EXHIBIT 10.14.1
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PREFERRED STOCK PURCHASE AGREEMENT
by and between
AT&T WIRELESS PCS INC.
and
TELECORP PCS, INC.
Dated as of May 24, 1999
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................................... 2
ARTICLE II PURCHASE PRICE; PURCHASE AND SALE OF SECURITIES; CERTAIN RESTRICTIONS ON TRANSFER..... 5
2.1. Investor Purchase Price.......................................................... 5
2.2. Purchase and Sale of Securities at Closing....................................... 5
2.3. Restrictive Legends.............................................................. 5
2.4. Use of Proceeds.................................................................. 6
ARTICLE III CLOSING............................................................................... 6
3.1. Time and Place of Closing........................................................ 6
3.2. Closing Actions and Deliveries................................................... 6
3.3. Closing Costs; Taxes and Fees.................................................... 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF INVESTOR............................................ 7
4.1. Organization, Power and Authority................................................ 7
4.2. Consents; No Conflicts........................................................... 8
4.3. Litigation....................................................................... 8
4.4. Brokers.......................................................................... 8
4.5. No Distribution.................................................................. 8
4.6. Investor Acknowledgments......................................................... 8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................................... 9
5.1. Organization, Power and Authority................................................ 9
5.2. Consents; No Conflicts........................................................... 10
5.3. Litigation....................................................................... 10
5.4. Brokers.......................................................................... 11
5.5. [Capitalization.................................................................. 11
5.6. Shares........................................................................... 11
5.7. Offering of Securities........................................................... 11
ARTICLE VI COVENANTS............................................................................. 12
6.1. Consummation of Transactions..................................................... 12
6.2. Use of Proceeds.................................................................. 12
6.3. Restated Certificate............................................................. 12
6.4. Offering of Securities........................................................... 12
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ARTICLE VII CLOSING CONDITIONS.................................................................... 12
7.1. Conditions to Obligations of All Parties......................................... 12
7.2. Conditions to Obligations of the Company......................................... 13
7.3. Conditions to the Obligations of the Investors................................... 14
ARTICLE VIII SURVIVAL AND INDEMNIFICATION.......................................................... 14
8.1. Survival......................................................................... 14
8.2. Indemnification by the Investor.................................................. 15
8.3. Indemnification by the Company................................................... 15
8.4. Procedures....................................................................... 16
8.5. Registration Rights.............................................................. 17
ARTICLE IX TERMINATION........................................................................... 17
9.1. Termination...................................................................... 17
9.2. Effect of Termination............................................................ 17
ARTICLE X MISCELLANEOUS PROVISIONS.............................................................. 17
10.1. Amendment and Modification....................................................... 17
10.2. Waiver of Compliance; Consents................................................... 17
10.3. Notices.......................................................................... 18
10.4. Parties in Interest; Assignment.................................................. 18
10.5. Applicable Law................................................................... 18
10.6. Counterparts..................................................................... 19
10.7. Interpretation................................................................... 19
10.8. Entire Agreement................................................................. 19
10.9. Publicity........................................................................ 19
10.10. Specific Performance............................................................. 19
10.11. Remedies Cumulative.............................................................. 19
10.12. Severability..................................................................... 19
10.13. Beneficiaries of Agreement....................................................... 20
10.14. Stock Valuation.................................................................. 20
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SCHEDULES
Schedule I -- Capitalization
Schedule 4.2 -- Investor Consents
Schedule 5.2 -- Company Consents
Schedule 5.5 Outstanding Options, Warrants, etc.
Schedule 5.8 -- Subsidiaries of the Company
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PREFERRED STOCK PURCHASE AGREEMENT
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PREFERRED STOCK PURCHASE AGREEMENT, dated as of May 24, 1999, by and
between AT&T Wireless PCS Inc., a Delaware corporation (the "Investor") and
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TeleCorp PCS, Inc., a Delaware corporation (the "Company").
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W I T N E S S E T H :
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WHEREAS, the Investor is a stockholder of the Company;
WHEREAS, the Company and certain stockholders of the Company (other
than the Investor) entered into a securities purchase agreement dated as of
March 30, 1999 (the "Cash Equity Securities Purchase Agreement"), pursuant to
which, among other things, such stockholders of the Company agreed to make
additional cash capital contributions to the Company and the Company agreed to
issue additional securities to such stockholders in consideration therefor, all
on the terms set forth in the Cash Equity Securities Purchase Agreement; and
WHEREAS, the Investor wishes to purchase additional securities of the
Company so that the Investor's equity in the Company is not diluted by the
issuance of securities contemplated by the Cash Equity Securities Purchase
Agreement and the Company wishes to sell additional securities to the Investor
all on the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person that
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directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
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the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Preferred Stock Purchase Agreement, as the same
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may be amended, modified or supplemented in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or a legal
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holiday in New York, New York or any other day on which commercial banks in New
York, New York are authorized by law or governmental decree to close.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase or
subscribe for any of the foregoing or any warrants, rights or options to
purchase or subscribe for any such warrants, rights or options.
"Cash Equity Securities Purchase Agreement" has the meaning set forth
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in the recitals.
"Claim" has the meaning set forth in Section 8.4(a).
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"Closing" has the meaning set forth in Section 3.1.
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"Closing Date" has the meaning set forth in Section 3.1.
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"Common Stock" means, collectively, the Company's Voting Preference
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Stock, the Class A Voting Common Stock, the Class B Non-Voting Common Stock,
the Class C Common Stock, and the Class D Common Stock, $0.01 par value per
share, respectively.
"Company" has the meaning set forth in the preamble.
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"Confidential Information" means any and all information regarding the
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business, finances, operations, products, services and customers of the Person
specified and its Affiliates, in written or oral form or in any other medium.
"Consents" means all consents and approvals of Governmental
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Authorities or other third parties necessary to authorize, approve or permit the
parties hereto to consummate the Transactions and for the Company to operate its
business after the Closing Date as currently contemplated.
"Credit Agreement" means the agreement among the Company, the lenders
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and the agents referred to therein, as of July 17, 1998, providing a credit
facility having aggregate commitments of $525 million, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"Credit Documents" means the Credit Agreement and all agreements,
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instruments and documents executed and delivered pursuant thereto, as the same
may from time to time be amended, modified or supplemented in accordance with
the terms thereof.
"Governmental Authority" means a Federal, state or local court,
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legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"Indemnified Party" has the meaning set forth in Section 8.4(a).
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"Indemnifying Party" has the meaning set forth in Section 8.4(a).
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"Investor" has the meaning set forth in the preamble.
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"Law" means applicable common law and any statute, ordinance, code or
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other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"Lenders" has the meaning set forth in Section 10.4.
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"License" means a license, permit, certificate of authority, waiver,
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approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Losses" has the meaning set forth in Section 8.2.
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"Material Adverse Effect" means a material adverse effect on the
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business, financial condition, assets, liabilities or results of operations or
prospects of the Person specified.
"New York Courts" has the meaning set forth in Section 10.5.
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"Opinion of Counsel" means, with respect to any Person, a legal
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opinion of such Person's counsel substantially in the form and substance of the
legal opinion rendered on behalf of such Person in connection with the
consummation on July 17, 1998 of the transactions contemplated by the Securities
Purchase Agreement.
"Person" means an individual, corporation, partnership, limited
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liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"Preferred Stock" means the shares of the Company's Series A Preferred
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Stock, Series B Preferred Stock, Series D Preferred Stock, Series F Preferred
Stock, and Senior Common Stock, $0.01 par value per share, respectively.
"Purchase Price" shall have the meaning set forth in Section 2.1.
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"Restated Certificate" means the Third Amended and Restated
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Certificate of Incorporation of the Company, dated no later than as of the
Closing Date.
"Section 8.2 Indemnified Party" has the meaning set forth in Section
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8.2.
"Section 8.3 Indemnified Party" has the meaning set forth in Section
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8.3.
"Securities" means the shares of Preferred Stock being issued
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hereunder, together with any shares of Preferred Stock or Common Stock issued
upon conversion of or delivered in substitution or exchange for any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Purchase Agreement" means the Securities Purchase
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Agreement dated as of January 23, 1998, by and among the Company, AT&T PCS, the
Cash Equity Investors and the other parties named therein.
"Series A Preferred Stock" has the meaning set forth in Section 2.2.
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"Series D Preferred Stock" has the meaning set forth in Section 2.2.
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"Series F Preferred Stock" has the meaning set forth in Section 2.2.
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"Stockholders' Agreement" means the Stockholders' Agreement, by and
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among the Company, AT&T PCS, the Cash Equity Investors named therein and the
other parties named therein, as stockholders, dated as of July 17, 1999, as
amended by Amendment No. 1 dated as of March 30, 1999.
"Subsidiary" shall mean, with respect to any Person, a corporation or
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other entity of which 50% or more of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"Transactions" means the transactions contemplated by this Agreement.
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When a reference is made in this Agreement to an Article or a Section,
such reference shall be to an Article or a Section of this Agreement unless
otherwise indicated. Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The use of a gender herein shall be deemed to include the
neuter, masculine and feminine genders whenever necessary or appropriate.
Whenever the word
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"herein" or "hereof" is used in this Agreement, it shall be deemed to refer to
this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
ARTICLE II
PURCHASE AND SALE
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OF SECURITIES; CERTAIN RESTRICTIONS ON TRANSFER
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2.1. Investor Purchase. Upon the terms and subject to the conditions
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hereof and in reliance upon the representations, warranties and agreements
herein contained, at the Closing, the Investor shall pay Forty Million Dollars
($40,000,000) to the Company (the "Purchase Price") in immediately available
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funds.
2.2. Purchase and Sale of Securities at Closing. Upon the terms and
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subject to the conditions hereof and in reliance upon the representations,
warranties and agreements herein contained, at the Closing, in consideration of
the Purchase Price, the Company shall issue, sell and deliver to the Investor
Thirty Thousand Seven Hundred Fifty and 3/100ths (30,750.03) shares of Series A
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"), Ten
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Thousand Two Hundred Fifty and 1/100ths (10,250.01) shares of Series D Preferred
Stock, par value $0.01 per share (the "Series D Preferred Stock"), and Ten
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Thousand (10,000) shares of Series F Preferred Stock, par value $0.01 per share
(the "Series F Preferred Stock").
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2.3. Restrictive Legends. Each certificate representing Securities
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(including Securities originally issued hereunder or delivered upon conversion
of the Preferred Stock, or delivered in substitution or exchange for any of the
foregoing) will bear a legend, in addition to any legends required by the
Stockholders' Agreement or otherwise required by Law, reading substantially as
follows until such Securities have been sold pursuant to an effective
registration statement under the Securities Act, Rule 144 under the Securities
Act, or an opinion of counsel reasonably satisfactory in form and substance to
the Company and otherwise in full compliance with any other applicable
restrictions on transfer, including those contained in this Agreement and the
Stockholders' Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE `ACT'), OR UNDER ANY STATE
SECURITIES OR `BLUE SKY' LAWS. SAID SECURITIES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF, UNLESS AND UNTIL REGISTERED UNDER THE ACT AND THE RULES AND
REGULATIONS THEREUNDER AND ALL APPLICABLE STATE SECURITIES OR `BLUE
SKY' LAWS OR EXEMPTED THEREFROM UNDER THE ACT AND ALL APPLICABLE
STATE SECURITIES OR `BLUE SKY' LAWS."
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2.4. Use of Proceeds. The Company shall use the net cash proceeds of its
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sale of Securities hereunder solely for working capital purposes.
ARTICLE III
CLOSING
3.1. Time and Place of Closing. Upon the terms and subject to the
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conditions hereof, the closing of the Transactions (the "Closing") shall take at
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the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, 875 Third Avenue, New York, New
York, at 10:00 a.m. local time on May 24, 1999, or at such other place and/or
time and/or on such other date as the parties may agree or as may be necessary
to permit the fulfillment or waiver of the conditions set forth in Article VII
(the "Closing Date"). The Closing shall be deemed to have occurred as of 12:01
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a.m. on the Closing Date.
3.2. Closing Actions and Deliveries. Upon the terms and subject to the
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satisfaction or waiver by the appropriate parties, if applicable, of the
conditions set forth in Article VII, to effect the purchase and sale of the
Securities and consummate the other Transactions, the parties shall on the
Closing Date take the following actions:
(a) Investor Purchase Price. The Investor shall deliver to the
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Company by wire transfer of immediately available funds to the account
designated by the Company on or prior to the Closing Date an amount equal to the
Purchase Price.
(b) Delivery of Securities. The Company shall deliver to the
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Investor, certificates, duly executed by authorized signatories of the Company,
representing the shares of Series A Preferred Stock, Series D Preferred Stock
and Series F Preferred Stock, to be issued to it in accordance with the terms of
Section 2.2.
(c) Other Deliveries. The parties shall execute and deliver or
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cause to be executed and delivered all other documents, instruments, opinions
and certificates contemplated by this Agreement to be delivered at the Closing
or necessary and appropriate in order to consummate the Transactions
contemplated to be consummated on the Closing Date.
3.3. Closing Costs; Taxes and Fees. The Company shall pay or cause to be
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paid at the Closing or, if due prior to the Closing or thereafter, promptly when
due, all transfer taxes (including sales taxes, gross receipts taxes, stamp
taxes, and other taxes) payable solely as a result of the payment of the
Purchase Price pursuant to this Agreement, but excluding any federal, state,
local or other jurisdictional income taxes (or franchise, excise, gross receipts
or other taxes that are generally imposed on a party on a periodic basis as a
result of a party's status, presence, conduct of business, holding of assets,
income, revenues, activities or other items).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Company as follows:
4.1. Organization, Power and Authority.
(a) The Investor is a corporation duly organized, validly existing
and in good standing under the Laws of its jurisdiction of organization and has
the requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement and each other instrument, document, certificate and
agreement required or contemplated to be executed, delivered and performed by it
hereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where
the character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary other than any such jurisdiction
in which the failure to be so qualified would not have a Material Adverse Effect
on it or materially adversely affect the Transactions.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it have been duly and validly authorized by
its Board of Directors and no other proceedings on its part which have not been
taken (including, without limitation, approval of its stockholders) are
necessary to authorize this Agreement or to consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
(f) As of the Closing Date, after giving effect to the Transactions,
it is not in breach of any obligation under this Agreement.
4.2. Consents; No Conflicts. Neither the execution, delivery and
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performance by it of this Agreement nor the consummation of the Transactions
will (a) conflict with, or result in a breach or violation of, any provision of
its organizational documents; (b) subject to obtaining the Consents set forth on
Schedule 4.2, constitute, with or without the giving of notice or passage of
time or both, a breach, violation or default, create a Lien, or give rise to any
right of termination, modification, cancellation, prepayment or acceleration,
under (i) any Law or License or (ii) any
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note, bond, mortgage, indenture, lease, agreement or other instrument, in each
case which is applicable to or binding upon it or any of its assets; or (c)
require any Consent, other than those set forth on Schedule 4.2 or the approval
of its board of directors or stockholders (which approvals have been obtained),
except in each case, where such breach, violation, default, Lien, right, or the
failure to obtain or give such Consent would not have a Material Adverse Effect
on it or materially adversely affect the Transactions. To its knowledge, there
is no fact relating to it or its Affiliates that would be reasonably expected to
prevent it from consummating the Transactions.
4.3. Litigation. There is no action, proceeding or investigation pending
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or, to its knowledge, threatened against it or any of its properties or assets
that would be reasonably expected to have an adverse effect on its ability to
consummate the Transactions to which it is a party or to fulfill its obligations
under this Agreement or which seeks to prevent or challenge the Transactions.
4.4. Brokers. It has not employed any broker, finder or investment banker
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or incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transactions.
4.5. No Distribution. It is acquiring the Securities to be acquired by it
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hereunder for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof (other than in compliance with the
Stockholders' Agreement and the Securities Act and all applicable state
securities laws).
4.6. Investor Acknowledgments. (a) It is an "accredited investor" as
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defined in Regulation D of the Securities Act. Its representatives have been
provided an opportunity to ask questions of, and have received answers thereto
from, the Company and its representatives regarding the terms and conditions of
its purchase of Securities, and the Company and its proposed business generally,
and have obtained all additional information requested by it to verify the
accuracy of all information furnished to it in connection with such purchase.
(b) It has such knowledge and experience in financial and
business affairs that it is capable of evaluating the merits and risks of
purchasing the Securities it is purchasing hereunder.
(c) It is not relying on and acknowledges that no
representation is being made by the Company or any of its officers, employees,
Affiliates, agents or representatives, except for representations and warranties
expressly set forth in this Agreement, and, in particular, it is not relying on,
and acknowledges that no representation is being made in respect of, (x) any
projections, estimates or budgets delivered to or made available to them of
future revenues, expenses or expenditures, or future results of operations and
(y) any other information or documents delivered or made available to it or its
representatives, except for representations and warranties expressly set forth
in this Agreement, and such information and documents obtained
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by it as a stockholder of the Company and through its representatives who serve
as members of the Company's board of directors, as the case may be.
(d) In deciding to invest in the Company, it has relied
exclusively on the representations and warranties expressly set forth in this
Agreement, and the investigations made by itself and its representatives and its
and such representatives' knowledge of the industry in which the Company
proposes to operate. Based solely on such representations and warranties and
such investigations and knowledge and such information obtained by it by virtue
of its status as a stockholder of the Company, and through its representatives
who serve as members of the Company's board of directors, as the case may be, it
has determined that the Securities it is acquiring are a suitable investment for
it.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as to the Company and its
Subsidiaries to the Investor as follows:
5.1. Organization, Power and Authority. (a) Each of the Company and
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each of its Subsidiaries that is a corporation is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted
and as proposed to be conducted. Each of the Company's Subsidiaries that is a
limited liability company or a limited partnership is a limited liability
company or a limited partnership, as the case may be, duly formed, validly
existing and in good standing under the laws of the jurisdiction of formation
and has the requisite limited liability company or a limited partnership, as the
case may be, power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and as proposed to be conducted.
(b) It has the requisite power, authority and/or legal capacity
to execute, deliver and perform this Agreement and each other instrument,
document, certificate and agreement required or contemplated to be executed,
delivered and performed by it hereunder to which it is or will be a party.
(c) Each of the Company and each of its Subsidiaries is duly
qualified to do business in each jurisdiction where the character of its
properties owned or held under lease or the nature of its activities makes such
qualification necessary other than any such jurisdiction in which the failure to
be so qualified would not have a Material Adverse Effect on it or materially
adversely affect the Transactions.
(d) The execution and delivery of this Agreement and the
consummation of the Transactions by it have been duly and validly authorized by
its Board of Directors and shareholders and, except for the filing of the
Restated Certificate with the office of the Secretary
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of State of Delaware, no other proceedings which have not been taken are
necessary to authorize this Agreement or to consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it
and constitutes the valid and binding obligation of it, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
(f) As of the Closing, after giving effect to the Transactions,
it is not in breach of any obligation under this Agreement.
5.2. Consents; No Conflicts. Neither the execution, delivery and
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performance of this Agreement nor the consummation of the Transactions will (a)
conflict with, or result in a breach or violation of, any provision of its
organizational documents; (b) subject to obtaining the Consents set forth on
Schedule 5.2, constitute, with or without the giving of notice or passage of
time or both, a breach, violation or default, create a Lien, or give rise to any
right of termination, modification, cancellation, prepayment or acceleration,
under (i) any Law or License, or (ii) any note, bond, mortgage, indenture,
lease, agreement or other instrument, in each case which is applicable to or
binding upon it or any of its assets; or (c) require any Consent, other than
those set forth on Schedule 5.2 or the approval of its Board of Directors or its
stockholders (which approval has been obtained), except in each case where such
breach, violation, default, Lien, right, or the failure to obtain or give such
Consent would not have a Material Adverse Effect on it or materially adversely
affect the Transactions or the operation of its business after the Closing Date.
To its knowledge, there is no fact relating to it or its Affiliates that would
be reasonably expected to prevent it from consummating the Transactions or
performing its obligations under this Agreement.
5.3. Litigation. There is no action, proceeding or investigation pending
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or, to its knowledge, threatened against it or any of its properties or assets
that would have an adverse effect on its ability to consummate the Transactions
to which it is a party or to fulfill its obligations under this Agreement, or to
operate its business after the Closing Date, or which seeks to prevent or
challenge the Transactions. There is no judgment, decree, injunction, rule or
order outstanding against it which would limit in any material respect its
ability to operate its business in the manner currently contemplated.
5.4. Brokers. It has not employed any broker, finder or investment banker
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or incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transaction, except for a fee paid to Chase Securities,
Inc. by the Company in an amount which has previously been disclosed to AT&T
PCS.
5.5. Capitalization (a) As of the date hereof, the authorized capital
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stock of the Company consists of 950,000 shares of Voting Common Stock, 950,000
shares of Non-Voting Common Stock, ten shares of Voting Preference Stock, 1,000
shares of Class C Common Stock,
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3,000 shares of Class D Common Stock, 100,000 shares of Series A Preferred
Stock, 200,000 shares of Series B Preferred Stock, 215,000 shares of Series C
Preferred Stock, 50,000 shares of Series D Preferred Stock, 30,000 shares of
Series E Preferred Stock, 50,000 shares of Series F Preferred Stock and 70,000
shares of Senior Common Stock. As of the Closing Date, after giving effect to
the filing of the Restated Certificate and the Transactions there will be issued
and outstanding the shares of Preferred Stock and Common Stock set forth on
Schedule I. The record and beneficial owners of such outstanding shares of
Common Stock and Preferred Stock, as of the Closing Date, after giving effect to
the Transactions, are set forth on Schedule I.
(b) Except as set forth on Schedule 5.5, on the Closing Date,
after giving effect to the Transactions, there will not be any existing options,
warrants, calls, subscriptions, or other rights, or other agreements or
commitments, obligating the Company to issue, transfer or sell any shares of
capital stock of the Company.
5.6. Shares. The shares of Preferred Stock being issued to the Investor
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hereunder, when issued and paid for pursuant to the terms of this Agreement and
after giving effect to the filing of the Restated Certificate, will be duly
authorized, validly issued, fully paid and non-assessable, and will be free of
any Liens caused or created by the Company, except as set forth in the
Stockholders' Agreement and the Restated Certificate. The Securities issued
upon conversion of the Preferred Stock issued on the Closing Date, or upon
conversion thereof after the Closing Date, when issued pursuant to the terms
thereof, will be validly issued, fully paid and non-assessable, and will be free
of any Liens caused or created by the Company, except as set forth in the
Stockholders' Agreement and the Restated Certificate.
5.7. Offering of Securities. (a) None of the Company or any Person acting
----------------------
on its behalf has offered the Securities or any similar equity securities of the
Company for sale to, or solicited any offers to buy Securities or any similar
equity securities of the Company from, any Person, other than a limited number
of other "accredited investors" (as defined in Rule 501(a) under the Securities
Act).
(b) None of the Company or any Person acting on its behalf will,
directly or indirectly, take any action which might subject the offering,
issuance or sale of the Securities to the registration and prospectus delivery
requirements of Section 5 of the Securities Act.
(c) Assuming the accuracy of the representations and warranties
of the Investor contained in Section 4.6, each of the offering and sale of
Securities under this Agreement to the Investor complies with all applicable
requirements of Federal and state securities laws.
5.8. Subsidiaries. The Company owns directly or indirectly all of the
------------
outstanding shares of Capital Stock of each of its Subsidiaries, free and clear
of any Liens, except Liens granted to the Lenders pursuant to the Credit
Documents. Set forth on Schedule 5.8 is a complete list of its direct and
indirect Subsidiaries indicating the jurisdictions in which such Subsidiary is
organized or qualified to conduct business.
-12-
ARTICLE VI
COVENANTS
6.1. Consummation of Transactions. Each party shall use all commercially
----------------------------
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable and consistent with
applicable law to carry out all of their respective obligations under this
Agreement and to consummate the Transactions, which efforts shall include,
without limitation, the following:
(a) The parties shall use all commercially reasonable efforts to
cause the Closing to occur and the Transactions to be consummated in accordance
with the terms hereof, and, without limiting the generality of the foregoing, to
obtain all necessary Consents including the approval of this Agreement and the
Transactions by all Governmental Authorities and agencies, , and to make all
filings with and to give all notices to third parties which may be necessary or
reasonably required in order for the parties to consummate the Transactions.
(b) Each party shall furnish to the other parties all
information concerning such party and its Affiliates reasonably required for
inclusion in any application or filing to be made by the Company or any other
party in connection with the Transactions.
(c) Upon the request of any other party, each party shall
forthwith execute and deliver, or cause to be executed and delivered, such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and other documents as may reasonably be requested by such
party in order to effectuate the purposes of this Agreement.
6.2. Use of Proceeds. The Company shall use the proceeds of the sale of
---------------
Securities only for the purposes described in Section 2.4.
6.3. Restated Certificate. It is the intention of the parties hereto that
--------------------
the Restated Certificate shall be amended as necessary (e.g., to increase the
number of authorized shares of Capital Stock) to give effect to, among other
things, the Securities issued at the Closing. The parties agree to use their
respective best efforts to effectuate any and all such amendments at any such
Closing.
6.4. Offering of Securities. None of the Company or any Person acting on
----------------------
its behalf will, directly or indirectly, take any action which might subject the
offering, license or sale of the Securities to the registration and prospectus
delivery requirements of Section 5 of the Securities Act.
-13-
ARTICLE VII
CLOSING CONDITIONS
7.1. Conditions to Obligations of All Parties. The obligation of each of
----------------------------------------
the parties to consummate the Transactions contemplated to occur at the Closing
shall be conditioned on the following, unless waived by each of the parties at
or prior to Closing:
(a) All Consents by any Governmental Authority required to
permit the consummation of the Transactions and to permit the transactions
contemplated by the Asset Purchase Agreement, the failure to obtain or make
which would be reasonably expected to have a Material Adverse Effect on the
Company or Investor or to materially adversely affect the Transactions shall
have been obtained or made.
(b) No preliminary or permanent injunction or other order,
decree or ruling issued by a Governmental Authority, nor any statute, rule,
regulation or executive order promulgated or enacted by any Governmental
Authority, shall be in effect that would (i) impose material limitations on the
ability of any party to consummate the Transactions or prohibit such
consummation, or (ii) impair in any material respect the operation of the
Company.
(c) The Restated Certificate shall have been filed with the
Delaware Secretary of State.
(d) Each Stockholder (as such term is defined in the
Stockholders' Agreement) other than the Investor shall have delivered a waiver
of the pre-emptive rights afforded to such Stockholder pursuant to Section
7.2(b) of the Stockholders' Agreement.
(e) The Company shall have received any consent of the lenders
that may be required pursuant to the terms of the Credit Agreement.
7.2. Conditions to Obligations of the Company. The obligation of the
----------------------------------------
Company to consummate the Transactions contemplated to occur at the Closing
shall be further conditioned upon the satisfaction or fulfillment, at or prior
to the Closing, of the following conditions by the Investor, unless waived by
the Company at or prior to the Closing:
(a) The representations and warranties of the Investor contained
herein shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which shall
be true and correct), in each case when made and at and as of the Closing
(except for representations and warranties made as of a specified date, which
shall be true and correct as of such date) with the same force and effect as
though made at and as of such time, except for inaccuracies in respect of the
representations and warranties set forth in Section 4.3, (disregarding any
qualifications as to materiality contained therein) that in the aggregate would
not be reasonably expected to have a Material Adverse Effect on the Company or
to materially adversely affect the Transactions.
(b) The Investor shall have performed in all material respects
all agreements contained herein or required to be performed by it at or before
the Closing.
-14-
(c) An officer of the Investor shall have delivered to the
Company a certificate, dated the Closing Date, certifying as to the fulfillment
of the conditions set forth in paragraphs (a) and (b) above.
(d) The Company shall have been furnished with an Opinion of
Counsel to the Investor dated the Closing Date.
(e) All corporate and other proceedings of the Investor in
connection with the Transactions, and all documents and instruments incident
thereto, shall be reasonably satisfactory in form and substance to the Company,
and the Investor shall have delivered to the Company such receipts, documents,
instruments and certificates, in form and substance reasonably satisfactory to
the Company which the Company shall have reasonably requested in order to
consummate the Transactions.
7.3. Conditions to the Obligations of the Investors. The obligation of
----------------------------------------------
the Investor to consummate the Transactions contemplated to occur at the Closing
shall be further conditioned upon the satisfaction or fulfillment, at or prior
to the Closing, of the following conditions, unless waived by it at or prior to
the Closing:
(a) The representations and warranties of the Company contained
herein shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which shall
be true and correct), in each case when made and at and as of the Closing
(except for representations and warranties made as of a specified date, which
shall be true and correct as of such date) with the same force and effect as
though made at and as of such time, except for inaccuracies in respect of the
representations and warranties set forth in Section 5.3 (disregarding any
qualifications as to materiality contained therein) that in the aggregate would
not be reasonably expected to have a Material Adverse Effect on the Company or
to materially adversely affect the Transactions.
(b) The Company shall have performed in all material respects
all agreements contained herein or required to be performed by it at or before
the Closing.
(c) An officer of the Company shall have delivered to the
Investor a certificate, dated the Closing Date, certifying as to the fulfillment
of the conditions set forth in paragraphs (a) and (b) above.
(d) The Investor shall have been furnished with an Opinion of
Counsel to the Company dated the Closing Date.
(e) All corporate and other proceedings of the Company in
connection with the Transactions, and all documents and instruments incident
thereto, shall be reasonably satisfactory in form and substance to the Investor,
the Company shall have delivered to the Investor all such receipts, documents,
instruments and certificates, in form and substance
-15-
reasonably satisfactory to the Investor, which the Investor shall have
reasonably requested in order to consummate the Transactions.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1. Survival. Except for the representations and warranties contained in
--------
Sections 4.1(a), (b), (d) and (e), and 5.1(a), (b), (d) and (e) (which shall
survive the Closing, without regard to any investigation made by any of the
parties hereto, until the expiration of the applicable statute of limitations
relating thereto), the representations and warranties made in this Agreement
shall survive the Closing without regard to any investigation made by any of the
parties hereto until the second anniversary thereof and shall thereupon expire
together with any right to indemnification in respect thereof (except to the
extent a written notice asserting a claim for breach of any such representation
or warranty and describing such claim in reasonable detail shall have been given
prior to the expiration of the applicable survival period to the party which
made such representation or warranty). The covenants and agreements contained
herein to be performed or complied with prior to the Closing shall expire at the
Closing. The covenants and agreements contained in this Agreement to be
performed or complied with after the Closing shall survive the Closing; provided
that the right to indemnification pursuant to this Article VIII in respect of a
breach of a representation or warranty shall expire upon the application of the
applicable survival period of the Closing (except to the extent written notice
asserting a claim thereunder and describing such claim in reasonable detail
shall have been given prior to such expiration to the party from whom such
indemnification is sought). After the Closing, the sole and exclusive remedy of
the parties for any breach or inaccuracy of any representation or warranty
contained in this Agreement, or any other claim (whether or not alleging a
breach of this Agreement) that arises out of the facts and circumstances
constituting such breach or inaccuracy, shall be the indemnity provided in this
Article VIII.
8.2. Indemnification by the Investor. The Investor shall indemnify and
-------------------------------
hold harmless the Company and its Affiliates, directors, shareholders, officers,
employees, agents and/or the legal representatives of any of them (each, a
"Section 8.2 Indemnified Party"), against all liabilities and expenses
-----------------------------
(including amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and as counsel fees) (collectively, "Losses") incurred by him/her
------
or it in connection with the investigation, defense, or disposition of any
action, suit or other proceeding in which any Section 8.2 Indemnified Party may
be involved or with which he/she or it may be threatened (whether arising out of
or relating to matters asserted by third parties against a Section 8.2
Indemnified Party or incurred or sustained by such party in the absence of a
third-party claim), that arises out of or results from (a) any representation or
warranty of the Investor contained in this Agreement being untrue in any
material respect as of the date on which it was made or (b) any material default
by such indemnifying party or any of its Affiliates in the performance of their
respective obligations under this Agreement, except to the extent (but only to
the extent) any such Losses arise out of or result from the gross negligence or
willful misconduct of such
-16-
Section 8.2 Indemnified Party or its Affiliates, provided, that the aggregate
liability of the Investor to indemnify Section 8.2 Indemnified Parties against
Losses arising out of or resulting from (x) any such representation or warranty
of the Investor contained in this Agreement and included in this indemnification
by the Investor being untrue, or (y) default by the Investor or any of its
Affiliates in the performance of their respective obligations under this
Agreement shall (except, in the case of clause (y), to the extent (but only to
the extent) any such Losses arise out of or result from the gross negligence or
willful misconduct of the Investor) be limited to $30,000,000; provided further,
that the Investor shall have the option of satisfying any such Losses incurred
by the Company (in its capacity as a Section 8.2 Indemnified Party) by tendering
to the Company shares of Series A Preferred Stock (such shares to be valued for
such purposes at the aggregate liquidation preference thereof).
8.3. Indemnification by the Company. The Company shall indemnify and hold
------------------------------
harmless the Investor and its Affiliates, directors, shareholders, officers,
employees, agents and/or the legal representatives of any of them (each, a
"Section 8.3 Indemnified Party"), against all Losses incurred by him/her or it
-----------------------------
in connection with the investigation, defense, or disposition of any action,
suit or other proceeding in which any Section 8.3 Indemnified Party may be
involved or with which he/she or it may be threatened (whether arising out of or
relating to matters asserted by third parties against a Section 8.3 Indemnified
Party or incurred or sustained by such party in the absence of a third-party
claim), that arises out of or results from (a) any representation or warranty of
the Company contained in this Agreement being untrue in any material respect as
of the date on which it was made or (b) any material default by the Company or
any of its Affiliates in the performance of their respective obligations under
this Agreement, except to the extent (but only to the extent) any such Losses
arise out of or result from the gross negligence or willful misconduct of such
Section 8.3 Indemnified Party or its Affiliates, provided, that the aggregate
liability of the Company to indemnify Section 8.3 Indemnified Parties against
Losses arising out of or resulting from (x) any such representation or warranty
of the Company contained in this Agreement and included in this indemnification
by the Company being untrue, or (y) any default by the Company or any of its
Affiliates in the performance of their respective obligations under this
Agreement shall (except, in the case of clause (y), to the extent (but only to
the extent) any such Losses arise out of or result from the gross negligence or
willful misconduct of the Company) be limited to $30,000,000.
8.4. Procedures.
(a) The terms of this Section 8.4 shall apply to any claim (a
"Claim") for indemnification under the terms of Sections 8.2 or 8.3. The
-----
Section 8.2 Indemnified Party or Section 8.3 Indemnified Party (each, an
"Indemnified Party"), as the case may be, shall give prompt written notice of
-----------------
such Claim to the indemnifying party (the "Indemnifying Party") under the
------------------
applicable Section, which party may assume the defense thereof, provided that
any delay or failure to so notify the Indemnifying Party shall relieve the
Indemnifying Party of its obligations hereunder only to the extent, if at all,
that it is materially prejudiced by reason of such delay or failure. The
Indemnified Party shall have the right to approve any counsel selected by the
-17-
Indemnifying Party and to approve the terms of any proposed settlement, such
approval not to be unreasonably delayed or withheld (unless, in the case of
approval of a proposed settlement, such settlement provides only, as to the
Indemnified Party, the payment of money damages actually paid by the
Indemnifying Party and a complete release of the Indemnified Party in respect of
the claim in question). Notwithstanding any of the foregoing to the contrary,
the provisions of this Article VIII shall not be construed so as to provide for
the indemnification of any Indemnified Party for any liability to the extent
(but only to the extent) that such indemnification would be in violation of
applicable law or that such liability may not be waived, modified or limited
under applicable law, but shall be construed so as to effectuate the provisions
of this Article VIII to the fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the
defense of any Claim, the Indemnifying Party will keep the Indemnified Party
advised as to all material developments in connection with such Claim,
including, but not limited to, promptly furnishing the Indemnified Party with
copies of all material documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the
defense of any Claim within ten business days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the Indemnifying
Party's right to assume the defense pursuant to the provisions of this Article
VIII, to undertake the defense, compromise or settlement of such Claim for the
account of the Indemnifying Party. Unless and until the Indemnified Party
assumes the defense of any Claim, the Indemnifying Party shall advance to the
Indemnified Party any of its reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advancement that, in the event he or it receives any such advance, such
Indemnified Party shall reimburse the Indemnifying Party for such fees, costs
and expenses to the extent that it shall be determined that he or it was not
entitled to indemnification under this Article VIII.
(d) In no event shall an Indemnifying Party be required to pay
in connection with any Claim for more than one firm of counsel (and local
counsel) for each of the following groups of Indemnified Parties: (i) the
Investor, its Affiliates, directors, shareholders, officers, employees, agents
and/or the legal representatives of any of them; and (ii) the Company, its
Affiliates, directors, shareholders, officers, employees, agents and/or the
legal representatives of any of them.
8.5. Registration Rights. Notwithstanding anything to the contrary in this
-------------------
Article VIII, the indemnification and contribution provisions set forth in
Sections 5(e) and 5(f) of the Stockholders' Agreement shall govern any claim
made with respect to the registration statements filed pursuant to Section 5 of
the Stockholders' Agreement or sales made thereunder.
-18-
ARTICLE IX
TERMINATION
9.1. Termination. In addition to any other rights of termination set forth
-----------
herein, this Agreement may be terminated, and the Transactions abandoned,
without further obligation of any party (except as set forth herein), at any
time prior to the Closing Date:
(a) by mutual written consent of the parties;
(b) by either party by written notice to the other parties, if
the Closing shall not have occurred on or before the date that is six months
after the date hereof, provided that the party electing to exercise such right
is not otherwise in breach of its obligations under this Agreement; or
(c) by any party by written notice to the other parties, if the
consummation of the Transactions shall be prohibited by a final, non-appealable
order, decree or injunction of a court of competent jurisdiction.
9.2. Effect of Termination. In the event of a termination of this
---------------------
Agreement, no party hereto shall have any liability or further obligation to any
other party to this Agreement, except as set forth in paragraph (b) below, and
except that nothing herein will relieve any party from liability for any breach
by such party of this Agreement.
(a) In the event of a termination of this Agreement pursuant to
Section 9.1, all provisions of this Agreement shall terminate, except Articles
VIII and X.
(b) Whether or not the Closing occurs, except as otherwise
expressly provided in this Agreement, all costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the party
incurring such expenses.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Amendment and Modification. This Agreement may be amended, modified
--------------------------
or supplemented only by written agreement of each of the parties.
10.2. Waiver of Compliance; Consents. Any failure of any of the parties to
------------------------------
comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires
or permits consent by or on
-19-
behalf of any party hereto, such consent shall be given in writing in a manner
consistent with the requirement for a waiver of compliance as set forth in this
Section 10.2.
10.3. Notices. All notices or other communications hereunder shall be in
-------
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (return receipt
requested), postage prepaid, with an acknowledgment of receipt signed by the
addressee or an authorized representative thereof, addressed as follows (or to
such other address for a party as shall be specified by like notice; provided
that notice of a change of address shall be effective only upon receipt
thereof):
-20-
If to the Investor, to:
c/o AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to it:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10.4. Parties in Interest; Assignment. This Agreement is binding upon and
-------------------------------
is solely for the benefit of the parties hereto and their respective permitted
successors, legal representatives and permitted assigns. Neither the Company
nor the Investor may assign its rights and obligations hereunder without the
prior written consent of each of the other parties; provided, that: (a) the
Company shall have the right to assign its rights under this Agreement to the
lenders (the "Lenders") named in the Credit Agreement, as security pursuant to
-------
the terms of the Credit Documents, it being understood that as a result of any
such assignment to the Lenders, the Lenders shall not assume any obligations of
the Company hereunder.
10.5. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York without giving effect to the
conflicts of law principles thereof. The parties hereto hereby irrevocably and
unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the County of New York, New York (the "New York Courts") for any litigation
---------------
arising out of or relating to this Agreement and the Transactions, waive any
objection to the laying of venue of any such litigation in the New York Courts
and agrees not to plead or claim in any New York Court that such litigation
brought therein has been brought in an inconvenient forum.
-21-
10.6. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.7. Interpretation. The article and section headings contained in this
--------------
Agreement are for convenience of reference only, are not part of the agreement
of the parties and shall not affect in any way the meaning or interpretation of
this Agreement.
10.8. Entire Agreement. This Agreement, including the exhibits and
----------------
schedules hereto and thereto and the certificates and instruments delivered
pursuant to the terms of this Agreement, embody the entire agreement and
understanding of the parties hereto in respect of the Transactions. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such Transactions.
10.9. Publicity. So long as this Agreement is in effect, the parties
---------
agree to consult with each other in issuing any press release or otherwise
making any public statement with respect to the Transactions, and no party shall
issue any press release or make any such public statement prior to such
consultation, except as may be required by Law. No press release or other public
statement by the parties hereto shall disclose any of the financial terms of the
Transactions without the prior consent of the other parties, except as may be
required by Law. A breach of the provisions of this Section 10.9 by a party
shall not give rise to any right to terminate this Agreement.
10.10. Specific Performance. The parties hereto agree that irreparable
--------------------
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any New York Courts.
10.11. Remedies Cumulative. All rights, powers and remedies provided under
-------------------
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
10.12. Severability. Any provision of this Agreement that is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any court determines that any covenant or any part of
any covenant is invalid or unenforceable, such covenant shall be enforced to the
extent permitted by such
-22-
court, and all other covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions.
10.13. Beneficiaries of Agreement. The representations, warranties,
--------------------------
covenants and agreements expressed in this Agreement are for the sole benefit of
the other parties hereto and the Section 8.2 Indemnified Parties and Section 8.3
Indemnified Parties and are not intended to benefit, and may not be relied upon
or enforced by, any other party as a third party beneficiary or otherwise.
10.14. Stock Valuation. The parties hereby agree that the per share value
---------------
attributable as of the date hereof to the Series F Preferred Stock is $1.00.
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TELECORP PCS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
AT&T WIRELESS PCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
-24-
SCHEDULE I
Capitalization
--------------
Filed Separately.
-25-
SCHEDULE 4.2
Investor Consents
-----------------
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The Federal Communications Commission.
2. The Federal Trade Commission/Department of Justice.
3. Various Governmental Authorities with respect to Franchise Laws.
-26-
SCHEDULE 5.2
Company Consents
----------------
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The Federal Communications Commission.
2. The Federal Trade Commission/Department of Justice.
3. Various Governmental Authorities with respect to Franchise Laws.
-27-
SCHEDULE 5.5
Outstanding Options, Warrants, Etc.
-----------------------------------
1. Upon the closing of the transaction contemplated by the License Acquisition
Agreement by and between Wireless 2000, Inc. ("Wireless") and the Company,
dated as of December 2, 1998 (the "Wireless Acquisition Agreement"), the
Company shall issue to Wireless: (i) five hundred forty-five and 20/100
(545.20) shares of Series C Preferred Stock, par value $.01 per share, and
(ii) five hundred thirty and 40/100 (530.40) shares of Class A Voting
Common Stock, par value $.01 per share, of the Company.
2. Pursuant to the terms of that certain Stock Purchase Agreement dated March
22, 1999 by and among the Company, AT&T Wireless PCS Inc. and certain other
stockholders of the Company, as amended the Company shall issue 32,286
shares of Class A Common Voting Stock and Series C, D and F Preferred
Stock.
3. Pursuant to the terms of that certain Puerto Stock Purchase Agreement,
dated as of March 30, 1999, by and among the Company, Puerto Rico
Acquisiton Corp. and the Cash Equity Investors and Management Stockholders
identified therein, the Company shall issue an aggregate amount of
39,996.60 shares of each of Class A Common Voting Stock and Series C
Preferred Stock.
-28-
SCHEDULE 5.8
------------
Subsidiaries of the Company
---------------------------
=========================================================================================
Subsidiary Name State Of Qualified In:
Incorporation
-----------------------------------------------------------------------------------------
1. TeleCorp Communications, Inc. DE AR, DC, IL, IN, LA, MA,
MO, MS, NH, TN, TX,
VA
-----------------------------------------------------------------------------------------
2. TeleCorp Holding Corp., Inc. DE LA, MA, NH, TN, TX,
VA/1/
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3. TeleCorp Limited Holdings, Inc. DE AR, DC, IL, MA, MS
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4. TeleCorp Realty Holdings, Inc. DE None
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5. TeleCorp PCS, L.L.C.
(Sole Member is: TeleCorp PCS, DE None
Inc.)
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6. TeleCorp Realty, L.L.C. DE AR, DC, IL, LA, MA,
MO,MS, NH, TN, TX
(Managing Member is: TeleCorp
Communications, Inc.)
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7. TeleCorp Equipment Leasing, L.P. DE AR, DC, IL, IN, LA, MA,
MO, MS, NH, TN, TX
(General Partner is: TeleCorp Limited
Holdings, Inc.)
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8. Affiliate License Co., L.L.C. DE None
(Sole Member is TeleCorp PCS, Inc.)
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/1/ TeleCorp Holding Corp will be withdrawn from each of the states in which it
is qualified (except Delaware) upon the filing of the company's tax returns for
the year ended December 31, 1998.
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