provision of any existing contract, agreement
or commitment, whether written or oral, between the Company or any of its
Subsidiaries, on the one hand, and an Affiliate of the Company or of any such
Subsidiary, on the other hand, unless such amendment or modification is on terms
no less favorable to the Company or such Subsidiary as would be obtainable by
the Company or such Subsidiary at the time of such amendment or modification in
an arm's-length transaction with a Person that is not an Affiliate of the
Company or of such Subsidiary.
9.3 No Inconsistent Agreements. Neither the Company nor any of its
--------------------------
Subsidiaries shall enter into any loan or other agreement, or enter into any
amendment or other modification to any currently existing agreement, which by
its terms restricts or prohibits the ability of the Company to issue Common
Stock upon conversion of the
34
Preferred Shares or upon exercise of the Warrants in accordance with the Charter
Amendment, the Warrants and this Agreement, or to perform its obligations under
this Agreement, the Registration Rights Agreement, the Warrants and the
Shareholders Agreement.
9.4 LEC Unwired. Notwithstanding any other provision of this
-----------
Agreement, the Company's Articles of Incorporation, the Registration Rights
Agreement, the Shareholders Agreement or any other agreement to the contrary,
the Company shall be entitled to distribute, spin-off, or otherwise transfer its
shares of LEC Unwired through a dividend or other method to the Company's
shareholders without any notice to, consent from, or payment to any Holder.
Article 10
DISPOSITIONS
------------
10.1 Dispositions by the Purchaser.
-----------------------------
(a) In the event that, prior to an IPO, the Purchaser shall
desire to sell or otherwise transfer any of the Preferred Shares, the Purchaser
shall give the Company written notice of its desire to sell such securities,
which notice shall specify (i) the number of such securities the Purchaser
desires to sell, (ii) the price at, and the terms and conditions on, which the
Purchaser desires to sell such securities, and (iii) the identity of all Persons
whom the Purchaser intends to contact in connection with the proposed sale (the
"Contact List"), and the Purchaser shall offer to sell such securities to the
------------
Company at such price and on such terms and conditions. If, within thirty (30)
days of receiving such notice, the Company does not accept such offer in
writing, the Purchaser shall be free for a period of six months to enter into a
definitive agreement to sell such securities to any Person on the Contact List
at a price not less than the price offered to the Company, and on terms and
conditions substantially equivalent to those offered to the Company. If the
Purchaser does not sell such securities in such a manner within such six-month
period, the Purchaser may not thereafter sell or transfer such securities
without again complying with the provisions of the first sentence of this
Section 10.1(a). If, within the thirty-day period specified in the preceding
sentence, the Company does accept such offer in writing, then the Company shall
purchase such securities as promptly as is reasonably practicable, but in no
event later than thirty (30) days following such acceptance. If, after such
acceptance, the Company for whatever reason fails to purchase such securities on
or prior to the date specified in the preceding sentence, the Purchaser may,
among other remedies available to it, sell such securities to any Person on the
Contact List at any price and on any terms.
(b) Notwithstanding anything in this Section 10.1 to the
contrary, the Purchaser may, at any time and from time to time, sell or
otherwise transfer Common Stock or Preferred Shares (i) pursuant to an exchange
offer or a tender offer not opposed by a majority of the Company's Board of
Directors, (ii) pursuant to any all cash tender offer
35
made by any Person for all of the issued and outstanding Common Stock, (iii)
pursuant to the Registration Rights Agreement, (iv) to any of the Purchaser's
Affiliates, or (v) to the Purchaser's limited partners, if any, pursuant to a
pro rata distribution; provided, however, that any Affiliates (or limited
-------- -------
partners, if any) of the Purchaser to which such securities are transferred
shall agree to be bound by all of the transfer restrictions set forth in this
Section 10.1.
(c) Except as otherwise provided in Section 10.1(b), any
securities transferred by the Purchaser shall not thereafter be subject to the
provisions of this Section 10.1.
10.2 Equity Put Option.
-----------------
(a) If the holders of a majority of the Preferred Stock, Series
A require the Company to redeem their shares of Preferred Stock, Series A
pursuant to Section 10.2 of the Fund Securities Purchase Agreement, all Holders
of the Preferred Shares (the "Participating Holders") shall by written notice to
the Company (a "Demand Notice"), require the Company to redeem all of the then
-------------
outstanding Preferred Shares at a redemption price per share of Common Stock
into which such Preferred Shares are convertible at the time of redemption equal
to the Put Price (it being understood that Preferred Stock, Series A is
convertible into Class A or Class B Common Stock depending on who the holder is
and Preferred Stock, Series B is convertible into Class A Common Stock;
provided, however, that the right to require redemption pursuant to this Section
-------- -------
10.2 shall expire and be of no further force or effect following the
consummation of an IPO. Notice of a request for redemption pursuant to this
Section 10.2 shall be sent in accordance with Section 11.2 of this Agreement.
The Company shall redeem the Preferred Stock required to be redeemed pursuant to
such Demand Notice no later than ninety (90) days after the Per Share Equity
Value is determined in accordance with Section 10.2(c), but in no event later
than the 180th day after the Company receives such Demand Notice (the
"Redemption Date"). In the event that the Company redeems less than all of the
---------------
Preferred Stock required to be redeemed pursuant to such Demand Notice,
redemption pursuant to this Section 10.2 shall be pro rata among the
Participating Holders. On or prior to the Redemption Date, each Participating
Holder shall be entitled to receive payment of the Per Share Equity Value for
each of the Preferred Shares such Participating Holder required be redeemed on
the Redemption Date, in immediately available funds upon actual delivery to the
Company or its transfer agent of such Preferred Share certificates.
Notwithstanding anything to the contrary in this Section, in the event the
Company fails to redeem any Preferred Stock required to be redeemed pursuant to
a Demand Notice on the Redemption Date solely as a result of the terms of any
Indebtedness for borrowed money of the Company prohibiting such redemption and
the Company is unable to obtain waivers to such prohibition or to refinance such
Indebtedness (a "Prohibitive Event"), then the Company shall pay such amount as
-----------------
soon as possible, but the Participating Holders' sole remedy for such failure
shall be pursuant to Section 10.2(b); provided that the Company shall use its
commercially reasonable efforts to obtain waivers to the terms of any
Indebtedness for borrowed money of the Company prohibiting such
36
redemption or to refinance such Indebtedness. If the Company fails to redeem any
of the Preferred Stock required to be redeemed pursuant to a Demand Notice for
any reason other than a Prohibitive Event, the Participating Holders shall be
entitled to take any and all remedies hereunder and at law or in equity.
(b) If, on or before the Redemption Date, the Company has not
redeemed in full all of the Preferred Shares required to be redeemed by such
date pursuant to Section 10.2(a) because of a Prohibitive Event, the Company
shall issue to each such Participating Holder of Preferred Shares Warrants
immediately exercisable into that number of shares of Class A Common Stock equal
to five percent (5%) of the number of shares of Class A Common Stock to which
such Participating Holder would be entitled if such Participating Holder were to
convert all of the shares of Preferred Shares held by such Holder on the
Redemption Date (after taking into account any Preferred Shares redeemed on such
date) into shares of Class A Common Stock. For every six-month period following
the Redemption Date during which the Company fails to redeem in full all of the
Preferred Shares such Participating Holders required to be redeemed pursuant to
a Demand Notice because of a Prohibitive Event, the Company shall issue
additional Warrants to each such Participating Holder on the final day of such
six-month period, which Warrants shall be immediately exercisable into that
number of shares of Class A Common Stock equal to five percent (5%) of the
number of shares of Class A Common Stock to which such Participating Holder
would be entitled if such Participating Holder were to convert all of its
Preferred Shares held by it on the first day of such six-month period (after
taking into account all redemptions of Preferred Stock on or prior to such date)
into shares of Class A Common Stock on such date.
(c) The "as if fully distributed value" (as that term is used in
the definition of Per Share Equity Value) shall be the value determined under
the Fund Securities Purchase Agreement.
(d) If the Company fails to redeem any Preferred Stock on the
Redemption Date required to be redeemed pursuant to a Demand Notice, at the
request of the Participating Holders holding a majority of the Preferred Stock
which had been included in such demand but which are still outstanding, the Per
Share Equity Value of the shares of Common Stock (Class A or Class B, as
applicable) into which such shares of Preferred Stock are exercisable shall be
redetermined as of one or more dates after the Redemption Date in accordance
with the definition thereof and Section 10.2(c) until all the shares of
Preferred Stock required to be redeemed are redeemed in full; provided that in
--------
no event shall the appraisal process set forth in Section 10.2(c) occur more
than once every six months.
37
Article 11
MISCELLANEOUS
11.1 Survival of Provisions. All warranties, representations,
----------------------
covenants and agreements made by the Company in or under this Agreement shall be
considered to have been relied upon by the Purchaser and shall survive the
execution and delivery of this Agreement and the issuance to the Purchaser of
the Preferred Shares, regardless of any investigation made by or on behalf of
the Purchaser. All warranties, representations and covenants made by the
Purchaser shall survive the execution and delivery of this Agreement and the
issuance to the Purchaser of the Preferred Shares. Except as otherwise set forth
in Articles 8 or 9, all of the representations and warranties made herein and
each of the provisions of Articles 5, 6, 7, 10 and 11 shall survive the
execution and delivery of this Agreement, any investigation by or on behalf of
the Purchaser or any Affiliate, acceptance of the Preferred Shares and payment
therefor, payment or prepayment of the Preferred Shares upon redemption or
otherwise, conversion of the Preferred Shares or termination of this Agreement;
provided that the representations and warranties set forth in Articles 5 and 6
shall expire and terminate upon the conversion of all of the Preferred Shares
into Common Stock.
11.2 Notices. All notices, demands and other communications provided
-------
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(a) if to the Purchaser at the following address:
TCW/Crescent Mezzanine
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
38
(b) if to the Company at the following address:
US Unwired Inc.
Hibernia Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: (i) when delivered by hand, if personally delivered; (ii) when delivered
by courier, if delivered by commercial overnight courier service; (iii) five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
(iv) when receipt is acknowledged, if telecopied.
11.3 Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and permitted assigns of the parties
hereto. The Purchaser may assign any of its rights under this Agreement, the
Preferred Shares, the Registration Rights Agreement, the Warrants or the
Shareholders Agreement to any of its Affiliates. Subject to the restrictions of
this Agreement, the Purchaser may assign any of its rights under this Agreement
(other than those set forth in Section 8.1(c), (d) or (e), or 8.9) or the
Preferred Shares, or a portion thereof to any other Holder. The Company may not
assign any of its rights under this Agreement without the written consent of the
Purchaser. Except as provided in Article 7 and this Section 11.3, no Person
other than the parties hereto is intended to be a beneficiary of this Agreement.
11.4 Amendment and Waiver. No failure or delay on the part of the
--------------------
Company or the Purchaser in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Company or the Purchaser at law, in equity or otherwise. Any
amendment, supplement, modification or termination of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Company from the terms of any provision of this
Agreement, shall be effective only in the specific instance and for the specific
purpose for which made or given
39
and shall be effective only when signed in writing by or on behalf of holders of
at least two- thirds of the Common Stock issued and issuable upon conversion of
the Preferred Stock, Series A and Preferred Stock, Series B, collectively
(whether or not converted), it being understood that the terms of this Agreement
may be waived or amended with the written consent of holders of at least two-
thirds of the Common Stock issued and issuable upon conversion of the Preferred
Stock, Series A and Preferred Stock, Series B, collectively (whether or not
converted). Except where notice is specifically required by this Agreement, no
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances.
11.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
11.6 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
11.7 Determinations. Except where any provision expressly requires
--------------
that a determination be reasonable or a consent not be unreasonably withheld, or
be subject to qualifications to similar effect, all determinations to be made by
the Company, the Purchaser or any Holder hereunder in its opinion or judgment or
with its approval or otherwise shall be made by it in its sole discretion.
11.8 Governing Law. This Agreement has been negotiated, executed and
-------------
delivered in the State of New York and shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
11.9 Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
11.10 Rules of Construction. Unless the context otherwise requires,
---------------------
(a) "or" is not exclusive, (b) references to Articles, Sections or subsections
refer to Articles, Sections or subsections of this Agreement, and (c) the words
"include," "includes" and "including" do not limit the preceding words or terms
and shall be deemed to be followed by the words "without limitation."
11.11 Remedies. If a breach of this Agreement or the Charter Amendment
--------
by the Company occurs and is continuing, any Holder may pursue any available
remedy by proceeding at law or in equity to enforce the performance (including
specific performance)
40
of any provision of this Agreement or the Charter Amendment. A Holder may
maintain a proceeding even if it does not possess any of the Preferred Shares or
does not produce any of them in the proceeding. Except as otherwise provided by
law, a delay or omission by any Holder in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
11.12 Entire Agreement. This Agreement, together with the Exhibits and
----------------
Schedules hereto, the Charter Amendment, the Registration Rights Agreement, the
Warrants and the Shareholders Agreement, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein or therein. This Agreement, together with the Exhibits and Schedules
hereto, the Charter Amendment, the Registration Rights Agreement, the Warrants,
and the Shareholders Agreement supersede all prior agreements and understandings
between the parties with respect to such subject matter.
11.13 Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, the Charter Amendment, the Registration Rights
Agreement, the Warrants and the Shareholders Agreement or any other document or
instrument contemplated hereby or thereby, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees, charges and disbursements in addition to
any other available remedy.
11.14 Publicity. If any announcement is required by law to be made by
---------
any party hereto, prior to making such announcement such party will deliver a
draft of such announcement to the other parties and shall give the other parties
an opportunity to comment thereon.
11.15 Expenses. Each party shall bear their own expenses, including
--------
legal fees, incurred in connection with the consummation of the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective representatives hereunto duly
authorized as of the date first above written.
US UNWIRED INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
TCW Leveraged Income Trust, L.P.
By: TCW Investment Management Company, as investment Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: TCW Advisors (Bermuda), Ltd., as general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
TCW Leveraged Income Trust II, L.P.
By: TCW Investment Management Company, as Investment Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: TCW (▇▇▇▇ ▇▇), L.P., as general partner
By: TCW Advisors (Bermuda), Ltd., as its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
TCW Shared Opportunity Fund III, L.P.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
Shared Opportunity Fund IIB, LLC
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
TCW Shared Opportunity Fund II, L.P.
By: TCW Investment Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.
its general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.
its general partner
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ UNIVERSITY THIRD CENTURY FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
its Investment Advisor
