<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 28, 2000
TeleCorp PCS, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware 000-27901 54-1872248
(State or Other Jurisdiction of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
1010 N. Glebe Road, Suite 800, Arlington, VA 22201
(Address of Principal Executive Offices, including Zip Code)
Registrant's telephone number, including area code: (703) 236-1100
N/A
(Former Name or Former Address if Changed Since Last Report.)
Item 5. Other Events.
On February 28, 2000, TeleCorp PCS, Inc., a Delaware corporation
("TeleCorp"), Tritel, Inc., a Delaware corporation ("Tritel"), and AT&T Wireless
Services, Inc., a Delaware corporation, executed a definitive Agreement and Plan
of Reorganization and Contribution (the "Merger Agreement"). Additionally, on
February 28, 2000, AT&T Wireless PCS, LLC, a Delaware limited liability company,
TeleCorp, and certain other affiliates of TeleCorp, executed a definitive Asset
Exchange Agreement (the "Asset Exchange Agreement"). Copies of the Merger
Agreement and the Asset Exchange Agreement are attached hereto as Exhibits 2.1
and 10.1 respectively, and are incorporated herein by reference.
In connection with the Merger Agreement, holders representing in excess of
50% of the voting power of each of TeleCorp and Tritel have entered into voting
agreements which provide for, among other matters, voting their shares in favor
of the transactions contemplated by the Merger Agreement (the "Voting
Agreements"). A copy of each of the Voting Agreements is attached hereto as
Exhibits 10.2 and 10.3 respectively, and are incorporated herein by reference.
<PAGE>
Item 7. Financial Statements and Exhibits.
(c) The following exhibits are filed with this report:
Exhibit Number Description
- -------------- -----------
2.1 Agreement and Plan of Reorganization and Contribution, dated
as of February 28, 2000, among TeleCorp PCS Inc., Tritel,
Inc. and AT&T Wireless Services, Inc.*
10.1 Asset Exchange Agreement, dated as of February 28, 2000,
among AT&T Wireless PCS, LLC, TeleCorp PCS, Inc., TeleCorp
PCS, LLC, TeleCorp Holding Corp, Inc., TeleCorp
Communications, Inc., TeleCorp Equipment Leasing, L.P. and
TeleCorp Realty, LLC.
10.2 TeleCorp PCS, Inc. Voting Agreement, dated as of February
28, 2000, among TeleCorp PCS, Inc., Tritel, Inc., Gerald T.
Vento and Thomas H. Sullivan.
10.3 Tritel, Inc. Voting Agreement, dated as of February 28,
2000, among Tritel, Inc., TeleCorp PCS, Inc., E.B. Martin
Jr. and William M. Mounger, II.
----------------
* Certain exhibits to, and schedules delivered in connection with, the
Merger Agreement have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Registrant agrees to provide the Commission a copy
of any such exhibit or schedule upon request.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TeleCorp PCS, Inc.
- ------------------
/s/ Thomas H. Sullivan
- ----------------------
Thomas H. Sullivan
Executive Vice President and
Chief Financial Officer
Date: March 15, 2000
<PAGE>
EXHIBIT INDEX
Exhibit No. EXHIBIT
- ----------- -------
2.1 Agreement and Plan of Reorganization and Contribution, dated
as of February 28, 2000, among TeleCorp PCS Inc., Tritel,
Inc. and AT&T Wireless Services, Inc.*
10.1 Asset Exchange Agreement, dated as of February 28, 2000,
among AT&T Wireless PCS, LLC, TeleCorp PCS, Inc., TeleCorp
PCS, LLC, TeleCorp Holding Corp, Inc., TeleCorp
Communications, Inc., TeleCorp Equipment Leasing, L.P. and
TeleCorp Realty, LLC.
10.2 TeleCorp PCS, Inc. Voting Agreement, dated as of February
28, 2000, among TeleCorp PCS, Inc., Tritel, Inc., Gerald T.
Vento and Thomas H. Sullivan.
10.3 Tritel, Inc. Voting Agreement, dated as of February 28,
2000, among Tritel, Inc., TeleCorp PCS, Inc., E.B. Martin
Jr. and William M. Mounger, II.
----------------
* Certain exhibits to, and schedules delivered in connection with, the
Merger Agreement have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Registrant agrees to provide the Commission a copy
of any such exhibit or schedule upon request.
<PAGE>
EXHIBIT 2.1 EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF REORGANIZATION AND CONTRIBUTION
by and among
TELECORP PCS, INC.,
TRITEL, INC.
and
AT&T WIRELESS SERVICES, INC.
Dated as of February 28, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
THE MERGERS AND THE CONTRIBUTION
1.1 The Mergers...................................................................................................... 3
1.2 Effective Time................................................................................................... 3
1.3 Effect of the Mergers............................................................................................ 4
1.4 Certificates of Incorporation and By-laws of TeleCorp II and Tritel II........................................... 4
1.5 Directors and Officers........................................................................................... 5
1.6 Conversion of Capital Stock, Etc................................................................................. 5
1.7 Cancellation of Treasury Shares.................................................................................. 11
1.8 Stock Options.................................................................................................... 12
1.9 Capital Stock of the Merger Subs................................................................................. 14
1.10 Adjustments to Exchange Ratios................................................................................... 14
1.11 Fractional Shares................................................................................................ 15
1.12 Surrender of Certificates........................................................................................ 16
1.13 Further Ownership Rights in Shares............................................................................... 19
1.14 Contribution..................................................................................................... 20
1.15 Closing.......................................................................................................... 24
1.16 Lost, Stolen or Destroyed Certificates........................................................................... 24
1.17 Tax Consequences................................................................................................. 25
ARTICLE II
STRUCTURE OF HOLDING COMPANY AND RELATED MATTERS
2.1 Organization of the Holding Company.............................................................................. 25
2.2 Board of Directors of the Holding Company........................................................................ 26
2.3 Officers of the Holding Company.................................................................................. 27
2.4 Indemnification and Insurance.................................................................................... 27
2.5 Headquarters of the Holding Company.............................................................................. 29
2.6 Merger Subs Organization......................................................................................... 29
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TELECORP
3.1 Organization and Qualification; Subsidiaries..................................................................... 31
3.2 Certificate of Incorporation; By-laws............................................................................ 32
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
3.3 Capitalization................................................................................................... 32
3.4 Authority; Enforceability........................................................................................ 35
3.5 Required Vote.................................................................................................... 36
3.6 No Conflict; Required Filings and Consents....................................................................... 36
3.7 Material Agreements.............................................................................................. 38
3.8 Compliance....................................................................................................... 39
3.9 SEC Filings; Financial Statements................................................................................ 40
3.10 Licenses and Authorizations...................................................................................... 41
3.11 No Violation of Law.............................................................................................. 43
3.12 Absence of Certain Changes or Events............................................................................. 44
3.13 No Undisclosed Liabilities....................................................................................... 45
3.14 Absence of Litigation............................................................................................ 45
3.15 Employee Benefit Plans........................................................................................... 45
3.16 Employment and Labor Matters..................................................................................... 49
3.17 Registration Statement; Proxy Statement/Prospectus............................................................... 49
3.18 Absence of Restrictions on Business Activities................................................................... 51
3.19 Title to Assets; Leases.......................................................................................... 51
3.20 Taxes............................................................................................................ 51
3.21 Environmental Matters............................................................................................ 54
3.22 Intellectual Property............................................................................................ 56
3.23 No Restrictions on the Merger; Takeover Statutes................................................................. 57
3.24 Tax Matters...................................................................................................... 57
3.25 Brokers.......................................................................................................... 57
3.26 Opinion of Financial Advisor..................................................................................... 58
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF TRITEL
4.1 Organization and Qualification; Subsidiaries..................................................................... 59
4.2 Certificate of Incorporation; By-laws............................................................................ 60
4.3 Capitalization................................................................................................... 60
4.4 Authority; Enforceability........................................................................................ 63
4.5 Required Vote.................................................................................................... 64
4.6 No Conflict; Required Filings and Consents....................................................................... 64
4.7 Material Agreements.............................................................................................. 65
4.8 Compliance....................................................................................................... 67
4.9 SEC Filings; Financial Statements................................................................................ 67
4.10 Licenses and Authorizations...................................................................................... 68
4.11 No Violation of Law.............................................................................................. 70
4.12 Absence of Certain Changes or Events............................................................................. 71
4.13 No Undisclosed Liabilities....................................................................................... 72
4.14 Absence of Litigation............................................................................................ 72
4.15 Employee Benefit Plans........................................................................................... 72
4.16 Employment and Labor Matters..................................................................................... 76
4.17 Registration Statement; Proxy Statement/Prospectus............................................................... 76
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
4.18 Absence of Restrictions on Business Activities................................................................... 77
4.19 Title to Assets; Leases.......................................................................................... 77
4.20 Taxes............................................................................................................ 78
4.21 Environmental Matters............................................................................................ 80
4.22 Intellectual Property............................................................................................ 81
4.23 No Restrictions on the Merger; Takeover Statutes................................................................. 82
4.24 Tax Matters...................................................................................................... 83
4.25 Brokers.......................................................................................................... 83
4.26 Opinion of Financial Advisor..................................................................................... 83
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AT&T
5.1 Authority; Enforceability........................................................................................ 84
5.2 No Conflict; Required Filings and Consents....................................................................... 84
5.3 Tax Matters...................................................................................................... 85
5.4 Brokers.......................................................................................................... 86
5.5 Registration Statement; Proxy Statement/Prospectus............................................................... 86
5.6 Waiver........................................................................................................... 86
5.7 Investment Experience............................................................................................ 87
5.8 Investment Intent................................................................................................ 87
5.9 Registration or Exemption Requirements........................................................................... 88
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Access to Information; Confidentiality........................................................................... 88
6.2 Conduct of Business Pending the Closing Date..................................................................... 90
6.3 Registration Statement; Other Filings; Board Recommendations..................................................... 100
6.4 Meeting of Company Stockholders.................................................................................. 102
6.5 Non-Solicitation................................................................................................. 104
6.6 Subsequent Financial Statements.................................................................................. 107
6.7 Nasdaq National Market Listing................................................................................... 108
6.8 Comfort Letters.................................................................................................. 108
6.9 Further Actions.................................................................................................. 108
6.10 Notification..................................................................................................... 111
6.11 Notice of Breaches; Updates...................................................................................... 111
6.12 No Inconsistent Action........................................................................................... 112
6.13 Commercially Reasonable Efforts.................................................................................. 112
6.14 Affiliates....................................................................................................... 112
6.15 Blue Sky......................................................................................................... 113
6.16 Tax-Free Exchange................................................................................................ 113
6.17 AT&T Actions..................................................................................................... 113
6.18 Transition Committee............................................................................................. 114
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
6.19 Employee Benefit Matters....................................................................................... 114
6.20 Novation of Affiliation Agreements............................................................................. 115
6.21 Indemnity for Indus and Airadigm Liabilities................................................................... 115
ARTICLE VII
CLOSING CONDITIONS
7.1 Conditions to Obligations of TeleCorp and Tritel to Effect the Mergers......................................... 116
7.2 Additional Conditions to Obligations of TeleCorp............................................................... 119
7.3 Additional Conditions to the Obligations of Tritel............................................................. 120
7.4 Conditions to Obligations of the Holding Company to Issue the Shares........................................... 121
7.5 Conditions to Obligations of AT&T to Effect the Contribution................................................... 123
ARTICLE VIII
TERMINATION
8.1 General........................................................................................................ 125
8.2 Obligations in Event of Termination............................................................................ 127
8.3 Termination of Contribution.................................................................................... 127
8.4 Obligations in Event of Termination of Contribution............................................................ 128
ARTICLE IX
NO SURVIVAL
9.1 No Survival of Representations and Warranties.................................................................. 128
ARTICLE X
MISCELLANEOUS
10.1 Public Announcements........................................................................................... 129
10.2 Fees and Expenses.............................................................................................. 129
10.3 Notices........................................................................................................ 130
10.4 Certain Definitions............................................................................................ 132
10.5 Interpretation................................................................................................. 134
10.6 Entire Agreement............................................................................................... 135
10.7 Binding Effect; Benefit........................................................................................ 135
10.8 Assignability.................................................................................................. 135
10.9 Amendment; Waiver.............................................................................................. 135
10.10 Section Headings; Table of Contents............................................................................ 136
10.11 Severability................................................................................................... 136
10.12 Counterparts................................................................................................... 136
10.13 GOVERNING LAW; JURISDICTION AND SERVICE OF PROCESS............................................................. 136
</TABLE>
-iv-
<PAGE>
EXHIBITS
EXHIBIT A - Voting Agreement
EXHIBIT B-1 - Form of Certificate of Merger
EXHIBIT B-2 - Form of Certificate of Merger
EXHIBIT C-1 - Certificate of Incorporation of TeleCorp II
EXHIBIT C-2 - Certificate of Incorporation of Tritel II
EXHIBIT D-1 - License Extension Amendment
EXHIBIT D-2 - Airadigm Letter of Intent
EXHIBIT E - Intentionally Omitted
EXHIBIT F - Plan of Reorganization
EXHIBIT G-1 - Indus Assignment
EXHIBIT G-2 - Indus Merger Agreement
EXHIBIT H - Form of the Holding Company Certificate of Incorporation
EXHIBIT I - Form of the Holding Company By-laws
EXHIBIT J - Affiliate Agreement
EXHIBIT I-1 - TeleCorp PCS, Inc. Tax Representations
EXHIBIT I-2 - Tritel, Inc. Tax Representations
EXHIBIT I-3 - The Holding Company Tax Representations Regarding TeleCorp
Merger
EXHIBIT I-4 - The Holding Company Tax Representations Regarding Tritel
Merger
EXHIBIT I-5 - AT&T Tax Representations
EXHIBIT J-1 - Mounger Employment Agreement
EXHIBIT J-2 - Martin Employment Agreement
EXHIBIT K-1 New Network Membership License Agreement
EXHIBIT K-2 New Intercarrier Roamer Service Agreement
EXHIBIT K-3 New Roaming Administration Agreement
-v-
<PAGE>
SCHEDULES
SCHEDULE A - Directors and Officers of TeleCorp II, Tritel II and
the Holding Company
SCHEDULE B - Certain Actions Pending the Closing Date
SCHEDULE 1.8 - Tritel Restricted Stock Agreements
SCHEDULE 3.3(b) - The TeleCorp Options
SCHEDULE 3.10(c) - TeleCorp Authorizations
SCHEDULE 4.3(b) - The Tritel Options
SCHEDULE 3.10(c) - Tritel Authorizations
SCHEDULE 6.2(a) - TeleCorp's Conduct of Business Pending the Closing Date
SCHEDULE 6.2(b) - Tritel's Conduct of Business Pending the Closing Date
SCHEDULE 6.9 - Aggregate out-of-pocket costs to obtain consents
SCHEDULE 6.14 - All persons who are, or may be, as of the date hereof
"affiliates" of TeleCorp and Tritel
-vi-
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION AND CONTRIBUTION
AGREEMENT AND PLAN OF REORGANIZATION AND CONTRIBUTION (this
"Agreement"), dated as of February 28, 2000, by and among TeleCorp PCS, Inc., a
---------
Delaware corporation ("TeleCorp"), Tritel, Inc., a Delaware corporation
--------
("Tritel") and AT&T Wireless Services, Inc., a Delaware corporation ("AT&T").
------ ----
WITNESSETH:
WHEREAS, the respective Boards of Directors of TeleCorp and Tritel
have each determined to engage in the transactions contemplated by this
Agreement. This Agreement provides for (A) the organization under the General
Corporation Law of the State of Delaware (the "DGCL") of a new holding company
----
(the "Holding Company"), which will become the parent and sole stockholder of
---------------
both TeleCorp and Tritel pursuant to (i) the conversion of all outstanding
shares of capital stock of TeleCorp into shares of capital stock of the Holding
Company by means of a merger (the "First Merger") of a wholly owned subsidiary
------------
of the Holding Company, to be organized under the DGCL (the "First Merger Sub"),
----------------
into and with TeleCorp, with TeleCorp as the surviving corporation, and (ii) the
conversion of all outstanding shares of capital stock of Tritel into shares of
capital stock of the Holding Company by means of a merger (the "Second Merger"
-------------
and, together with the First Merger, the "Mergers") of a wholly owned subsidiary
-------
of the Holding Company, to be organized under the DGCL (the "Second Merger Sub"
-----------------
and, together with the First Merger Sub, the "Merger Subs"), with and into
-----------
Tritel, with Tritel as the surviving corporation and (B) as part of the
transaction, AT&T shall contribute or cause to be contributed certain property
to the Holding Company in consideration of the issuance to AT&T (or its
Affiliates) of 9,272,740 shares (the "Shares") of Class A Voting Stock
------
<PAGE>
(as defined below) (the "Contribution"). The Mergers shall be effected
------------
simultaneously in accordance with the DGCL and it is intended that the
Contribution shall occur simultaneously with the Mergers. As a result of the
Mergers, the stockholders of TeleCorp and the stockholders of Tritel shall
become stockholders of the Holding Company, and TeleCorp and Tritel shall
continue to conduct their respective businesses and operations as wholly owned
subsidiaries of the Holding Company;
WHEREAS, as a condition to the willingness of, and an inducement to,
TeleCorp, Tritel and AT&T to enter into this Agreement, contemporaneously with
the execution and delivery of this Agreement, certain holders of shares of
capital stock of TeleCorp and Tritel are entering into simultaneously hereafter
agreements dated as of the date hereof and effective as of the Effective Time
(as defined below) providing for certain actions relating to the transactions
contemplated by this Agreement and the further governance of the Holding
Company;
WHEREAS, as an inducement to and a condition to Tritel entering into
this Agreement, certain stockholders of TeleCorp are entering into
simultaneously herewith a Voting Agreement relating to the agreement of such
stockholders to vote to approve the transactions contemplated by this Agreement
(the "TeleCorp Voting Agreement"), in the form of Exhibit A;
------------------------- ---------
WHEREAS, as an inducement to and a condition to TeleCorp entering into
this Agreement, certain stockholders of Tritel are entering into simultaneously
herewith a Voting Agreement relating to the agreement of such stockholders to
vote to approve the transactions contemplated by this Agreement (the "Tritel
------
Voting Agreement") in the form of Exhibit A; and
- ---------------- ---------
WHEREAS, for Federal income tax purposes, it is intended that the
Mergers and the Contribution, taken together, will qualify as a tax-free
transaction within the meaning of
2
<PAGE>
Section 351 of the Internal Revenue Code of 1986, as amended (the "Code"), that
----
the Mergers will each qualify as a tax-free reorganization under Section 368(a)
of the Code, that the stockholders of TeleCorp and Tritel will recognize no gain
or loss for Federal income tax purposes as a result of the consummation of the
Mergers and AT&T will recognize no gain or loss for Federal income tax purposes
as a result of consummation of the Contribution.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
ARTICLE I
THE MERGERS AND THE CONTRIBUTION
1.1 The Mergers. At the Effective Time (as defined in Section 1.2)
----------- -----------
and subject to the terms and conditions of this Agreement, and in accordance
with the DGCL, the First Merger Sub shall be merged with and into TeleCorp, with
TeleCorp as the surviving corporation, and the Second Merger Sub shall be merged
with and into Tritel, with Tritel as the surviving corporation. From and after
the Effective Time, the separate corporate existences of the First Merger Sub
and the Second Merger Sub shall cease and TeleCorp, as the surviving corporation
in the First Merger, and Tritel, as the surviving corporation in the Second
Merger, shall continue their respective existence under the laws of the State of
Delaware as wholly owned subsidiaries of the Holding Company. TeleCorp, as the
surviving corporation after the First Merger, is hereinafter sometimes referred
to as "TeleCorp II" and Tritel, as the surviving corporation after the Second
-----------
Merger, is hereinafter sometimes referred to as "Tritel II."
---------
1.2 Effective Time. As promptly as practicable after the
--------------
satisfaction or, to the extent permitted hereunder, waiver of the conditions set
forth in Article VII, but in no event prior
-----------
3
<PAGE>
to the Closing (as defined below), TeleCorp and Tritel shall cause the Mergers
to be consummated by simultaneously filing two certificates of merger (the
"Certificates of Merger") with the Secretary of State of the State of Delaware,
----------------------
in substantially the form of Exhibits B-1 and B-2 attached hereto, respectively,
------------ ---
and executed in accordance with the relevant provisions of the DGCL (the date
and time of such filing, or such later date and time as may be specified in the
Certificates of Merger, being the "Effective Time").
--------------
1.3 Effect of the Mergers. At the Effective Time, the effect of the
---------------------
Mergers shall be as provided in the applicable provisions of the DGCL and the
applicable Certificate of Merger. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time (i) all the assets,
property, rights, privileges, immunities, powers and franchises of TeleCorp and
the First Merger Sub shall vest in TeleCorp II, and all debts, liabilities and
duties of TeleCorp and the First Merger Sub shall become the debts, liabilities
and duties of TeleCorp II, and (ii) all the assets, property, rights,
privileges, immunities, powers and franchises of Tritel and the Second Merger
Sub shall vest in Tritel II, and all debts, liabilities and duties of Tritel and
the Second Merger Sub shall become the debts, liabilities and duties of Tritel
II.
1.4 Certificates of Incorporation and By-laws of TeleCorp II and
------------------------------------------------------------
Tritel II.
- ---------
(a) At the Effective Time and without further action on the part of
any party, the Certificate of Incorporation of TeleCorp II shall be amended to
read in its entirety as set forth in Exhibit C-1 attached hereto, and the By-
-----------
laws of the First Merger Sub shall be the By-laws of TeleCorp II until
thereafter amended as provided by the DGCL.
(b) At the Effective Time and without further action on the part of
any party, the Certificate of Incorporation of Tritel II shall be amended to
read in its entirety as set forth in Exhibit C-2 attached hereto, and the By-
-----------
laws of the Second Merger Sub shall be the By-laws of Tritel II until thereafter
amended as provided by the DGCL.
4
<PAGE>
1.5 Directors and Officers.
----------------------
(a) The directors and officers of TeleCorp II immediately following
the Effective Time, each to hold office in accordance with the Certificate of
Incorporation and the By-laws of TeleCorp II until their respective successors
are duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with TeleCorp II's Certificate of
Incorporation and By-laws, shall be as set forth on Schedule A hereto.
----------
(b) The directors and officers of Tritel II immediately following the
Effective Time, each to hold office in accordance with the Certificate of
Incorporation and the By-laws of Tritel II until their respective successors are
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with Tritel II's Certificate of
Incorporation and By-laws, shall be as set forth on Schedule A hereto.
----------
1.6 Conversion of Capital Stock, Etc. Subject to the provisions of
---------------------------------
this Article I, at the Effective Time, by virtue of the First Merger or the
---------
Second Merger, as applicable, and without any action on the part of any party:
(a) With respect to each share of Common Stock, par value $0.01 per
share, of TeleCorp ("TeleCorp Common Stock"):
---------------------
(i) each share of TeleCorp Class A Voting Common Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Class A Voting Common Stock, par value $0.01 per share
("Class A Voting Stock"), equal to the TeleCorp Exchange Ratio (as defined
---------------------
in subsection (e) below);
5
<PAGE>
(ii) each share of TeleCorp Class B Non-Voting Common Stock, par
value $0.01 per share, issued and outstanding immediately prior to the
Effective Time (other than any shares to be canceled pursuant to Section
-------
1.7) shall be converted automatically into and become exchangeable for that
---
number (expressed as a decimal) of fully paid and non-assessable shares of
the Holding Company Class A Voting Common Stock, par value $0.01 per share,
equal to the TeleCorp Exchange Ratio;
(iii) each share of TeleCorp Class C Common Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Class C Common Stock, par value $0.01 per share ("Class C
-------
Common Stock"), equal to the TeleCorp Exchange Ratio;
------------
(iv) each share of TeleCorp Class D Common Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Class D Common Stock, par value $0.01 per share ("Class D
-------
Common Stock"), equal to the TeleCorp Exchange Ratio; and
------------
(v) each share of TeleCorp Voting Preference Common Stock, par
value $0.01 per share, issued and outstanding immediately prior to the
Effective Time (other than any shares to be canceled pursuant to Section
-------
1.7) shall be converted automatically into and become exchangeable for that
---
number (expressed as a decimal) of fully paid and non-assessable shares of
the Holding Company Voting Preference Common Stock, par
6
<PAGE>
value $0.01 per share ("Voting Preference Stock"), equal to the TeleCorp
-----------------------
Exchange Ratio.
(b) With respect to each share of Preferred Stock, par value $0.01
per share, of TeleCorp ("TeleCorp Preferred Stock" and, together with the
------------------------
TeleCorp Common Stock, "TeleCorp Capital Stock"):
----------------------
(i) each share of TeleCorp Series A Preferred Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Series A Preferred Stock, par value $0.01 per share
("Series A Preferred Stock"), equal to the TeleCorp Exchange Ratio;
------------------------
(ii) each share of TeleCorp Series C Preferred Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Series C Preferred Stock, par value $0.01 per share
("Series C Preferred Stock"), equal to the TeleCorp Exchange Ratio;
------------------------
(iii) each share of TeleCorp Series D Preferred Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Series D Preferred Stock, par value $0.01 per share
("Series D Preferred Stock"), equal to the TeleCorp Exchange Ratio;
------------------------
7
<PAGE>
(iv) each share of TeleCorp Series E Preferred Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Series E Preferred Stock, par value $0.01 per share
("Series E Preferred Stock"), equal to the TeleCorp Exchange Ratio; and
------------------------
(v) each share of TeleCorp Series F Preferred Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Series F Preferred Stock, par value $0.01 per share
("Series F Preferred Stock"), equal to the TeleCorp Exchange Ratio.
------------------------
(c) With respect to each share of Common Stock, par value $0.01 per
share, of Tritel ("Tritel Common Stock"):
-------------------
(i) each share of Tritel Class A Voting Common Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of Class A
Voting Stock equal to the Tritel Exchange Ratio (as defined in subsection
(e) below);
(ii) each share of Tritel Class B Non-Voting Common Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
-----------
be converted automatically into and
8
<PAGE>
become exchangeable for that number (expressed as a decimal) of fully paid
and non-assessable shares of Class A Voting Stock equal to the Tritel
Exchange Ratio;
(iii) each share of Tritel Class C Common Stock, par value $0.01 per
share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Class E Common Stock, par value $0.01 per share ("Class E
-------
Common Stock"), equal to the Tritel Exchange Ratio multiplied by 0.01 and
------------
that number (expressed as a decimal) of fully paid and non-assessable
shares of Class A Voting Stock equal to the Tritel Exchange Ratio
multiplied by 0.99;
(iv) each share of Tritel Class D Common Stock, par value $0.01 per
share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for that number
(expressed as a decimal) of fully paid and non-assessable shares of the
Holding Company Class F Common Stock, par value $0.01 per share ("Class F
-------
Common Stock"), equal to the Tritel Exchange Ratio multiplied by 0.01 and
------------
that number (expressed as a decimal) of fully paid and non-assessable
shares of Class A Voting Stock equal to the Tritel Exchange Ratio
multiplied by 0.99; and
(v) all Tritel Voting Preference Common Stock, par value $0.01 per
share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for the right to
receive an aggregate amount of $10,000,000 in immediately available funds
to be paid at the Effective Time (which source of funds will come from
Tritel and not from TeleCorp or the Holding Company); all shares of Tritel
Voting
9
<PAGE>
Preference Common Stock owned by William M. Mounger, II shall be converted
into three shares of Voting Preference Stock; Messers. Martin and Mounger
own all the outstanding shares of Tritel Voting Preference Common Stock.
(d) With respect to each share of Preferred Stock, par value $0.01
per share, of Tritel ("Tritel Preferred Stock" and, together with the Tritel
----------------------
Common Stock, "Tritel Capital Stock"):
--------------------
(i) each share of Tritel Series A Preferred Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for one fully paid and
non-assessable share of the Holding Company Series B Preferred Stock, par
value $0.01 per share ("Series B Preferred Stock");
------------------------
(ii) each share of Tritel Series D Preferred Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7) shall be
-----------
converted automatically into and become exchangeable for one fully paid and
non-assessable share of the Holding Company Series G Preferred Stock, par
value $0.01 per share ("Series G Preferred Stock").
------------------------
(e) For purposes of this Agreement, the "TeleCorp Exchange Ratio"
-----------------------
shall initially be 1.00 and the "Tritel Exchange Ratio" shall initially be 0.76,
---------------------
in each case subject to adjustment from time to time in accordance with Section
-------
1.10. The TeleCorp and Tritel Exchange Ratios are sometimes referred to herein
- ----
as the "Exchange Ratios".
---------------
(f) As of the Effective Time, all shares of TeleCorp Capital Stock
shall no longer be outstanding and shall automatically be deemed canceled and
shall cease to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto, except the right to
receive the applicable Holding Company Capital Stock
10
<PAGE>
specified in Section 1.6(a) and (b) (the "TeleCorp Merger Consideration") as the
----------- -----------------------------
case may be, and any cash in lieu of fractional shares to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
Section 1.12 hereof without interest. For purposes hereof, the term "Holding
- ------------
Company Common Stock" shall mean the Class A Voting Stock, the Class C Common
- --------------------
Stock, the Class D Common Stock, the Class E Common Stock, the Class F Common
Stock and the Voting Preference Stock; the term "Holding Company Preferred
-------------------------
Stock" shall mean the Series A Preferred Stock, the Series B Preferred Stock,
the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock;
and the term "Holding Company Capital Stock" shall mean the Holding Company
-----------------------------
Common Stock and the Holding Company Preferred Stock, collectively.
(g) As of the Effective Time, all shares of Tritel Capital Stock
shall no longer be outstanding and shall automatically be redeemed and canceled
and shall cease to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto, except the right to
receive the applicable Holding Company Capital Stock specified in Section 1.6(c)
--------------
and (d) (the "Tritel Merger Consideration") and any cash in lieu of fractional
--- ---------------------------
shares to be issued or paid in consideration therefor upon surrender of such
certificate in accordance with Section 1.12 hereof without interest.
------------
1.7 Cancellation of Treasury Shares.
-------------------------------
(a) At the Effective Time, each share of TeleCorp Capital Stock, if
any, held in the treasury of TeleCorp shall be canceled and extinguished without
any conversion thereof and no consideration shall be delivered in exchange
therefor.
11
<PAGE>
(b) At the Effective Time, each share of Tritel Capital Stock held in
the treasury of Tritel, shall be canceled and extinguished without any
conversion thereof and no consideration shall be delivered in exchange therefor.
1.8 Stock Options.
-------------
(a) At the Effective Time, all options to purchase shares of TeleCorp
Common Stock then outstanding under the TeleCorp 1999 Stock Option Plan (the
"TeleCorp 1999 Plan"), by virtue of the First Merger and without any action on
- -------------------
the part of the holder thereof, shall no longer be options to acquire TeleCorp
Common Stock and shall become options to acquire Class A Voting Stock with such
terms as provided in Section 1.8(b). At the Effective Time, all options to
--------------
purchase shares of Tritel Common Stock then outstanding under the Tritel Non-
Employee Directors Stock Option Plan (the "Tritel Directors Plan") and the
---------------------
Tritel 1999 Stock Option Plan (the "Tritel 1999 Plan," and with the TeleCorp
----------------
Option Plans and Tritel Directors Plan, the "Option Plans"), by virtue of the
------------
Second Merger and without any action on the part of the holder thereof, shall no
longer be options to acquire Tritel Common Stock and shall become options to
acquire Class A Voting Stock with such terms as provided in Section 1.8(b).
--------------
Outstanding options under the Option Plans are referred to herein as
"Outstanding Employee Options."
----------------------------
(b) Each such Outstanding Employee Option shall continue to have, and
be subject to, the same terms and conditions set forth in the relevant Option
Plan, option agreements thereunder and other relevant documentation immediately
prior to the Effective Time, except that such Outstanding Employee Options will
be exercisable solely for that number of whole shares of Class A Voting Stock
equal to the product of the number of shares of TeleCorp or Tritel Common Stock,
as the case may be, that were purchasable under such Outstanding Employee Option
immediately prior to the Effective Time multiplied by the applicable Exchange
12
<PAGE>
Ratio, rounded down to the nearest whole number of shares of the Holding Company
Common Stock and the per-share exercise price for the shares of Class A Voting
Stock issuable upon exercise of such assumed Outstanding Employee Options will
be equal to the quotient determined by dividing the exercise price per-share of
TeleCorp or Tritel Common Stock, as the case may be, at which such Outstanding
Employee Options were exercisable immediately prior to the Effective Time by the
relevant Exchange Ratio, and rounding the resulting exercise price up to the
nearest whole cent.
(c) The Holding Company shall reserve for issuance a sufficient number
of shares of Class A Voting Stock for delivery upon exercise of Outstanding
Employee Options. As soon as practicable after the Effective Time, the Holding
Company shall file a registration statement on Form S-8 under the Securities Act
covering the shares of Class A Voting Stock issuable upon the exercise of the
Outstanding Employee Options assumed by the Holding Company, and shall use its
reasonable efforts to cause such registration statement to become effective as
soon thereafter as practicable and to maintain such registration in effect until
the exercise or expiration of such assumed Outstanding Employee Options.
(d) TeleCorp and Tritel shall take all such steps as may be required
to cause consummation of the transactions contemplated by Section 1.8(a) and (b)
-------------- ---
and any other disposition of TeleCorp or Tritel equity securities (including
derivative securities) in connection with this Agreement by each individual who
(x) is a director or officer of TeleCorp or Tritel or (y) at the Effective Time
will be a director or officer of the Holding Company, to be exempt under Rule
16b-3 promulgated under the Exchange Act (as defined below), such steps to be
taken in accordance with the No-Action Letter dated January 12, 1999, issued by
the SEC (as defined below) to Skadden, Arps, Slate, Meagher & Flom LLP.
13
<PAGE>
(e) At the Effective Time, the Holding Company shall assume all of
the obligations of TeleCorp under the TeleCorp 1998 Restricted Stock Plan (the
"TeleCorp Restricted Stock Plan") and of Tritel under the Tritel Restricted
------------------------------
Stock Agreements specified in Schedule 1.8.
------------
1.9 Capital Stock of the Merger Subs.
--------------------------------
(a) Each share of common stock, par value $0.01 per share, of the
First Merger Sub ("First Merger Sub Common Stock") issued and outstanding
-----------------------------
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock of
TeleCorp II. Each stock certificate of First Merger Sub evidencing ownership of
any First Merger Sub Common Stock shall after the Effective Time evidence
ownership of such shares of capital stock of TeleCorp II.
(b) Each share of common stock, par value $0.01 per share, of the
Second Merger Sub ("Second Merger Sub Common Stock") issued and outstanding
------------------------------
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock of
Tritel II. Each stock certificate of Second Merger Sub evidencing ownership of
any Second Merger Sub Common Stock shall, after the Effective Time, evidence
ownership of such shares of capital stock of Tritel II.
1.10 Adjustments to Exchange Ratios. Without limiting any other
------------------------------
provision of this Agreement, the TeleCorp Exchange Ratio and the Tritel Exchange
Ratio shall each be adjusted, at any time and from time to time, to fully
reflect the effect of any stock split, reverse split, stock dividend (including,
without limitation, any stock dividend of securities convertible into TeleCorp
Capital Stock or Tritel Capital Stock, as the case may be), reorganization,
recapitalization or other like change with respect to TeleCorp Capital Stock or
Tritel Capital Stock occurring or with a record date after the date hereof and
prior to the Effective Time.
14
<PAGE>
1.11 Fractional Shares.
-----------------
(a) No fraction of a share of Class A Voting Stock shall be issued,
but in lieu thereof each holder of shares of TeleCorp Common Stock or Tritel
Common Stock, as the case may be, who would otherwise be entitled to a fraction
of a share of Class A Stock (after aggregating all fractional shares of Class A
Voting Stock to be received by such holder) shall receive from the Exchange
Agent (as defined below) in lieu of such fractional shares of Class A Voting
Stock, an amount of cash (rounded to the nearest whole cent and without
interest) representing such holder's proportionate interest, if any, in the net
proceeds from the sale by the Exchange Agent in one or more transactions (which
sale transactions shall be made at such times, in such manner and on such terms
as the Exchange Agent shall determine in its reasonable discretion) on behalf of
all such holders of the aggregate of the fractional shares of Class A Voting
Stock which would otherwise have been issued (the "Excess Shares"). The sale of
-------------
the Excess Shares by the Exchange Agent shall be executed on the Nasdaq National
Market System and shall be executed in round lots to the extent practicable.
Until the net proceeds of such sale or sales have been distributed to the
holders of TeleCorp Common Stock or Tritel Common Stock, as applicable, the
Exchange Agent will hold such proceeds in trust for the holders of the
applicable TeleCorp Common Stock and the Tritel Common Stock. The Holding
Company shall pay all commissions, transfer taxes and other out-of-pocket
transaction costs, including, without limitation, the expenses and compensation
of the Exchange Agent, incurred in connection with such sale of the Excess
Shares. The Holding Company may decide, at its option, exercised prior to the
Effective Time, in lieu of the issuance and sale of Excess Shares and the making
of the payments heretofore contemplated by Section 2.4 that the Holding Company
-----------
shall pay to the Exchange Agent an amount sufficient for the Exchange Agent to
pay each holder of TeleCorp Common Stock and Tritel Common Stock the amount such
holder would have received pursuant
15
<PAGE>
to the foregoing assuming that the sales of Class A Stock were made at a price
equal to the average of the closing bid prices of the Class A Stock on the
Nasdaq National Market System, for the ten consecutive trading days immediately
following the Effective Time and, in such case, all references herein to the
cash proceeds of the sale of the Excess Shares and similar references shall be
deemed to mean and refer to the payments calculated as set forth in this
sentence. In such event, Excess Shares shall not be issued or otherwise
transferred to the Exchange Agent. As soon as practicable after the
determination of the amount of cash, if any, to be paid to holders of TeleCorp
Common Stock or Tritel Common Stock, as applicable, in lieu of any fractional
shares of the applicable TeleCorp Common Stock and the Tritel Common Stock, the
Exchange Agent shall make available such amounts to such holders of shares of
the applicable TeleCorp Common Stock and the Tritel Common Stock without
interest.
(b) Fractions of a share of all classes and series of the Holding
Company Capital Stock, other than Class A Voting Stock, may be issued in
connection with the Mergers.
1.12 Surrender of Certificates.
-------------------------
(a) Exchange Agent. Prior to the Effective Time, the Holding Company
--------------
shall designate a bank or trust company to act as exchange agent (the "Exchange
--------
Agent") in connection with the Mergers.
- -----
(b) The Holding Company to Provide Capital Stock. When and as
--------------------------------------------
needed, the Holding Company shall make available to the Exchange Agent for
exchange in accordance with this Article I, through such reasonable procedures
---------
as the Holding Company may adopt, sufficient shares of the Holding Company
Capital Stock to be exchanged pursuant to Section 1.6.
-----------
(c) Exchange Procedures. Promptly after the Effective Time, the
-------------------
Holding Company shall cause to be mailed to each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to the
------------
Effective Time represented outstanding shares of
16
<PAGE>
TeleCorp Capital Stock and Tritel Capital Stock whose shares were converted into
the right to receive shares of the Holding Company Capital Stock pursuant to
Section 1.6, a letter of transmittal (which shall specify that delivery shall be
- -----------
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
have such other provisions as the TeleCorp and/or Tritel may reasonably specify)
and instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of the Holding Company Capital
Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent,
together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, the holder of such Certificate shall
be entitled to receive in exchange therefor a certificate representing the
number and type of shares of the Holding Company Capital Stock or, in the case
of Class A Voting Stock, payment in lieu of fractional shares which such holder
has the right to receive pursuant to Section 1.11, and the Certificate so
------------
surrendered shall forthwith be canceled. Until so surrendered, each outstanding
Certificate that, prior to the Effective Time, represented shares of TeleCorp
Capital Stock or Tritel Capital Stock, as the case may be, shall be deemed from
and after the Effective Time, for all legal purposes, to evidence only the right
to receive the number of shares of the Holding Company Capital Stock into which
the holder of such shares of TeleCorp Capital Stock or Tritel Capital Stock, as
the case may be, is entitled and, in the case of Class A Voting Stock, the right
to receive an amount in cash in lieu of the issuance of any fractional shares in
accordance with Section 1.11. Any portion of the shares of the Holding Company
------------
Capital Stock and cash deposited with the Exchange Agent pursuant to Section
-------
1.12(b) which remains undistributed to the holders of Certificates representing
- -------
shares of TeleCorp Capital Stock or Tritel Capital Stock, as the case may be,
for six (6) months after the Effective Time shall be delivered to the Holding
Company, upon demand, and any holders of shares of
17
<PAGE>
TeleCorp Capital Stock or Tritel Capital Stock, as the case may be, who have not
theretofore complied with the provisions of this Article I shall thereafter look
---------
only to the Holding Company and only as general creditors thereof for payment of
their claim for the Holding Company Capital Stock, any cash in lieu of
fractional shares of Class A Voting Stock and any dividends or distributions
with respect to the Holding Company Capital Stock to which such holders may then
be entitled.
(d) Distributions With Respect to Unexchanged Shares. No dividends
------------------------------------------------
or other distributions declared or made after the Effective Time with respect to
the Holding Company Capital Stock with a record date after the Effective Time
will be paid to the holder of any unsurrendered Certificate with respect to the
shares of the Holding Company Capital Stock represented thereby until the holder
of record of such Certificate shall surrender such Certificate. Subject to
applicable law, following the surrender of any such Certificate, there shall be
paid to the record holder of the certificates representing shares of the Holding
Company Capital Stock issued in exchange therefor, without interest, at the time
of such surrender, the amount of dividends or other distributions with a record
date after the Effective Time theretofore paid with respect to such shares of
the Holding Company Capital Stock.
(e) Transfers of Ownership. If any certificate for shares of the
----------------------
Holding Company Capital Stock is to be issued in a name other than that in which
the Certificate surrendered in exchange therefor is registered in the stock
register of TeleCorp or Tritel, as applicable, it shall be a condition of the
issuance thereof that the Certificate so surrendered shall be properly endorsed
and otherwise be in proper form for transfer and that the stockholder requesting
such exchange shall have paid to the Holding Company, or any agent designated by
it, any transfer or other taxes required by reason of the issuance of a
certificate for shares of the Holding Company Capital Stock in any name other
than that of the registered holder of the
18
<PAGE>
Certificate surrendered, or established to the reasonable satisfaction of the
Holding Company or any agent designated by it that such tax has been paid or is
otherwise not payable.
(f) No Liability. Notwithstanding anything to the contrary in this
------------
Agreement, none of the Exchange Agent, the Holding Company, TeleCorp II or
Tritel II shall be liable to a holder of shares of TeleCorp Capital Stock or
Tritel Capital Stock, as the case may be, for the Holding Company Capital Stock
or any amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(g) Withholding of Tax. Either the Holding Company or the Exchange
------------------
Agent shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of TeleCorp Capital
Stock or Tritel Capital Stock, as the case may be, such amounts as the Holding
Company (or any Affiliate thereof (as defined in Section 10.4)) or the Exchange
------------
Agent shall determine in good faith they are required to deduct and withhold
with respect to the making of such payment under the Code or any provision of
any applicable state, local or foreign tax law. To the extent that amounts are
so withheld by the Holding Company or the Exchange Agent, such withheld amounts
will be treated for all purposes of this Agreement as having been paid to the
holder of the shares of TeleCorp Capital Stock or Tritel Capital Stock, as the
case may be, in respect of whom such deduction and withholding were made by the
Holding Company.
1.13 Further Ownership Rights in Shares. All shares of the Holding
----------------------------------
Company Capital Stock issued upon the surrender for exchange of shares of
TeleCorp Capital Stock or Tritel Capital Stock, as the case may be, in
accordance with the terms of this Article I (including any cash paid in respect
---------
thereof) shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of TeleCorp Capital Stock or Tritel Capital Stock, as
the case may be, and there shall be no further registration of transfers on the
records of either TeleCorp II
19
<PAGE>
or Tritel II of shares of capital stock which were outstanding immediately prior
to the Effective Time. If, after the Effective Time, Certificates are presented
to either TeleCorp II or Tritel II for any reason, they shall be canceled and
exchanged as provided in this Article I.
---------
1.14 Contribution.
------------
(a) As soon as practicable after the Effective Time and subject to,
and upon the terms and conditions of, this Agreement, AT&T shall deliver or
cause to be delivered (i) an amendment to the Network Membership License
Agreement, then in effect between AT&T Corp., a New York corporation, and the
Holding Company or TeleCorp (the "Existing Network Membership License
-----------------------------------
Agreement"), in the form attached as Exhibit D-1 (the "License Extension
- --------- ----------- -----------------
Amendment"), (ii) the Airadigm Assignment (as defined below), (iii) the Indus
- ---------
Assignment (as defined below) and (iv) a wire transfer of immediately available
funds in the amount of $20,000,000 (the "Cash Contribution") (the items
-----------------
described in items (i) through (iv), the "Contributed Property") and the Holding
--------------------
Company shall, and shall cause TeleCorp to, as appropriate, execute the License
Extension Amendment, the Airadigm Assignment and the Indus Assignment and the
Holding Company shall issue to AT&T (or its Affiliates) the Shares. It is
expressly understood by the parties that the failure of the Contribution to
occur at the Effective Time shall not prevent the Mergers from occurring. As
used herein, the term "Airadigm Assignment" shall mean the assignment by AT&T
-------------------
(or one of its Affiliates) of all its rights, title and interest in, to and
under a certain Letter of Intent attached hereto as Exhibit D-2 (the "Airadigm
----------- --------
Letter of Intent") which contemplates the entering into of an asset purchase
- ----------------
agreement (the "Airadigm Purchase Agreement") between Airadigm Communications,
---------------------------
Inc., a Wisconsin corporation ("Airadigm"), and a buyer designated by AT&T (the
--------
"Airadigm Buyer"), as part of, and subject to the approval of, a Plan of
--------------
Reorganization filed January 24, 2000 in connection with the bankruptcy
proceedings entitled In re Airadigm Communications, Inc., No.
-----------------------------------
20
<PAGE>
99-33500, Bktcy. W.D. Wisc., a copy of which is attached as Exhibit F (the "Plan
--------- ----
of Reorganization"). In the event the Airadigm Purchase Agreement is entered
- -----------------
into, the term "Airadigm Assignment" shall mean the assignment by AT&T of all
its right, title and interest in, to and under the Airadigm Purchase Agreement.
As used herein, the term "Indus Assignment" shall mean the assignment by AT&T
----------------
(or its Affiliates) to the Holding Company or TeleCorp (or one of their
respective Affiliates) of all its right, title and interest in, to and under
that certain Agreement and Plan of Merger in the form of Exhibit G-1 dated as of
-----------
February 27, 2000, between Indus, Inc. Milwaukee PCS LLC, a Delaware limited
liability company (the "Indus Buyer") and certain other parties (the "Indus
----------- -----
Merger Agreement"), in the form of Exhibit G-2.
- ---------------- -----------
(b) The failure to occur of any or all of the transactions
contemplated by the Airadigm Assignment shall not prevent the Contribution from
occurring at the Effective Time with respect to the other aspects of the
Contribution with respect to which the conditions specified in Section 7.4 shall
-----------
have been satisfied.
(c) Notwithstanding anything to the contrary in this Agreement, prior
to the Effective Time, TeleCorp and AT&T will execute and deliver the Indus
Assignment and one or more amendments to the Network Membership License
Agreement between AT&T Corp. and TeleCorp dated as of July 17, 1998, the
Intercarrier Roamer Service Agreement between AT&T and TeleCorp dated as of July
17, 1998 and the Roaming Administration Agreement between AT&T and TeleCorp
dated as of July 17, 1998 extending the rights of TeleCorp under such agreements
to the Indus territory in form and substance acceptable to AT&T and TeleCorp
(the "Indus Amendments"), as soon as the conditions to the consummation of the
----------------
transaction contemplated by the Indus Merger Agreement shall be satisfied if
such conditions shall be satisfied prior to the Effective Time (an "Early Indus
-----------
Closing"). In the event of an Early
- -------
21
<PAGE>
Indus Closing, TeleCorp will not be required to pay AT&T any consideration at
the time of the Early Indus Closing. In the event the Early Indus Closing occurs
and the Contribution is consummated, the Early Indus Closing shall be deemed
part of the Contribution. In the event the Early Indus Closing occurs, TeleCorp
or one of its Affiliates will assume all of the obligations of AT&T (or its
Affiliates) pursuant to that certain Organizational Agreement effective as of
February 27, 2000, among Kailas Rao, Indus, Inc., AT&T Wireless Services, Inc.,
the Indus Buyer and AT&T Milwaukee JV, Inc. (the "Indus Organization Agreement")
----------------------------
(such costs being referred to herein as the "Indus Transaction Costs"). If the
-----------------------
Early Indus Closing occurs and this Agreement is (or the provisions of this
Agreement relating to the Contribution are) terminated without the Contribution
occurring, then at the option of AT&T: either (i) TeleCorp will re-assign and
transfer to AT&T (or its Affiliates or designees) all assets and rights which
were assigned and transferred to TeleCorp by AT&T in connection with the Early
Indus Closing (and AT&T will reimburse TeleCorp for all out-of-pocket costs
incurred by TeleCorp in connection with (x) the Indus Transaction Costs or (y)
any improvements to or maintenance of such assets to the extent that AT&T
determines reasonably and in good faith that, in the case of clause (x), such
costs were either reasonably incurred or were costs that are of the nature of
costs that AT&T (or its Affiliates) would incur under similar circumstances or,
in the case of clause (y), to the extent such costs improved the value of the
Indus assets or were costs that AT&T (or its Affiliates or successor in title)
would have to incur in any event; or (ii) TeleCorp will pay AT&T an amount in
TeleCorp Class A Voting Stock valued at the average of the closing bid prices
for the TeleCorp Class A Voting Stock for the ten trading days immediately
preceding the date of the Early Indus Closing equal to (1) $175 times the number
of Indus POPS (where "POPs" means Paul Kagan Associates, Inc. estimate of the
----
1998 population of a geographic area), less (2) the amount of the purchase price
that was paid plus the amount of the Indus debt assumed pursuant to the Indus
Merger Agreement or (without duplication) the Indus Organization Agreement. In
22
<PAGE>
the event of an Early Indus Closing, if this Agreement is (or the provisions of
this Agreement relating to the Contribution are) terminated without the
Contribution occurring, AT&T and TeleCorp will take all action necessary so that
the Indus Amendments shall be terminated and all the rights thereunder shall
revert to AT&T (or its Affiliate).
(d) (i) In the event that AT&T is unable to deliver, or cause the
delivery of, the Indus Assets, then AT&T may in lieu thereof deliver or cause to
be delivered to the Holding Company executed assignments in form and substance
reasonably satisfactory to the Holding Company for 20 MHz of PCS licenses
(chosen at AT&T's option) for at least an equivalent number of POPs in the
Kansas City or Indianapolis BTAs and their surrounding BTAs or in such other
BTA's as the parties agree in good faith are reasonably equivalent to the
aforementioned regions (the "Replacement Assets"), provided that if AT&T chooses
------------------ --------
to provide Replacement Assets, the Holding Company will deliver to AT&T (or its
Affiliates) an amount of the Class A Voting Stock (valued based on the average
of the closing prices of such stock for the ten trading days immediately
preceding delivery of such Class A Voting Stock by the Holding Company) equal to
the amount of the purchase price that was required to be paid (plus the amount
of the Indus debt to be assumed) pursuant to the Indus Merger Agreement and the
transactions contemplated thereby, and, if the number of POPs included in the
Replacement Assets chosen exceeds the number of Indus POPs, the Holding Company
will deliver to AT&T (or its Affiliates) an additional amount of Class A Voting
Stock, valued as described above, equal to $175 times the number of such excess
POPs (in which case the defined term "Shares" shall include such additional
shares of Class A Voting Stock).
(ii) In the event that AT&T is unable to deliver, or cause the
delivery of, the Indus Assets and AT&T does not elect to deliver or cause
to be delivered to the Holding Company Replacement Assets, AT&T shall
provide prompt notice thereof to TeleCorp
23
<PAGE>
(or, after the Effective Time, the Holding Company) and TeleCorp (or the
Holding Company) may, by notice given within five business days after
receipt of such notice from AT&T, elect to terminate the Contribution.
1.15 Closing. Unless this Agreement shall have been terminated and
-------
the transactions contemplated by this Agreement abandoned pursuant to the
provisions of Article VIII, and subject to the provisions of Article VII, the
------------ -----------
closing of the Mergers (the "Closing") shall take place at 10:00 a.m. (eastern
-------
standard time) on a date (the "Closing Date") to be mutually agreed upon by the
------------
parties, which date shall be not later than the fifth business day after all the
conditions set forth in Article VII (excluding conditions that, by their nature,
-----------
cannot be satisfied until or on the Closing Date) shall have been satisfied (or
waived in accordance with Article VII, to the extent the same may be waived),
-----------
unless another time and/or date is agreed to in writing by the parties. The
Closing shall take place at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, NY, unless another place is agreed to by the parties.
1.16 Lost, Stolen or Destroyed Certificates. In the event any
--------------------------------------
Certificates evidencing shares of TeleCorp Capital Stock or Tritel Capital
Stock, as the case may be, shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange for such lost, stolen or destroyed
certificates, upon the making of an affidavit of that fact by the holder thereof
in form and substance reasonably acceptable to the Holding Company, such shares
of the Holding Company Capital Stock to which the holder of such Certificate
would otherwise be entitled to pursuant to the provisions of Section 1.6 and
-----------
cash for fractional shares, if any, as may be required pursuant to Section 1.11;
------------
provided, however, that the Holding Company may, in its discretion and as a
- -------- -------
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificates to deliver a bond in such sum as it may
reasonably direct as
24
<PAGE>
indemnity against any claim that may be made against the Holding Company or the
Exchange Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed.
1.17 Tax Consequences. For Federal income tax purposes, the parties
----------------
intend that the Mergers and the Contribution, taken together, will qualify as a
tax-free transaction within the meaning of Section 351 of the Code and that each
of the Mergers be treated as a tax-free reorganization under Section 368(a) of
the Code. Except to the extent otherwise required pursuant to a "determination"
within the meaning of Code Section 1313(a), the parties shall not take a
position on any Tax Return (as defined below) inconsistent with this Section
-------
1.17.
- ----
ARTICLE II
STRUCTURE OF HOLDING COMPANY AND RELATED MATTERS
2.1 Organization of the Holding Company.
-----------------------------------
(a) The Holding Company shall be organized as a corporation under the
laws of the State of Delaware and at all times prior to the Effective Time be
50% owned by TeleCorp and 50% owned by Tritel. Upon the Effective Time, the
Holding Company shall change its name to "TeleCorp PCS, Inc." The Certificate
of Incorporation and By-laws of the Holding Company in effect immediately prior
to the Effective Time shall be in the form of Exhibit H and Exhibit I attached
--------- ---------
hereto. TeleCorp and Tritel shall effect all steps to organize the Holding
Company as soon as practicable after the date of this Agreement. Prior to the
Effective Time, the Board of Directors of the Holding Company shall adopt
resolutions either designating the Holding Company Preferred Stock and
appropriate certificates of designation shall be filed with the Secretary of
State of the State of Delaware or amending and restating the Holding Company
Certificate of Incorporation and an appropriate Amended and Restated Certificate
of
25
<PAGE>
Incorporation of the Holding Company shall be filed with the Secretary of State
of the State of Delaware .
(b) At the Effective Time, each share of the Holding Company Common
Stock held by either TeleCorp or Tritel shall be canceled and all consideration
paid therefor shall be returned. Prior to the Effective Time, the Holding
Company shall not (i) conduct any business operations whatsoever or (ii) enter
into any contract or agreement of any kind, acquire any assets, or incur any
liability, except in connection with the organization of the Merger Subs, as may
be specifically contemplated by this Agreement, or as the parties may otherwise
agree in writing. In the event this Agreement is terminated prior to the
Effective Time, the Holding Company shall be promptly dissolved.
(c) Prior to the Effective Time, TeleCorp and Tritel will (i) cause
the Holding Company, First Merger Sub and Second Merger Sub to execute and
deliver a joinder to this Agreement pursuant to Section 251 of the DGCL, (ii)
execute a formal written consent under Section 228 of the DGCL as both of the
stockholders of the Holding Company, approving the execution, delivery and
performance of this Agreement by the Holding Company and (iii) cause the Holding
Company to execute a formal written consent under Section 228 of the DGCL as the
sole stockholder of First Merger Sub and Second Merger Sub, approving the
execution, delivery and performance of this Agreement by First Merger Sub and
Second Merger Sub.
2.2 Board of Directors of the Holding Company. The initial Board of
-----------------------------------------
Directors of the Holding Company shall be as set forth on Schedule A , and such
----------
Board of Directors shall take all actions necessary to cause the Board of
Directors of the Holding Company, as of the Effective Time, to consist of the
persons identified on Schedule A hereto, classified into three classes and with
----------
terms expiring as set forth on such Schedule A.
----------
26
<PAGE>
2.3 Officers of the Holding Company. As of the Effective Time, the
-------------------------------
Board of Directors of the Holding Company shall take all actions necessary to
elect as officers of the Holding Company the individuals set forth on Schedule A
----------
hereto.
2.4 Indemnification and Insurance.
-----------------------------
(a) From and after the Effective Time, the Holding Company will, or
will cause TeleCorp II and Tritel II to, fulfill and honor in all respects the
obligations of TeleCorp and Tritel pursuant to their respective Certificates of
Incorporation and By-laws and any indemnification agreements between TeleCorp,
Tritel and each of their respective directors and officers existing prior to the
Effective Time. The Certificate of Incorporation and By-laws of each of
TeleCorp II and Tritel II will contain the provisions with respect to
indemnification set forth in the Certificate of Incorporation and By-laws of
TeleCorp and Tritel, respectively, prior to the Effective Time, which provisions
shall not be amended, repealed or otherwise modified for a period of six (6)
years from the Effective Time in any manner that would adversely affect the
rights thereunder of individuals who, at any time prior to the Effective Time,
were directors, officers, employees or agents of TeleCorp or Tritel, unless such
modification is required by applicable law.
(b) From and after the Effective Time, the Holding Company will, and
will cause TeleCorp II and Tritel II, to the fullest extent permitted under
applicable law, to indemnify and hold harmless, each present and former director
and/or officer of TeleCorp and Tritel (collectively, the "Indemnified Parties")
-------------------
against any costs or expenses (including, without limitation, attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and amounts paid in
settlement in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, to the
extent arising out of or pertaining to any action or omission in his capacity as
a director or officer of TeleCorp or Tritel,
27
<PAGE>
respectively, for a period of six (6) years after the date hereof. Without
limiting any of the foregoing, in the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) any counsel retained by the Indemnified Parties for any period after
the Effective Time must be reasonably satisfactory to the Holding Company, (ii)
after the Effective Time, the Holding Company will pay, and will cause TeleCorp
II or Tritel II, as the case may be, to pay, the reasonable fees and expenses of
such counsel, promptly after statements therefor are received and (iii) the
Holding Company will, and will cause TeleCorp II or Tritel II, as the case may
be, to cooperate in the defense of any such matter; provided, however, that
-------- -------
neither the Holding Company, TeleCorp II or Tritel II, as the case may be, shall
be liable for any settlement effected without its written consent (which consent
will not be unreasonably withheld or delayed); and provided, further, that, in
-------- -------
the event that any claim or claims for indemnification are asserted or made
within such six-year period, all rights to indemnification in respect of any
such claim or claims will continue until the disposition of any and all such
claims and provided, further, that nothing in this Section 2.4 shall impair any
-------- ------- -----------
rights or obligations of any present or former employees, agents, directors or
officers of TeleCorp or Tritel. The Indemnified Parties as a group may retain
only one law firm (in addition to local counsel) to represent them with respect
to any single action unless there is, under applicable standards of professional
conduct, a conflict on any significant issue between the positions of any two or
more Indemnified Parties. In the event that the Holding Company, TeleCorp II,
Tritel II or any of their respective successors or assigns (i) consolidates with
or merges into any other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or (ii) transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, to the extent necessary to effectuate the purposes
of this Section 2.4, proper provision shall be made so that the successors and
-----------
assigns of TeleCorp II and
28
<PAGE>
Tritel II assume the obligations set forth in this Section 2.4 and none of the
-----------
actions described in clause (i) or (ii) shall be taken until such provision is
made.
(c) For a period of six (6) years after the Effective Time, the
Holding Company will, or will cause TeleCorp II and Tritel II to, maintain in
effect, if available, directors' and officers' liability insurance covering
those persons who are currently covered by TeleCorp's and Tritel's directors'
and officers' liability insurance policies on terms at least comparable to those
in effect on the date hereof; provided, that in no event shall the Holding
--------
Company be required to, or be required to cause TeleCorp II or Tritel II to,
maintain directors' and officers' liability insurance with comparable coverage
if the annual premium of such insurance is more than one hundred and twenty-five
percent (125%) of the cost of the most recent annual premium paid by TeleCorp or
Tritel, as applicable, but in such case, the Holding Company shall, and shall
cause, as much coverage as possible for such amount to be purchased.
(d) This Section 2.4 will survive the consummation of the Mergers, is
-----------
intended to benefit the Indemnified Parties, and shall be binding on all
successors and assigns of TeleCorp II, Tritel II and the Holding Company.
2.5 Headquarters of the Holding Company. The headquarters of the
-----------------------------------
Holding Company shall be located in Arlington, Virginia. Following the
Effective Time, the principal corporate offices of TeleCorp II shall be located
in Arlington, Virginia, and the principal corporate offices of Tritel II shall
be located in Jackson, Mississippi.
2.6 Merger Subs Organization. The Holding Company shall organize the
------------------------
First Merger Sub and the Second Merger Sub under the laws of the State of
Delaware. Prior to the Effective Time, the outstanding capital stock of the
First Merger Sub and the Second Merger Sub shall each consist of 1,000 shares of
common stock, par value $0.01 per share, all of which shall be owned by the
Holding Company. Prior to the Effective Time, the Merger Subs shall not
29
<PAGE>
(i) conduct any business operations whatsoever or (ii) enter into any contract
or agreement of any kind, acquire any assets or incur any liability, except as
may be specifically contemplated by this Agreement. If this Agreement is
terminated prior to the Effective Time, the Merger Subs shall be promptly
dissolved.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TELECORP
Except as set forth in the TeleCorp SEC Reports (as defined in Section
-------
3.9) or the TeleCorp Disclosure Schedule previously delivered to Tritel (the
- ---
"TeleCorp Disclosure Schedule"), TeleCorp, on behalf of itself and its
- -----------------------------
Subsidiaries (as defined in Section 10.4), represents and warrants to Tritel and
------------
AT&T that the statements contained in this Article III are true, complete and
-----------
correct. The TeleCorp Disclosure Schedule shall be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained in this Article
-------
III, and the disclosure in any paragraph shall qualify only the corresponding
- ---
paragraph of this Article III, unless the disclosure contained in such paragraph
-----------
contains such information so as to enable a reasonable person to determine that
such disclosure qualifies or otherwise applies to other paragraphs of this
Article III. As used in this Agreement, a "TeleCorp Material Adverse Effect"
- ----------- --------------------------------
means any change, event or effect that is materially adverse to the business,
assets (including intangible assets), financial condition or results of
operations of TeleCorp and its Subsidiaries, taken as a whole, excluding any
adverse change in, or effect on, the financial condition or revenues of TeleCorp
to the extent attributable to (i) general economic conditions in the United
States and (ii) conditions affecting the wireless communications industry
generally.
30
<PAGE>
3.1 Organization and Qualification; Subsidiaries.
--------------------------------------------
(a) TeleCorp is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has all the
requisite corporate power and authority necessary to own, lease and operate its
properties and to carry on its business as it is now being conducted. TeleCorp
is duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to
have a TeleCorp Material Adverse Effect.
(b) All of the shares of capital stock of each Subsidiary (as defined
in Section 10.4 below) of TeleCorp are owned by TeleCorp or by a Subsidiary of
------------
TeleCorp (other than director's qualifying shares in the case of foreign
Subsidiaries), and are validly issued, fully paid and non-assessable, and there
are no outstanding subscriptions, options, calls, contracts, voting trusts,
proxies or other commitments, understandings, restrictions, arrangements, rights
or warrants with respect any such Subsidiaries capital stock.
(c) Each Subsidiary of TeleCorp is a legal entity, duly incorporated
or organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or organization and has all the
requisite power and authority necessary to own, lease and operate its properties
and to carry on its business as it is now being conducted. Each Subsidiary of
TeleCorp is duly qualified or licensed as a foreign corporation to do business,
and is in good standing, in each jurisdiction where the character of the
properties owned, leased or operated by it or the nature of its activities makes
such qualification or licensing necessary, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to
have a TeleCorp Material Adverse Effect.
31
<PAGE>
3.2 Certificate of Incorporation; By-laws. TeleCorp has heretofore
-------------------------------------
made available to Tritel a true, complete and correct copy of its and each of
its Subsidiaries' respective Certificate of Incorporation and By-laws (or other
equivalent organizational documents), each as amended or restated to date. Each
such Certificate of Incorporation and By-laws (or other equivalent
organizational documents) of TeleCorp and each of its Subsidiaries are in full
force and effect. Neither TeleCorp nor any of its Subsidiaries is in violation
of any of the provisions of its Certificate of Incorporation or By-laws or other
equivalent organizational documents.
3.3 Capitalization.
--------------
(a) The authorized capital of TeleCorp consists of: (i) 918,339,090
shares of TeleCorp Common Stock, consisting of: (A) 608,550,000 shares of
TeleCorp Class A Voting Common Stock, (B) 308,550,000 shares of TeleCorp Class B
Non-Voting Common Stock, (C) 309,000 shares of TeleCorp Class C Common Stock,
(D) 927,000 shares of TeleCorp Class D Common Stock, and (E) 3,090 shares of
TeleCorp Voting Preference Common Stock; (ii) 17,045,000 shares of TeleCorp
Preferred Stock, consisting of: (A) 100,000 shares of TeleCorp Series A
Preferred Stock, (B) 200,000 shares of TeleCorp Series B Preferred Stock, (C)
215,000 shares of TeleCorp Series C Preferred Stock, (D) 50,000 shares of
TeleCorp Series D Preferred Stock, (E) 30,000 shares of TeleCorp Series E
Preferred Stock, (F) 15,450,000 shares of TeleCorp Series F Preferred Stock, and
(G) 1,000,000 undesignated shares;
(b) As of February 25, 2000: (i) 86,067,221 shares of TeleCorp Common
Stock were issued and outstanding, which consisted of: (A) 86,928,889 shares of
TeleCorp Class A Voting Common Stock, (B) 283,813 shares of TeleCorp Class C
Common Stock, (C) 851,429 shares of TeleCorp Class D Common Stock, and (D) 3,090
shares of TeleCorp Voting Preference Common Stock; (ii) 15,295,317 shares of
TeleCorp Preferred Stock were issued and outstanding, which consisted of: (A)
97,473 shares of TeleCorp Series A Preferred
32
<PAGE>
Stock, (B) 210,608 shares of TeleCorp Series C Preferred Stock, (C) 49,417
shares of TeleCorp Series D Preferred Stock, (D) 25,041 shares of TeleCorp
Series E Preferred Stock, and (E) 14,912,778 shares of TeleCorp Series F
Preferred Stock; (iii) no shares of TeleCorp Common Stock were held in treasury
of TeleCorp or any of its Subsidiaries; (iv) no shares of TeleCorp Capital Stock
were held by any Subsidiary of TeleCorp; (v) 503,022 shares of TeleCorp Class A
Voting Stock and 1,111.11 shares of TeleCorp Series E Preferred Stock reserved
for issuance pursuant to the TeleCorp Restricted Stock Plan and (vi) there were
outstanding employee and non-employee options in the amount set forth on
Schedule 3.3(b) (the "TeleCorp Options"), with the exercise price, vesting
- --------------- ----------------
schedule and name of each holder of such options and the amount of options held
by each such holder specified on Schedule 3.3(b). None of the outstanding shares
---------------
of TeleCorp Common Stock are subject to, nor were they issued in violation of,
any purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right.
(c) Except as set forth above, no shares of voting or non-voting
capital stock, other equity interests, or other voting securities of TeleCorp
were or are issued, reserved for issuance or outstanding. All outstanding
shares of TeleCorp Capital Stock are, and all shares which may be issued upon
the exercise of TeleCorp Options will be, when issued, duly authorized, validly
issued, fully paid and non-assessable and not subject to any kind of preemptive
(or similar) rights. There are no bonds, debentures, notes or other
indebtedness of TeleCorp with voting rights (or convertible into, or
exchangeable for, securities with voting rights) on any matters on which
stockholders of TeleCorp may vote.
(d) All of the outstanding shares of capital stock or other security
or equity interests of each of TeleCorp's Subsidiaries have been duly
authorized, validly issued, fully paid and non-assessable, are not subject to,
and were not issued in violation of, any preemptive (or similar) rights, and are
owned, of record and beneficially, by TeleCorp or one of its direct or
33
<PAGE>
indirect Subsidiaries, free and clear of all Liens (as defined in Section 10.4)
------------
whatsoever. There are no restrictions of any kind which prevent the payment of
dividends, where applicable, by any of TeleCorp's Subsidiaries, and neither
TeleCorp nor any of its Subsidiaries is subject to any obligation or requirement
to provide funds for or to make any investment (in the form of a loan or capital
contribution) to or in any Person (as defined in Section 10.4).
------------
(e) Section 3.3(e) of the TeleCorp Disclosure Schedule sets forth a
true, complete and correct list of all securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any kind
(contingent or otherwise) to which TeleCorp or any of its Subsidiaries is a
party or by which any of them is bound obligating TeleCorp or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other voting securities of TeleCorp
or of any of its Subsidiaries or obligating TeleCorp or any of its Subsidiaries
to issue, grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking (other than the
TeleCorp Options) and specifying the material terms of each such security,
option, warrant, call, right, commitment, agreement, arrangement or undertaking
including the applicable exercise price or purchase price and the name of the
person or entity to whom each such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking was issued. There are no
outstanding contractual obligations of TeleCorp or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock (or options
to acquire any such shares) or other security or equity interest of TeleCorp or
its Subsidiaries. There are not outstanding any stock-appreciation rights,
security-based performance units, "phantom" stock or other security rights or
other agreements, arrangements or commitments of any character (contingent or
otherwise) pursuant to which any Person is or may be entitled to receive any
payment or other value based on the revenues, earnings or financial performance,
34
<PAGE>
stock price performance or other attribute of TeleCorp or any of its
Subsidiaries or assets or calculated in accordance therewith (other than
ordinary course payments or commissions to sales representatives of TeleCorp
based upon revenues generated by them without augmentation as a result of the
transactions contemplated hereby) or to cause TeleCorp or any of its
Subsidiaries to file a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), or which otherwise relate to the registration
--------------
of any securities of TeleCorp or its Subsidiaries.
(f) Except as set forth in the TeleCorp SEC Reports or as
contemplated by the Stockholders Agreement, there are no voting trusts, proxies
or other agreements, commitments or understandings of any character to which
TeleCorp or any of its Subsidiaries or, to the knowledge of TeleCorp, any of the
stockholders of TeleCorp, is a party or by which any of them is bound with
respect to the issuance, holding, acquisition, voting or disposition of any
shares of capital stock or other security or equity interest of TeleCorp or any
of its Subsidiaries.
3.4 Authority; Enforceability. TeleCorp has all necessary corporate
-------------------------
power and authority to execute and deliver this Agreement, the Tritel Voting
Agreement, the Stockholders Agreement, the Investors Stockholder Agreement and
each other agreement or instrument required to be executed and delivered by it
at the Closing (each, including the TeleCorp Voting Agreement, the License
Extension Amendment, the Indus Amendments, the Airadigm Assignment and the Indus
Assignment, a "Related Agreement"), and to perform its obligations hereunder and
-----------------
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by TeleCorp of this Agreement and each Related
Agreement to which it is a party, the performance of its obligations hereunder
and thereunder, and the consummation by TeleCorp of the transactions
contemplated hereby and thereby, have been duly and validly authorized by all
corporate action and no other corporate proceedings on the part of TeleCorp are
necessary to authorize this Agreement or any Related Agreement to
35
<PAGE>
which it is a party or to consummate the transactions so contemplated, other
than the approval and authorization of this Agreement and the First Merger by
votes of the holders of a majority of the outstanding shares of TeleCorp Capital
Stock entitled to vote thereon in accordance with the DGCL, TeleCorp's
Certificate of Incorporation and By-laws, and the Special Vote (as defined
below). Each of this Agreement and the Related Agreements to which TeleCorp is a
party has been duly and validly executed and delivered by TeleCorp and, assuming
the due authorization, execution and delivery thereof by all other parties to
each such agreement, constitutes a legal, valid and binding obligation of
TeleCorp in accordance with its terms.
3.5 Required Vote. The Board of Directors of TeleCorp has, at a
-------------
meeting duly called and held, (i) approved and declared advisable this Agreement
and approved each Related Agreement to which it is a party, (ii) determined that
the transactions contemplated hereby and thereby are advisable, fair to and in
the best interests of the holders of TeleCorp Capital Stock, (iii) resolved to
recommend adoption of this Agreement, the First Merger and the other
transactions contemplated hereby and thereby to the stockholders of TeleCorp and
(iv) directed that this Agreement be submitted to the stockholders of TeleCorp
for their approval and authorization. The affirmative vote of a majority of the
voting power of all outstanding shares of TeleCorp Class A Voting Common Stock
and TeleCorp Voting Preference Common Stock voting together as one class, are
the only votes of the holders of any class or series of capital stock of
TeleCorp necessary to approve and authorize this Agreement, the First Merger,
the Related Agreements (to the extent TeleCorp is a party thereto) and the other
transactions contemplated hereby and thereby in their capacity as stockholders
of TeleCorp.
3.6 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery by TeleCorp of this Agreement and the
Related Agreements to which it is a party do not, and the performance of this
Agreement and the
36
<PAGE>
Related Agreements to which it is a party will not, (i) conflict with or violate
the Certificate of Incorporation or By-laws or other equivalent organizational
documents of TeleCorp or any of its Subsidiaries, (ii) conflict with or violate
any Law, Regulation or Order (as defined in Section 10.4) in each case
------------
applicable to TeleCorp or any of its Subsidiaries or by which any of their
respective properties is bound or affected, or (iii) result in any breach or
violation of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or impair TeleCorp's or any of its
Subsidiaries' rights or alter the rights or obligations of any third party
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the properties or
assets of TeleCorp or any of its Subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which TeleCorp or any of its Subsidiaries is a
party or by which TeleCorp or any of its Subsidiaries or its or any of their
respective properties is bound or affected, except in the case of clauses (ii)
or (iii) above, for any such conflicts, breaches, violations, defaults or other
occurrences that would not (x) individually or in the aggregate, reasonably be
expected to have a TeleCorp Material Adverse Effect, or (y) prevent or
materially impair or delay the consummation of the transactions contemplated by
this Agreement and the Related Agreements or (z) for purposes of this
representation being made to AT&T, individually, or in the aggregate, reasonably
be expected to have a Material Adverse Effect on the value of the Shares.
(b) The execution and delivery by TeleCorp of this Agreement and the
Related Agreements to which it is a party do not, and the performance of this
Agreement and the Related Agreements, will not, require TeleCorp or any of its
Subsidiaries to obtain any approval of any Person or approval of, observe any
waiting period imposed by, or make any filing with or notification to, any
Governmental Authority (as defined in Section 10.4), domestic or foreign,
------------
37
<PAGE>
except for (i) compliance with applicable requirements of the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), state
------------
securities laws ("Blue Sky Laws"), the pre-merger notification requirements of
-------------
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
---
Act"), or any Foreign Competition Laws (as defined in Section 10.4), the
- --- ------------
Communications Act of 1934, as amended (the "Communications Act") and the
------------------
regulations of the Federal Communications Commission (the "FCC"), state public
---
utility, telecommunications or public service laws, (ii) the filing of the
Certificates of Merger in accordance with the DGCL and/or (iii) where the
failure to obtain such approvals, or to make such filings or notifications,
would not, individually or in the aggregate, reasonably be expected to have a
TeleCorp Material Adverse Effect or prevent or materially delay the consummation
of the transactions contemplated by this Agreement.
3.7 Material Agreements. Neither TeleCorp nor any of its
-------------------
Subsidiaries has breached, or received in writing any claim or threat that it
has breached, any of the terms or conditions of any agreement, contract or
commitment that is of a type which is required to be included as an exhibit to
the annual reports on Form 10-K required to be filed by TeleCorp pursuant to
Item 601 of Regulation S-K promulgated by the Securities and Exchange Commission
("SEC") (collectively, the "TeleCorp Material Contracts") in such a manner as
--- ---------------------------
would permit any other party to cancel or terminate the same or would permit any
other party to collect material damages from TeleCorp or any of its Subsidiaries
under any TeleCorp Material Contract. Each TeleCorp Material Agreement is in
full force and effect, is a valid and binding obligation of TeleCorp or such
Subsidiary and, to the knowledge of TeleCorp, of each other party thereto, and
is enforceable against TeleCorp or such Subsidiary in accordance with its terms,
and, to the knowledge of TeleCorp, enforceable against each other party thereto,
in each case except that the enforcement thereof may be limited by (i) the
effects of bankruptcy,
38
<PAGE>
insolvency, reorganization, moratorium or other similar law now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law), and such TeleCorp Material Agreements will continue to be
valid, binding and enforceable in accordance with their respective terms and in
full force and effect immediately following the consummation of the transactions
contemplated hereby with no material alteration or acceleration or increase in
fees or liabilities. Neither TeleCorp nor any of its Subsidiaries is or is
alleged to be and, to the knowledge of TeleCorp, no other party is or is alleged
to be in default under, or in breach or violation of, any TeleCorp Material
Agreement, and, to the knowledge of TeleCorp, no event has occurred which
(whether with or without notice or lapse of time or both) would constitute such
a default, breach or violation. To the knowledge of TeleCorp, no party to a
TeleCorp Material Contract has terminated or in any way expressed an intent to
materially reduce or terminate the amount of business with TeleCorp and its
Subsidiaries in the future.
3.8 Compliance. Each of TeleCorp and its Subsidiaries is in
----------
compliance in all respects with, and is not in default or violation of, (i) its
Certificate of Incorporation and By-laws or other equivalent organizational
documents, (ii) any Law or Order or by which any of their respective assets or
properties are bound or affected or (iii) any note, bond, mortgage, indenture,
contract, permit, franchise or other instruments or obligations to which any of
them are a party or by which any of them or any of their respective assets or
properties are bound or affected, except, in the case of clauses (ii) and (iii),
for any such failures of compliance, defaults and violations which would not,
individually or in the aggregate, reasonably be expected to have a TeleCorp
Material Adverse Effect.
39
<PAGE>
3.9 SEC Filings; Financial Statements.
---------------------------------
(a) TeleCorp has timely filed all forms, reports, schedules,
statements and documents required to be filed by it with the SEC since October
13, 1999 (collectively, with the Registration Statement on Form S-1 dated
October 20, 1999, as amended (the "TeleCorp S-1"), the "TeleCorp SEC Reports")
------------ --------------------
pursuant to the Federal securities Laws and the SEC regulations promulgated
thereunder. The TeleCorp SEC Reports were prepared in accordance, and complied
as of their respective filing dates in all material respects, with the
requirements of the Exchange Act and the Securities Act and the rules and
regulations promulgated thereunder and did not at the time they were filed (or
if amended or superseded by a filing prior to the date hereof, then on the date
of such filing) contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. None of TeleCorp's Subsidiaries has filed, or is obligated to
file, any forms, reports, schedules, statements or other documents with the SEC.
(b) Each of the audited and unaudited consolidated financial
statements (including, in each case, any related notes and schedules thereto)
contained in the TeleCorp SEC Reports (i) complied in all material respects with
applicable accounting requirements and the published regulations of the SEC with
respect thereto, (ii) were prepared in accordance with generally accepted
accounting principles ("GAAP") (except, in the case of unaudited statements, to
----
the extent otherwise permitted by Form 10-Q) applied on a consistent basis
throughout the periods involved (except as may be expressly described in the
notes thereto) and (iii) fairly present in all material respects the
consolidated financial position of TeleCorp and its Subsidiaries as at the
respective dates thereof and the consolidated results of its operations and
40
<PAGE>
cash flows for the periods indicated, subject in the case of interim financial
statements to normal year-end adjustments.
3.10 Licenses and Authorizations.
---------------------------
(a) TeleCorp and its Subsidiaries hold all licenses, permits,
certificates, franchises, ordinances, registrations, or other rights,
applications and authorizations required to be filed with or granted or issued
by any Governmental Authority, including, without limitation, the FCC or any
state authority asserting over TeleCorp, its Subsidiaries and their respective
properties and assets, that are required for the conduct of their businesses as
currently being conducted (each, as amended to date, the "TeleCorp
--------
Authorizations"), other than such licenses, permits, certificates, franchises,
- --------------
ordinances, registrations, or other rights, applications and authorizations the
absence of which would not, individually or in the aggregate, be reasonably
likely to have a TeleCorp Material Adverse Effect or prevent or materially
impair or delay the ability of TeleCorp to consummate the transactions
contemplated hereby. TeleCorp has made available to Tritel a true, complete and
correct list of such TeleCorp Authorizations.
(b) TeleCorp has previously made available to Tritel and AT&T a true,
complete and correct list of (i) each application of TeleCorp or any of its
Subsidiaries pending before the FCC (the "TeleCorp FCC Applications"); (ii) each
-------------------------
FCC permit and FCC license which is not a TeleCorp Authorization but in which
TeleCorp or any of its Subsidiaries, directly or indirectly, holds an interest,
including as a stakeholder in the licensee (collectively, the "Indirect TeleCorp
-----------------
Authorizations"); and (iii) all licenses, permits, certificates, franchises,
- --------------
ordinances, registrations, or other rights, applications and authorizations for
the benefit of TeleCorp or any of its Subsidiaries , as applicable, pending
before any state authority (collectively, the "TeleCorp State Authorizations").
-----------------------------
The TeleCorp Authorizations, the TeleCorp FCC Applications, the Indirect
TeleCorp Authorizations and the TeleCorp State Authorizations
41
<PAGE>
(collectively, the "TeleCorp Licenses and Applications") are the only Federal,
----------------------------------
state or local licenses, permits, certificates, franchises, ordinances,
registrations, or other rights, applications and authorizations that are
required for the conduct of the business and operations of TeleCorp and its
Subsidiaries as currently conducted, other than such licenses, permits,
certificates, franchises, ordinances, registrations, or other rights,
applications and authorizations the absence of which would not, individually or
in the aggregate, be considered reasonably likely to have a TeleCorp Material
Adverse Effect or prevent or materially delay or impair the ability of TeleCorp
to consummate the transactions contemplated hereby.
(c) The TeleCorp Authorizations and, to the knowledge of TeleCorp,
the Indirect TeleCorp Authorizations, are in full force and effect and, except
as disclosed on Schedule 3.10(c), have not been pledged or otherwise encumbered,
----------------
assigned, suspended or modified in any material respect (except as a result of
FCC rule changes applicable to the PCS industry generally), canceled or revoked,
and TeleCorp and each of its Subsidiaries have each operated in compliance with
all terms thereof or any renewals thereof applicable to them, other than where
the failure to so comply would not, individually or in the aggregate, be
considered reasonably likely to have a TeleCorp Material Adverse Effect or
materially impair the ability of TeleCorp to consummate the transactions
contemplated hereby. To the knowledge of TeleCorp, no event has occurred with
respect to any of the TeleCorp Authorizations which permits, or after notice or
lapse of time or both would permit, revocation or termination thereof or would
result in any other material impairment of the rights of the holder of any such
TeleCorp Authorizations. To the knowledge of TeleCorp, there is not pending any
application, petition, objection or other pleading with the FCC, any state
authority or any similar entity having jurisdiction or authority over the
operations of TeleCorp or any of its Subsidiaries which questions the validity
or contests any TeleCorp Authorization or which could reasonably be expected, if
accepted or
42
<PAGE>
granted, to result in the revocation, cancellation, suspension or any materially
adverse modification of any TeleCorp Authorization.
(d) Except for the approvals contemplated by Section 3.6, no permit,
-----------
consent, approval, authorization, qualification or registration of, or
declaration to or filing with, any Governmental Entity is required to be made or
obtained by TeleCorp or any of its Subsidiaries in connection with the transfer
or deemed transfer of the TeleCorp Licenses and Authorizations as a result of
the consummation of the transactions contemplated hereby and such transactions
will not result in a breach of such approvals, except where the failure to
obtain or make such permit, consent, approval, authorization, qualification,
registration, declaration or filing would not be considered reasonably likely to
have a TeleCorp Material Adverse Effect or prevent or materially impair or delay
the ability of TeleCorp to consummate the transactions contemplated hereby.
3.11 No Violation of Law. The business of TeleCorp and its
-------------------
Subsidiaries is not being conducted in violation of any Laws, except for
possible violations none of which, individually or in the aggregate, would
reasonably be expected to have a TeleCorp Material Adverse Effect. Except as
disclosed in TeleCorp SEC Reports, no investigation, review or proceeding by any
Governmental Authority (including, without limitation, any stock exchange or
other self-regulatory body) with respect to TeleCorp or its Subsidiaries in
relation to any alleged violation of law or regulation is pending or, to
TeleCorp's knowledge, threatened, nor has any Governmental Authority (including,
without limitation, any stock exchange or other self-regulatory body) indicated
an intention to conduct the same, except for such investigations which, if they
resulted in adverse findings, would not reasonably be expected to have,
individually or in the aggregate, a TeleCorp Material Adverse Effect. Except as
set forth in the TeleCorp SEC Reports, neither TeleCorp nor any of its
Subsidiaries is subject to any cease and desist or other order, judgment,
injunction or decree issued by, or is a party to any written
43
<PAGE>
agreement, consent agreement or memorandum of understanding with, or is a party
to any commitment letter or similar undertaking to, or is subject to any order
or directive by, or has adopted any board resolutions at the request of, any
Governmental Authority that materially restricts the conduct of its business or
which would reasonably be expected to have a TeleCorp Material Adverse Effect,
nor has TeleCorp or any of its Subsidiaries been advised that any Governmental
Authority is considering issuing or requesting any of the foregoing. None of the
representations and warranties made in this Section 3.11 are being made with
------------
respect to Environmental Laws.
3.12 Absence of Certain Changes or Events.
------------------------------------
(a) Since September 30, 1999, TeleCorp and its Subsidiaries have
conducted their businesses only in the ordinary course of business consistent
with past practice (the "Ordinary Course of Business") and, since such date,
---------------------------
there has not been any change, event, development, damage or circumstance
affecting TeleCorp or any of its Subsidiaries which, individually or in the
aggregate, has had, or could reasonably be expected to have, a TeleCorp Material
Adverse Effect.
(b) Since September 30, 1999, (i) there has not been any material
change by TeleCorp in its accounting methods, principles or practices, any
revaluation by TeleCorp of any of its assets, including writing down the value
of inventory or writing off notes or accounts receivable other than in the
Ordinary Course of Business, and (ii) there has not been (A) any other action or
event, and neither TeleCorp nor any of its Subsidiaries has agreed in writing or
otherwise to take any other action, that would have required the consent of
Tritel pursuant to Section 6.2(a) had such action or event occurred after the
--------------
date hereof and prior to the Effective Time, or (B) any condition, event or
occurrence which could reasonably be expected to prevent,
44
<PAGE>
hinder or materially delay the ability of TeleCorp to consummate the
transactions contemplated by this Agreement or the Related Agreements to which
it is a party.
3.13 No Undisclosed Liabilities. TeleCorp and its Subsidiaries do not
--------------------------
have any liabilities or obligations of any nature (whether absolute, accrued,
fixed, contingent or otherwise) which would be required to be reflected in
financial statements prepared in accordance with GAAP, except liabilities or
obligations which (i) are reflected in the TeleCorp SEC Reports, or (ii) have
been incurred in the Ordinary Course of Business since September 30, 1999.
3.14 Absence of Litigation. There is no Litigation (as defined in
---------------------
Section 10.4) pending or, to the knowledge of TeleCorp, threatened against
- ------------
TeleCorp or any of its Subsidiaries, or any properties or rights of TeleCorp or
any of its Subsidiaries, before or subject to any Court (as defined in Section
-------
10.4) or Governmental Authority which, individually or in the aggregate, has
- ----
had, or would reasonably be expected to have, a TeleCorp Material Adverse Effect
or would prevent, or materially hinder or delay TeleCorp from consummating the
transactions contemplated by this Agreement.
3.15 Employee Benefit Plans.
----------------------
(a) TeleCorp has made available to Tritel true, complete and correct
copies of all employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and all bonus,
-----
stock or other security option, stock or other security purchase, stock or other
security appreciation rights, incentive, deferred compensation, retirement or
supplemental retirement, severance, golden parachute, vacation, cafeteria,
dependent care, medical care, employee assistance program, education or tuition
assistance programs, plant closing or similar benefit plans, retiree health or
life benefit plans, insurance and other similar fringe or employee benefit
plans, programs or arrangements, and any executive employment or executive
compensation or severance agreements, or a written
45
<PAGE>
summary of the material terms of any of the foregoing agreements if not in
writing, which have ever been sponsored, maintained, contributed to or entered
into for the benefit of, or relating to, any present or former employee,
officer, director or consultant of TeleCorp or any of its Subsidiaries, or any
trade or business (whether or not incorporated) which is a member of a
controlled group or which is under common control with TeleCorp, or any
Subsidiary of TeleCorp, within the meaning of Section 414 of the Code or Section
4001 of ERISA (a "TeleCorp ERISA Affiliate"), whether or not such plan is
------------------------
terminated (together, the "TeleCorp Employee Plans"). In addition, TeleCorp has
-----------------------
made available to Tritel with respect to each TeleCorp Employee Plan true,
complete and correct copies of each of the following, if applicable: the most
recent summary plan description and any subsequent summary of material
modifications, any related trust, insurance policy or other funding vehicle or
contract providing for benefits, and the three most recent Form 5500 series
Annual Report with all schedules filed with the IRS. Subject to the requirements
of ERISA, there are no restrictions on the ability of the sponsor of each
TeleCorp Employee Plan to amend or terminate any TeleCorp Employee Plan and each
TeleCorp Employee Plan may with the Consent of TeleCorp (or applicable
Subsidiary or TeleCorp ERISA Affiliate) be assumed by the Holding Company or the
First Merger Sub, as the case may be.
(b) There has been no "prohibited transaction," as such term is
defined in Section 406 of ERISA and Section 4975 of the Code, with respect to
any TeleCorp Employee Plan; there are no claims pending (other than routine
claims for benefits) or threatened against any TeleCorp Employee Plan or against
the assets of any TeleCorp Employee Plan, nor are there any current or
threatened Liens on the assets of any TeleCorp Employee Plan; each TeleCorp
Employee Plan conforms to, and in its operation and administration is in all
material respects in compliance with the terms thereof and the requirements
prescribed by any and all statutes
46
<PAGE>
(including ERISA and the Code), orders, or governmental rules and regulations
currently in effect with respect thereto (including, without limitation, all
applicable requirements for notification, reporting and disclosure to
participants or the Department of Labor, the IRS or Secretary of the Treasury),
and TeleCorp, each of its Subsidiaries and TeleCorp ERISA Affiliates have
performed all obligations required to be performed by them under, are not in
default under or violation of, and have no knowledge of any default or in
violation by any other party with respect to, any TeleCorp Employee Plan; each
TeleCorp Employee Plan intended to qualify under Section 401(a) of the Code and
each corresponding trust intended to be exempt under Section 501 of the Code has
received or is the subject of a favorable determination or opinion letter from
the IRS (a true and complete copy of which has been provided by TeleCorp to
Tritel) and nothing has occurred which may be expected to cause the loss of such
qualification or exemption; all contributions (including premiums for any
insurance policy under which benefits for any TeleCorp Employee Plan are
provided) required to be made to any TeleCorp Employee Plan pursuant to Section
412 of the Code, or any contract, or the terms of the TeleCorp Employee Plan or
any collective bargaining agreement, or otherwise have been made on or before
their due dates and a reasonable amount has been accrued for contributions to
each TeleCorp Employee Plan for its current plan year; the transaction
contemplated herein will not directly or indirectly result in an increase of
benefits, acceleration of vesting or acceleration of timing for payment of any
benefit to any participant or beneficiary under any TeleCorp Employee Plan; each
TeleCorp Employee Plan, if any, which is maintained outside of the United States
has been operated in all material respects in conformance with the applicable
statutes or governmental regulations and rulings relating to such plans in the
jurisdictions in which such TeleCorp Employee Plan is present or operates and,
to the extent relevant, the United States; no TeleCorp Employee Plan is an
"employee pension benefit plan" (within the meaning of Section
47
<PAGE>
3(2) of ERISA) subject to Title IV of ERISA (a "Defined Benefit Plan"), or a
--------------------
Multiemployer Plan (as such term is defined in Section 3(37) of ERISA), or a
"single-employer plan which has two or more contributing sponsors at least two
of whom are not under common control" as described in Section 4063 of ERISA, and
none of TeleCorp, any of its Subsidiaries or any TeleCorp ERISA Affiliate has
ever maintained or sponsored, participated in, or made or been obligated to make
contributions to such a Defined Benefit Plan or such a Multiemployer Plan or
such a single employer plan as described in Section 4063 of ERISA.
(c) Each TeleCorp Employee Plan that is a "group health plan" (within
the meaning of Code Section 5000(b)(1)) has been operated in compliance in all
material respects with all laws applicable to such plan, its terms, and with the
group health plan continuation coverage requirements of Section 4980B of the
Code and Sections 601 through 608 of ERISA ("COBRA Coverage"), Section 4980D of
--------------
the Code and Sections 701 through 707 of ERISA, Title XXII of the Public Health
Service Act, the provisions of the Social Security Act, and the provisions of
any similar law of any state providing for continuation coverage, in each case
to the extent such requirements are applicable. No TeleCorp Employee Plan or
written or oral agreement exists which obligates TeleCorp, any of its
Subsidiaries or any TeleCorp ERISA Affiliate to provide health care coverage,
medical, surgical, hospitalization, death, life insurance or similar benefits
(whether or not insured) to any current or former employee, officer, director or
consultant of TeleCorp, any of its Subsidiaries or any TeleCorp ERISA Affiliate
or to any other person following such current or former employee's, officer's,
director's or consultant's termination of employment with TeleCorp, any of its
Subsidiaries or any TeleCorp ERISA Affiliate, other than COBRA Coverage.
48
<PAGE>
(d) The consummation of the transactions contemplated by this
Agreement will not constitute a "prohibited transaction" under ERISA or the Code
for which an exemption is unavailable.
3.16 Employment and Labor Matters. There are no controversies pending
----------------------------
or threatened, between TeleCorp or any of its Subsidiaries and any of their
respective employees which could reasonably be expected to have a TeleCorp
Material Adverse Effect; neither TeleCorp nor any of its Subsidiaries is a party
to any collective bargaining agreement or other labor union contract applicable
to persons employed by TeleCorp or its Subsidiaries nor to TeleCorp's knowledge
are there any activities or proceedings of any labor union to organize any such
employees of TeleCorp or any of its Subsidiaries. Since January 1, 1999, there
have been no strikes, slowdowns, work stoppages, lockouts, or threats thereof,
by or with respect to any employees of TeleCorp or any of its Subsidiaries.
TeleCorp does not have nor at the Closing will TeleCorp have any obligation
under the Worker Adjustment and Retraining Notification Act (the "WARN Act") as
--------
a result of any acts of TeleCorp taken in connection with the transactions
contemplated hereby. Except as would not reasonably be expected to result in a
TeleCorp Material Adverse Effect, each of TeleCorp and its Subsidiaries is in
compliance with all applicable Federal, state, local, and foreign employment,
wage and hour, labor non-discrimination and other applicable laws or
regulations, except where failure to comply with such laws would not be
reasonably expected to have a TeleCorp Material Adverse Effect.
3.17 Registration Statement; Proxy Statement/Prospectus. None of the
--------------------------------------------------
information supplied by TeleCorp in writing for inclusion in the registration
statement on Form S-4, or any amendment or supplement thereto, pursuant to which
the shares of the Holding Company Capital Stock to be issued in the Mergers will
be registered with the SEC (including any amendments or supplements, the
"Registration Statement") shall, at the time such document
----------------------
49
<PAGE>
is filed, at the time amended or supplemented, at the time the Registration
Statement is declared effective by the SEC and at the Effective Time, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the information supplied by TeleCorp for inclusion in the
joint proxy statement/prospectus to be sent to the stockholders of TeleCorp and
Tritel in connection with the respective special meetings of the stockholders of
TeleCorp (the "TeleCorp Stockholders' Meeting"), and Tritel (the "Tritel
------------------------------ ------
Stockholders' Meeting") in connection with the Mergers (such proxy
- ---------------------
statement/prospectus, as amended or supplemented, is referred to herein as the
"Joint Proxy Statement") will, on the date the Joint Proxy Statement is first
---------------------
mailed to the stockholders of TeleCorp and Tritel, at the time of the TeleCorp
Stockholders' Meeting and the Tritel Stockholders' Meeting and at the Effective
Time, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. If at any time
prior to the Effective Time any event relating to TeleCorp or any of its
Affiliates (as defined in Section 10.4), officers or directors should be
------------
discovered by TeleCorp which should be set forth in an amendment or supplement
to the Registration Statement or an amendment or supplement to the Joint Proxy
Statement, TeleCorp shall promptly inform the Holding Company, AT&T and Tritel.
The Joint Proxy Statement (other then information relating solely to Tritel)
shall comply in all material respects as to form and substance with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder. Notwithstanding the foregoing, TeleCorp makes no representation or
warranty with respect to any information supplied by Tritel or AT&T which is
contained in the Registration Statement or Joint Proxy Statement.
50
<PAGE>
3.18 Absence of Restrictions on Business Activities. There is no
----------------------------------------------
TeleCorp Material Agreement binding upon TeleCorp or any of its Subsidiaries or
any of their respective properties which has had or could reasonably be expected
to have the effect of prohibiting or materially impairing any business practice
of TeleCorp or any of its Subsidiaries or the conduct of business by TeleCorp or
any of its Subsidiaries as currently conducted.
3.19 Title to Assets; Leases. Each of TeleCorp and its Subsidiaries
-----------------------
has good title to all of their owned properties and assets, free and clear of
all Liens, charges and encumbrances, except Liens for Taxes (as defined in
Section 3.20) not yet due and payable and such Liens or other imperfections of
- ------------
title, if any, as do not materially detract from the value of or interfere with
the present use of the property affected thereby (collectively, the "Permitted
---------
Encumbrances"). All leases pursuant to which TeleCorp or any of its
- ------------
Subsidiaries lease real or personal property from others are valid and effective
in accordance with their respective terms, and there is not, under any such
lease, any existing material default or event of default (or event which with
notice or lapse of time, or both, would constitute a material default) and in
respect of which TeleCorp or such Subsidiary has not taken adequate steps to
prevent such a default from occurring where such default would reasonably be
expected to have a TeleCorp Material Adverse Effect.
3.20 Taxes.
-----
(a) For purposes of this Agreement, "Tax" or "Taxes" shall mean (i)
--- -----
taxes and governmental impositions of any kind in the nature of (or similar to)
taxes, payable to any Federal, state, local or foreign taxing authority,
including but not limited to those on or measured by or referred to as income,
franchise, profits, gross receipts, capital ad valorem, custom duties,
alternative or add-on minimum taxes, estimated, environmental, disability,
registration, value added, sales, use, service, real or personal property,
capital stock, license, payroll, withholding,
51
<PAGE>
employment, social security, workers' compensation, unemployment compensation,
utility, severance, production, excise, stamp, occupation, premiums, windfall
profits, transfer and gains taxes, and interest, penalties and additions to tax
imposed with respect thereto, (ii) liability for the payment of any amounts of
the types described in clause (i) as a result of being a member of an
affiliated, consolidated, combined or unitary group, and (iii) liability for the
payment of any amounts as a result of being party to any tax sharing agreement
or as a result of any express or implied obligation to indemnify any other
person with respect to the payment of any amounts of the type described in
clause (i) or (ii); and "Tax Returns" shall mean returns, reports and
-----------
information statements, including any schedule or attachment thereto, with
respect to Taxes required to be filed with the IRS or any other governmental or
taxing authority or agency, domestic or foreign, including consolidated,
combined and unitary tax returns.
(b) All Federal, state, local and foreign Tax Returns required to be
filed (taking into account extensions) by or on behalf of TeleCorp, each of its
Subsidiaries, and each affiliated, combined, consolidated or unitary group for
tax purposes of which TeleCorp or any of its Subsidiaries is or has been a
member have been timely filed, and all such Tax Returns are true, complete and
correct, except to the extent that any failure to file or any inaccuracies in
filed Tax Returns would not, individually or in the aggregate, reasonably be
expected to have a TeleCorp Material Adverse Effect.
(c) All Taxes due and payable by or with respect to TeleCorp and each
of its Subsidiaries have been timely paid, or are adequately reserved for (other
than a reserve for deferred Taxes established to reflect timing differences
between book and Tax treatment) in accordance with GAAP on TeleCorp's September
30, 1999 audited balance sheet (the "Most Recent TeleCorp Balance Sheet"),
----------------------------------
except to the extent that such amount would not, individually or in the
aggregate, reasonably be expected to have a TeleCorp Material Adverse Effect.
No
52
<PAGE>
deficiencies, delinquencies or defaults for any Taxes have been proposed,
asserted or assessed either orally or in writing or become a Lien for taxes
against TeleCorp or any of its Subsidiaries that are not adequately reserved for
in accordance with GAAP on the Most Recent TeleCorp Balance Sheet nor are there
any outstanding Tax audits or inquiries. All assessments for Taxes due and
owing by or with respect to TeleCorp and each of its Subsidiaries with respect
to completed and settled examinations or concluded litigation have been paid.
(d) Neither TeleCorp nor any of its Subsidiaries has requested, or
been granted any waiver of any Federal, state, local or foreign statute of
limitations with respect to, or any extension of a period for the assessment of,
any Tax. No extension or waiver of time within which to file any Tax Return of,
or applicable to, TeleCorp or any of its Subsidiaries has been granted or
requested which has not since expired. None of the Federal income Tax Returns
of TeleCorp or any of its Subsidiaries consolidated in such returns either have
been examined and settled with the IRS or have been closed by virtue of the
applicable statute of limitations.
(e) Other than with respect to its Subsidiaries, TeleCorp is not and
has never been (nor does TeleCorp have any liability for unpaid Taxes because it
once was) a member of an affiliated, consolidated, combined or unitary group,
and neither TeleCorp nor any of its Subsidiaries is a party to any Tax
allocation or sharing agreement or is liable for the Taxes of any other party,
as transferee or successor, by contract, or otherwise.
(f) TeleCorp and its Subsidiaries have not made any payments, are not
obligated to make any payments, and are not a party to any agreements that under
any circumstances could obligate any of them to make any payments that will not
be deductible under Section 280G of the Code or would constitute compensation in
excess of the limitation set forth in Section 162(m) of the Code.
53
<PAGE>
(g) TeleCorp has not been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(h) Each of TeleCorp and its Subsidiaries has complied in all
material respects with all applicable Laws relating to the payment and
withholding of Taxes (including, without limitation, withholding of Taxes
pursuant to Sections 1441, 1442 and 3406 of the Code or similar provisions under
any foreign Laws) and have, within the time and in the manner required by Law,
been withheld from employee wages and paid over to the proper Governmental
Authorities all amounts required to be so withheld and paid over under all
applicable Laws.
(i) Neither TeleCorp nor any Subsidiary has executed or entered into
any closing agreement under Section 7121 of the Code (or any similar provision
of state, local or foreign law) or has agreed to make any adjustment to its
income or deductions pursuant to Section 481(a) of the Code (or similar
provision of state, local or foreign law), in either case that could affect the
Tax liability after the Closing Date to any material extent.
(j) None of TeleCorp or any of its Subsidiaries shall be required to
include in a taxable period ending after the Effective Time a material amount of
a taxable income attributable to income that accrued in a prior taxable period
but was not recognized in any prior taxable period as a result of the
installment method of accounting, the completed contract method of accounting,
the long-term contract method of accounting, the cash method of accounting or
Section 481 of the Code or comparable provisions of state, local or foreign tax
law.
3.21 Environmental Matters. Except for such instances, if any, which
---------------------
would not, individually or in the aggregate, reasonably be expected to have a
TeleCorp Material Adverse Effect, (i) TeleCorp and each of its Subsidiaries have
obtained all applicable permits,
54
<PAGE>
licenses and other authorizations which are required under applicable
Environmental Laws as defined below; (ii) TeleCorp and each of its Subsidiaries
are in full compliance with all applicable Environmental Laws and with the terms
and conditions of all required permits, licenses and authorizations, and also
are in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in such laws or contained in any applicable regulation, code, plan,
order, decree, judgment, notice or demand letter issued, entered, promulgated or
approved thereunder; and (iii) as of the date hereof, there has not been any
event, condition, circumstance, activity, practice, incident, action or plan
which is reasonably likely to interfere with or prevent continued compliance
with the terms of such permits, licenses and authorizations or which would give
rise to any common law or statutory liability, or otherwise form the basis of
any claim, action, suit or proceeding, based on or resulting from TeleCorp's or
any of its Subsidiaries' (or any of their respective agent's) manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, or release into the environment, of any
Hazardous Material (as defined below); and (iv) TeleCorp and each of its
subsidiaries has taken all actions necessary under applicable requirements of
federal, state or local laws, rules or regulations to register any products or
materials required to be registered by TeleCorp or its Subsidiaries (or any of
their respective agents) thereunder. There is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter pending or, to the knowledge
of TeleCorp, threatened against TeleCorp or any of its Subsidiaries relating in
any way to the Environmental Laws (as defined in Section 10.4) or any
------------
Regulation, code, plan, Order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder.
55
<PAGE>
3.22 Intellectual Property.
---------------------
(a) TeleCorp and its Subsidiaries own, or are licensed or otherwise
possess legally enforceable rights to use, all patents, trademarks, trade names,
service marks, copyrights and mask works, any applications for and registrations
of such patents, trademarks, trade names, service marks, copyrights and mask
works, and all processes, formulae, methods, schematics, technology, know-how,
computer software programs or applications and tangible or intangible
proprietary information or material that are necessary to conduct the business
of TeleCorp and its Subsidiaries as currently conducted, the absence of which
would be considered reasonably likely to have a TeleCorp Material Adverse Effect
(the "TeleCorp Intellectual Property Rights").
-------------------------------------
(b) Neither TeleCorp nor any of its Subsidiaries is, or will as a
result of the execution and delivery of this Agreement or the performance of
TeleCorp's obligations under this Agreement or otherwise be, in breach of any
license, sublicense or other agreement relating to the TeleCorp Intellectual
Property Rights, or any material licenses, sublicenses and other agreements as
to which TeleCorp or any of its Subsidiaries is a party and pursuant to which
TeleCorp or any of its Subsidiaries is authorized to use any third party
patents, trademarks or copyrights, including software ("TeleCorp Third Party
--------------------
Intellectual Property Rights") which is used by TeleCorp or any of its
- ----------------------------
Subsidiaries, the breach of which would be considered reasonably likely to have
a TeleCorp Material Adverse Effect.
(c) All patents, registered trademarks, service marks and copyrights
which are held by TeleCorp or any of its Subsidiaries, and which are material to
the business of TeleCorp and its Subsidiaries, taken as a whole, are valid and
subsisting. TeleCorp (i) has not been sued in any suit, action or proceeding
which involves a claim of infringement of any patents, trademarks, service
marks, copyrights or violation of any trade secret or other proprietary right of
any third party; and (ii) has no knowledge that the marketing, licensing or sale
of its services infringes any
56
<PAGE>
patent, trademark, service mark, copyright, trade secret or other proprietary
right of any third party, which infringement would reasonably be expected to
have a TeleCorp Material Adverse Effect.
3.23 No Restrictions on the Merger; Takeover Statutes. No applicable
------------------------------------------------
takeover statute or similar Law and no provision of the Certificate of
Incorporation or By-laws, or other organizational document or governing
instruments of TeleCorp or any of its Subsidiaries or any TeleCorp Material
Agreement to which any of them is a party (a) would or would purport to impose
restrictions which might adversely affect or delay the consummation of the
transactions contemplated by this Agreement, the TeleCorp Voting Agreement, the
Investor Stockholder Agreement or the Stockholders Agreement or (b) as a result
of the consummation of the transactions contemplated by this Agreement, the
TeleCorp Voting Agreement or the Stockholders Agreement (i) would or would
purport to restrict or impair the ability of the Holding Company to vote or
otherwise exercise the rights of a stockholder with respect to securities of
TeleCorp, any of its Subsidiaries or TeleCorp II or (ii) would or would purport
to entitle any Person to acquire securities of TeleCorp or TeleCorp II.
3.24 Tax Matters. Neither TeleCorp nor any of its Affiliates has
-----------
taken or agreed to take any action, failed to take any action or is aware of any
fact or circumstance that is reasonably likely to prevent the Mergers and the
Contribution, taken together, from constituting a tax-free transaction within
the meaning of Section 351 of the Code or that would cause either Merger to fail
to qualify as a tax-free reorganization under Section 368(a) of the Code.
3.25 Brokers. Except for Lehman Brothers Inc. ("Lehman Brothers"), no
------- ---------------
broker, financial advisor, finder or investment banker or other Person is
entitled to any broker's, financial advisor's, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of TeleCorp.
57
<PAGE>
TeleCorp has heretofore furnished to Tritel a true, complete and correct copy of
all agreements between TeleCorp and Lehman Brothers pursuant to which such firm
would be entitled to any payment relating to the transactions contemplated
hereunder.
3.26 Opinion of Financial Advisor. TeleCorp has received the written
----------------------------
opinion of its financial advisor, Lehman Brothers, to the effect that, in its
opinion, as of the date hereof, from a financial point of view the exchange
ratio in the Mergers is fair to the stockholders of TeleCorp, and TeleCorp has
provided copies of such opinion to Tritel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRITEL
Except as set forth in the Tritel SEC Reports (as defined in Section
-------
4.9) or the Tritel Disclosure Schedule previously delivered to TeleCorp (the
- ---
"Tritel Disclosure Schedule"), Tritel, on behalf of itself and its Subsidiaries,
--------------------------
represents and warrants to TeleCorp and AT&T that the statements contained in
this Article IV are true, complete and correct. The Tritel Disclosure Schedule
----------
shall be arranged in paragraphs corresponding to the numbered and lettered
paragraphs contained in this Article IV, and the disclosure in any paragraph
----------
shall qualify only the corresponding paragraph of this Article IV, unless the
----------
disclosure contained in such paragraph contains such information so as to enable
a reasonable person to determine that such disclosure qualifies or otherwise
applies to other paragraphs of this Article IV. As used in this Agreement, a
----------
"Tritel Material Adverse Effect" means any change, event or effect that is
------------------------------
materially adverse to the business, assets (including intangible assets),
financial condition or results of operations of Tritel and its Subsidiaries,
taken as a whole, excluding any adverse change in, or effect on, the financial
condition or revenues of Tritel to the extent attributable to (i) general
economic
58
<PAGE>
conditions in the United States and (ii) conditions affecting the wireless
communications industry generally.
4.1 Organization and Qualification; Subsidiaries.
--------------------------------------------
(a) Tritel is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has all the
requisite corporate power and authority necessary to own, lease and operate its
properties and to carry on its business as it is now being conducted. Tritel is
duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to
have a Tritel Material Adverse Effect.
(b) All of the shares of capital stock of each Subsidiary of Tritel
are owned by Tritel or by a Subsidiary of Tritel (other than director's
qualifying shares in the case of foreign Subsidiaries), and are validly issued,
fully paid and non-assessable, and there are no outstanding subscriptions,
options, calls, contracts, voting trusts, proxies or other commitments,
understandings, restrictions, arrangements, rights or warrants with respect any
such Subsidiaries capital stock.
(c) Each Subsidiary of Tritel is a legal entity, duly incorporated or
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or organization and has all the
requisite power and authority necessary to own, lease and operate its properties
and to carry on its business as it is now being conducted. Each Subsidiary of
Tritel is duly qualified or licensed as a foreign corporation to do business,
and is in good standing, in each jurisdiction where the character of the
properties owned, leased or operated by it or the nature of its activities makes
such qualification or licensing necessary, except where the failure
59
<PAGE>
to be so qualified would not, individually or in the aggregate, reasonably be
expected to have a Tritel Material Adverse Effect.
4.2 Certificate of Incorporation; By-laws. Tritel has heretofore
-------------------------------------
made available to TeleCorp a true, complete and correct copy of its and each of
its Subsidiaries' respective Certificate of Incorporation and By-laws (or other
equivalent organizational documents), each as amended or restated to date. Each
such Certificate of Incorporation and By-laws (or other equivalent
organizational documents) of Tritel and each of its Subsidiaries are in full
force and effect. Neither Tritel nor any of its Subsidiaries is in violation of
any of the provisions of its Certificate of Incorporation or By-laws or other
equivalent organizational documents.
4.3 Capitalization.
--------------
(a) The authorized capital of Tritel consists of: (i) 1,016,000,009
shares of Tritel Common Stock, consisting of: (A) 500,000,000 shares of Tritel
Class A Voting Common Stock, (B) 500,000,000 shares of Tritel Class B Non-Voting
Common Stock, (C) 4,000,000 shares of Tritel Class C Common Stock, (D)
12,000,000 shares of Tritel Class D Common Stock, and (E) nine shares of Tritel
Voting Preference Common Stock; (ii) 3,100,000 shares of Tritel Preferred Stock,
consisting of: (A) 200,000 shares of Tritel Series A Preferred Stock, (B)
300,000 shares of Tritel Series B Preferred Stock, (C) 500,000 shares of Tritel
Series C Preferred Stock, (D) 100,000 shares of Tritel Series D Preferred Stock,
and (E) 2,000,000 undesignated shares;
(b) As of January 31, 2000: (i) 107,068,559 shares of Tritel Common
Stock were issued and outstanding, which consisted of: (A) 97,798,181 shares of
Tritel Class A Voting Common Stock, (B) 2,927,120 shares of Tritel Class B
Common Stock, (C) 1,380,448 shares of Tritel Class C Common Stock, (D) 4,962,804
shares of Tritel Class D Common Stock and
60
<PAGE>
(E) six shares of Tritel Voting Preference Common Stock; (ii) 137,042 shares of
Tritel Preferred Stock were issued and outstanding, which consisted of: (A)
90,668 shares of Tritel Series A Preferred Stock, (B) 46,374 shares of Tritel
Series D Preferred Stock; (iii) 4,885.56 shares of Tritel Common Stock were held
in treasury; (iv) no shares of Tritel Capital Stock were held by any Subsidiary
of Tritel; and (v) there were outstanding employee and non-employee options in
the amount set forth on Schedule 4.3(b) (the "Tritel Options"), with the
--------------- --------------
exercise price, vesting schedule, and name of each holder of such options and
the amount of options held by each such holder specified on Schedule 4.3(b).
---------------
None of the outstanding shares of Tritel Common Stock are subject to, nor were
they issued in violation of, any purchase option, call option, right of first
refusal, preemptive right, subscription right or any similar right.
(c) Except as set forth above, no shares of voting or non-voting
capital stock, other equity interests, or other voting securities of Tritel were
or are issued, reserved for issuance or outstanding. All outstanding shares of
Tritel Capital Stock are, and all shares which may be issued upon the exercise
of Tritel Options will be, when issued, duly authorized, validly issued, fully
paid and non-assessable and not subject to any kind of preemptive (or similar)
rights. There are no bonds, debentures, notes or other indebtedness of Tritel
with voting rights (or convertible into, or exchangeable for, securities with
voting rights) on any matters on which stockholders of Tritel may vote.
(d) All of the outstanding shares of capital stock or other security
or equity interests of each of Tritel's Subsidiaries have been duly authorized,
validly issued, fully paid and non-assessable, are not subject to, and were not
issued in violation of, any preemptive (or similar) rights, and are owned, of
record and beneficially, by Tritel or one of its direct or indirect
Subsidiaries, free and clear of all Liens whatsoever. There are no restrictions
of any kind which prevent the payment of dividends, where applicable, by any of
Tritel's Subsidiaries, and neither
61
<PAGE>
Tritel nor any of its Subsidiaries is subject to any obligation or requirement
to provide funds for or to make any investment (in the form of a loan or capital
contribution) to or in any Person.
(e) Section 4.3(e) of Tritel Disclosure Schedule sets forth a true,
complete and correct list of all securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind (contingent or
otherwise) to which Tritel or any of its Subsidiaries is a party or by which any
of them is bound obligating Tritel or any of its Subsidiaries to issue, deliver
or sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other voting securities of Tritel or of any of its Subsidiaries or
obligating Tritel or any of its Subsidiaries to issue, grant, extend or enter
into any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking (other than the Tritel Options) and specifying the
material terms of each such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking including the applicable exercise price or
purchase price and the name of the person or entity to whom each such security,
option, warrant, call, right, commitment, agreement, arrangement or undertaking
was issued. There are no outstanding contractual obligations of Tritel or any
of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock (or options to acquire any such shares) or other security or
equity interest of Tritel or its Subsidiaries. There are not outstanding any
stock-appreciation rights, security-based performance units, "phantom" stock or
other security rights or other agreements, arrangements or commitments of any
character (contingent or otherwise) pursuant to which any Person is or may be
entitled to receive any payment or other value based on the revenues, earnings
or financial performance, stock price performance or other attribute of Tritel
or any of its Subsidiaries or assets or calculated in accordance therewith
(other than ordinary course payments or commissions to sales representatives of
Tritel based upon revenues generated by them without augmentation as a result of
the transactions contemplated hereby) or to cause
62
<PAGE>
Tritel or any of its Subsidiaries to file a registration statement under the
Securities Act, or which otherwise relate to the registration of any securities
of Tritel or its Subsidiaries.
(f) Except as set forth in the Tritel SEC Reports or as contemplated
by the Stockholders Agreement, there are no voting trusts, proxies or other
agreements, commitments or understandings of any character to which Tritel or
any of its Subsidiaries or, to the knowledge of Tritel, any of the stockholders
of Tritel, is a party or by which any of them is bound with respect to the
issuance, holding, acquisition, voting or disposition of any shares of capital
stock or other security or equity interest of Tritel or any of its Subsidiaries.
4.4 Authority; Enforceability. Tritel has all necessary corporate
-------------------------
power and authority to execute and deliver this Agreement and each Related
Agreement to which it is a party, and to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by Tritel of this Agreement and each Related
Agreement to which it is a party, the performance of its obligations hereunder
and thereunder, and the consummation by Tritel of the transactions contemplated
hereby and thereby, have been duly and validly authorized by all corporate
action and no other corporate proceedings on the part of Tritel are necessary to
authorize this Agreement or any Related Agreement to which it is a party or to
consummate the transactions so contemplated, other than the approval and
authorization of this Agreement and the Second Merger by votes of the holders of
a majority of the outstanding shares of Tritel Capital Stock entitled to vote
thereon in accordance with the DGCL and Tritel's Certificate of Incorporation
and By-laws. Each of this Agreement and the Related Agreements to which Tritel
is a party has been duly and validly executed and delivered by Tritel and,
assuming the due authorization, execution and delivery thereof by all other
parties to such agreements, constitutes a legal, valid and binding obligation of
Tritel in accordance with its terms.
63
<PAGE>
4.5 Required Vote. The Board of Directors of Tritel has, at a
-------------
meeting duly called and held, (i) approved and declared advisable this Agreement
and approved each Related Agreement to which it is a party, (ii) determined that
the transactions contemplated hereby and thereby are advisable, fair to and in
the best interests of the holders of Tritel Capital Stock, (iii) resolved to
recommend adoption of this Agreement, the Second Merger and the other
transactions contemplated hereby and thereby to the stockholders of Tritel and
(iv) directed that this Agreement be submitted to the stockholders of Tritel for
their approval and authorization. The affirmative vote of a majority of the
voting power of all outstanding shares of Tritel Class A Voting Stock and Tritel
Voting Preference Common Stock voting as a class is the only vote of the holders
of any class or series of capital stock of Tritel necessary to approve and
authorize this Agreement, the Second Merger, the Related Agreements (to the
extent Tritel is a party thereto) and the other transactions contemplated hereby
and thereby in their capacity as stockholders of Tritel.
4.6 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery by Tritel of this Agreement and the
Related Agreements to which it is a party do not, and the performance of this
Agreement and the Related Agreements to which it is a party will not, (i)
conflict with or violate the Certificate of Incorporation or By-laws or other
equivalent organizational documents of Tritel or any of its Subsidiaries, (ii)
conflict with or violate any Law, Regulation or Order in each case applicable to
Tritel or any of its Subsidiaries or by which any of their respective properties
is bound or affected, or (iii) result in any breach or violation of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or impair Tritel's or any of its Subsidiaries'
rights or alter the rights or obligations of any third party under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of
64
<PAGE>
a Lien on any of the properties or assets of Tritel or any of its Subsidiaries
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Tritel or
any of its Subsidiaries is a party or by which Tritel or any of its Subsidiaries
or its or any of their respective properties is bound or affected, except in the
case of clauses (ii) or (iii) above, for any such conflicts, breaches,
violations, defaults or other occurrences that would not (x) individually or in
the aggregate, reasonably be expected to have a Tritel Material Adverse Effect,
(y) prevent or materially impair or delay the consummation of the transactions
contemplated by this Agreement and the Related Agreements or (z) for purposes of
this representation being made to AT&T, individually, or the aggregate,
reasonably be expected to have a Material Adverse Effect on the value of the
Shares.
(b) The execution and delivery by Tritel of this Agreement and the
Related Agreements to which it is a party do not, and the performance of this
Agreement and the Related Agreements, will not, require Tritel or any of its
Subsidiaries to obtain any approval of any Person or approval of, observe any
waiting period imposed by, or make any filing with or notification to, any
Governmental Authority domestic or foreign, except for (i) compliance with
applicable requirements of the Securities Act, the Securities Exchange Act, Blue
Sky Laws, the HSR Act, or any Foreign Competition Laws, the Communications Act,
and the regulations of the FCC, state public utility, telecommunications or
public service laws, (ii) the filing of the Certificates of Merger in accordance
with the DGCL and/or (iii) where the failure to obtain such approvals, or to
make such filings or notifications, would not, individually or in the aggregate,
reasonably be expected to have a Tritel Material Adverse Effect or prevent or
materially delay the consummation of the transactions contemplated by this
Agreement.
4.7 Material Agreements. Neither Tritel nor any of its Subsidiaries
-------------------
has breached, or received in writing any claim or threat that it has breached,
any of the terms or
65
<PAGE>
conditions of any agreement, contract or commitment that is of a type which is
required to be included as an exhibit to the annual reports on Form 10-K
required to be filed by Tritel pursuant to Item 601 of Regulation S-K
promulgated by the SEC (collectively, the "Tritel Material Contracts") in such a
-------------------------
manner as would permit any other party to cancel or terminate the same or would
permit any other party to collect material damages from Tritel or any of its
Subsidiaries under any Tritel Material Contract. Each Tritel Material Agreement
is in full force and effect, is a valid and binding obligation of Tritel or such
Subsidiary and, to the knowledge of Tritel, of each other party thereto and is
enforceable against Tritel or such Subsidiary in accordance with its terms, and,
to the knowledge of Tritel, enforceable against each other party thereto, in
each case except that the enforcement thereof may be limited by (i) the effects
of bankruptcy, insolvency, reorganization, moratorium or other similar law now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law), and such Tritel Material Agreements will
continue to be valid, binding and enforceable in accordance with their
respective terms and in full force and effect immediately following the
consummation of the transactions contemplated hereby with no material alteration
or acceleration or increase in fees or liabilities. Neither Tritel nor any of
its Subsidiaries is or is alleged to be and, to the knowledge of Tritel, no
other party is or is alleged to be in default under, or in breach or violation
of, any Tritel Material Agreement, and, to the knowledge of Tritel, no event has
occurred which (whether with or without notice or lapse of time or both) would
constitute such a default, breach or violation. To the knowledge of Tritel, no
party to a Tritel Material Contract has terminated or in any way expressed an
intent to materially reduce or terminate the amount of business with Tritel and
its Subsidiaries in the future.
66
<PAGE>
4.8 Compliance. Each of Tritel and its Subsidiaries is in compliance
----------
in all material respects with, and is not in default or violation of, (i) its
Certificate of Incorporation and By-laws or other equivalent organizational
documents, (ii) any Law or Order or by which any of their respective assets or
properties are bound or affected or (iii) any note, bond, mortgage, indenture,
contract, permit, franchise or other instruments or obligations to which any of
them are a party or by which any of them or any of their respective assets or
properties are bound or affected, except, in the case of clauses (ii) and (iii),
for any such failures of compliance, defaults and violations which would not,
individually or in the aggregate, reasonably be expected to have a Tritel
Material Adverse Effect.
4.9 SEC Filings; Financial Statements.
---------------------------------
(a) Tritel has timely filed all forms, reports, schedules, statements
and documents required to be filed with the SEC since November 17, 1999
(collectively, with Registration Statement on Form S-1 dated November 18, 1999,
as amended (the "Tritel S-1"), the "Tritel SEC Reports") pursuant to the Federal
---------- ------------------
securities Laws and the SEC regulations promulgated thereunder. The Tritel SEC
Reports were prepared in accordance, and complied as of their respective filing
dates in all material respects, with the requirements of the Exchange Act and
the Securities Act and the rules and regulations promulgated thereunder and did
not at the time they were filed (or if amended or superseded by a filing prior
to the date hereof, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. None of Tritel's
Subsidiaries has filed, or is obligated to file, any forms, reports, schedules,
statements or other documents with the SEC.
67
<PAGE>
(b) Each of the audited and unaudited consolidated financial
statements (including, in each case, any related notes and schedules thereto)
contained in the Tritel SEC Reports (i) complied in all material respects with
applicable accounting requirements and the published regulations of the SEC with
respect thereto, (ii) were prepared in accordance with GAAP (except, in the case
of unaudited statements, to the extent otherwise permitted by Form 10-Q) applied
on a consistent basis throughout the periods involved (except as may be
expressly described in the notes thereto) and (iii) fairly present in all
material respects the consolidated financial position of Tritel and its
Subsidiaries as at the respective dates thereof and the consolidated results of
its operations and cash flows for the periods indicated, subject in the case of
interim financial statements to normal year-end adjustments.
4.10 Licenses and Authorizations.
---------------------------
(a) Tritel and its Subsidiaries hold all licenses, permits,
certificates, franchises, ordinances, registrations, or other rights,
applications and authorizations required to be filed with or granted or issued
by any Governmental Authority, including, without limitation, the FCC or any
state authority asserting over Tritel, its Subsidiaries and their respective
properties and assets, that are required for the conduct of their businesses as
currently being conducted (each, as amended to date, the "Tritel
------
Authorizations"), other than such licenses, permits, certificates, franchises,
- --------------
ordinances, registrations, or other rights, applications and authorizations the
absence of which would not, individually or in the aggregate, be reasonably
likely to have a Tritel Material Adverse Effect or prevent or materially impair
or delay the ability of Tritel to consummate the transactions contemplated
hereby. Tritel has made available to TeleCorp a true, complete and correct list
of such Tritel Authorizations.
(b) Tritel has previously made available to TeleCorp and AT&T a true,
complete and correct list of (i) each application of Tritel or any of its
Subsidiaries pending before
68
<PAGE>
the FCC (the "Tritel FCC Applications"); (ii) each FCC permit and FCC license
-----------------------
which is not a Tritel Authorization but in which Tritel or any of its
Subsidiaries, directly or indirectly, holds an interest, including as a
stakeholder in the licensee (collectively, the "Indirect Tritel
---------------
Authorizations"); and (iii) all licenses, permits, certificates, franchises,
- --------------
ordinances, registrations, or other rights, applications and authorizations for
the benefit of Tritel or any of its Subsidiaries, as applicable, pending before
any state authority (collectively, the "Tritel State Authorizations"). The
---------------------------
Tritel Authorizations, the Tritel FCC Applications, the Indirect Tritel
Authorizations and the Tritel State Authorizations (collectively, the "Tritel
------
Licenses and Applications") are the only Federal, state or local licenses,
- -------------------------
permits, certificates, franchises, ordinances, registrations, or other rights,
applications and authorizations that are required for the conduct of the
business and operations of Tritel and its Subsidiaries as currently conducted,
other than such licenses, permits, certificates, franchises, ordinances,
registrations, or other rights, applications and authorizations the absence of
which would not, individually or in the aggregate, be considered reasonably
likely to have a Tritel Material Adverse Effect or prevent or materially delay
or impair the ability of Tritel to consummate the transactions contemplated
hereby.
(c) The Tritel Authorizations and, to the knowledge of Tritel, the
Indirect Tritel Authorizations, are in full force and effect and, except as
disclosed on Schedule 4.10(c) have not been pledged or otherwise encumbered,
----------------
assigned or suspended, modified in any material respect (except as a result of
FCC rule changes applicable to the PCS industry generally), canceled or revoked,
and Tritel and each of its Subsidiaries have each operated in compliance with
all terms thereof or any renewals thereof applicable to them, other than where
the failure to so comply would not, individually or in the aggregate, be
considered reasonably likely to have a Tritel Material Adverse Effect or
materially impair the ability of Tritel to consummate the transactions
contemplated hereby. To the knowledge of Tritel, no event has
69
<PAGE>
occurred with respect to any of the Tritel Authorizations which permits, or
after notice or lapse of time or both would permit, revocation or termination
thereof or would result in any other material impairment of the rights of the
holder of any such Tritel Authorizations. To the knowledge of Tritel, there is
not pending any application, petition, objection or other pleading with the FCC,
any state authority or any similar entity having jurisdiction or authority over
the operations of Tritel or any of its Subsidiaries which questions the validity
or contests any Tritel Authorization or which could reasonably be expected, if
accepted or granted, to result in the revocation, cancellation, suspension or
any materially adverse modification of any Tritel Authorization.
(d) Except for the approvals contemplated by Section 4.6, no permit,
-----------
consent, approval, authorization, qualification or registration of, or
declaration to or filing with, any Governmental Entity is required to be made or
obtained by Tritel or any of its Subsidiaries in connection with the transfer or
deemed transfer of the Tritel Licenses and Authorizations as a result of the
consummation of the transactions contemplated hereby and such transactions will
not result in a breach of such approvals, except where the failure to obtain or
make such permit, consent, approval, authorization, qualification, registration,
declaration or filing would not be considered reasonably likely to have a Tritel
Material Adverse Effect or prevent or materially impair or delay the ability of
Tritel to consummate the transactions contemplated hereby.
4.11 No Violation of Law. The business of Tritel and its Subsidiaries
-------------------
is not being conducted in violation of any Laws, except for possible violations
none of which, individually or in the aggregate, would reasonably be expected to
have a Tritel Material Adverse Effect. Except as disclosed in Tritel SEC
Reports, no investigation, review or proceeding by any Governmental Authority
(including, without limitation, any stock exchange or other self-regulatory
body) with respect to Tritel or its Subsidiaries in relation to any alleged
violation of
70
<PAGE>
law or regulation is pending or, to Tritel's knowledge, threatened, nor has any
Governmental Authority (including, without limitation, any stock exchange or
other self-regulatory body) indicated an intention to conduct the same, except
for such investigations which, if they resulted in adverse findings, would not
reasonably be expected to have, individually or in the aggregate, a Tritel
Material Adverse Effect. Except as set forth in the Tritel SEC Reports, neither
Tritel nor any of its Subsidiaries is subject to any cease and desist or other
order, judgment, injunction or decree issued by, or is a party to any written
agreement, consent agreement or memorandum of understanding with, or is a party
to any commitment letter or similar undertaking to, or is subject to any order
or directive by, or has adopted any board resolutions at the request of, any
Governmental Authority that materially restricts the conduct of its business or
which would reasonably be expected to have a Tritel Material Adverse Effect, nor
has Tritel or any of its Subsidiaries been advised that any Governmental
Authority is considering issuing or requesting any of the foregoing. None of the
representations and warranties made in this Section 4.11 are being made with
------------
respect to Environmental Laws.
4.12 Absence of Certain Changes or Events.
------------------------------------
(a) Since September 30, 1999, Tritel and its Subsidiaries have
conducted their businesses only in the Ordinary Course of Business and, since
such date, there has not been any change, event, development, damage or
circumstance affecting Tritel or any of its Subsidiaries which, individually or
in the aggregate, has had, or could reasonably be expected to have, a Tritel
Material Adverse Effect.
(b) Since September 30, 1999, (i) there has not been any material
change by Tritel in its accounting methods, principles or practices, any
revaluation by Tritel of any of its assets, including, writing down the value of
inventory or writing off notes or accounts receivable other than in the Ordinary
Course of Business and (ii) there has not been (A) any other action or
71
<PAGE>
event, and neither Tritel nor any of its Subsidiaries has agreed in writing or
otherwise to take any other action, that would have required the consent of
TeleCorp pursuant to Section 6.2(b) had such action or event occurred after the
--------------
date hereof and prior to the Effective Time, or (B) any condition, event or
occurrence which could reasonably be expected to prevent, hinder or materially
delay the ability of Tritel to consummate the transactions contemplated by this
Agreement or the Related Agreements to which it is a party.
4.13 No Undisclosed Liabilities. Tritel and its Subsidiaries do not
--------------------------
have any liabilities or obligations of any nature (whether absolute, accrued,
fixed, contingent or otherwise) which would be required to be reflected in
financial statements prepared in accordance with GAAP, except liabilities or
obligations which (i) are reflected in the Tritel SEC Reports, or (ii) have been
incurred in the Ordinary Course of Business since September 30, 1999.
4.14 Absence of Litigation. There is no Litigation pending or, to the
---------------------
knowledge of Tritel, threatened against Tritel or any of its Subsidiaries, or
any properties or rights of Tritel or any of its Subsidiaries, before or subject
to any Court or Governmental Authority which, individually or in the aggregate,
has had, or would reasonably be expected to have, a Tritel Material Adverse
Effect or would prevent, or materially hinder or delay Tritel from consummating
the transactions contemplated by this Agreement.
4.15 Employee Benefit Plans.
----------------------
(a) Tritel has made available to TeleCorp true, complete and correct
copies of all employee benefit plans (as defined in Section 3(3) of the ERISA)
and all bonus, stock or other security option, stock or other security purchase,
stock or other security appreciation rights, incentive, deferred compensation,
retirement or supplemental retirement, severance, golden parachute, vacation,
cafeteria, dependent care, medical care, employee assistance program, education
or tuition assistance programs, plant closing or similar benefit plans, retiree
health or
72
<PAGE>
life benefit plans, insurance and other similar fringe or employee benefit
plans, programs or arrangements, and any executive employment or executive
compensation or severance agreements, or a written summary of the material terms
of any of the foregoing agreements if not in writing, which have ever been
sponsored, maintained, contributed to or entered into for the benefit of, or
relating to, any present or former employee, officer, director or consultant of
Tritel or any of its Subsidiaries, or any trade or business (whether or not
incorporated) which is a member of a controlled group or which is under common
control with Tritel, or any Subsidiary of Tritel, within the meaning of Section
414 of the Code or Section 4001 of ERISA (a "Tritel ERISA Affiliate"), whether
----------------------
or not such plan is terminated (together, the "Tritel Employee Plans"). In
---------------------
addition, Tritel has made available to TeleCorp with respect to each Tritel
Employee Plan true, complete and correct copies of each of the following, if
applicable: the most recent summary plan description and any subsequent summary
of material modifications; any related trust, insurance policy or other funding
vehicle or contract providing for benefits (including any trusts of the type
known as "rabbi trusts"); and the three most recent Form 5500 series Annual
Report with all schedules filed with the IRS. Subject to the requirements of
ERISA, there are no restrictions on the ability of the sponsor of each Tritel
Employee Plan to amend or terminate any Tritel Employee Plan and each Tritel
Employee Plan may with the consent of Tritel (or applicable Subsidiary or Tritel
ERISA Affiliate) be assumed by the Holding Company or the Second Merger Sub, as
the case may be.
(b) There has been no "prohibited transaction," as such term is
defined in Section 406 of ERISA and Section 4975 of the Code, with respect to
any Tritel Employee Plan; there are no claims pending (other than routine claims
for benefits) or threatened against any Tritel Employee Plan or against the
assets of any Tritel Employee Plan, nor are there any current or threatened
Liens on the assets of any Tritel Employee Plan; each Tritel Employee Plan
73
<PAGE>
conforms to, and in its operation and administration is in all material respects
in compliance with the terms thereof and the requirements prescribed by any and
all statutes (including ERISA and the Code), orders, or governmental rules and
regulations currently in effect with respect thereto (including, without
limitation, all applicable requirements for notification, reporting and
disclosure to participants or the Department of Labor, the IRS or Secretary of
the Treasury and, in the case of any "rabbi trust", the requirements of Revenue
Procedure 92-64, 1992-2 C.B. 422), and Tritel, each of its Subsidiaries and
Tritel ERISA Affiliates have performed all obligations required to be performed
by them under, are not in default under or in violation of, and have no
knowledge of any default or violation by any other party with respect to, any
Tritel Employee Plan; each Tritel Employee Plan intended to qualify under
Section 401(a) of the Code and each corresponding trust intended to be exempt
under Section 501 of the Code has received or is the subject of a favorable
determination or opinion letter from the IRS (a true and complete copy which has
been provided by Tritel to TeleCorp), and nothing has occurred which could
reasonably be expected to cause the loss of such qualification or exemption; all
contributions (including premiums for any insurance policy under which benefits
for any Tritel Employee Plan are provided) required to be made to any Tritel
Employee Plan pursuant to Section 412 of the Code, or any contract, or the terms
of the Tritel Employee Plan or any collective bargaining agreement, or otherwise
have been made on or before their due dates and a reasonable amount has been
accrued for contributions to each Tritel Employee Plan for its current plan
year; the transaction contemplated herein will not directly or indirectly result
in an increase of benefits, acceleration of vesting or acceleration of timing
for payment of any benefit to any participant or beneficiary under any Tritel
Employee Plan; each Tritel Employee Plan, if any, which is maintained outside of
the United States has been operated in all material respects in conformance with
the applicable statutes or governmental regulations and rulings relating to such
plans in the
74
<PAGE>
jurisdictions in which such Tritel Employee Plan is present or operates and, to
the extent relevant, the United States; no Tritel Employee Plan is a Defined
Benefit Plan, or a Multiemployer Plan (as such term is defined in Section 3(37)
of ERISA), or a "single-employer plan which has two or more contributing
sponsors at least two of whom are not under common control" as described in
Section 4063 of ERISA, and none of Tritel, any of its Subsidiaries or any Tritel
ERISA Affiliate has ever maintained or sponsored, participated in, or made or
been obligated to make contributions to such a Defined Benefit Plan or such a
Multiemployer Plan or such a single employer plan as described in Section 4063
of ERISA.
(c) Each Tritel Employee Plan that is a "group health plan" (within
the meaning of Code Section 5000(b)(1)) has been operated in compliance in all
material respects with all laws applicable to such plan, its terms, and with
COBRA Coverage, Section 4980D of the Code and Sections 701 through 707 of ERISA,
Title XXII of the Public Health Service Act, the provisions of the Social
Security Act, and the provisions of any similar law of any state providing for
continuation coverage, in each case to the extent such requirements are
applicable. No Tritel Employee Plan or written or oral agreement exists which
obligates Tritel, any of its Subsidiaries or any Tritel ERISA Affiliate to
provide health care coverage, medical, surgical, hospitalization, death, life
insurance or similar benefits (whether or not insured) to any current or former
employee, officer, director or consultant of Tritel, any of its Subsidiaries or
any Tritel ERISA Affiliate or to any other person following such current or
former employee's, officer's, director's or consultant's termination of
employment with Tritel, any of its Subsidiaries or any Tritel ERISA Affiliate,
other than COBRA Coverage.
(d) The consummation of the transactions contemplated by this
Agreement will not constitute a "prohibited transaction" under ERISA or the Code
for which an exemption is unavailable.
75
<PAGE>
4.16 Employment and Labor Matters. There are no controversies
----------------------------
pending or threatened, between Tritel or any of its Subsidiaries and any of
their respective employees which could reasonably be expected to have a Tritel
Material Adverse Effect; neither Tritel nor any of its Subsidiaries is a party
to any collective bargaining agreement or other labor union contract applicable
to persons employed by Tritel or its Subsidiaries nor to Tritel's knowledge are
there any activities or proceedings of any labor union to organize any such
employees of Tritel or any of its Subsidiaries. Since January 1, 1999, there
have been no strikes, slowdowns, work stoppages, lockouts, or threats thereof,
by or with respect to any employees of Tritel or any of its Subsidiaries. Tritel
does not have nor at the Closing will Tritel have any obligation under the WARN
Act as a result of any act of Tritel taken in connection with the transactions
contemplated hereby. Except as would not reasonably be expected to result in a
Tritel Material Adverse Effect, each of Tritel and its Subsidiaries is in
compliance with all applicable Federal, state, local, and foreign employment,
wage and hour, labor non-discrimination and other applicable laws or regulation
except where failure to comply with such laws would not be reasonably expected
to have a Tritel Material Adverse Effect.
4.17 Registration Statement; Proxy Statement/Prospectus. None of
--------------------------------------------------
the information supplied by Tritel in writing for inclusion in the Registration
Statement shall, at the time such document is filed, at the time amended or
supplemented, at the time the Registration Statement is declared effective by
the SEC and at the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. None of the information supplied by
Tritel for inclusion in the Joint Proxy Statement in connection with the
TeleCorp Stockholders' Meeting and the Tritel Stockholders' Meeting will, on the
date the Joint Proxy Statement is first mailed to the
76
<PAGE>
stockholders of Tritel and TeleCorp, at the time of the Tritel Stockholders'
Meeting and the TeleCorp Stockholders' Meeting and at the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. If at any time prior
to the Effective Time any event relating to Tritel or any of its Affiliates,
officers or directors should be discovered by Tritel which should be set forth
in an amendment or supplement to the Registration Statement or an amendment or
supplement to the Joint Proxy Statement, Tritel shall promptly inform the
Holding Company, AT&T and TeleCorp. The Joint Proxy Statement shall comply in
all material respects as to form and substance with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder.
Notwithstanding the foregoing, Tritel makes no representation or warranty with
respect to any information supplied by TeleCorp or AT&T which is contained in
the Registration Statement or Joint Proxy Statement.
4.18 Absence of Restrictions on Business Activities. There is no
----------------------------------------------
Tritel Material Agreement binding upon Tritel or any of its Subsidiaries or any
of their respective properties which has had or could reasonably be expected to
have the effect of prohibiting or materially impairing any business practice of
Tritel or any of its Subsidiaries or the conduct of business by Tritel or any of
its Subsidiaries as currently conducted.
4.19 Title to Assets; Leases. Each of Tritel and its Subsidiaries
-----------------------
has good title to all of their owned properties and assets, free and clear of
all Liens, charges and encumbrances, except for Permitted Encumbrances. All
leases pursuant to which Tritel or any of its Subsidiaries lease real or
personal property from others are valid and effective in accordance with their
respective terms, and there is not, under any such lease, any existing material
default or event of default (or event which with notice or lapse of time, or
both, would constitute a
77
<PAGE>
material default) and in respect of which Tritel or such Subsidiary has not
taken adequate steps to prevent such a default from occurring where such default
would reasonably be expected to have a Tritel Material Adverse Effect.
4.20 Taxes.
-----
(a) All Federal, state, local and foreign Tax Returns required to be
filed (taking into account extensions) by or on behalf of Tritel, each of its
Subsidiaries, and each affiliated, combined, consolidated or unitary group for
tax purposes of which Tritel or any of its Subsidiaries is or has been a member
have been timely filed, and all such Tax Returns are true, complete and correct,
except to the extent that any failure to file or any inaccuracies in filed Tax
Returns would not, individually or in the aggregate, be reasonably expected to
have a Tritel Material Adverse Effect.
(b) All Taxes due and payable by or with respect to Tritel and each
of its Subsidiaries have been timely paid, or are adequately reserved for (other
than a reserve for deferred Taxes established to reflect timing differences
between book and Tax treatment) in accordance with GAAP on Tritel's September
30, 1999 audited balance sheet (the "Most Recent Tritel Balance Sheet"), except
--------------------------------
to the extent that such amount would not, individually or in the aggregate,
reasonably be expected to have a Tritel Material Adverse Effect. No
deficiencies, delinquencies or defaults for any Taxes have been proposed,
asserted or assessed either orally or in writing or become a Lien for taxes
against Tritel or any of its Subsidiaries that are not adequately reserved for
in accordance with GAAP on the Most Recent Tritel Balance Sheet nor are there
any outstanding Tax audits or inquiries. All assessments for Taxes due and owing
by or with respect to Tritel and each of its Subsidiaries with respect to
completed and settled examinations or concluded litigation have been paid.
78
<PAGE>
(c) Neither Tritel nor any of its Subsidiaries has requested, or been
granted any waiver of any Federal, state, local or foreign statute of
limitations with respect to, or any extension of a period for the assessment of,
any Tax. No extension or waiver of time within which to file any Tax Return of,
or applicable to, Tritel or any of its Subsidiaries has been granted or
requested which has not since expired. None of the Federal income Tax Returns of
Tritel or any of its Subsidiaries consolidated in such returns either have been
examined and settled with the IRS or have been closed by virtue of the
applicable statute of limitations.
(d) Other than with respect to its Subsidiaries, Tritel is not and
has never been (nor does Tritel have any liability for unpaid Taxes because it
once was) a member of an affiliated, consolidated, combined or unitary group,
and neither Tritel nor any of its Subsidiaries is a party to any Tax allocation
or sharing agreement or is liable for the Taxes of any other party, as
transferee or successor, by contract, or otherwise.
(e) Tritel and its Subsidiaries have not made any payments, are not
obligated to make any payments, and are not a party to any agreements that under
any circumstances could obligate any of them to make any payments that will not
be deductible under Section 280G of the Code or would constitute compensation in
excess of the limitation set forth in Section 162(m) of the Code.
(f) Tritel has not been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g) Each of Tritel and its Subsidiaries has complied in all material
respects with all applicable Laws relating to the payment and withholding of
Taxes (including, without limitation, withholding of Taxes pursuant to Sections
1441, 1442 and 3406 of the Code or similar provisions under any foreign Laws)
and have, within the time and in the manner required
79
<PAGE>
by Law, been withheld from employee wages and paid over to the proper
Governmental Authorities all amounts required to be so withheld and paid over
under all applicable Laws.
(h) Neither Tritel nor any Subsidiary has executed or entered into
any closing agreement under Section 7121 of the Code (or any similar provision
of state, local or foreign law) or has agreed to make any adjustment to its
income or deductions pursuant to Section 481(a) of the Code (or similar
provision of state, local or foreign law), in either case that could affect the
Tax liability after the Closing Date to any material extent.
(i) None of Tritel or any of its Subsidiaries shall be required to
include in a taxable period ending after the Effective Time a material amount of
a taxable income attributable to income that accrued in a prior taxable period
but was not recognized in any prior taxable period as a result of the
installment method of accounting, the completed contract method of accounting,
the long-term contract method of accounting, the cash method of accounting or
Section 481 of the Code or comparable provisions of state, local or foreign tax
law.
4.21 Environmental Matters. Except for such instances, if any, which
---------------------
would not, individually or in the aggregate, reasonably be expected to have a
Tritel Material Adverse Effect, (i) Tritel and each of its Subsidiaries have
obtained all applicable permits, licenses and other authorizations which are
required under applicable Environmental Laws; (ii) Tritel and each of its
Subsidiaries are in full compliance with all applicable Environmental Laws and
with the terms and conditions of all required permits, licenses and
authorizations, and also are in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in such laws or contained in any applicable
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder; and (iii) as of the date hereof,
there has not been any event, condition, circumstance, activity, practice,
incident, action or plan which is reasonably
80
<PAGE>
likely to interfere with or prevent continued compliance with the terms of such
permits, licenses and authorizations or which would give rise to any common law
or statutory liability, or otherwise form the basis of any claim, action, suit
or proceeding, based on or resulting from Tritel's or any of its Subsidiaries'
(or any of their respective agent's) manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, or release into the environment, of any Hazardous Material; and (iv)
Tritel and each of its Subsidiaries has taken all actions necessary under
applicable requirements of federal, state or local laws, rules or regulations to
register any products or materials required to be registered by Tritel or its
Subsidiaries (or any of their respective agents) thereunder. There is no civil,
criminal or administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter pending or, to the
knowledge of Tritel, threatened against Tritel or any of its Subsidiaries
relating in any way to the Environmental Laws or any Regulation, code, plan,
Order, decree, judgment, notice or demand letter issued, entered, promulgated or
approved thereunder.
4.22 Intellectual Property.
---------------------
(a) Tritel and its Subsidiaries own, or are licensed or
otherwise possess legally enforceable rights to use, all patents, trademarks,
trade names, service marks, copyrights and mask works, any applications for and
registrations of such patents, trademarks, trade names, service marks,
copyrights and mask works, and all processes, formulae, methods, schematics,
technology, know-how, computer software programs or applications and tangible or
intangible proprietary information or material that are necessary to conduct the
business of Tritel its Subsidiaries as currently conducted, the absence of which
would be considered reasonably likely to have a Tritel Material Adverse Effect
(the "Tritel Intellectual Property Rights").
------------------------------------
81
<PAGE>
(b) Neither Tritel nor any of its Subsidiaries is, or will as a
result of the execution and delivery of this Agreement or the performance of
Tritel's obligations under this Agreement or otherwise be, in breach of any
license, sublicense or other agreement relating to the Tritel Intellectual
Property Rights, or any material licenses, sublicenses and other agreements as
to which Tritel or any of its Subsidiaries is a party and pursuant to which
Tritel or any of its Subsidiaries is authorized to use any third party patents,
trademarks or copyrights, including software ("Tritel Third Party Intellectual
-------------------------------
Property Rights") which is used by Tritel or any of its Subsidiaries, the breach
- ---------------
of which would be considered reasonably likely to have a Tritel Material Adverse
Effect.
(c) All patents, registered trademarks, service marks and
copyrights which are held by Tritel or any of its Subsidiaries, and which are
material to the business of Tritel and its Subsidiaries, taken as a whole, are
valid and subsisting. Tritel (i) has not been sued in any suit, action or
proceeding which involves a claim of infringement of any patents, trademarks,
service marks, copyrights or violation of any trade secret or other proprietary
right of any third party; and (ii) has no knowledge that the marketing,
licensing or sale of its services infringes any patent, trademark, service mark,
copyright, trade secret or other proprietary right of any third party, which
infringement would reasonably be expected to have a Tritel Material Adverse
Effect.
4.23 No Restrictions on the Merger; Takeover Statutes. No
------------------------------------------------
applicable takeover statute or similar Law and no provision of the Certificate
of Incorporation or By-laws, or other organizational document or governing
instruments of Tritel or any of its Subsidiaries or any Tritel Material
Agreement to which any of them is a party (a) would or would purport to impose
restrictions which might adversely affect or delay the consummation of the
transactions contemplated by this Agreement, the Tritel Voting Agreement, the
Investor Stockholder
82
<PAGE>
Agreement or the Stockholders Agreement or (b) as a result of the consummation
of the transactions contemplated by this Agreement, the Tritel Voting Agreement
or the Stockholders Agreement (i) would or would purport to restrict or impair
the ability of the Holding Company to vote or otherwise exercise the rights of a
stockholder with respect to securities of Tritel, any of its Subsidiaries or
Tritel II or (ii) would or would purport to entitle any Person to acquire
securities of Tritel or Tritel II.
4.24 Tax Matters. Neither Tritel nor any of its Affiliates has
-----------
taken or agreed to take any action, failed to take any action or is aware of any
fact or circumstance that is reasonably likely to prevent the Mergers or the
Contribution from constituting part of a tax-free transaction within the meaning
of Section 351 of the Code or that would cause either Merger to fail to qualify
as a tax-free reorganization under Section 368(a) of the Code.
4.25 Brokers. Except for Merrill Lynch, Pierce, Fenner & Smith
-------
Incorporated, no broker, financial advisor, finder or investment banker or other
Person is entitled to any broker's, financial advisor's, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Tritel. Tritel has heretofore
furnished to TeleCorp a true, complete and correct copy of all agreements
between Tritel and Merrill Lynch, Pierce, Fenner & Smith Incorporated pursuant
to which such firm would be entitled to any payment relating to the transactions
contemplated hereunder.
4.26 Opinion of Financial Advisor. Tritel has received the
----------------------------
written opinion of its financial advisor, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to the effect that, in its opinion, as of the date hereof, from a
financial point of view the exchange ratio in the Mergers is fair to the
stockholders of Tritel Class A Voting Common Stock (other than AT&T and its
Affiliates), and Tritel has provided copies of such opinion to TeleCorp.
83
<PAGE>
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AT&T
AT&T represents and warrants to TeleCorp and Tritel as follows:
5.1 Authority; Enforceability. AT&T has all necessary corporate
-------------------------
power and authority to execute and deliver this Agreement and each Related
Agreement to which it is a party, and to perform its obligations hereunder and
thereunder and each Related Agreement to which it is a party the transactions
contemplated hereby and thereby. Each of this Agreement and each Related
Agreement to which it is a party that has been (or will be at the Effective
Time) duly and validly executed and delivered by AT&T and, assuming the due
authorization, execution and delivery thereof by all other parties thereto,
constitutes (or will constitute when executed and delivered) a legal, valid and
binding obligation of AT&T in accordance with its terms.
5.2 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery by AT&T of this Agreement and
each Related Agreement to which it is a party do not, and the performance of
this Agreement and each Related Agreement to which it is a party by AT&T will
not, (i) conflict with or violate the Certificate of Incorporation or By-laws or
other equivalent organizational documents of AT&T or any of its Subsidiaries,
(ii) conflict with or violate any Law, Regulation or Order in each case
applicable to AT&T or any of its Subsidiaries or by which any of their
respective properties is bound or affected, or (iii) result in any breach or
violation of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or impair AT&T's or any of its
Subsidiaries' rights or alter the rights or obligations of any third party
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the properties or
assets of AT&T or any of its Subsidiaries pursuant to, any
84
<PAGE>
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which AT&T or any of its
Subsidiaries is a party or by which AT&T or any of its Subsidiaries or its or
any of their respective properties is bound or affected, except in the case of
clauses (ii) or (iii) above, for any such conflicts, breaches, violations,
defaults or other occurrences that would not (x) individually or in the
aggregate, reasonably be expected to have a material adverse effect on the value
of the Contribution to the Holding Company or (y) prevent or materially impair
or delay the consummation of the transactions contemplated by this Agreement and
the Related Agreements (an "AT&T Material Adverse Effect").
----------------------------
(b) The execution and delivery by AT&T of this Agreement and each
Related Agreement to which it is a party do not, and the performance of this
Agreement and each Related Agreement to which it is a Party, will not, require
AT&T or any of its Subsidiaries to obtain any approval of any Person or approval
of, observe any waiting period imposed by, or make any filing with or
notification to, any Governmental Authority domestic or foreign except for (i)
compliance with applicable requirements of the Securities Act, the Securities
Exchange Act, Blue Sky Laws, the HSR Act, or any Foreign Competition Laws, the
Communications Act, and the regulations of the FCC, state public utility,
telecommunications or public service laws, (ii) the filing of the Certificates
of Merger in accordance with the DCGL and/or (iii) where the failure to obtain
such approvals, or to make such filings or notifications, would not,
individually or in the aggregate, reasonably be expected to have an AT&T
Material Adverse Effect.
5.3 Tax Matters. Neither AT&T nor any of its Affiliates has taken or
-----------
agreed to take any action, failed to take any action or is aware of any fact or
circumstance that is reasonably likely to prevent the Mergers and the
Contribution, taken together, from constituting a tax-free transaction within
the meaning of Section 351 of the Code.
85
<PAGE>
5.4 Brokers. No broker, financial advisor, finder or investment
-------
banker or other Person is entitled to any broker's, financial advisor's,
finder's or other similar fee or commission in connection with the transactions
contemplated by this Agreement or the Related Agreements based upon arrangements
made by or on behalf of AT&T.
5.5 Registration Statement; Proxy Statement/Prospectus. None of the
--------------------------------------------------
information supplied by AT&T in writing specifically for inclusion in the
Registration Statement shall, at the time such document is filed, at the time
amended or supplemented, at the time the Registration Statement is declared
effective by the SEC and at the time of the Tritel Stockholders Meeting and the
TeleCorp Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. None of the information supplied by AT&T in
writing specifically for inclusion in the Joint Proxy Statement in connection
with the TeleCorp Stockholders' Meeting and the Tritel Stockholders' Meeting
will, on the date the Joint Proxy Statement is first mailed to the stockholders
of Tritel and TeleCorp, and at the time of the Tritel Stockholders' Meeting and
the TeleCorp Stockholders' Meeting, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. If at any time prior to the Effective Time any event
relating to AT&T or any of its respective Affiliates, officers or directors
should be discovered by AT&T which should be set forth in an amendment or
supplement to the Registration Statement or an amendment or supplement to the
Joint Proxy Statement, AT&T shall promptly inform the Holding Company, TeleCorp
and Tritel.
5.6 Waiver. AT&T has all necessary corporate power and authority to
------
execute and deliver the Waiver (as defined below) contained in Section 6.17(b).
The granting of
86
<PAGE>
such Waiver has been duly and validly authorized by all corporate action on the
part of AT&T and no other corporate proceedings on the part of AT&T are
necessary to authorize the Waiver. The Waiver constitutes a legal, valid and
binding obligation of AT&T in accordance with its terms.
5.7 Investment Experience. AT&T is an "accredited investor" as
---------------------
defined in Rule 501(a) under the Securities Act. AT&T has reviewed the TeleCorp
SEC Reports, the Tritel SEC Reports and this Agreement and all exhibits and
schedules hereto, and has had the opportunity to ask questions and receive
answers from representatives of TeleCorp and Tritel. AT&T is aware of
TeleCorp's and Tritel's business affairs and financial condition and has had
access to and has acquired sufficient information about the Holding Company to
reach an informed and knowledgeable decision to acquire the Shares. AT&T has
such business and financial experience as is required to give it the capacity to
evaluate the merits and risks of the investment in the Shares and to protect its
own interests in connection with the purchase of the Shares. AT&T is able to
bear the economic risk of holding the Shares to be purchased by it for an
indefinite period, including the loss of AT&T's entire investment. The Shares
were not offered or sold to AT&T by any form of general solicitation or
advertising within the meaning of Rule 502(c) under the Securities Act.
5.8 Investment Intent. AT&T (or its Affiliate) is purchasing the
-----------------
Shares for its own account as principal, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalization thereof, in
whole or in part, within the meaning of the Securities Act, in any manner that
would violate the Securities Act. AT&T understands that the acquisition of the
Shares has not been registered under the Securities Act or registered or
qualified under any state securities laws in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona fide
nature of AT&T's investment intent as expressed herein.
87
<PAGE>
5.9 Registration or Exemption Requirements. AT&T acknowledges that
--------------------------------------
the Shares have not been registered under the Securities Act. AT&T further
acknowledges and understands that the Shares may not be resold or otherwise
transferred except in a transaction registered under the Securities Act or
pursuant to an exemption from the registration requirements of the Securities
Act. AT&T understands that the certificate(s) evidencing the Shares will be
imprinted with a legend that prohibits the transfer of such Shares unless: (i)
they are registered under the Securities Act or such registration is not
required, or (ii) (A) the transfer is pursuant to an exemption from
registration, and (B) if the Holding Company shall so request in writing, an
opinion satisfactory to the Holding Company of AT&T's counsel is obtained to the
effect that the transaction does not require registration under the Securities
Act, will not be in violation of the Securities Act and is in compliance with
any applicable federal and state laws.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Access to Information; Confidentiality.
--------------------------------------
(a) TeleCorp agrees that, during the period commencing on the date
hereof and ending on earlier to occur of the termination of this Agreement in
accordance with Article VIII or the Closing Date (in either case, the "Interim
------------ -------
Period"), (i) it will give or cause to be given to Tritel and its counsel,
- ------
financial advisors, auditors and other authorized representatives (collectively,
"Representatives") such access, during normal business hours and upon reasonable
---------------
advance notice, to the plants, properties, books and records of TeleCorp and its
Subsidiaries as Tritel may from time to time reasonably request; provided,
--------
however, that TeleCorp shall have the right to have a representative present at
- -------
all such times, (ii) it will furnish or cause to be furnished to Tritel and its
Representatives such financial and operating data and other information as
Tritel
88
<PAGE>
may from time to time reasonably request, and (iii) it will provide Tritel and
its Representatives such access to the representatives, officers and employees
of TeleCorp and its Subsidiaries as Tritel may reasonably request; provided,
that all requests for information, to visit plants or facilities or to interview
employees shall be directed to the Chief Financial Officer of TeleCorp or such
other Person as he shall designate. Tritel agrees that it will, and will cause
its Representatives to, continue to treat all information so obtained from
TeleCorp as "Evaluation Material" under the Letter Agreement entered into
-------------------
between TeleCorp and Tritel dated as of February 24, 2000 ( the "Confidentiality
---------------
Agreement"), and will continue to honor its obligations thereunder and that, if
- ---------
requested by TeleCorp, it will cause any of its Representatives so requested to
enter into a written agreement acknowledging the terms of the Confidentiality
Agreement and agreeing to be bound thereby.
(b) Tritel agrees that, during the Interim Period: (i) it will give
or cause to be given to TeleCorp and its Representatives such access, during
normal business hours and upon reasonable advance notice, to the plants,
properties, books and records of Tritel and its Subsidiaries as Tritel may from
time to time reasonably request; provided, however, that Tritel shall have the
-------- -------
right to have a representative present at all such times, (ii) it will furnish
or cause to be furnished to TeleCorp and its Representatives such financial and
operating data and other information as TeleCorp may from time to time
reasonably request, and (iii) it will provide TeleCorp and its Representatives
such access to the representatives, officers and employees of Tritel and its
Subsidiaries as TeleCorp may reasonably request; provided, that all requests for
information, to visit plants or facilities or to interview employees shall be
directed to the Chief Financial Officer of Tritel or such other Person as he
shall designate. TeleCorp agrees that it will, and will cause its
Representatives to, continue to treat all information so obtained from Tritel as
"Evaluation Material" under the Confidentiality Agreement, and will continue to
-------------------
honor
89
<PAGE>
its obligations thereunder and that, if requested by Tritel, it will cause any
of its Representatives so requested to enter into a written agreement
acknowledging the terms of the Confidentiality Agreement and agreeing to be
bound thereby.
(c) Each of TeleCorp and Tritel agrees that, during the Interim
Period: (i) it will give or cause to be given to AT&T and its Representatives
such access, during normal business hours and upon reasonable advance notice, to
the plants, properties, books and records of it and its Subsidiaries as AT&T may
from time to time reasonably request; provided, however, that TeleCorp or
-------- -------
Tritel, as applicable, shall have the right to have a representative present at
all such times; (ii) it will furnish or cause to be furnished to AT&T and its
Representatives such financial and operating data and other information as AT&T
may from time to time reasonably request; and (iii) it will provide AT&T and its
Representatives such access to the representatives, officers and employees of
TeleCorp and Tritel and their respective Subsidiaries as AT&T may reasonably
request provided that all requests for information to visit plants or facilities
--------
or to interview employees shall be directed to the Chief Financial Officer of
Tritel or TeleCorp, as applicable, or to such other person as such Chief
Financial Officer shall designate. AT&T agrees that it will, and will cause its
Representatives to, continue to treat all information so obtained from Tritel or
TeleCorp, as applicable, as confidential under the confidentiality provisions of
its stockholders agreement with Tritel or TeleCorp, as applicable, and after the
Effective Time with the Holding Company, and will continue to honor its
obligations thereunder.
6.2 Conduct of Business Pending the Closing Date.
--------------------------------------------
(a) TeleCorp agrees with Tritel that, except as permitted, required
or contemplated by this Agreement, as described on Schedule B hereto, as
----------
described in reasonable detail on Schedule 6.2(a) or as otherwise consented to
---------------
in writing by Tritel (which consent shall not be unreasonably withheld or
delayed), during the Interim Period:
90
<PAGE>
(i) it shall cause its business to be conducted only in the
Ordinary Course of Business provided, however, that no action by TeleCorp
-------- -------
or any of its Subsidiaries with respect to matters specifically addressed
by any other provision of this Section 6.2(a) shall be deemed a breach of
--------------
this clause (i) unless such action would constitute a breach of one or more
of such other provisions;
(ii) it will use all commercially reasonable efforts to preserve
substantially intact its business organization, to keep available the
services of its employees and to preserve the current relationships with
its customers, suppliers and other persons with which it has significant
business relations;
(iii) it shall not, and shall not permit any of its Subsidiaries
to:
(A) amend its Certificate of Incorporation or By-laws or
other equivalent organizational document
(B) merge or consolidate, or obligate itself to do so, with
or into any other entity;
(C) issue or sell any shares of its capital stock or other
equity interests in or securities convertible into or exchangeable for
such shares or equity interests, or sell or transfer any assets,
except for the exercise of outstanding options or convertible
securities, sales of assets in the Ordinary Course of Business, other
asset sales for consideration aggregating not more than $25,000,000 in
the aggregate, the issuance of up to 1,000,000 shares of TeleCorp
Class A Voting Common Stock in acquisition transactions, and the
granting of stock options to purchase Shares of Class A TeleCorp
Common Stock to employees, and no more than 25% of such options being
granted to employees who are in a category of senior vice president or
higher, in an aggregate amount
91
<PAGE>
not to exceed options to purchase more than 2 million shares of Class
A TeleCorp Common Stock, with an exercise price not less than the
average closing bid price of the TeleCorp Common Stock for the five
trading days prior to the date hereof and with a 4 year vesting
schedule (with 50% vesting in equal installment over such 4 year
period and 50% vesting at the end of such 4 year period);
(D) split, combine or reclassify any outstanding shares of its
capital stock;
(E) declare, set aside, make or pay any dividend (other than
dividends by Subsidiaries of TeleCorp to wholly owned Subsidiaries of
TeleCorp or to TeleCorp) or other distribution, payable in stock,
property or otherwise, with respect to any of its capital stock except
in the Ordinary Course of Business or redeem, purchase or otherwise
acquire or offer to redeem, purchase or otherwise acquire any shares
of its capital stock except the acquisition, redemption or repurchase
of capital stock pursuant to existing arrangements;
(F) establish or materially increase any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards, or restricted
stock awards), stock purchase or other employee benefit plan, or
otherwise increase the compensation payable or to become payable to
any of its officers or key employees or those of any Subsidiary,
except in the Ordinary Course of Business, as permitted under sub-
clause (C) above or as may be required to comply with applicable law
or existing contractual arrangements;
92
<PAGE>
(G) enter into any employment or severance agreement with any of
its employees or establish, adopt or enter into any collective
bargaining agreement, except in the Ordinary Course of Business or as
may be required by applicable law or existing contractual
arrangements;
(H) acquire (including, without limitation, by merger,
consolidation or acquisition of stock or assets) any corporation,
partnership, limited liability company, other business organization or
any division thereof for consideration in excess of $50,000,000 in the
aggregate or with capital stock other than in accordance with the
exception to sub-clause (C) above or enter into any joint venture;
(I) assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any Person,
or make any loans or advances, except in the Ordinary Course of
Business and except in connection with transaction permitted by clause
(M) below;
(J) make any capital expenditures that are not provided for in
the capital expenditure budget previously provided to Tritel
aggregating in excess of $25,000,000;
(K) make a purchase commitment inconsistent with past practice
or materially in excess of the normal, ordinary and usual
requirements;
(L) change accounting methods, principles or practices, except
insofar as may be required by a change in GAAP;
(M) incur any indebtedness for borrowed money other than (i)
indebtedness incurred pursuant to credit facilities in effect on the
date hereof, (ii) additional unsecured indebtedness in an aggregate
amount not to exceed
93
<PAGE>
$100,000,000, (iii) sale-leaseback transactions for tower facilities
and (iv) indebtedness assumed pursuant to acquisition transactions
permitted by clause (H) above, or mortgage or pledge any of its
property or assets relating to its business or subject any such assets
to any material encumbrance other than (i) Permitted Encumbrances and
(ii) in connection with indebtedness permitted to be incurred pursuant
to this clause (M);
(N) sell, assign, transfer or license any TeleCorp Intellectual
Property Rights, except in the Ordinary Course of Business;
(O) enter into, amend, terminate, take or omit to take any
action that would constitute a material violation of or default under,
or waive any material rights under, any TeleCorp Material Contract;
(P) take any action or fail to take any reasonable action
permitted by this Agreement if such action or failure to take action
would result in (x) any of its representations and warranties set
forth in this Agreement becoming untrue in any material respect or (y)
any of the conditions to the Closing set forth in Article VII of this
-----------
Agreement not being satisfied;
(Q) take any action or fail to take any action that would
prevent the Mergers and the Contribution from constituting a tax-free
transaction within the meaning of Section 351 of the Code or that
would cause either Merger to fail to qualify as a tax-free
reorganization under Section 368(a) of the Code; or
(R) enter into or amend any contract, agreement, commitment or
arrangement with respect to any matter otherwise prohibited by this
Section 6.2(a).
--------------
94
<PAGE>
(b) Tritel agrees with TeleCorp that, except as permitted, required
or contemplated by this Agreement, as described on Schedule B hereto, as
----------
described in reasonable detail on Schedule 6.2(b) or as otherwise consented to
---------------
in writing by TeleCorp (which consent shall not be unreasonably withheld or
delayed), during the Interim Period:
(i) it shall cause its business to be conducted only in the
Ordinary Course of Business provided, however, that no action by Tritel or
-------- -------
any of its Subsidiaries with respect to matters specifically addressed by
any other provision of this Section 6.2(b) shall be deemed a breach of this
--------------
clause (i) unless such action would constitute a breach of one or more such
other provisions;
(ii) it will use all commercially reasonable efforts to preserve
substantially intact its business organization, to keep available the
services of its employees and to preserve the current relationships with
its customers, suppliers and other persons with which it has significant
business relations;
(iii) it shall not, and shall not permit any of its Subsidiaries to:
(A) amend its Certificate of Incorporation or By-laws or
other equivalent organizational document
(B) merge or consolidate, or obligate itself to do so, with
or into any other entity;
(C) issue or sell any shares of its capital stock or other
equity interests in or securities convertible into or exchangeable for
such shares or equity interests; or sell or transfer any Assets,
except for the exercise of outstanding options or convertible
securities, sales of assets in the Ordinary Course of Business, other
asset sales for consideration aggregating not more than $25,00,000 in
the aggregate, the issuance of up to 1,000,000 shares of Tritel Class
95
<PAGE>
A Voting Common Stock in acquisition transactions and the granting of
stock options to purchase shares of Tritel Class A Common Stock to
employees, and no more than 25% of such options being granted to
employees who are in a category of senior vice president or higher, in
an aggregate amount not to exceed options to purchase more than 2.6
million shares of Tritel Class A Common Stock with an exercise price
not less than the average closing bid price of the Tritel Class A
Common Stock for the five trading days prior to the date hereof and
with a 4 year vesting schedule (with 50% vesting in equal installments
over such 4 year period and 50% vesting at the end of such 4 year
period); it being understood that Tritel may amend the 1999 Tritel
Stock Option Plan to permit the grants described herein.
(D) split, combine or reclassify any outstanding shares of its
capital stock;
(E) declare, set aside, make or pay any dividend (other than
dividends by Subsidiaries of Tritel to wholly owned Subsidiaries of
Tritel or to Tritel) or other distribution, payable in stock, property
or otherwise, with respect to any of its capital stock except in the
Ordinary Course of Business or redeem, purchase or otherwise acquire
any shares of its capital stock except the acquisition, redemption or
repurchase of capital stock pursuant to existing arrangements;
(F) establish or materially increase any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards, or restricted
stock awards), stock purchase or other employee benefit plan, or
otherwise increase the compensation payable or to
96
<PAGE>
become payable to any of its officers or key employees or those of any
Subsidiary, except in the Ordinary Course of Business, as permitted
under sub-clauses (C) above and (G) below or as may be required to
comply with applicable law or existing contractual arrangements;
(notwithstanding the foregoing, Tritel may amend its Restricted Stock
Agreements (a) to fully vest all recipients thereof on or before
December 31, 2002, and in the event (i) any recipient of a grant
thereunder is terminated without cause, (ii) there is a diminution in
the recipient's current authority, responsibilities, duties, position
or title or (iii) the recipient is required to relocate more than 50
miles from Tritel's current headquarters in Jackson, Mississippi; (b)
to remove the automatic repurchase provisions relating to the change
of control that would be caused by the Mergers; (c) to amend the
provisions relating to the requirement to pay upon exercise; (d) to
provide for a payment to the recipient of an amount necessary to
offset the income and excise tax effects of the amendments and the
Merger with an aggregate cost to Tritel under (i) this sub-clause (d),
(ii) the proviso immediately succeeding this sub-clause (d) (of the
-------
nature described in this sub-clause (d)) and (iii) paragraph (G) of
this Section 6.2(b)(iii) (of the nature described in this sub-clause
-------------------
(d)), not to exceed, in the aggregate, $26,000,000; provided, however,
-------- -------
that Tritel may amend the employment agreement of Mr. William Arnett
to fully vest all restricted stock awards at the Effective Time and
make other changes similar to those to be made to the Restricted Stock
Agreement; and; provided, further, however, Tritel may amend the
-------- ------- -------
Restricted Stock Agreement of Karlen Turbeville to provide for
immediate vesting of all her restricted stock awards upon a
significant change in the scope of her job responsibilities (it being
understood that any requirement of
97
<PAGE>
significant travel shall be deemed a significant change in scope of
responsibilities and that employment by Tritel II and not the Holding
Company shall not, per se, be a factor constituting a significant
change in scope of responsibilities);
(G) enter into any employment or severance agreement with any of
its employees, other than the agreements dated the date hereof with
Messrs. Mounger and Martin and attached as Exhibits J-1 and J-2
------------ ---
hereto, or establish, adopt or enter into any collective bargaining
agreement, except in the Ordinary Course of Business or as may be
required by applicable law or existing contractual arrangements;
(H) acquire (including, without limitation, by merger,
consolidation or acquisition of stock or assets) any corporation,
partnership, limited liability company, other business organization or
any division thereof for consideration in excess of $50,000,000 in the
aggregate or with capital stock other than in accordance with the
exception to sub-clause (C) above or enter into any joint venture;
(I) assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any Person,
or make any loans or advances, except in the Ordinary Course of
Business and except in connection with transactions permitted by
clause (M) below;
(J) make any capital expenditures that are not provided for in
the capital expenditures budget previously provided to Tritel
aggregating in excess of $25,000,000;
(K) make a purchase commitment inconsistent with past practice
or materially in excess of the normal, ordinary and usual
requirements;
98
<PAGE>
(L) change accounting methods, principles or practices, except
insofar as may be required by a change in GAAP;
(M) incur any indebtedness for borrowed money other than (i)
indebtedness incurred pursuant to credit facilities in effect on the
date hereof, (ii) additional unsecured indebtedness in an aggregate
amount not to exceed $100,000,000, (iii) sale-leaseback transactions
for tower facilities and (iv) indebtedness assumed pursuant to
acquisition transactions permitted by clause (H) above, or mortgage or
pledge any of its property or assets relating to its business or
subject any such assets to any material encumbrance other than (i)
Permitted Encumbrances and (ii) in connection with indebtedness
permitted to be incurred pursuant this to clause (M);
(N) sell, assign, transfer or license any Tritel Intellectual
Property Rights, except in the Ordinary Course of Business;
(O) enter into, amend, terminate, take or omit to take any
action that would constitute a material violation of or default under,
or waive any material rights under, any Tritel Material Contract;
(P) take any action or fail to take any reasonable action
permitted by this Agreement if such action or failure to take action
would result in (x) any of its representations and warranties set
forth in this Agreement becoming untrue in any material respect or (y)
any of the conditions to the Closing set forth in Article VII of this
-----------
Agreement not being satisfied;
(Q) take any action, or fail to take any action, that would
prevent the Mergers and the Contribution from constituting a tax-free
transaction within the
99
<PAGE>
meaning of Section 351 of the Code or that would cause either Merger
to fail to qualify as a tax-free reorganization under Section 368(a)
of the Code; or
(R) enter into or amend any contract, agreement, commitment or
arrangement with respect to any matter otherwise prohibited by this
Section 6.2(b).
--------------
(c) The provisions of this Section 6.2 shall be without prejudice
-----------
to any approval, veto or similar rights AT&T may have with respect to any of the
actions or events specified above.
6.3 Registration Statement; Other Filings; Board Recommendations.
------------------------------------------------------------
(a) As promptly as practicable after the execution of this Agreement,
TeleCorp and Tritel will cooperate in preparing and will cause the Holding
Company to, and the Holding Company shall, file with the SEC the Registration
Statement, which shall include the Joint Proxy Statement. Each of TeleCorp and
Tritel will respond jointly and promptly to any comments of the SEC, will use
its respective reasonable best efforts to cause the Holding Company to have the
Registration Statement declared effective under the Securities Act as promptly
as practicable after such filing, and TeleCorp and Tritel will cause the Joint
Proxy Statement to be mailed to their respective stockholders at the earliest
practicable time after the Registration Statement has been declared effective by
the SEC. As promptly as practicable after the date of this Agreement, each of
TeleCorp and Tritel will prepare and file any other documents required to be
filed by it under the Exchange Act, the Securities Act or any other Federal,
state, foreign or Blue Sky or related laws relating to the Mergers and the
transactions contemplated by this Agreement (the "Other Filings"). No amendment
-------------
or supplement to the Joint Proxy Statement or the Registration Statement will be
made by TeleCorp, Tritel or the Holding Company, in the case of the Joint Proxy
Statement, without the prior approval of each
100
<PAGE>
other party, or, in the case of the Registration Statement, without the prior
approval or TeleCorp and Tritel. Each of the Holding Company, TeleCorp and
Tritel will notify the other promptly upon the receipt of any comments from the
SEC or its staff or any other government officials and of any request by the SEC
or its staff or any other government officials for amendments or supplements to
the Registration Statement, the Joint Proxy Statement or any Other Filing or for
additional information and will supply the other with copies of all
correspondence between such party or any of its representatives, on the one
hand, and the SEC, or its staff or any other government officials, on the other
hand, with respect to the Registration Statement, the Joint Proxy Statement, the
Mergers or any Other Filing. Each of the Holding Company, TeleCorp and Tritel
will cause all documents that it is responsible for filing with the SEC or other
regulatory authorities under this Section 6.3(a) to comply in all material
--------------
respects with all applicable requirements of law and the rules and regulations
promulgated thereunder. Whenever any event occurs that is required to be set
forth in an amendment or supplement to the Joint Proxy Statement, the
Registration Statement or any Other Filing, the Holding Company, TeleCorp, or
Tritel, as the case may be, will promptly inform the other of such occurrence
and cooperate in filing with the SEC or its staff or any other government
officials, and/or mailing to stockholders of TeleCorp or Tritel, such amendment
or supplement. Tritel and TeleCorp will cooperate with AT&T and provide AT&T a
reasonable opportunity to review and comment on any public statements or filings
made with any Governmental Authority; it being understood that the consent of
AT&T will not be required as a condition to any such filings.
(b) The Joint Proxy Statement will include (x) the unanimous
recommendation of the TeleCorp Board of Directors in favor of the adoption and
approval of this Agreement and the First Merger (the "TeleCorp Proposals")
------------------
(except that, notwithstanding anything to the contrary contained in this
Agreement, the TeleCorp Board may withdraw, modify
101
<PAGE>
or refrain from making such recommendation or recommend a Superior Proposal (as
defined in Section 6.5 of this Agreement) to the extent that the TeleCorp Board
-----------
of Directors determines, in good faith, after consultation with, and based upon
the advice of, outside legal counsel, that such action is necessary for the
TeleCorp Board of Directors to comply with its fiduciary duties to its
stockholders under the DGCL) and (y) the unanimous recommendation of the Tritel
Board of Directors in favor of the adoption and approval of this Agreement and
the Second Merger (the "Tritel Proposals") (except that, notwithstanding
----------------
anything to the contrary contained in this Agreement, the Tritel Board of
Directors may withdraw, modify or refrain from making such recommendation or
recommend a Superior Proposal to the extent that the Tritel Board of Directors
determines, in good faith, after consultation with, and based upon the advice
of, outside legal counsel, that such action is necessary for the Tritel Board of
Directors to comply with its fiduciary duties to its stockholders under the
DGCL).
6.4 Meeting of Company Stockholders.
-------------------------------
(a) TeleCorp shall promptly after the date hereof take all action
necessary in accordance with the DGCL and its Certificate of Incorporation and
By-laws to duly call, give notice of and hold the TeleCorp Stockholders' Meeting
as soon as practicable following the date hereof in order to permit the
consummation of the First Merger prior to the Outside Date (as defined below),
for the purpose of obtaining approval of the TeleCorp Proposals. Once the
TeleCorp Stockholders' Meeting has been called and noticed, TeleCorp shall not
postpone or adjourn (other than for the absence of a quorum and then only to the
next possible future date) the TeleCorp Stockholders' Meeting. The Board of
Directors of TeleCorp has declared that this Agreement is advisable and, subject
to Section 6.3(b), shall recommend that this Agreement and the transactions
--------------
contemplated hereby be approved and authorized by the stockholders of TeleCorp
and shall include in the Registration Statement and Proxy Statement such
102
<PAGE>
recommendations. The Board of Directors of TeleCorp shall submit this Agreement
to the stockholders of TeleCorp, whether or not the Board of Directors of
TeleCorp at any time changes, withdraws or modifies its recommendation.
TeleCorp shall solicit from stockholders of TeleCorp proxies in favor of the
First Merger and shall take all other action necessary or advisable to secure
the vote or consent of stockholders required by the DGCL and its Certificate of
Incorporation to authorize this Agreement and the First Merger, except to the
extent the TeleCorp Board of Directors determines in good faith, after
consultation with counsel, that doing so would cause the TeleCorp Board or
Directors to breach its fiduciary duties to its stockholders under the DGCL.
Without limiting the generality of the foregoing, (i) TeleCorp agrees that its
obligation to duly call, give notice of, convene and hold the TeleCorp
Stockholders' Meeting as required by this Section 6.4, shall not be affected by
-----------
any withdrawal, amendment or modification of the Board of Directors'
recommendation of the First Merger and this Agreement, and (ii) TeleCorp agrees
that its obligations under this Section 6.4 shall not be affected by the
-----------
commencement, public proposal, public disclosure or communication to TeleCorp of
any Acquisition Proposal.
(b) Tritel shall promptly after the date hereof take all action
necessary in accordance with the DGCL and its Certificate of Incorporation and
By-laws to duly call, give notice of and hold the Tritel Stockholders' Meeting
as soon as practicable following the date hereof in order to permit the
consummation of the Second Merger prior to the Outside Date, for the purpose of
obtaining approval of the Tritel Proposals. Once the Tritel Stockholders'
Meeting has been called and noticed, Tritel shall not postpone or adjourn (other
than for the absence of a quorum and then only to the next possible future date)
the Tritel Stockholders' Meeting. The Board of Directors of Tritel has declared
that this Agreement is advisable and, subject to Section 6.3(b), shall recommend
--------------
that this Agreement and the transactions contemplated hereby be
103
<PAGE>
approved and authorized by the stockholders of Tritel and shall include in the
Registration Statement and Proxy Statement such recommendations. The Board of
Directors of Tritel shall submit this Agreement to the stockholders of Tritel,
whether or not the Board of Directors of Tritel at any time changes, withdraws
or modifies its recommendation. Tritel shall solicit from stockholders of Tritel
proxies in favor of the Second Merger and shall take all other action necessary
or advisable to secure the vote or consent of stockholders required by the DGCL
and its Certificate of Incorporation to authorize this Agreement and the Second
Merger, except to the extent the Tritel Board of Directors determines in good
faith, after consultation with counsel, that doing so would cause the Tritel
Board of Directors to breach its fiduciary duties to its stockholders under the
DGCL. Without limiting the generality of the foregoing, (i) Tritel agrees that
its obligation to duly call, give notice of, convene and hold the Tritel
Stockholders' Meeting as required by this Section 6.4, shall not be affected by
-----------
any withdrawal, amendment or modification of the Board of Directors'
recommendation of the Second Merger and this Agreement, and (ii) Tritel agrees
that its obligations under this Section 6.4 shall not be affected by the
-----------
commencement, public proposal, public disclosure or communication to Tritel any
Acquisition Proposal.
6.5 Non-Solicitation.
----------------
(a) From and after the date of this Agreement until the earlier of
the Effective Time or the termination of this Agreement in accordance with
Article VIII, neither TeleCorp nor Tritel shall, nor shall they permit any of
- ------------
their Subsidiaries to, nor shall they authorize or permit any of their
respective officers, directors or employees to, and shall use their commercially
reasonable efforts to cause any investment banker, financial advisor, attorney,
accountant, or other representatives retained by them or any of their respective
Subsidiaries not to, directly or indirectly, through any other Person, (i)
solicit, initiate or encourage (including by way of
104
<PAGE>
furnishing information) any proposals that constitute, or could reasonably be
expected to result in, a proposal or offer for an Acquisition Proposal, or (ii)
engage in negotiations or discussions concerning, or provide any non-public
information regarding TeleCorp or Tritel, as applicable, to any person or entity
relating to, any Acquisition Proposal, or (iii) agree to, approve or recommend
to its stockholders any Acquisition Proposal; provided, however, that nothing
-------- -------
contained in this Agreement shall prevent TeleCorp or its Board of Directors or
Tritel or its Board of Directors, as the case may be, from (A) furnishing non-
public information to, or entering into discussions with, any person or entity
in connection with an unsolicited bona fide written Acquisition Proposal by such
person or entity (including a new and unsolicited Acquisition Proposal received
by TeleCorp or Tritel after the execution of this Agreement from a person or
entity whose initial contact with TeleCorp or Tritel may have been solicited by
TeleCorp or Tritel, respectively, prior to the execution of this Agreement) if
and only to the extent that (1) the Board of Directors of TeleCorp or the Board
of Directors of Tritel, as the case may be, believes in good faith (after
consultation with its financial advisors) that such Acquisition Proposal would,
if consummated, result in a transaction more favorable to TeleCorp stockholders
or Tritel stockholders, respectively, from a financial point of view than the
transactions contemplated by this Agreement (any such more favorable Acquisition
Proposal being referred to in this Agreement as a "Superior Proposal") and the
-----------------
Board of Directors of TeleCorp or the Board of Directors of Tritel determines in
good faith after consultation with its outside legal counsel that such action
could be reasonably deemed necessary for the Board of Directors of TeleCorp or
the Board of Directors of Tritel, as the case may be, to comply with its
fiduciary duties to its stockholders under applicable law and (2) prior to
furnishing such non-public information to, or entering into discussions or
negotiations with, such Person or entity, such Board of Directors receives from
such Person or entity an executed non-disclosure
105
<PAGE>
agreement with terms no less favorable to such party than those contained in the
Confidentiality Agreement, (B) complying with Rules 14d-9 and 14e-2(a)
promulgated under the Exchange Act, with regard to an Acquisition Proposal or
(C) making any disclosure to its stockholders if, in the good faith judgment of
the Board of Directors of such party, after receipt of advice from outside
counsel, failure to disclose would result in a reasonable likelihood that such
Board of Directors would breach its duties to such party's stockholders under
applicable law. Each of TeleCorp and Tritel shall promptly notify the other
party and AT&T orally and in writing of any request for information or of any
proposal in connection with an Acquisition Proposal, the material terms and
conditions of such request or proposal and the identity of the person making
such request or proposal. Each of TeleCorp and Tritel will keep the other party
and AT&T reasonably informed of the status (including amendments or proposed
amendments) of such request or proposal on a current basis. Each of TeleCorp and
Tritel shall immediately cease and terminate any existing solicitation,
initiation, encouragement activity, discussion or negotiation with any persons
conducted heretofore by them or their representatives with respect to the
foregoing.
(b) Each of TeleCorp and Tritel (i) agrees not to release any Third
Party (as defined below) from, or waive any provision of, or fail to enforce,
any standstill agreement or similar agreement to which it is a party related to,
or which could affect, an Acquisition Proposal and (ii) acknowledges that the
provisions of clause (i) are an important and integral part of this Agreement.
(c) For purposes of this Agreement, "Acquisition Proposal" means a
--------------------
proposal or intended proposal, regarding any of (i) a transaction or series of
transactions pursuant to which any Person (or group of Persons) other than any
party hereto ("Party") and its Subsidiaries (a "Third Party") acquires or would
----- -----------
acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3
under the Exchange Act) of more than twenty percent (20%) of the outstanding
106
<PAGE>
shares of TeleCorp or Tritel, as the case may be, whether from TeleCorp or
Tritel, as the case may be, or pursuant to a tender offer or exchange offer or
otherwise, (ii) any acquisition or proposed acquisition of, or business
combination with TeleCorp or Tritel, as applicable, by a merger or other
business combination (including any so-called "merger-of-equals" and whether or
not TeleCorp or Tritel, as the case may be, is the entity surviving any such
merger or business combination), or (iii) any other transaction pursuant to
which any Third Party acquires or would acquire, directly or indirectly, control
of assets (including for this purpose the outstanding equity securities of
Subsidiaries of TeleCorp or Tritel, as the case may be, and any entity surviving
the merger or business combination including any of them) of TeleCorp or Tritel,
as the case may be, for consideration equal to twenty percent (20%) or more of
the fair market value of all of the outstanding shares of TeleCorp or twenty
percent (20%) or more of the fair market value of all of the outstanding shares
of Tritel, as the case may be, on the date of this Agreement.
6.6 Subsequent Financial Statements. Prior to the Effective Time,
-------------------------------
each of TeleCorp or Tritel will timely file with the SEC, each Annual Report on
Form 10-K, Quarterly Report on Form 10-Q and Current Report on Form 8-K required
to be filed by such Party under the Exchange Act and the rules and regulations
promulgated thereunder and will promptly deliver to the other copies of each
such report filed with the SEC. As of their respective dates, none of such
reports shall contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The respective audited financial statements and unaudited interim
financial statements of each of TeleCorp or Tritel, as the case may be, included
in such reports will fairly present the financial position of such Party and its
Subsidiaries as at the dates thereof and the results of their operations and
cash flows for the periods then ended in accordance with GAAP applied on a
consistent basis and, subject, in the
107
<PAGE>
case of unaudited interim financial statements, to normal year-end adjustments
and any other adjustments described therein.
6.7 Nasdaq National Market Listing. TeleCorp and Tritel agree to
------------------------------
cooperate to have the shares of Class A Voting Common Stock issuable in
connection with the Mergers approved for quotation on the Nasdaq National Market
System subject only to official notice of issuance.
6.8 Comfort Letters. TeleCorp shall use its reasonable best efforts
---------------
to cause PricewaterhouseCoopers LLP, certified public accountants to TeleCorp,
to provide a letter reasonably acceptable to Tritel, relating to their review of
the financial statements relating to TeleCorp contained in or incorporated by
reference in the Registration Statement. Tritel shall use its reasonable best
efforts to cause KPMG Peat Marwick, certified public accountants to Tritel, to
provide a letter reasonably acceptable to TeleCorp, relating to their review of
the financial statements relating to Tritel contained in or incorporated by
reference in the Registration Statement.
6.9 Further Actions.
---------------
(a) Subject to the terms and conditions hereof, TeleCorp, Tritel and
AT&T agree to use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective the transactions contemplated by this Agreement
and the Related Agreements, including, without limitation, using all reasonable
best efforts: (i) to obtain prior to the Closing Date all licenses,
certificates, permits, consents, approvals, authorizations, qualifications and
orders of governmental authorities and any other Person, including Persons who
are parties to contracts with TeleCorp or any of its Subsidiaries, Tritel or any
of its Subsidiaries or AT&T or any of its Subsidiaries as are necessary for the
consummation of the transactions contemplated hereby or
108
<PAGE>
thereby, including, without limitation, such consents and approvals as may be
required under the Communications Act, the HSR Act and any similar Federal,
state or foreign legislation; (ii) to effect all necessary registrations and
filings; and (iii) to furnish to each other such information and assistance as
reasonably may be requested in connection with the foregoing. Each of TeleCorp,
Tritel and AT&T shall cooperate fully with each other to the extent reasonably
required to obtain such consents. Notwithstanding the foregoing or anything to
the contrary in this Agreement, (i) without the prior written consent of
TeleCorp, Tritel will not incur aggregate out-of-pocket costs (not including
legal fees) in excess of the amount specified in Schedule 6.9 to obtain third
------------
party consents and approvals (other than governmental consents and approvals) to
consummate the Mergers and (ii) AT&T shall not be required to expend any
significant moneys or make any other concessions to third parties to obtain any
consents or approvals required under this Agreement and the Related Agreements.
(b) Tritel, TeleCorp and AT&T shall make all filings which may be
required by each of them in connection with the consummation of the transactions
contemplated hereby under the HSR Act and any similar Federal, state or foreign
legislation no later than March 31, 2000.
(c) TeleCorp, Tritel and AT&T shall each use their reasonable best
efforts to resolve any competitive issues relating to or arising under the HSR
Act or any other Federal, state or foreign antitrust or fair trade law raised by
any Governmental Entity in connection with the transactions contemplated by this
Agreement or the Related Agreements. If such offers are not accepted by such
Governmental entity, TeleCorp (with Tritel's cooperation) shall pursue all
litigation resulting from such issues. The parties hereto will consult and
cooperate with one another, and consider in good faith the views of one another,
in connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or
109
<PAGE>
submitted by or on behalf or any party hereto in connection with proceedings
under or relating to the HSR Act or any other Federal, state or foreign
antitrust or fair trade law. In the event of a challenge to the transaction
contemplated by this Agreement pursuant to the HSR Act, the parties hereto shall
use their reasonable best efforts to defeat such challenge, including by
institution and defense of litigation, or to settle such challenge on terms that
permit the consummation of the Mergers and the Contribution; provided, however,
-------- -------
that nothing herein shall require either party to agree to divest or hold
separate any portion of its business or otherwise take action that could
reasonably be expected to impair the ability of (i) the Holding Company, to own
and operate the respective businesses of TeleCorp and Tritel after the Closing
or (ii) AT&T, to own the Shares after the Closing, or (iii) TeleCorp, Tritel or
AT&T, as the case may be, to own and operate their respective business if the
transactions contemplated hereby are not consummated, in either case, in
substantially the same manner as operated immediately prior to the date hereof
or impair the ability of the Holding Company to own and operate the Contributed
Property as contemplated by this Agreement. Without limiting the foregoing, in
the event that either the Federal Trade Commission or the Antitrust Division of
the United Department of Justice should issue a Request for Additional
Information or Documentary Material under 17 C.F.R. (S)803.20 (a "Second
------
Request"), then TeleCorp, Tritel and, if applicable, AT&T each agree to use
- -------
their reasonable best efforts to respond fully to such Second Request within 20
days after its receipt and shall promptly make any further filings or
information submissions and use its reasonable efforts to make any employee
available for interview or testimony pursuant to the foregoing (both before and
after any Second Request) whose interview or testimony may be necessary, proper
or advisable.
110
<PAGE>
6.10 Notification. Each party shall promptly notify the other parties
------------
of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement or the Related Agreements;
(b) any material notice or other communication from any Governmental
Entity in connection with the transactions contemplated by this Agreement or the
Related Agreements; and
(c) any action suit, claim, investigation or proceeding commenced or,
to its knowledge, threatened against or otherwise affecting such notifying
party, which relates to the consummation of the transactions contemplated by
this Agreement or the Related Agreements.
6.11 Notice of Breaches; Updates.
---------------------------
(a) TeleCorp shall promptly deliver to Tritel and AT&T written notice
of any event or development that would (i) render any statement, representation
or warranty of TeleCorp in this Agreement or the Related Agreements (including
the TeleCorp Disclosure Schedule) inaccurate or incomplete in any material
respect or (ii) constitute or result in a breach by TeleCorp of, or a failure by
TeleCorp or any Subsidiary of TeleCorp to comply with, any agreement or covenant
in this Agreement or the Related Agreements applicable to it. No such
disclosure shall be deemed to avoid or cure any such misrepresentation or
breach.
(b) Tritel shall promptly deliver to TeleCorp and AT&T written notice
of any event or development that would (i) render any statement, representation
or warranty of the Tritel in this Agreement or the Related Agreements (including
the Tritel Disclosure Schedule) inaccurate or incomplete in any material respect
or (ii) constitute or result in a breach by the Tritel or a failure by Tritel or
any Subsidiary of Tritel to comply with, any agreement or
111
<PAGE>
covenant in this Agreement or the Related Agreements applicable to it. No such
disclosure shall be deemed to avoid or cure any such misrepresentation or
breach.
(c) AT&T shall promptly deliver to Tritel and TeleCorp written notice
of any event or development that would (i) render any statement, representation
or warranty of AT&T in this Agreement or the Related Agreements inaccurate or
incomplete in any material respect or (ii) constitute or result in a breach by
AT&T of, or a failure by AT&T or any Subsidiary to comply with, any agreement or
covenant in this Agreement or the Related Agreements applicable to it. No such
disclosure shall be deemed to avoid or cure any such misrepresentation or
breach.
6.12 No Inconsistent Action. Subject to the provisions of Sections
---------------------- --------
6.4 or 6.5, neither TeleCorp, Tritel nor AT&T shall take any action inconsistent
- --- ---
with their obligations under this Agreement or any of the Related Agreements or
which could materially hinder or delay the consummation of the transactions
contemplated by this Agreement.
6.13 Commercially Reasonable Efforts. Each of TeleCorp and Tritel
-------------------------------
shall use its commercially reasonable efforts to obtain the opinions referred to
in Section 7.1(g).
--------------
6.14 Affiliates. Each of TeleCorp and Tritel, as applicable (i) has
----------
disclosed to the other on Schedule 6.14 hereof all persons who are, or may be,
-------------
as of the date hereof its "affiliates" for purposes of Rule 145 under the
Securities Act, and (ii) shall use all commercially reasonable efforts to cause
each person who is identified as its "affiliate" on Schedule 6.14 to deliver to
-------------
the Holding Company as promptly as practicable but in no event later than the
Closing Date, a signed agreement substantially in the form attached hereto as
Exhibit J. Each of TeleCorp and Tritel shall notify the other from time to time
- ---------
of any other persons who then are, or may be, such an "affiliate" and use all
commercially reasonable efforts to cause each additional
112
<PAGE>
person who is identified as an "affiliate" to execute a signed agreement as set
forth in this Section 6.14.
------------
6.15 Blue Sky. TeleCorp, Tritel and the Holding Company will use
--------
their commercially reasonable efforts to obtain prior to the Effective Time all
necessary state securities or "blue sky" Permits and approvals required to
permit the distribution of the shares of the Holding Company to be issued in
accordance with the provisions of this Agreement.
6.16 Tax-Free Exchange. Each of the Parties will use its commercially
-----------------
reasonable efforts, and each agrees to cooperate with the other Parties and
provide one another with such documentation, information and materials, as may
be reasonably necessary, proper or advisable, to cause the transactions to be
effected pursuant to this Agreement to qualify for U.S. Federal income tax
purposes as a tax-free transaction or series of transactions, reorganizations or
contributions, as the case may be.
6.17 AT&T Actions.
------------
(a) AT&T will use commercially reasonable efforts to obtain all
necessary corporate approvals for the Contribution.
(b) AT&T hereby waives all rights it may have to object to, and
otherwise consents to, the transactions expressly described in this Agreement,
including but not limited to any rights it has pursuant to Section 7.4 of the
Stockholders Agreement by and among AT&T, TeleCorp and the Management
Stockholders and Cash Equity Investors described therein dated as of July 17,
1998, as amended, (the "Waiver").
------
(c) AT&T will cooperate after a reasonable request by TeleCorp in
exercising any rights AT&T may have under the Airadigm Purchase Agreement or the
Indus Merger Agreement.
113
<PAGE>
(d) From and after the Effective Time and/or the Contribution, AT&T
shall take all such further action as TeleCorp or the Holding Company shall
reasonably request to effectuate, or in furtherance of, the provisions of this
Agreement and the Related Agreements.
6.18 Transition Committee. Commencing on the date when the condition
--------------------
contained in Section 7.1(h) is first satisfied, all consents sought with regard
--------------
to Sections 6.1 or 6.2 shall be submitted to a transition committee (the
------------ ---
"Transition Committee") comprised of Jerry Vento, Thomas H. Sullivan, E.B.
- ---------------------
Martin, Jr., William H. Mounger, II, Andrew Hubregsen, Michael H. Hannon and
Scott Anderson for a recommendation as to the advisability of such consent,
which recommendation shall be presented, together with the request for a consent
pursuant to Section 6.1 or 6.2, to TeleCorp or Tritel, as appropriate.
----------- ---
6.19 Employee Benefit Matters. Following the Effective Time, the
------------------------
Holding Company shall provide to officers and employees of Tritel and its
Subsidiaries employee benefits under employee benefit plans on terms and
conditions which are substantially similar in the aggregate to those provided by
Tritel and its Subsidiaries to their officers and employees prior to the
Effective Time but in no event less favorable than those provided to similarly
situated officers and employees of TeleCorp prior to the Effective Time. With
respect to any benefits plans of the Holding Company or its Subsidiaries in
which the officers and employees of the Tritel and its Subsidiaries participate
after the Effective Time, the Holding Company shall: (i) waive any limitations
as to pre-existing conditions, exclusions and waiting periods with respect to
participation and coverage requirements applicable to such officers and
employees under any welfare benefit plan in which such employees may be eligible
to participate after the Effective Time (provided, however, that no such waiver
shall apply to a pre-existing condition of any such officer or employee who was,
as of the Effective Time, excluded from participation in a Tritel benefit plan
by nature of such pre-existing condition), (ii) provide each such officer and
114
<PAGE>
employee with credit for any co-payments and deductibles paid prior to the
Effective Time during the year in which the Effective Time occurs in satisfying
any applicable deductible or out-of-pocket requirements under any welfare
benefit plan in which such employees may be eligible to participate after the
Effective Time, and (iii) recognize all service of such officers and employees
with Tritel and its Subsidiaries (and their respective predecessors) for all
purposes (including without limitation purposes of eligibility to participate,
vesting credit, entitlement for benefits, and benefit accrual) in any benefit
plan in which such employees may be eligible to participate after the Effective
Time, except to the extent such treatment would result in duplicative accrual of
benefits for the same period of service.
6.20 Novation of Affiliation Agreements. Prior to but effective as of
----------------------------------
the Effective Time, AT&T, the Holding Company and, as appropriate, their
respective Affiliates shall enter into (i) a Network Membership License
Agreement in the form of Exhibit K-1 hereto, (ii) an Intercarrier Roamer Service
-----------
Agreement in the form of Exhibit K-2 hereto and (iii) a Roaming Administration
-----------
Agreement in the form of Exhibit K-3 hereto.
-----------
6.21 Indemnity for Indus and Airadigm Liabilities. Each of TeleCorp
--------------------------------------------
and the Holding Company agrees to indemnify AT&T and its Affiliates and hold
each of them harmless against any liabilities retained by or asserted against
any of them in respect of Indus or Airadigm or the agreements they entered into
in connection with securing the rights to acquire Indus or Airadigm (and any
costs or losses incurred in connection therewith).
115
<PAGE>
ARTICLE VII
CLOSING CONDITIONS
7.1 Conditions to Obligations of TeleCorp and Tritel to Effect the
--------------------------------------------------------------
Mergers. The respective obligations of TeleCorp and Tritel to effect the
- -------
Mergers shall be subject to the satisfaction at or prior to the Closing Date of
each of the following conditions:
(a) Stockholder Approval of TeleCorp. The TeleCorp Proposals shall
--------------------------------
each have been duly approved by the requisite vote under applicable law and the
rules of the National Association of Securities Dealers, Inc. by the
stockholders of TeleCorp.
(b) Stockholder Approval of Tritel. The Tritel Proposals shall each
------------------------------
have been duly approved by the requisite vote under applicable law and the rules
of the National Association of Securities Dealers, Inc. by the stockholders of
Tritel.
(c) TeleCorp Consents. TeleCorp shall have obtained the consent or
-----------------
approval of any Person (other than a Governmental Authority) whose consent or
approval shall be required under any agreement or instrument in order to permit
the consummation of the transactions contemplated hereby (other than the
Contribution) except those which the failure to obtain would not, individually
or in the aggregate, have a Tritel Material Adverse Effect or a TeleCorp
Material Adverse Effect.
(d) Tritel Consents. Tritel shall have obtained the consent or
---------------
approval of any Person (other than a Governmental Authority) whose consent or
approval shall be required in order to permit the consummation of the
transactions contemplated hereby (other than the Contribution) except those
which the failure to obtain would not, individually or in the aggregate, have a
TeleCorp Material Adverse Effect or a Tritel Material Adverse Effect.
(e) Registration Statement Effective; Joint Proxy Statement. The SEC
-------------------------------------------------------
shall have declared the Registration Statement effective prior to the mailing of
the Joint Proxy
116
<PAGE>
Statements by each of TeleCorp and Tritel to its respective stockholders. No
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and be in effect and no proceeding for that
purpose, and no similar proceeding in respect of the Joint Proxy Statement,
shall have been initiated or threatened in writing by the SEC and not concluded
or withdrawn.
(f) No Order. No Governmental Entity shall have enacted, issued,
--------
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of (i) prohibiting consummation of
the Mergers or (ii) creating a TeleCorp Material Adverse Effect or a Tritel
Material Adverse Effect.
(g) Tax Opinions. TeleCorp and Tritel shall each have received
------------
substantially identical written opinions from their respective tax counsel
(Cadwalader, Wickersham & Taft and Brown & Wood LLP, respectively), in form and
substance reasonably acceptable to Tritel or TeleCorp, as the case may be, to
the effect that the First Merger and the Second Merger, respectively, will
constitute part of a tax-free transaction within the meaning of Section 351 of
the Code and that the First Merger and the Second Merger, respectively, will
each qualify as a tax-free reorganization under Section 368(a) of the Code and
such opinions shall not have been withdrawn. Tritel, TeleCorp and AT&T agree to
make reasonable and customary representations substantially in the form of
Exhibits I-1, I-2, I-3, I-4, and I-5 respectively, and counsel shall be entitled
- --------------------------- ---
to rely upon such representations in rendering such opinions.
(h) HSR Act. Any waiting period applicable to the consummation of the
-------
Mergers under the HSR Act shall have expired or been terminated.
(i) Blue Sky. All state securities or "blue sky" Permits or approvals
--------
required to carry out the transactions contemplated hereby shall have been
received.
117
<PAGE>
(j) Affiliate Agreements. The Holding Company shall have received the
--------------------
agreements required by Section 6.14 hereof to be delivered by TeleCorp and
------------
Tritel "affiliates," duly executed by each "affiliate" of TeleCorp or Tritel, as
the case may be.
(k) Governmental Filings and Consents.
---------------------------------
(i) All governmental filings (other than filings with the FCC)
required to be made prior to the Effective Time by TeleCorp, Tritel and the
Holding Company with, and all governmental consents (other than consents of
the FCC) required to be obtained prior to the Effective Time by TeleCorp,
Tritel, and the Holding Company from governmental and regulatory
authorities in connection with the execution and delivery of this Agreement
by TeleCorp and Tritel and the consummation of the transactions
contemplated hereby (other than the Contribution) shall have been made or
obtained, except where the failure to make such filing or obtain such
consent would not reasonably be expected to result in a TeleCorp Material
Adverse Effect or Tritel Material Adverse Effect, as the case may be or a
material adverse effect on the Holding Company (assuming the First Merger
and Second Merger had taken place).
(ii) All required consents of the FCC to all matters contemplated by
the Mergers shall have been obtained pursuant to Final Orders, free of any
conditions materially adverse to TeleCorp or Tritel, other than those
applicable to the PCS or wireless communications services industry
generally. For the purposes of this Agreement, "Final Order" means an
-----------
action or decision that has been granted by the FCC as to which (A) no
request for a stay or similar request is pending, no stay is in effect, the
action or decision has not been vacated, reversed, set aside, annulled or
suspended and any deadline for filing such request that may be designated
by statute or regulation has passed, (B) no petition for rehearing or
reconsideration or application for review is
118
<PAGE>
pending and the time for the filing of any such petition or application has
passed, (C) the FCC does not have the action or decision under
reconsideration on its own motion and the time within which it may effect
such reconsideration has passed and (D) no appeal is pending, including
other administrative or judicial review, or in effect and any deadline for
filing any such appeal that may be designated by statute or rule has
passed.
(l) Nasdaq National Market Listing. The shares of Class A Voting
------------------------------
Stock issuable to stockholders of TeleCorp and Tritel pursuant to this Agreement
shall have been approved for quotation on the Nasdaq National Market System,
subject only to official notice of issuance.
7.2 Additional Conditions to Obligations of TeleCorp. The obligation
------------------------------------------------
of TeleCorp to consummate and effect the First Merger shall be subject to the
satisfaction at or prior to the Closing Date of each of the following
conditions, any of which may be waived, in writing, exclusively by TeleCorp:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Tritel contained in this Agreement shall have been true, complete
and correct as of the date of this Agreement and as of the Closing Date except
(i) to the extent that the failure of such representations and warranties (other
than the representation in Sections 4.3, 4.4 and 4.6) to be true, complete and
------------ --- ---
correct in each case or in the aggregate does not constitute a Tritel Material
Adverse Effect, (ii) for changes contemplated by this Agreement and (iii) for
those representations and warranties which address matters only as of the date
of this Agreement or any other particular date (which shall have been true,
complete and correct as of such particular date except to the extent that the
failure of such representations and warranties to have been true, complete and
correct as of such particular date does not constitute a Tritel Material Adverse
Effect) (it being understood that, for purposes of determining the accuracy of
such
119
<PAGE>
representations and warranties all "Tritel Material Adverse Effect"
qualifications and other qualifications based on the word "material" or similar
phrases contained in such representations and warranties shall be disregarded).
TeleCorp shall have received a certificate with respect to the foregoing signed
on behalf of Tritel by the Chief Executive Officer and the Chief Financial
Officer of Tritel.
(b) Agreements and Covenants. Tritel shall have performed or complied
------------------------
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by them on or prior to the Closing
Date, and TeleCorp shall have received a certificate to such effect signed on
behalf of Tritel by the Chief Executive Officer and the Chief Financial Officer
of Tritel.
(c) Completion of Second Merger. The Second Merger shall have been or
---------------------------
shall be simultaneously completed.
7.3 Additional Conditions to the Obligations of Tritel. The
--------------------------------------------------
obligations of Tritel to consummate and effect the Second Merger shall be
subject to the satisfaction at or prior to the Closing Date of each of the
following conditions, any of which may be waived, in writing, exclusively by
Tritel:
(a) Representations and Warranties. The representations and
------------------------------
warranties of TeleCorp contained in this Agreement shall have been true,
complete and correct as of the date of this Agreement and as of the Closing Date
except (i) to the extent that the failure of such representations and warranties
(other than the representations in Sections 3.3, 3.4 and 3.6) to be true,
------------ --- ---
complete and correct in each case or in the aggregate does not constitute a
TeleCorp Material Adverse Effect, (ii) for changes contemplated by this
Agreement and (iii) for those representations and warranties which address
matters only as of the date of this Agreement or any other particular date
(which shall have been true, complete and correct as of such particular
120
<PAGE>
date except to the extent that the failure of such representations and
warranties to be true, complete and correct as of such particular date does not
constitute a TeleCorp Material Adverse Effect) (it being understood that, for
purposes of determining the accuracy of such representations and warranties all
"TeleCorp Material Adverse Effect" qualifications and other qualifications based
on the word "material" or similar phrases contained in such representations and
warranties shall be disregarded). Tritel shall have received a certificate with
respect to the foregoing signed on behalf of TeleCorp by the Chief Executive
Officer and the Chief Financial Officer of TeleCorp.
(b) Agreements and Covenants. TeleCorp shall have performed or
------------------------
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it at or prior to the Closing
Date, and Tritel shall have received a certificate to such effect signed on
behalf of TeleCorp by the Chief Executive Officer and the Chief Financial
Officer of TeleCorp.
(c) Completion of First Merger. The First Merger shall have been or
--------------------------
shall be simultaneously completed.
7.4 Conditions to Obligations of the Holding Company to Issue the
-------------------------------------------------------------
Shares. The obligation of the Holding Company to issue the Shares to AT&T (or
- ------
its Affiliates) shall be subject to the satisfaction at or prior to the Closing
Date of each of the following conditions, any of which may be waived, in
writing, exclusively by the Holding Company:
(a) Representations and Warranties. The representations and
------------------------------
warranties of AT&T contained in this Agreement shall have been true, complete
and correct in all material respects as of the date of this Agreement and as of
the Closing Date except (i) for changes contemplated by this Agreement and (ii)
for those representations and warranties which address matters only as of a
particular date (which shall have been true, complete and correct in all
121
<PAGE>
material respects as of such particular date). The Holding Company shall have
received a certificate with respect to the foregoing signed on behalf of AT&T by
an appropriate officer of AT&T.
(b) Agreements and Covenants. AT&T shall have performed or complied
------------------------
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it at or prior to the Closing
Date, and the Holding Company shall have received a certificate to such effect
signed on behalf of AT&T by an appropriate officer of AT&T.
(c) No Order. No Governmental Entity shall have enacted, issued,
--------
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of (i) making the Contribution
illegal or otherwise prohibiting consummation of the Contribution or (ii)
creating a AT&T Material Adverse Effect.
(d) Governmental Filings and Consents. All governmental filings
---------------------------------
required to be made prior to the Effective Time by AT&T with, and all
governmental consents required to be obtained prior to the Effective Time by
AT&T from, governmental and regulatory authorities in connection with the
execution and delivery of this Agreement by AT&T and the consummation of the
Contribution shall have been made or obtained, except where the failure to make
such filing or obtain such consent would not reasonably be expected to result in
a AT&T Material Adverse Effect.
(e) HSR Act. Any waiting period applicable to the consummation of the
-------
Contribution under the HSR Act shall have expired or been terminated.
122
<PAGE>
(f) The Airadigm Assignment. Subject to the provisions of Section
----------------------- -------
1.14(b), the Airadigm Assignment shall have been executed and delivered by AT&T
- -------
to the Holding Company.
(g) The Indus Assignment. The Indus Merger Agreement and the Indus
--------------------
Assignment and Assumption Agreement shall have been executed and delivered in
the respective forms attached hereto as Exhibits H and I and the conditions to
---------- -
the consummation of the transactions contemplated thereby shall have been
satisfied.
(h) The License Extension Amendment. AT&T shall have duly executed
-------------------------------
and delivered the License Extension Amendment to the Holding Company.
(i) Exchange Agreement. The transactions contemplated by the Exchange
------------------
Agreement dated as of the date hereof between AT&T, and certain of its
Affiliates, and TeleCorp, and certain of its Affiliates (the "Exchange
--------
Agreement"), shall have been consummated.
- ---------
7.5 Conditions to Obligations of AT&T to Effect the Contribution.
------------------------------------------------------------
The obligations of AT&T to effect the Contribution and execute the License
Extension Amendment shall be subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any of which may be waived, in
writing, exclusively by AT&T:
(a) Representations and Warranties. The representations and
------------------------------
warranties of each of TeleCorp and Tritel contained in this Agreement shall have
been true, complete and correct as of the date of this Agreement and as of the
Closing Date except (i) to the extent that the failure of such representations
and warranties (other than the representations in Sections 3.3, 3.4 and 3.6) to
------------ --- ---
be true, complete and correct in each case or in the aggregate does not
constitute a TeleCorp Material Adverse Effect or a Tritel Material Adverse
Effect, as appropriate, (ii) for changes contemplated by this Agreement and
(iii) for those representations and warranties which
123
<PAGE>
address matters only as of a particular date (which shall have been true,
complete and correct as of such particular date except to the extent that the
failure of such representations and warranties to be true, complete and correct
as of such particular date does not constitute a TeleCorp Material Adverse
Effect or a Tritel Material Adverse Effect, as appropriate) (it being understood
that, for purposes of determining the accuracy of such representations and
warranties all "TeleCorp Material Adverse Effect" and "Tritel Material Adverse
Effect" qualifications and other qualifications based on the word "material" or
similar phrases contained in such representations and warranties shall be
disregarded). AT&T shall have received a certificate with respect to the
foregoing signed on behalf of TeleCorp by the Chief Executive Officer and the
Chief Financial Officer of TeleCorp and on behalf of Tritel by the Chief
Executive Officer and the Chief Financial Officer of Tritel.
(b) Agreements and Covenants. TeleCorp and Tritel shall have
------------------------
performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by each of them at
or prior to the Closing Date, and AT&T shall have received a certificate to such
effect signed on behalf of TeleCorp by the Chief Executive Officer and the Chief
Financial Officer of TeleCorp and on behalf of Tritel by the Chief Executive
Officer and the Chief Financial Officer of TeleCorp.
(c) No Order. No Governmental Entity shall have enacted, issued,
--------
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of (i) making the Contribution
illegal or otherwise prohibiting consummation of the Contribution, (ii) creating
a TeleCorp Material Adverse Effect or a Tritel Material Adverse Effect or (iii)
which would reasonably be expected to have a material adverse effect on AT&T.
124
<PAGE>
(d) Governmental Filings and Consents. All governmental filings
---------------------------------
required to be made prior to the Effective Time by TeleCorp, Tritel and the
Holding Company with, and all governmental consents required to be obtained
prior to the Effective Time by TeleCorp, Tritel, and the Holding Company from,
governmental and regulatory authorities in connection with the Contribution
shall have been made or obtained, except where the failure to make such filing
or obtain such consent would not reasonably be expected to result in a TeleCorp
Material Adverse Effect or Tritel Material Adverse Effect, as the case may be
or a material adverse effect on AT&T or the Holding Company (assuming the First
Merger and Second Merger had taken place), and the waiting periods under the HSR
Act for the consummation or the Contribution shall have expired or been
terminated.
(e) Completion of Mergers. The First Merger and the Second Merger
---------------------
shall have been completed.
(f) Issuance of Shares. The Holding Company shall have issued or
------------------
shall simultaneously issue the Shares, to AT&T (or one of its Affiliates).
(g) Exchange Agreement. The transactions contemplated by the Exchange
------------------
Agreement shall have been consummated.
ARTICLE VIII
TERMINATION
8.1 General. This Agreement may be terminated and the transactions
-------
contemplated hereby may be abandoned at any time prior to the Effective Time
notwithstanding approval thereof by the stockholders of TeleCorp and the
stockholders of Tritel:
(a) by mutual written consent duly authorized by the Boards of
TeleCorp and Tritel;
125
<PAGE>
(b) by TeleCorp or Tritel if the Closing shall not have occurred on
or before December 31, 2000 (the "Outside Date"); provided, however, that if the
------------ -------- -------
Merger shall not have been consummated solely due to the waiting period (or any
extension thereof) or approvals under the HSR Act or approvals or consent of the
FCC not having expired or been terminated or received, then such date shall be
extended to March 31, 2001; and provided, further, that the right to terminate
-------- -------
this Agreement under this Section 8.1(b) shall not be available to any party
--------------
whose willful failure to fulfill any material obligation under this Agreement
has been the cause of, or resulted in, the failure of the Closing to occur
before such date;
(c) by TeleCorp, (A) if Tritel shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (1) is incapable of being cured by Tritel prior to the
Outside Date, and (2) renders any condition under Sections 7.1 or 7.2 incapable
------------ ---
of being satisfied prior to the Outside Date, or (B) if a condition under
Sections 7.1 or 7.2 to TeleCorp obligations hereunder is incapable of being
- ------------ ---
satisfied prior to the Outside Date;
(d) by Tritel, (A) if TeleCorp shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (1) is incapable of being cured by TeleCorp prior to the
Outside Date, and (2) renders any condition under Sections 7.1 or 7.3 incapable
------------ ---
of being satisfied prior to the Outside Date, or (B) if a condition under
Sections 7.1 or 7.3 to Tritel obligations hereunder is incapable of being
- ------------ ---
satisfied prior to the Outside Date;
(e) by TeleCorp or Tritel, upon written notice to the other party, if
a governmental authority of competent jurisdiction shall have issued an
injunction, order or decree enjoining or otherwise prohibiting the consummation
of the transactions contemplated by this Agreement (other than just the
Contribution), and such injunction, order or decree shall have
126
<PAGE>
become final and non-appealable; provided, however, that the party seeking to
-------- -------
terminate this pursuant to this clause (v) has used reasonable best efforts to
remove such injunction, order or decree; or
(f) by either TeleCorp, Tritel or AT&T (with respect to the
Contribution only) if the TeleCorp Proposals or the Tritel Proposals shall fail
to have been approved as provided herein at the TeleCorp Stockholder Meeting or
the Tritel Stockholder Meeting, as applicable, including any adjournments
thereof.
8.2 Obligations in Event of Termination. In the event of any
-----------------------------------
termination of this Agreement as provided in Section 8.1, this Agreement shall
-----------
forthwith become wholly void and of no further force and effect and there shall
be no liability on the part of TeleCorp, Tritel or AT&T, except that the
obligations of the parties under the last sentence of Section 1.14(c), the last
---------------
sentences each of Sections 6.1(a), (b) and (c), Section 6.21 (but only if an
--------------- --- --- ------------
Early Indus Closing shall have occurred), Section 10.2 and this Section 8.2
------------ -----------
shall remain in full force and effect, and except that termination shall not
preclude any party from suing the other party for breach of this Agreement.
8.3 Termination of Contribution. The provisions of this Agreement
---------------------------
relating to the Contribution may be terminated and the Contribution may be
abandoned at any time notwithstanding approval thereof by the stockholders of
TeleCorp and the stockholders of Tritel:
(a) by mutual written consent duly authorized by the Boards of the
Holding Company (or, before the Effective Time, TeleCorp) and AT&T;
(b) by either the Holding Company (or, before the Effective Time,
TeleCorp) or AT&T if the Closing shall have occurred but the Contribution shall
not have occurred on or before the Outside Date; provided, however, that the
-------- -------
right to terminate the Contribution under this Section 8.3(b) shall not be
--------------
available to any party whose willful failure to fulfill any material
127
<PAGE>
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Contribution to occur before such date;
(c) by either the Holding Company (or, before the Effective Time,
TeleCorp) or AT&T, upon written notice to the other party, if a Governmental
Authority of competent jurisdiction shall have issued an injunction, order or
decree enjoining or otherwise prohibiting the consummation of the Contribution,
and such injunction, order or decree shall have become final and non-appealable;
provided, however, that the party seeking to terminate this Agreement pursuant
- -------- -------
to this Section 8.3(c) has used reasonable best efforts to remove such
--------------
injunction, order or decree; or
(d) by TeleCorp or the Holding Company pursuant to Section
-------
1.14(d)(ii).
8.4 Obligations in Event of Termination of Contribution. In the
---------------------------------------------------
event of any termination of the provisions of this Agreement relating to the
Contribution, as provided in Section 8.3, such provisions shall forthwith become
-----------
wholly void and of no further force and effect and there shall be no liability
in respect thereof on the part of the Holding Company, TeleCorp, Tritel or AT&T,
except that the obligations of the parties under the last sentence of Section
-------
1.14(c) shall remain in full force and effect, and except that such termination
- -------
shall not relieve any party from liability for breach of this Agreement.
ARTICLE IX
NO SURVIVAL
9.1 No Survival of Representations and Warranties. All
---------------------------------------------
representations and warranties in this Agreement of any Party or in any
instrument delivered pursuant to this Agreement (each as modified by the
appropriate Disclosure Schedule) shall terminate at the Effective Time.
128
<PAGE>
ARTICLE X
MISCELLANEOUS
10.1 Public Announcements. Prior to the Closing Date, no news release
--------------------
or other public announcement pertaining in any way to the transactions
contemplated by this Agreement will be made by either TeleCorp, Tritel or AT&T
without the prior consent of the other party, unless in the opinion of counsel
to such party such release or announcement is required by applicable law or the
requirements of the Nasdaq National Market.
10.2 Fees and Expenses. (a) Except as set forth in this Section
----------------- -------
10.2, all fees and expenses, including Taxes, incurred in connection with this
- ----
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses whether or not the Mergers and the Contribution are
consummated; provided, however, that TeleCorp and Tritel shall share equally all
-------- -------
fees and expenses, other than attorneys' and accountants' fees and expenses,
incurred in relation to the printing and filing (with the SEC) of the Joint
Proxy Statement (including any preliminary materials related thereto) and the
Registration Statement (including financial statements and exhibits) and any
amendments or supplements thereto.
(b) The Holding Company shall file any return with respect to any
state or local transfer, stamp, sales or similar Taxes (including any penalties
or interest with respect thereto), if any, which are attributable to (i) the
transfer of the beneficial ownership of TeleCorp's or Tritel's real property or
(ii) the transfer of Tritel's Common or Preferred Stock or TeleCorp's Common or
Preferred Stock pursuant to this Agreement (collectively, the "Transfer Taxes")
--------------
as a result of the Mergers. Each of TeleCorp and Tritel acknowledges that the
amount of the Transfer Taxes payable with respect to any shares of TeleCorp's
Common or Preferred Stock or Tritel's Common or Preferred Stock may be withheld
by the Holding Company from the amount paid pursuant to the Mergers with respect
to such shares to the extent required by law.
129
<PAGE>
TeleCorp, AT&T and Tritel shall cooperate with the Holding Company in the filing
of such returns, including supplying in a timely manner a complete list of all
real property interests held by TeleCorp or Tritel and any information with
respect to such property that is reasonably necessary to complete such returns.
The fair market value of any real property of TeleCorp or Tritel subject to the
Transfer Taxes shall be determined by the Holding Company in its discretion.
10.3 Notices. All notices, requests, demands and other communications
-------
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, if telecopied
or mailed, first class mail, postage prepaid, return receipt requested, or by
overnight courier as follows:
If to TeleCorp:
TeleCorp PCS, Inc.
1010 Glebe Road
Arlington, VA 22201
Attn: Thomas Sullivan
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: John R. Pomerance
Fax: (617) 542-2241
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Attention: Brian Hoffmann
Fax: (212) 504-6666
130
<PAGE>
If to Tritel:
Tritel, Inc.
111 East Capital Street, Suite 500
Jackson, MS 39201
Attention: E.B. Martin
Fax: 601-914-8285
with a copy to:
Brown & Wood LLP
One World Trade Center
New York, NY 10048
Attention: Michael King
Fax: (212) 839-5599
If to AT&T:
AT&T Wireless Services, Inc.
7277 164/th/ Avenue NE
Redmond, WA 98052
Attention: William H. Hague
Fax: (425) 580-8405
with a copy to:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, NJ 07920
Attention: Marilyn J. Wasser
Fax: (908) 221-6618
with a copy to:
Wachtell Lipton, Rosen & Katz
51 West 52/nd/ Street
New York, NY 10019
Attention: Steven A. Rosenblum and Trevor S. Norwitz
Fax: (212) 403-2000
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been
131
<PAGE>
received on the date of personal delivery or telecopy, on the third business day
after the mailing thereof or on the first day after delivery by overnight
courier.
10.4 Certain Definitions. For purposes of this Agreement, the term:
-------------------
(a) "Affiliate" means a Person that directly or indirectly, through
---------
one or more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned Person;
(b) "Court" means any court or arbitration tribunal of the United
-----
States, any domestic state, or any foreign country, and any political
subdivision thereof.
(c) "Environmental Laws" means any Law pertaining to: (i) the
------------------
protection of the indoor or outdoor environment; (ii) the conservation,
management or use of natural resources and wildlife; (iii) the protection or use
of surface water and ground water; (iv) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
emission, discharge, release, threatened release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material; or (v)
pollution of air, land, surface water and ground water; and includes, without
limitation, the Comprehensive Environmental, Response, Compensation, and
Liability Act of 1980, as amended, and the Regulations promulgated thereunder
and the Solid Waste Disposal Act, as amended, 42 U.S.C. (S)(S) 6901 et seq.
-- ---
(d) "Foreign Competition Laws" means any foreign statutes, rules,
------------------------
Regulations, Orders, administrative and judicial directives, and other foreign
Laws, that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization, lessening of competition or
restraint of trade.
(e) "Governmental Authority" means any governmental, legislature
----------------------
agency or authority (other than a Court) of the United States, any domestic
state, or any foreign country,
132
<PAGE>
and any political subdivision or agency thereof, and includes any authority
having governmental or quasi-governmental powers, including any administrative
agency or commission.
(f) "Hazardous Material" means any substance, chemical, compound,
------------------
product, solid, gas, liquid, waste, by-product, pollutant, contaminant or
material which is hazardous or toxic and is regulated under any Environmental
Law, and includes without limitation, asbestos or any substance containing
asbestos, polychlorinated biphenyls or petroleum (including crude oil or any
fraction thereof), or any substance defined or regulated as a "hazardous
material", "hazardous waste", "hazardous substance", "toxic substance", or
similar term under any Environmental Law or regulation promulgated thereunder.
(g) "Law" means all laws, statutes, ordinances and Regulations of any
---
Governmental Authority including all decisions of Courts having the effect of
law in each such jurisdiction;
(h) "Lien" means any mortgage, pledge, security interest, attachment,
----
encumbrance, lien (statutory or otherwise), option, conditional sale agreement,
right of first refusal, first offer, termination, participation or purchase or
charge of any kind (including any agreement to give any of the foregoing);
provided, however, that the term "Lien" shall not include (i) statutory liens
- -------- -------
for Taxes, which are not yet due and payable or are being contested in good
faith by appropriate proceedings, (ii) statutory or common law liens to secure
landlords, lessors or renters under leases or rental agreements confined to the
premises rented, (iii) deposits or pledges made in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age pension or
other social security programs mandated under applicable Laws, (iv) statutory or
common law liens in favor of carriers, warehousemen, mechanics and materialmen,
to secure claims for labor, materials or supplies and other like liens,
133
<PAGE>
and (v) restrictions on transfer of securities imposed by applicable state and
federal securities Laws;
(i) "Litigation" means any suit, action, arbitration, cause of action,
----------
claim, complaint, criminal prosecution, investigation, demand letter,
governmental or other administrative proceeding, whether at law or at equity,
before or by any Court or Governmental Authority, before any arbitrator or other
tribunal;
(j) "Parties" shall mean the signatories to this Agreement, provided
-------
that such term shall not include AT&T except in the context of the Contribution,
it being understood that AT&T's only obligations under the Agreement relate to
the Contribution and the waiver contained in Section 6.17(b).
---------------
(k) "Order" means any judgment, order, writ, injunction, ruling or
-----
decree of, or any settlement under the jurisdiction of any Court or Governmental
Authority.
(l) "Person" means an individual, corporation, partnership,
------
association, trust, unincorporated organization, limited liability company,
other entity or group (as defined in Section 13(d)(3) of the Exchange Act);
(m) "Regulation" means any rule or regulation of any Governmental
----------
Entity having the effect of Law; and
(n) "Subsidiary" or "Subsidiaries" of any corporation, partnership,
---------- ------------
joint venture, limited liability company or other legal entity of which such
Person (either alone or through or together with any other Subsidiary) owns,
directly or indirectly, 50% or more of the stock or other equity interests the
holders of which are generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other legal entity.
10.5 Interpretation. When a reference is made in this Agreement to
--------------
Sections, subsections, Schedules or Exhibits, such reference shall be to a
Section, subsection, Schedule or
134
<PAGE>
Exhibit to this Agreement unless otherwise indicated. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." The word "herein" and similar
references mean, except where a specific Section or Article reference is
expressly indicated, the entire Agreement rather than any specific Section or
Article.
10.6 Entire Agreement. This Agreement, the TeleCorp Voting Agreement,
----------------
the Tritel Voting Agreement, the Exchange Agreement, the Stockholders Agreement,
the Investors Stockholder Agreement, the License Extension Amendment and the
letter agreements executed by Tritel and TeleCorp on the date hereof with Mr.
William Mounger and Mr. E.B. Martin, including the Exhibits and Schedules
hereto, constitute the entire agreement between the parties hereto and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
10.7 Binding Effect; Benefit. This Agreement shall inure to the
-----------------------
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Except as otherwise provided in Section 2.4, nothing in
-----------
this Agreement, expressed or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
10.8 Assignability. This Agreement shall not be assignable by
-------------
TeleCorp without the prior written consent of Tritel and AT&T, by Tritel without
the prior written consent of TeleCorp and AT&T or by AT&T without the prior
written consent of TeleCorp and Tritel (except that AT&T may assign its rights
but not its obligations hereunder to an Affiliate of AT&T).
10.9 Amendment; Waiver. This Agreement may be amended, supplemented
-----------------
or otherwise modified only by a written instrument executed by the parties
hereto. No waiver by
135
<PAGE>
either party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and executed by the party so waiving. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein, and in any documents delivered or to be delivered pursuant to
this Agreement and in connection with the Closing hereunder. The waiver by any
party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
10.10 Section Headings; Table of Contents. The section headings
-----------------------------------
contained in this Agreement and the table of contents to this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
10.11 Severability. If any provision of this Agreement shall be
------------
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
10.12 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
10.13 GOVERNING LAW; JURISDICTION AND SERVICE OF PROCESS. THIS
--------------------------------------------------
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE
136
<PAGE>
OF DELAWARE. EACH OF THE PARTIES HERETO IRREVOCABLY AGREES THAT ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT HEREOF BROUGHT BY ANY OTHER PARTY HERETO OR ITS
SUCCESSORS OR ASSIGNS MAY BE BROUGHT AND DETERMINED IN THE COURTS OF THE STATE
OF DELAWARE, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH
REGARD TO ANY SUCH ACTION OR PROCEEDING FOR ITSELF AND IN RESPECT TO ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, TO THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND
AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE,
IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY CLAIM (A) THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR
ANY REASON, (B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION OF
ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER
THROUGH SERVICE OF JUDGMENT, EXECUTION OF JUDGMENT, OR OTHERWISE), OR (C) TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT (I) THE SUIT, ACTION OR
PROCEEDING IN SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER AND (III) THIS AGREEMENT, OR THE
SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.
137
<PAGE>
[Intentionally Left Blank]
138
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
TELECORP PCS, INC.
By:____________________________
Name:______________________
Title:_____________________
TRITEL, INC.
By:____________________________
Name:______________________
Title:_____________________
AT&T WIRELESS SERVICES, INC.
By:____________________________
Name:______________________
Title:_____________________
<PAGE>
GLOSSARY OF TERMS
<TABLE>
<CAPTION>
Defined Term Section
- ------------ -------
<S> <C>
Airadigm Assignment........................ 1.14(a)
Airadigm Purchase Agreement................ 1.14
Affiliate.................................. 10.4(a)
Agreement.................................. Preamble
License Extension Amendment................ 1.14
Acquisition Proposals...................... 6.5(c)
Average Closing Price...................... 1.11(c)
AT&T....................................... Preamble
AT&T Excess Assets......................... 1.14
Blue Sky Laws.............................. 3.6(b)
Cash Contribution.......................... 1.14(a)
Certificates............................... 1.12(c)
Certificates of Merger..................... 1.2
Class A Voting Stock....................... 1.6(a)(i)
Class C Common Stock....................... 1.6(a)(iii)
Class D Common Stock....................... 1.6(a)(iv)
Class E Common Stock....................... 1.6(c)(iii)
Class F Common Stock....................... 1.6(c)(iv)
Closing Date............................... 1.15
Closing.................................... 1.15
COBRA Coverage............................. 3.15(d)
Code....................................... Recitals
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
Communications Act......................... 3.6(b)
Confidentiality Agreement.................. 6.1(a)
Contributed Property....................... 1.14(a)
Contribution............................... Recitals
Court...................................... 10.4(b)
DGCL....................................... Recitals
Effective Time............................. 1.2
Environmental Laws......................... 10.4(c)
ERISA Affiliate............................ 3.15(a)
ERISA...................................... 3.15(a)
Evaluation Material........................ 6.1(a) and (b)
Excess Shares.............................. 1.11
Exchange Act............................... 3.6(b)
Exchange Agent............................. 1.12(a)
Exchange Agreement......................... 1.14
Exchange Ratios............................ 1.6(e)
Express Shares............................. 1.11
FCC........................................ 3.6(b)
Final Order................................ 7.1(k)
First Merger............................... Recitals
First Merger Sub........................... Recitals
First Merger Sub Common Stock.............. 1.9(a)
Foreign Competition Laws................... 10.4(d)
GAAP....................................... 3.9(b)
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Governmental Authority...................... 10.4(e)
Hazardous Material.......................... 10.4(f)
The Holding Company......................... Recitals
Holding Company Capital Stock............... 1.6(f)
Holding Company Common Stock................ 1.6(f)
Holding Company Preferred Stock............. 1.6(f)
HSR Act..................................... 3.6(b)
Indemnified Parties......................... 2.4(b)
Indirect Tritel Authorizations.............. 4.10(b)
Indirect TeleCorp Authorizations............ 3.10(b)
Indus Amendments............................ 1.14(c)
Indus Assignment and Assumption Agreement... 1.14(a)
Indus Merger Agreement...................... 1.14(a)
Indus Transaction Costs..................... 1.14(c)
Interim Period.............................. 6.1(a)
IRS......................................... 3.15(b)
Joint Proxy Statement....................... 3.17
Law......................................... 10.4(g)
Lehman Brothers............................. 3.25
Lien........................................ 10.4(h)
Litigation.................................. 10.4(i)
Merger Subs................................. Recitals
Mergers..................................... Recitals
Most Recent Tritel Balance Sheet............ 4.20(b)
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
Most Recent TeleCorp Balance Sheet......... 3.20(c)
Network Membership License Agreement....... 1.14(a)
Option Plans............................... 1.8
Order...................................... 10.4(j)
Ordinary Course of Business................ 3.12
Other Filings.............................. 6.3(b)
Outside Date............................... 8.1(b)
Outstanding Employee Options............... 1.8
Outstanding Tritel Options................. 4.3(b)
Party...................................... 6.5(c)
Permitted Encumbrances..................... 3.19
Person..................................... 10.4(k)
Plan of Reorganization..................... 1.14(a)
Registration Statement..................... 3.17
Regulation................................. 10.4(l)
Related Agreement.......................... 3.4
Replacement Assets......................... 1.14(d)
Representatives............................ 6.1(a)
SEC........................................ 3.7
Second Merger.............................. Recitals
Second Merger Sub.......................... Recitals
Second Merger Sub Common Stock............. 1.9(b)
Second Request............................. 5.9(c)
Securities Act............................. 3.3(h)
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
Series A Preferred Stock........................... 1.6(b)(i)
Series B Preferred Stock........................... 1.6(b)(ii)
Series C Preferred Stock........................... 1.6(b)(iii)
Series D Preferred Stock........................... 1.6(b)(iv)
Series E Preferred Stock........................... 1.6(b)(v)
Series F Preferred Stock........................... 1.6(b)(vi)
Series G Preferred Stock........................... 1.6(d)
Shares............................................. Recitals
Special Vote....................................... 3.5
Subsidiary or Subsidiaries......................... 10.4(m)
Superior Proposal.................................. 6.5(a)
Systems............................................ 3.27(a)
Tritel............................................. Preamble
Tritel 1999 Plan................................... 1.8(b)
Tritel Authorizations.............................. 4.10(a)
Tritel Capital Stock............................... 1.6(d)
Tritel Common Stock................................ 1.6(c)
Tritel Directors Plan.............................. 1.8(a)
Tritel Disclosure Schedule......................... 4
Tritel Employee Plans.............................. 4.15(a)
Tritel ERISA Affiliate............................. 4.15(a)
Tritel Exchange Ratio.............................. 1.6(e)
Tritel FCC Application............................. 4.10(b)
Tritel II.......................................... 1.1
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
Tritel Intellectual Property Rights................ 4.22(a)
Tritel Licenses and Applications................... 4.10(b)
Tritel Material Adverse Effect..................... 4
Tritel Material Contracts.......................... 4.7
Tritel Merger Consideration........................ 1.6(g)
Tritel Preferred stock............................. 1.6(d)
Tritel Proposals................................... 6.3(b)
Tritel S-1......................................... 4.9(a)
Tritel SEC Reports................................. 4.9(a)
Tritel State Authorizations........................ 4.10(b)
Tritel Stockholders Meeting........................ 3.17
Tritel Third Party Intellectual Property Rights.... 4.22(b)
Tritel Voting Agreement............................ 4.15(a)
Tax................................................ 3.20(a)
Taxes.............................................. 3.20(a)
Tax Returns........................................ 3.20(a)
TeleCorp........................................... Preamble
TeleCorp 1998 Plan................................. 1.8(a)
TeleCorp 1999 Plan................................. 1.8(a)
TeleCorp Authorizations............................ 3.10(a)
TeleCorp Capital Stock............................. 1.6(b)
TeleCorp Common Stock.............................. 1.6(a)
TeleCorp Disclosure Schedule....................... 3
TeleCorp Employee Plans............................ 3.15(a)
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
TeleCorp ERISA Affiliate........................... 3.15(a)
TeleCorp Exchange Ratio............................ 1.6(e)
TeleCorp FCC Applications.......................... 3.10(b)
TeleCorp II........................................ 1.1
TeleCorp Intellectual Property Rights.............. 3.22(a)
TeleCorp Licenses and Applications................. 3.10(b)
TeleCorp Material Adverse Effect................... 3
TeleCorp Material Contracts........................ 3.7
TeleCorp Merger Considerations..................... 1.6(f)
TeleCorp Option Plan............................... 1.8(a)
TeleCorp Options................................... 3.3(b)(v)
TeleCorp Preferred Stock........................... 1.6(b)
TeleCorp Proposals................................. 6.3(b)
TeleCorp Restricted Stock Plan..................... 1.8(e)
TeleCorp S-1....................................... 3.9(a)
TeleCorp SEC Reports............................... 3.9(a)
TeleCorp State Authorizations...................... 3.10(b)
TeleCorp Stockholders Meeting...................... 3.17
TeleCorp Third Party Intellectual Property Rights.. 3.22(b)
TeleCorp Voting Agreement.......................... 3.4
Third Party........................................ 6.5(c)
Transfer Taxes..................................... 10.2(b)
Transition Committee............................... 6.18
Voting Preference Stock............................ 1.6(a)(v)
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
Waiver............................................. 6.17(b)
WARN Act........................................... 3.16
</TABLE>
8
<PAGE>
SCHEDULE A
Board of Directors and Officers
TELECORP II:
-----------
Officers:
--------
- --------------------------------------------------------------------------------
NAME POSITION
---- --------
- --------------------------------------------------------------------------------
Gerald T. Vento Chief Executive Officer
- --------------------------------------------------------------------------------
Thomas H. Sullivan President, Treasurer and Secretary
- --------------------------------------------------------------------------------
Julie A. Dobson Chief Operating Officer
- --------------------------------------------------------------------------------
Board of Directors:
------------------
- --------------------------------------------------------------------------------
NAME POSITION
---- --------
- --------------------------------------------------------------------------------
Thomas H. Sullivan Director
- --------------------------------------------------------------------------------
Gerald T. Vento Director
- --------------------------------------------------------------------------------
TRITEL II:
---------
Officers:
--------
- --------------------------------------------------------------------------------
NAME POSITION
---- --------
- --------------------------------------------------------------------------------
Gerald T. Vento Chief Executive Officer
- --------------------------------------------------------------------------------
Thomas H. Sullivan President, Treasurer and Secretary
- --------------------------------------------------------------------------------
William Arnett Chief Operating Officer
- --------------------------------------------------------------------------------
Board of Directors:
------------------
- --------------------------------------------------------------------------------
NAME POSITION
---- --------
- --------------------------------------------------------------------------------
Thomas H. Sullivan Director
- --------------------------------------------------------------------------------
Gerald T. Vento Director
- --------------------------------------------------------------------------------
A-1
<PAGE>
HOLDING COMPANY:
---------------
Officers:
--------
- --------------------------------------------------------------------------------
NAME POSITION
---- --------
- --------------------------------------------------------------------------------
Gerald T. Vento Chief Executive Officer
- --------------------------------------------------------------------------------
Thomas H. Sullivan Chief Financial Officer
- --------------------------------------------------------------------------------
William M. Mounger Chairman of the Board of Directors
- --------------------------------------------------------------------------------
E.B. Martin Vice-Chairman of the Board of Directors
- --------------------------------------------------------------------------------
Board of Directors:
------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
CLASS NAME POSITION
----- ---- --------
- --------------------------------------------------------------------------------------------
<S> <C> <C>
Class of 2001 Gerald T. Vento Director
Thomas H. Sullivan Director
William M. Mounger* Director
E.B. Martin* Director
- --------------------------------------------------------------------------------------------
Class 2002 Alex P. Coleman Director
Michael R. Hannon Director
Michael Schwartz Director
Mary Hawkins-Key Director
Scott Anderson Director
- --------------------------------------------------------------------------------------------
Class of 2003 James M. Hoak Director
David A. Jones, Jr. Director
Andrew Hubregsen Director
[Designee of Majority of Director
Voting Preferred and
Reasonably Satisfactory to
AT&T]
Rohit M. Desai Director
- --------------------------------------------------------------------------------------------
</TABLE>
* Mr. Mounger and Mr. Martin hold two seats, but are entitled to one vote.
2
<PAGE>
SCHEDULE B
Certain Actions Pending the Closing Date
1. Notwithstanding anything to the contrary in the Agreement,
TeleCorp may enter into and consummate (with only immaterial changes therein)
the transactions contemplated by the Swap Agreement with AT&T (or its
Affiliates) pursuant to which TeleCorp is exchanging certain assets for assets
controlled by AT&T (or its Affiliates).
2. Notwithstanding anything to the contrary in the Agreement, in the
event that between the date hereof and Closing Date, either Party wishes to
participate in any Federal Communications Commission auctions of licenses to
radio spectrum for use in providing wireless communications services or wishes
to enter into any transactions with AT&T Wireless PCS, LLC for the acquisition
and/or disposition of any such licenses with a transaction value not to exceed
$500,000,000, such Party shall have the authority to take such actions if
approved by a majority of the Transition Committee.
B-1
<PAGE>
Exhibit 10.1
ASSET EXCHANGE AGREEMENT
among
AT&T Wireless PCS, LLC
TeleCorp PCS, Inc.
TeleCorp PCS, LLC
TeleCorp Holding Corp, Inc.
TeleCorp Communications, Inc.
TeleCorp Equipment Leasing, L.P.
TeleCorp Realty, LLC
Dated as of February 28, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
SWAP TRANSACTIONS; RELATED AGREEMENTS
1.1 [Intentionally omitted.].......................................... 3
1.2 Swap Transactions................................................. 3
1.3 Like-Kind Exchange................................................ 3
1.4 Replacement Assets................................................ 4
1.5 Intermediary...................................................... 5
1.6 Transition Agreement.............................................. 5
1.7 Return of Assets.................................................. 5
ARTICLE II
CLOSING
2.1 Time and Place of Closing......................................... 6
2.2 Closing Actions and Deliveries.................................... 6
ARTICLE III
COVENANTS
3.1 Consummation of Transactions...................................... 9
3.2 Confidentiality................................................... 12
3.3 Conduct Prior to Closing.......................................... 13
3.4 Covenants of AT&T................................................. 13
3.5 Covenants of TeleCorp Affiliates.................................. 14
3.6 FCC Construction Requirements..................................... 16
3.7 Treatment of Employees............................................ 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AT&T
4.1 Organization, Power and Authority................................. 19
4.2 Consents; No Conflicts............................................ 20
4.3 Litigation........................................................ 20
4.4 FCC Compliance.................................................... 20
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
4.5 Brokers................................................... 20
4.6 Licenses.................................................. 20
4.7 Compliance With Laws...................................... 21
4.8 Taxes..................................................... 21
4.9 Acquisition Agreements.................................... 22
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TELECORP
5.1 Organization, Power and Authority......................... 22
5.2 Consents; No Conflicts.................................... 23
5.3 Litigation................................................ 23
5.4 FCC Compliance............................................ 23
5.5 Brokers................................................... 23
5.6 TeleCorp Assets; Liens.................................... 24
5.7 TeleCorp Assets........................................... 25
5.8 Environmental and Safety Laws............................. 25
5.9 TeleCorp Assigned Agreements.............................. 26
5.10 License................................................... 27
5.11 Compliance With Laws...................................... 27
5.12 Taxes..................................................... 28
5.13 Insurance................................................. 28
5.14 Undisclosed Liabilities................................... 28
5.15 Inventory................................................. 29
5.16 Labor Relations........................................... 29
5.17 Licenses and Permits...................................... 29
5.18 Employee Benefits......................................... 29
5.19 No Material Adverse Change................................ 30
5.20 Affiliate Agreements...................................... 30
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to Obligations of All Parties.................. 30
6.2 Conditions to Obligations of TeleCorp..................... 30
6.3 Conditions to the Obligations of AT&T..................... 31
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 Survival.................................................. 32
7.2 Indemnification by AT&T................................... 32
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
7.3 Indemnification by TeleCorp............................... 33
7.4 Procedures................................................ 34
7.5 Tax costs and Tax benefits................................ 35
ARTICLE VIII
TERMINATION
8.1 Termination............................................... 35
8.2 Effect of Termination; Tax Responsibility................. 36
ARTICLE IX
DEFINITIONS
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Amendment and Modification................................ 5
10.2 Waiver of Compliance; Consents............................ 5
10.3 Notices................................................... 5
10.4 Parties in Interest; Assignment........................... 6
10.5 Applicable Law............................................ 7
10.6 Counterparts.............................................. 7
10.7 Interpretation............................................ 7
10.8 Entire Agreement.......................................... 7
10.9 Publicity................................................. 7
10.10 Specific Performance...................................... 7
10.11 Remedies Cumulative....................................... 8
10.12 Severability.............................................. 8
10.13 Beneficiaries of Agreement................................ 8
10.14 Designated Transferee..................................... 8
10.15 Access to Records......................................... 8
10.16 Agency.................................................... 8
</TABLE>
iii
<PAGE>
SCHEDULES AND EXHIBITS
----------------------
Schedules
- ---------
Schedule 0.1 TeleCorp Assets
Schedule 0.2 Polycell Licenses
Schedule 0.3 ABC Licenses
Schedule 0.4 Wisconsin Licenses
Schedule 0.5 Iowa Licenses
Schedule 1.3 Asset Match - Like Kind Exchange
Schedule 2.2(e) Delivery and Exchange of Assets
by/Intermediary Letter of Instruction
Schedule 3.7(a) Excluded Employees
Schedule 4.0 AT&T Disclosure Schedule
Section 4.6 AT&T/Iowa Licenses
Schedule 5.0 TeleCorp Disclosure Schedule
Section 5.6(a) TeleCorp Liens
Section 5.9 TeleCorp Assigned Agreements
Schedule 5.10 Boston Licenses
Schedule 5.18 Employee Benefits
iv
<PAGE>
Exhibits
- --------
Exhibit A Polycell Acquisition Agreement
Exhibit B Polycell Assignments
Exhibit B-1 ABC to AT&T (contract rights)
Exhibit B-2 AT&T to Intermediary (contract rights)
Exhibit B-3 Intermediary to Telecorp (contract rights)
Exhibit B-4 Polycell to Telecorp (license)
Exhibit C ABC Acquisition Agreement
Exhibit C-1 AT&T to Intermediary (contract rights)
Exhibit C-2 Intermediary to Telecorp (contract rights)
Exhibit C-3 ABC to Telecorp (license)
Exhibit D Intermediary Agreement
Exhibit E Transition Agreement
Exhibit F AT&T Assignments (WI/IA Licenses)
Exhibit G TeleCorp Bill of Sale and Assignment
Exhibit G-1 TeleCorp to Intermediary
Exhibit G-2 Intermediary to AT&T
Exhibit G-3 TeleCorp to AT&T (licenses)
Exhibit G-4 TeleCorp to AT&T Bill of Sale
Exhibit G-5 TeleCorp to AT&T Assignment and Assumption
of Leases and Contracts
-v-
<PAGE>
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement"), dated as of February
28, 2000, by and between AT&T Wireless PCS, LLC, a Delaware limited liability
company ("AT&T"), TeleCorp PCS, Inc., a Delaware corporation ("TeleCorp"),
TeleCorp PCS, LLC, a Delaware limited liability company ("TeleCorp LLC"),
TeleCorp Holding Corp, Inc., a Delaware corporation ("TeleCorp Holding"),
TeleCorp Communications, Inc., a Delaware corporation ("TeleCorp
Communications"), TeleCorp Equipment Leasing, L.P., a Delaware limited
partnership ("TeleCorp Equipment"), TeleCorp Realty, LLC, a Delaware limited
liability company ("TeleCorp Realty") (TeleCorp, TeleCorp LLC, TeleCorp Holding,
TeleCorp Communications, TeleCorp Equipment, and TeleCorp Realty hereinafter
collectively, the "TeleCorp Affiliates"). Certain terms used in this Agreement
are defined in Article IX hereof.
WHEREAS, TeleCorp LLC holds (a) the 20MHz PCS licenses in the Boston-
Providence MTA listed on Schedule 0.1 (the "Boston Licenses") and (b) the
------------ ---------------
related operating assets and properties described on Schedule 0.1, constituting
------------
all of the assets and properties of TeleCorp primarily used or held for use for
its personal communications services business in such area (the "Boston
Business" and, collectively with the Boston Licenses, the "TeleCorp Assets");
WHEREAS, (a) pursuant to a License Acquisition Agreement in the form
of Exhibit A (the "Polycell Acquisition Agreement") between Polycell
Communications, Inc., a Delaware corporation ("Polycell"), and ABC Wireless,
L.L.C., a Delaware limited liability company ("ABC" or the "Polycell Buyer"),
the Polycell Buyer has obtained the right to purchase the licenses listed on
Schedule 0.2 (the "Polycell Licenses") and (b) the Polycell Buyer has agreed to
- ------------
assign to AT&T (i) the right to direct the transfer of the right to hold the
Polycell Licenses to TeleCorp, and (ii) all other rights and obligations under
the Polycell Acquisition Agreement by an Assignment and Assumption Agreement
substantially in the form of Exhibit B (the "Polycell Assignment");
WHEREAS, pursuant to a License Acquisition Agreement in the form of
Exhibit C (the "ABC Acquisition Agreement") between ABC and AT&T, AT&T has
obtained the right to direct the transfer of the right to hold the licenses of
ABC listed on Schedule 0.3 in the MTA (as defined below) of the Des Moines-Quad
------------
Cities (the "ABC Licenses" and, together with the Polycell Licenses, the "AT&T
Acquired Assets") to TeleCorp, as well as assign to TeleCorp all other rights
and obligations under the ABC Acquisition Agreement;
WHEREAS, AT&T (or its Affiliate) holds the 10MHz licenses listed on
Schedule 0.4 in the territory in Wisconsin set forth therein (the "Wisconsin
- ------------
Licenses");
<PAGE>
WHEREAS, AT&T (or its Affiliate) holds the 10MHz licenses listed on
Schedule 0.5 in the Fort Dodge, Iowa, and Waterloo, Iowa, BTAs (the "Iowa
- ------------
Licenses" and, together with the Wisconsin Licenses, the "AT&T Owned Assets");
WHEREAS, the Polycell Acquisition Agreement and the ABC Acquisition
Agreement (collectively, the "Acquisition Agreements") require payments of cash
consideration equal to the purchase price stated in each such Agreement,
including the earnest money deposit held in escrow under the Polycell Agreement
(such cash consideration in the aggregate, the "Cash Consideration") and,
pursuant to the Polycell Acquisition Agreement, Polycell has the option to
substitute for a portion of its share of the Cash Consideration certain payments
in stock of TeleCorp (the "Stock Consideration"), in connection with the
transfer, respectively, of the Polycell Licenses and the ABC Licenses and AT&T
is willing to fund the Cash Consideration in accordance with the terms hereof;
WHEREAS, the parties to this Agreement wish to effect, or cause to be
effected, an exchange (the "Swap Transactions") of (a) the Boston Licenses for
(b) (I) the AT&T Acquired Assets and (II) the AT&T Owned Assets (clauses (I) and
(II) collectively, the "AT&T Assets"), which Swap Transactions shall be effected
to the fullest extent possible in accordance with this Agreement as a like-kind
exchange of property for Federal income tax purposes pursuant to Section 1031 of
the Code;
WHEREAS, in addition to the Cash Consideration, AT&T shall pay to
TeleCorp an aggregate amount equal to (a) $80 million less (b) the Cash
Consideration (hereinafter, the "Asset Payment") for the Boston Business; and
WHEREAS, in order to effect the Swap Transactions and the other
transactions contemplated hereby, the parties hereto wish to enter into an
agreement substantially in the form of Exhibit D (the "Intermediary Agreement")
with an intermediary corporation and exchange agent (the "Intermediary") that
meets all applicable requirements to act as a Qualified Intermediary (as defined
below), pursuant to which such Intermediary would (a) hold the TeleCorp Assets,
the AT&T Assets, the Cash Consideration, the Asset Payment, and the Stock
Consideration, if any, pending consummation of the Swap Transactions, (b) (i)
consummate the transactions contemplated by each of the Acquisition Agreements
and (ii) direct and cause the delivery of the AT&T Acquired Assets to TeleCorp
Holding, the AT&T Owned Assets to TeleCorp LLC and the Asset Payment to the
TeleCorp Affiliates designated on Schedule 1.3 (TeleCorp or such designated
Affiliates, as applicable, a "Designated TeleCorp Affiliate" and collectively,
the "Designated TeleCorp Affiliates") and (c) deliver on the Closing Date the
TeleCorp Assets to AT&T, 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:
-2-
<PAGE>
ARTICLE I
SWAP TRANSACTIONS; RELATED AGREEMENTS
1.1 [Intentionally omitted.]
1.2 Swap Transactions. Upon the terms and subject to the conditions hereof
-----------------
(including without limitation Section 1.3 below) and in reliance upon the
representations, warranties, covenants and agreements herein contained, the
Designated TeleCorp Affiliates and AT&T (or, if applicable in the case of
Replacement Assets, an Affiliate of AT&T designated by AT&T) shall exchange the
AT&T Owned Assets and the AT&T Acquired Assets and, to the extent applicable,
the Replacement Assets (as defined below), for the TeleCorp Assets (other than
the TeleCorp Excluded Assets), free and clear of all Liens (except Permitted
Liens).
1.3 Like-Kind Exchange. (a) Subject to Sections 1.3(b), 1.4, 1.5 and 1.6
------------------
below, the Boston Licenses shall be exchanged for the AT&T Assets;
(b) TeleCorp Holding, TeleCorp LLC and AT&T shall use all commercially
reasonable efforts to structure the Swap Transactions in such a manner that the
Swap Transactions will qualify as a tax-free exchange of like-kind assets to the
maximum extent permitted by Section 1031 of the Code, including, as applicable,
a deferred like-kind exchange under Section 1031 of the Code. In accordance
with this Section and Schedule 1.3 and, subject to Sections 1.4 and 1.5 hereof,
the parties shall undertake to the extent possible to match like-kind assets
with like-kind assets of equivalent value.
(c) TeleCorp Holding, TeleCorp LLC and AT&T agree that the values on
the Closing Date of the TeleCorp Assets and AT&T Assets described in Section
1.3(a) above will be reflected on Schedule 1.3 and the parties will not take any
position on any tax returns inconsistent therewith and will prepare and file all
returns and reports relating to the exchange contemplated by this Agreement,
including all Federal, state and local Tax returns, in a manner which is
consistent with such Schedule 1.3 (which may be amended from time to time by
agreement of the parties), except to the extent otherwise required pursuant to a
"determination" within the meaning of Code Section 1313(a).
(d) All property to be transferred to a Designated TeleCorp Affiliate
pursuant to this Agreement shall be received by such Designated TeleCorp
Affiliate on or before the earlier of (i) 180 days after TeleCorp and its
Affiliates are treated as transferring any of the TeleCorp Assets and (ii) the
due date for TeleCorp's income tax return for the taxable year in which the
first transfer of any TeleCorp Asset occurs, in either case, within the meaning
of Regulations section 1.1031(k)-1(b)(2). All property to be transferred to
AT&T or its Affiliates pursuant to this Agreement shall be received by such
entities on or before the earlier of (i) 180 days after AT&T is treated as
transferring any of the AT&T Assets and (ii) the due date for AT&T's income tax
return for the taxable year in which the first transfer of any AT&T Asset
occurs, in either case, within the meaning of Regulations section 1.1031(k)-
1(b)(2). None of the parties to this
-3-
<PAGE>
Agreement shall have any right to receive, pledge, borrow, or otherwise obtain
the benefits of money or other property held by the Intermediary within the
meaning of Regulations section 1.1031(k)-1(g)(6), except as otherwise expressly
permitted under such section prior to the earlier of 180 days after each party
is treated as transferring any of its assets pursuant to this Agreement, or the
due date for such company's income tax return for the taxable year in which the
transfer of such company's assets pursuant to this Agreement occurs, in each
case within the meaning of Regulations section 1.1031(k)-1(b)(2)(ii).
1.4 Replacement Assets. (a) In the event that AT&T is unable to deliver, or
------------------
cause the delivery of, any of the Polycell Licenses and ABC Licenses within 35
days after any of TeleCorp and its Affiliates are treated as transferring any
TeleCorp Asset within the meaning of Regulation section 1.1031(k)-1(b)(2)(i)
(the "First Transfer Date"), then, within 45 days after the First Transfer Date,
AT&T shall deliver, or cause to be delivered, to the Intermediary, for delivery
to the Designated TeleCorp Affiliates, one of the following (chosen at AT&T's
option), which delivery will constitute full and complete satisfaction of AT&T's
obligations with respect to the Polycell Licenses or the ABC Licenses, as the
case may be: (A) cash in an amount equal to (1) $133 times the number of POPs
covered by the Polycell Licenses or the ABC Licenses, as the case may be, less
(2) the amount of the Cash Consideration that was required to be paid pursuant
to the Polycell Acquisition Agreement or the ABC Acquisition Agreement, as the
case may be, and the transactions contemplated thereby; (B) an amount of Class A
Common Stock of TeleCorp having a value equal to the cash payable under clause
(A) above, valued based on the average of the closing prices of such stock for
the ten trading days immediately preceding the date of Closing; or (C) executed
assignments in form and substance satisfactory to TeleCorp for PCS Licenses held
by AT&T and/or its Affiliates in markets of equivalent size and density to
markets covered by the ABC Licenses and Polycell Licenses and reasonably
acceptable to TeleCorp (the "Replacement Assets") for at least an equivalent
number of POPs, which shall be exchanged in accordance with Section 1.3(b)
above. In each case, TeleCorp may timely deliver to the Intermediary a signed
schedule identifying and designating such Replacement Assets as "replacement
assets" within the meaning of Regulations section 1.1031(k)-l(c)(2). If AT&T
chooses to comply with clause (C) above, TeleCorp will deliver to the
Intermediary, and shall cause the Intermediary to deliver to AT&T, an amount of
Class A Common Stock of TeleCorp, valued as set forth in clause (B) above, equal
to the amount of the Cash Consideration that was required to be paid pursuant to
the Polycell Acquisition Agreement or the ABC Acquisition Agreement, as the case
may be, and the transactions contemplated thereby, and, if the number of POPs
included in the Replacement Assets chosen exceeds the number of POPs covered by
the Polycell Licenses or the ABC Licenses, as the case may be, TeleCorp will
deliver to the Intermediary, and shall cause the Intermediary to deliver to
AT&T, an additional amount of TeleCorp Class A Common Stock, valued as set forth
in clause (B) above, equal to $133 times the number of such excess POPs.
(b) In the event TeleCorp LLC is unable to deliver the TeleCorp
Assets, or if this Agreement terminates prior to delivery of the TeleCorp
Assets, and prior to termination any TeleCorp Affiliate has acquired any of the
AT&T Acquired Assets
-4-
<PAGE>
pursuant to this Agreement, then promptly upon termination of this Agreement,
TeleCorp shall, as directed by AT&T, either (A) sell the Polycell Licenses or
the ABC Licenses, as the case may be, to an entity designated by AT&T, for a
purchase price and otherwise on the same terms and conditions as TeleCorp's
acquisition of the Polycell Licenses or the ABC Licenses or (B) issue to AT&T an
amount of Class A Common Stock of TeleCorp having a value equal to (1) $133
times the number of POPs covered by the Polycell Licenses or the ABC Licenses,
as the case may be, less (2) the amount of the Cash Consideration that was
required to be paid pursuant to the Polycell Acquisition Agreement or the ABC
Acquisition Agreement, as the case may be, and the transactions contemplated
thereby, such stock to be valued based on the average of the closing prices of
such stock for the ten trading days immediately preceding the date of Closing.
1.5 Intermediary. The parties shall (a) select an Intermediary that is a
------------
Qualified Intermediary, (b) enter into the Intermediary Agreement and (c)
deliver, or cause to be delivered, to the Intermediary the AT&T Assignments (as
defined below), the Cash Consideration, the Asset Payment, the TeleCorp
Assignments, the Stock Consideration (if any) and all other documents, money and
other property required to be delivered pursuant to Section 2.2 below pending
consummation of the transactions contemplated hereby, provided, however, that
-------- -------
nothing in this Agreement (other than Section 1.4 or 10.14 hereof) or the
Intermediary Agreement will alter the fact that, at Closing (or thereafter, as
applicable, pursuant to the Intermediary Agreement), title to the AT&T Assets
shall pass directly to the Designated TeleCorp Affiliates and title to the
TeleCorp Assets shall pass directly to AT&T. On the Closing Date (or
thereafter, as applicable, pursuant to the Intermediary Agreement), the
Intermediary shall consummate each of the transactions contemplated by each of
the Acquisition Agreements, and shall deliver or direct the delivery of the
TeleCorp Assets and AT&T Assets to the respective recipients thereof set forth
in Schedule 1.3, which may be amended by TeleCorp and AT&T from time to time,
all in the manner set forth in the Intermediary Agreement.
1.6 Transition Agreement. On the Closing Date, TeleCorp and AT&T shall enter
--------------------
into the Transition Agreement attached hereto as Exhibit E, which Agreement
shall require TeleCorp to provide operational and administrative services for
AT&T with respect to the TeleCorp Assets for a period of time and subject to the
terms and conditions specified therein.
1.7 Declined Assets. Notwithstanding any other provision of this Agreement,
---------------
AT&T shall have the right to determine in its sole discretion that it does not
intend to, or is unable to, utilize any of the assets comprising the Boston
Business in connection with its ownership and operation of the Boston Licenses,
which determination shall be made the earlier of (i) one hundred and twenty
(120) days after the date hereof and (ii) the Closing Date. AT&T hereby
covenants and agrees that title to such declined assets will not be deemed to
have been transferred to AT&T under the terms of this Agreement.
-5-
<PAGE>
ARTICLE II
CLOSING
2.1 Time and Place of Closing. Upon the terms and subject to the conditions
-------------------------
hereof, the closing of the Transactions (the "Closing") shall take place at the
offices of Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, NY 10038
at 10:00 a.m. local time on the date on which the last of the conditions
precedent set forth in Article VI hereof has been satisfied, 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 any of the conditions set
forth in Article VI (the "Closing Date"). The Closing shall be deemed to have
occurred as of 12:01 a.m. on the Closing Date.
2.2 Closing Actions and Deliveries. Upon the terms hereof and, subject to the
------------------------------
satisfaction or waiver by the appropriate party, if applicable, of the
conditions set forth in Article VI, to consummate the Transactions, on the
Closing Date (or, if applicable, the earlier closing of the acquisition of any
of the AT&T Acquired Assets), the parties shall take the following actions (or
in the event of the earlier closing of the AT&T Acquired Assets, such of the
following as may be applicable):
(a) AT&T Actions With Respect to Intermediary. AT&T shall (i) execute
-----------------------------------------
and deliver to the Intermediary (A) assignments of the rights to direct the
transfer to TeleCorp Holding of (I) all rights to the AT&T Acquired Assets and
(II) the other rights and obligations of the Polycell Buyer and AT&T under the
Polycell Acquisition Agreement and the ABC Acquisition Agreement, respectively
(assignments of clauses (I) and (II) above collectively, the "AT&T Acquisition
Assignments") and (B) license assignments substantially in the form of Exhibit F
(the "AT&T License Assignments") to TeleCorp LLC of all of AT&T's rights to the
AT&T Owned Assets (the AT&T Acquisition Assignments and the AT&T License
Assignments collectively, the "AT&T Assignments"), (ii) deliver or cause to be
delivered to the Intermediary the Cash Consideration and the Asset Payment and
(iii) pursuant to the Intermediary Agreement, direct the Intermediary to take
all actions necessary to (A) consummate all of the transactions contemplated by
the Acquisition Agreements, including without limitation payment of the Cash
Consideration and the Stock Consideration, if any, to the respective recipients
thereof, (B) cause the AT&T Acquired Assets to be transferred to TeleCorp
Holding, (C) assign and transfer to TeleCorp all other rights and obligations
under the Acquisition Agreements, (D) cause the AT&T Owned Assets to be
transferred to TeleCorp LLC and (E) pay the Asset Payment to the Designated
TeleCorp Affiliates.
(b) AT&T Deliveries to TeleCorp. AT&T shall execute and deliver (or
---------------------------
cause to be executed and delivered) to TeleCorp:
(i) the opinion of Wachtell, Lipton, Rosen & Katz, counsel to AT&T,
dated the Closing Date, addressed to TeleCorp in form and substance
reasonably satisfactory to TeleCorp and its counsel;
-6-
<PAGE>
(ii) the opinion of David Jatlow, Esq., FCC counsel to AT&T, dated
the Closing Date, addressed to TeleCorp in form and substance reasonably
satisfactory to TeleCorp and its counsel;
(iii) a certificate of an officer of AT&T, dated the Closing Date,
certifying as to the fulfillment of the conditions set forth in Sections
6.2(a) and 6.2(b) and that each of the conditions precedent to the
obligations of AT&T hereunder have been waived by AT&T or have been
satisfied (which shall not affect any rights to indemnification under
Article VII hereof);
(iv) a certificate of an officer of AT&T, dated the Closing Date,
certifying as to (A) the resolutions adopted by AT&T duly authorizing the
execution, delivery and performance of this Agreement by AT&T and the
execution and delivery by AT&T of all instruments and documents
contemplated hereby (and stating that the resolutions thereby certified
have not been amended, modified, revoked or rescinded) and (B) the
signatures of the Persons who have been authorized to execute and deliver
this Agreement on behalf of AT&T and any other agreement executed or to be
executed in connection herewith;
(v) a good standing certificate of AT&T from the Secretary of State
of Delaware, dated no earlier than 30 days prior to the Closing;
(vi) a certification from AT&T under Section 1445(b)(2) of the Code
and Regulations thereunder, in form reasonably acceptable to TeleCorp,
stating the taxpayer identification number of AT&T and that AT&T is not a
foreign Person; and
(vii) all such other documents and instruments as TeleCorp or its
counsel may reasonably request in order to consummate the Swap Transactions
or to enable the TeleCorp Affiliates to protect, exercise and enjoy all
rights and benefits with respect to the AT&T Assets.
(c) TeleCorp Affiliate Actions With Respect to Intermediary. The
-------------------------------------------------------
TeleCorp Affiliates shall (i) execute and deliver, or cause to be executed and
delivered, to the Intermediary a bill of sale and an assignment and assumption
agreement substantially in the form of Exhibit G of all of its and any other
Designated TeleCorp Affiliate's rights to the TeleCorp Assets (the "TeleCorp
Assignments"), (ii) deliver the Stock Consideration, if any, and (iii) direct
the Intermediary to cause all rights to the TeleCorp Assets to be transferred,
as applicable, to AT&T.
(d) TeleCorp Deliveries to AT&T. TeleCorp shall execute and deliver
---------------------------
(or cause to be executed and delivered) to AT&T:
(i) the opinion of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo,
P.C., counsel to TeleCorp, dated the Closing Date, addressed to AT&T in
form and substance reasonably satisfactory to AT&T and its counsel;
-7-
<PAGE>
(ii) the opinion of Wiley, Rein & Fielding, FCC Counsel to
TeleCorp, dated the Closing Date, addressed to AT&T in form and substance
reasonably satisfactory to AT&T and its counsel;
(iii) a certificate of an officer of TeleCorp, dated the Closing
Date, certifying as to the fulfillment of the conditions set forth in
Sections 6.3(a) and 6.3(b) and that each of the conditions precedent to the
obligations of TeleCorp hereunder have been waived by TeleCorp or have been
satisfied (which shall not affect any rights to indemnification under
Article VII hereof);
(iv) a certificate of an officer of TeleCorp, dated the Closing
Date, certifying as to (A) the resolutions adopted by TeleCorp duly
authorizing the execution, delivery and performance of this Agreement by
TeleCorp and the execution and delivery by TeleCorp of all instruments and
documents contemplated hereby (and stating that the resolutions thereby
certified have not been amended, modified, revoked or rescinded) and (B)
the signatures of the Persons who have been authorized to execute and
deliver this Agreement on behalf of TeleCorp and any other agreement
executed or to be executed in connection herewith;
(v) a good standing certificate of each of the TeleCorp Affiliates
from the Secretary of State of Delaware, dated no earlier than 30 days
prior to the Closing;
(vi) evidence reasonably satisfactory to AT&T that all releases and
satisfaction pieces required to release all Liens (other than Permitted
Liens) on the TeleCorp Assets have been obtained;
(vii) an estoppel certificate, reasonably satisfactory to AT&T, from
each of the landlords, licensors or lessors under each of the TeleCorp
Assigned Leases;
(viii) a certification from TeleCorp under Section 1445(b)(2) of the
Code and the Regulations thereunder, in form reasonably acceptable to AT&T,
stating the taxpayer identification number of TeleCorp (and such Affiliate
of TeleCorp as owns for Federal income tax purposes any of the TeleCorp
Assets) and that TeleCorp (or such Affiliate) is not a foreign Person;
(ix) the TeleCorp Books and Records; and
(x) all such other documents and instruments as AT&T or its
counsel may reasonably request in order to consummate the Transactions or
to enable AT&T to protect, exercise and enjoy all rights and benefits with
respect to the TeleCorp Assets.
(e) TeleCorp and AT&T Deliveries. The parties shall execute and
----------------------------
deliver to Intermediary a joint letter of instruction (the "Letter of
Instruction") confirming that all the conditions precedent to consummation of
the transactions contemplated hereby have been satisfied or waived by TeleCorp
and AT&T and directing
-8-
<PAGE>
Intermediary to effect the deliveries and exchange of like-kind assets in the
manner specified in Schedule 1.3.
------------
(f) Intermediary Actions and Deliveries. Intermediary shall, upon
-----------------------------------
receipt of the Letter of Instruction and the other items required to be
delivered to it by the parties hereto pursuant to the provisions of Article II
hereof and in accordance with the terms of the Intermediary Agreement, take the
following actions and effect the following deliveries:
(i) consummate the transactions contemplated by each of the
Acquisition Agreements in accordance with the provisions of each such
agreement. In connection therewith, Intermediary shall (A) deliver to each
of the counterparties to each such Acquisition Agreement that portion of
the Cash Consideration as is allocable to the purchase price required to be
paid under such Acquisition Agreement and such instruments, certificates,
opinions and other agreements as may be required pursuant to the terms of
each of the Acquisition Agreements to consummate the transactions
contemplated by each of such agreements, (B) deliver to Polycell the
required Stock Consideration, if any, and (C) direct that such
counterparties deliver any and all rights, and/or assign, as applicable,
all of the Polycell Licenses and the ABC Licenses and execute and deliver
such instruments, certificates, opinions and other agreements as may be
required pursuant to the terms of each of the Acquisition Agreements to
consummate the transactions contemplated by each of such Agreements, to
TeleCorp or another Designated TeleCorp Affiliate, as applicable;
(ii) deliver the TeleCorp Assignments to AT&T, as applicable; and
(iii) deliver the AT&T Assignments and the Asset Payment to the
Designated TeleCorp Affiliates, as applicable.
ARTICLE III
COVENANTS
3.1 Consummation of Transactions. Each party shall use (except as otherwise
----------------------------
provided in this Section 3.1) 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 at the earliest practicable date, which efforts shall include 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
Swap Transactions by all Governmental Authorities and agencies, including the
FCC, and any Consents necessary or advisable in the reasonable judgment of
TeleCorp and AT&T in connection with
-9-
<PAGE>
franchise laws applicable to the execution, delivery and performance of this
Agreement or the consummation of the Swap Transactions, 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 party all information
concerning such party and its Affiliates reasonably required for inclusion in
any application or filing to be made by AT&T, TeleCorp or any other party in
connection with the Transactions or otherwise to comply with applicable FCC Law.
(c) Upon the request of another party, each party shall, without
further consideration, 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, and shall take such
other action, as may reasonably be requested by such party in order to
effectuate the purposes of this Agreement.
(d) TeleCorp and AT&T each covenants and agrees from and after the
execution and delivery of this Agreement to and including the Closing Date as
follows:
(i) As soon as practicable, but in no event later than 30 days
after the date of this Agreement, each of the parties shall file with the
FCC a complete application requesting its approval and consent to the Swap
Transactions (the "FCC Applications"); provided, that the parties shall
--------
cooperate with each other in the preparation of the FCC Applications and
shall in good faith and with due diligence take all reasonable steps
necessary to expedite the processing of the FCC Applications and to secure
such Consents or approvals as expeditiously as practicable. If the Closing
shall not have occurred for any reason within the initial effective periods
of the granting of FCC approval of any of the FCC Applications, and neither
party shall have terminated this Agreement under Article VIII, the parties
shall jointly request and use their respective best efforts to obtain one
or more extensions of the effective periods of such grants. Neither party
will knowingly take, or fail to take, any action the intent or reasonably
anticipated consequence of which would be to cause the FCC not to grant
approval of the FCC Applications, or to cause the FCC to intervene in a
manner damaging to the ability to operate the parties' respective
businesses in the manner contemplated following the Closing. The parties
agree to oppose any requests for reconsideration or judicial review of the
granting of approval of the FCC Applications.
(ii) Upon receipt of approval of the FCC of the applications to
approve the assignments of Licenses contemplated as part of the Swap
Transactions, as reported by public notice issued by the FCC, each shall
use all commercially reasonable efforts to take, or forbear from taking,
all such actions, so as to maintain such approval in full force and effect
and not to engage in, or forbear from engaging in, any activity which would
result in the revocation or modification of such approval. In addition to
FCC approval, it is understood that the Closing may be subject to the prior
approval of one or more state regulatory
-10-
<PAGE>
commissions. Each party shall use all commercially reasonable efforts to
file with any relevant state agency or agencies, as soon as practicable
following the date hereof and in no event later than ten (10) Business Days
from the date hereof, a joint application requesting the approval of the
assignments of Licenses contemplated as part of the Swap Transactions. Each
of the parties hereto shall diligently take or cooperate in the taking of
all steps that are necessary or appropriate to expedite the prosecution and
favorable consideration of such applications. The parties covenant and
agree to undertake all actions reasonably requested by any regulatory
authority and to file such material as shall be necessary or any required
to obtain any necessary waivers or other authority from the any state
agency or agencies in connection with the foregoing applications.
(iii) Within fifteen (15) Business Days of the date of execution
hereof, the parties shall file, or cause to be filed, with the Federal
Trade Commission ("FTC") and the Antitrust Division of the Department of
Justice ("DOJ") any and all reports or notifications which are required to
be filed under the HSR Act or other Law.
(iv) Each party shall promptly comply with all requests for further
documents and information made by the DOJ or the FTC, shall use all
commercially reasonable efforts to obtain early termination of all waiting
periods under the HSR Act, and shall furnish to the other all such
information in its possession as may be necessary for the completion of the
reports or notifications to be filed by the other.
(e) Each party shall use all commercially reasonable efforts to
structure the Transactions in such a manner that no franchise Laws shall be
applicable to the relationship between AT&T and TeleCorp (or its Affiliates);
provided, that no party shall be obligated to agree to any modification that
- --------
adversely affects such party. Nothing in this Agreement shall be construed to
require the parties to consummate the Closing if any regulatory approval would
require that it (i) divest or hold separate any of its assets existing as of the
date hereof other than as contemplated by this Agreement or (ii) otherwise take
or commit to take any action that limits its freedom of action in any material
respect with respect to any of its businesses, product lines or assets other
than as contemplated by this Agreement.
(f) Each party shall refrain from taking any action (or failing to
take any action) if such action (or failure to take any action) could reasonably
be expected to result in the expiration, revocation, suspension or adverse
modification of any of the FCC Licenses with respect to any of the AT&T Assets
or the TeleCorp Assets, as the case may be.
(g) Each party shall refrain, and shall cause each of its Affiliates
to refrain, from agreeing, whether in writing or otherwise, to take any action
inconsistent with any of the foregoing.
-11-
<PAGE>
(h) TeleCorp shall take all actions as may be necessary to satisfy the
condition set forth in Section 6.2(d), except to the extent that taking such
action would have a material adverse effect on TeleCorp and its Affiliates taken
as a whole. For the purposes of the immediately preceding sentence, a "material
adverse effect" shall include having to spend in excess of $2,000,000 in order
to obtain the consent referred to in Section 6.2(d).
3.2 Confidentiality.
---------------
(a) Each party shall, and shall cause each of its Affiliates, and its
and their respective shareholders, members, managers, directors, officers,
employees and agents (collectively, "Representatives") to, keep secret and
retain in strictest confidence any and all Confidential Information relating to
any other party that it receives in connection with the negotiation or
performance of this Agreement, and shall not disclose such Confidential
Information, and shall cause its Representatives not to disclose such
Confidential Information, to anyone except the receiving party's Affiliates and
Representatives and any other Person that agrees to keep in confidence all
Confidential Information in accordance with the terms of this Section 3.2.
Until the Closing, each party agrees to use Confidential Information received
from another party only to pursue such Transactions, but not for any other
purpose. All tangible embodiments of Confidential Information furnished pursuant
to this Agreement shall be returned promptly to the party to whom it belongs
upon request by such party.
(b) The obligations set forth in Section 3.2(a) shall be inoperative
with respect to Confidential Information that (i) is or becomes generally
available to the public other than as a result of disclosure by the receiving
party or its Representatives in violation of this Agreement, (ii) was available
to the receiving party on a nonconfidential basis prior to its disclosure to the
receiving party, or (iii) becomes available to the receiving party on a
nonconfidential basis from a source other than the providing party or its
agents, provided, that such source is not known by the receiving party to be
--------
bound by a confidentiality agreement with the providing party or the providing
party's agents.
(c) To the fullest extent permitted by Law, if a party or any of its
Affiliates or Representatives breaches, or threatens to commit a breach of, this
Section 3.2, the party whose Confidential Information shall be disclosed, or
threatened to be disclosed, shall have the right and remedy to have this Section
3.2 specifically enforced by any court having jurisdiction, it being
acknowledged and agreed that money damages will not provide an adequate remedy
to such party. Nothing in this Section 3.2 shall be construed to limit the
right of any party to collect money damages in the event of breach of this
Section 3.2.
(d) Anything else in this Agreement notwithstanding, each party shall
have the right to disclose any information, including Confidential Information
of the other party or such other party's Affiliates: (i) to the other party and
its Affiliates or Representatives; (ii) as otherwise required by Law, including
securities Laws; provided, that any such disclosure shall be as limited in scope
--------
as possible and shall be made only after giving the other party as much notice
as practicable of such required disclosure and
-12-
<PAGE>
an opportunity to contest such disclosure if possible; (iii) as required by its
existing or potential lending sources (such lending sources to acknowledge that
any such Confidential Information disclosed to them is subject to the provisions
hereof); (iv) as required to enforce its rights under this Agreement; (v) as
required to obtain the Consents specified in Sections 6.1(a) through (c); or
(vi) in the case of TeleCorp and its Affiliates, relating solely to the AT&T
Assets, and in the case of AT&T and its Affiliates, relating solely to the
TeleCorp Assets, on and after the Closing Date.
3.3 Conduct Prior to Closing. Each of the parties to this Agreement agrees
------------------------
that neither it nor any of its respective Affiliates shall knowingly take any
actions that would cause the transactions contemplated hereby to fail to qualify
as a like-kind exchange under Section 1031 of the Code.
3.4 Covenants of AT&T. From and after the execution and delivery of this
-----------------
Agreement to and including the Closing Date, AT&T shall:
(a) Comply with all applicable Laws relating to the AT&T Assets except
to the extent that such failure to comply would not have an AT&T Material
Adverse Effect or a material adverse effect on the Transactions;
(b) Use all commercially reasonable efforts to maintain the Wisconsin
Licenses, the Iowa Licenses, the ABC Acquisition Agreement and its rights under
the Polycell Acquisition Agreement in full force and effect;
(c) Use all commercially reasonable efforts to assist (i) Polycell in
maintaining the Polycell Licenses in full force and effect, and (ii) ABC in
maintaining the ABC Licenses in full force and effect;
(d) Without TeleCorp's prior written consent, such consent not to be
unreasonably withheld, delayed or conditioned, not (i) create, incur or, with
respect to the AT&T Owned Assets only, suffer to exist any Lien of any nature
whatsoever relating to the AT&T Assets or any interest therein (other than
Permitted Liens), (ii) enter into any Contract or agreement relating to any of
the AT&T Assets other than those which are terminable by AT&T without penalty or
any liability at the Closing, (iii) amend or modify any of the Acquisition
Agreements in any material respect, or agree to or otherwise permit any
amendments or modifications to any thereof, or (iv) grant or issue any waivers
under any of the Acquisition Agreements;
(e) Not sell, transfer, assign or dispose of, or offer to, or enter
into any agreement, arrangement or understanding to, sell, transfer, assign or
dispose of any of the AT&T Owned Assets, or any interest therein, or any
interest in any of the Acquisition Agreements, or negotiate therefor;
(f) Furnish TeleCorp with all such information concerning the AT&T
Owned Assets (and, to the extent within AT&T's control and permitted under
applicable confidentiality agreements, concerning the AT&T Acquired Assets) as
TeleCorp may reasonably request and cause the appropriate officers, employees,
consultants, agents,
-13-
<PAGE>
accountants and attorneys of AT&T to cooperate with TeleCorp in connection with
such review and examination;
(g) Give written notice to TeleCorp promptly upon the commencement of,
or upon obtaining knowledge of any facts that would give rise to a threat of,
any claim, action or proceeding commenced against or relating to (other than
proceedings affecting the PCS or wireless communications services industry
generally) the AT&T Assets (in the case of AT&T Acquired Assets, to the extent
known by AT&T), and which could reasonably be expected to have an AT&T Material
Adverse Effect or a material adverse effect on the Transactions or AT&T's
ability to consummate the Transactions, and use its commercially reasonable
efforts to challenge and contest any such claim, action or proceeding brought
against or otherwise involving AT&T that could result in any of conditions to
the Closing not being satisfied;
(h) Promptly after obtaining knowledge of the occurrence of, or the
impending or threatened occurrence of, any event which would cause or constitute
a material breach of any of its warranties, representations, covenants or
agreements contained in this Agreement or any Acquisition Agreement, or which
would reasonably be expected to have an AT&T Material Adverse Effect or a
material adverse effect on the Transactions, give notice in writing of such
event or occurrence or impending or threatened event or occurrence (provided,
that such disclosure shall not be deemed to cure any violation or breach of any
such representation, warranty, covenant, agreement or provision), to TeleCorp
and use all commercially reasonable efforts to prevent or to promptly remedy
such breach; and
(i) Cause TeleCorp to be advised promptly in writing of (i) any event,
condition or state of facts known to it, which has had or would reasonably be
expected to have an AT&T Material Adverse Effect or a material adverse effect on
the Transactions (other than proceedings affecting the PCS or wireless
communications services industry generally), (ii) any claim, action or
proceeding which seeks to enjoin the consummation of the Transactions, and (iii)
any event, occurrence, transaction or other item that would have been required
to have been disclosed on any Exhibit or Schedule delivered hereunder, had such
event, occurrence, transaction or item existed on the date hereof.
3.5 Covenants of TeleCorp Affiliates. From and after the execution and
--------------------------------
delivery of this Agreement to and including the Closing Date, TeleCorp and each
other Designated TeleCorp Affiliate, as applicable, including without limitation
TeleCorp LLC, shall operate the TeleCorp Assets in the ordinary course and in a
manner consistent with past practice, and without limitation of the foregoing:
(a) Comply with all applicable Laws, including all such Laws relating
to the TeleCorp Assets, except to the extent that such failure to comply would
not have a TeleCorp Material Adverse Effect or a material adverse effect on the
Transactions or TeleCorp's ability to consummate the Transactions;
(b) Use all commercially reasonable efforts to (i) maintain the Boston
Licenses in full force and effect and (ii) preserve substantially intact the
business
-14-
<PAGE>
organization of the TeleCorp Assets, (iii) keep available the services of its
employees and (iv) preserve the current relationships with its customers,
suppliers and other persons with which it has significant business relations;
(c) Without the prior written consent of AT&T, such consent not to be
unreasonably withheld, delayed or conditioned, not (i) create, incur or suffer
to exist any Lien of any nature whatsoever relating to the TeleCorp Assets or
any interest therein (other than Permitted Liens), or (ii) enter into any
Contract or agreement relating exclusively to the TeleCorp Assets other than
those which are terminable by TeleCorp without penalty or any liability at the
Closing;
(d) Not sell, transfer, assign or dispose of, or offer to, or enter
into any agreement, arrangement or understanding to, sell, transfer, assign or
dispose of the TeleCorp Assets or any interest therein, or negotiate therefor;
(e) Furnish AT&T with all such information concerning the TeleCorp
Assets as AT&T may reasonably request and cause the appropriate officers,
employees, consultants, agents, accountants and attorneys of TeleCorp to
cooperate with AT&T in connection with such review and examination;
(f) Give written notice to AT&T promptly upon the commencement of, or
upon obtaining knowledge of any facts that would give rise to a threat of, any
claim, action or proceeding commenced against or relating to (other than
proceedings affecting the PCS or wireless communications services industry
generally) the TeleCorp Assets and which could reasonably be expected to have a
TeleCorp Material Adverse Effect or a material adverse effect on the
Transactions and contest any such claim, action or proceeding brought against or
otherwise involving TeleCorp that could result in any of conditions to the
Closing not being satisfied;
(g) Promptly after obtaining knowledge of the occurrence of, or the
impending or threatened occurrence of, any event which would cause or constitute
a material breach of any of its warranties, representations, covenants or
agreements contained in this Agreement, or which would reasonably be expected to
have a TeleCorp Material Adverse Effect or a material adverse effect on the
Transactions, give notice in writing of such event or occurrence or impending or
threatened event or occurrence (provided, that such disclosure shall not be
deemed to cure any violation or breach of any such representation, warranty,
covenant, agreement or provision), to AT&T and use commercially reasonable
efforts to prevent or to promptly remedy such breach;
(h) Not authorize any capital expenditure that is not provided for in
the capital expenditures budget relating to the TeleCorp Assets previously
provided to AT&T, and make all capital expenditures that are provided for in
such capital expenditures budget relating to the TeleCorp Assets; and
(i) Cause AT&T to be advised promptly in writing of (i) any event,
condition or state of facts known to it, which has had or would reasonably be
expected to have a TeleCorp Material Adverse Effect or a material adverse effect
on the Transactions
-15-
<PAGE>
(other than proceedings affecting the PCS or wireless communications services
industry generally), (ii) any claim, action or proceeding which seeks to enjoin
the consummation of the Transactions, and (iii) any event, occurrence,
transaction or other item that would have been required to have been disclosed
on any Exhibit or Schedule delivered hereunder, had such event, occurrence,
transaction or item existed on the date hereof.
3.6 FCC Construction Requirements. TeleCorp and AT&T hereby agree that, upon
-----------------------------
the Closing, (i) TeleCorp shall (A) assume and be obligated to satisfy the
construction requirements set forth in 47 C.F.R. 24.203 with respect to the AT&T
Assets; and (B) be released from the obligation to provide "substantial service"
(as defined in 47 C.F.R. 24.16(a)) throughout the territory covered by the
Boston Licenses and (ii) AT&T shall (A) assume and be obligated to satisfy the
construction requirements set forth in 47 C.F.R. 24.203 with respect to the
Boston Licenses; and (B) be released from the obligation to provide "substantial
service" throughout the territory covered by the Wisconsin and Iowa Licenses.
3.7 Treatment of Employees.
----------------------
(a) Except as set forth in this Section 3.7(a), AT&T may, but shall
have no obligation to employ or offer employment to, any employee of TeleCorp's
PCS business in the area encompassed by the Boston Licenses (collectively, the
"Boston Employees") in connection with the Swap Transactions; provided, however,
-------- -------
that TeleCorp shall be entitled to offer continued employment to its existing
employees set forth on Schedule 3.7(a) attached hereto (the "Excluded
---------------
Employees"), which employees AT&T hereby agrees that, from the date hereof until
12 months following the Closing, it shall not solicit directly or indirectly
(other than general solicitations not directed at such employees) for employment
with AT&T or any of its Affiliates. Within 15 Business Days after the date of
execution of this Agreement, TeleCorp shall provide AT&T a list of all Boston
Employees as of a recent date, showing the original hire date, the then-current
positions and rates of compensation and whether the employee is subject to an
employment agreement, a collective bargaining agreement or represented by a
labor organization. Within 90 days after the date of execution of this
Agreement, or such other date as TeleCorp and AT&T may agree, AT&T will provide
to TeleCorp in writing a list of the Boston Employees to whom it or its
Affiliates will offer employment following the Closing, subject only to the
evaluations permitted by this Section. TeleCorp agrees, and shall cause its
appropriate Affiliates, to cooperate in all reasonable respects with AT&T to
allow AT&T or its Affiliates to evaluate the Boston Employees to make hiring
decisions. In this regard, AT&T shall have the opportunity to make such
appropriate pre-hire investigation of the Boston Employees, as it deems
necessary, including, subject to obtaining the consent of such Employee, the
right to review personnel files and conduct background checks and the right to
interview such Employees during normal working hours so long as such interviews
are conducted after notice to TeleCorp and do not unreasonably interfere with
TeleCorp's operations. TeleCorp will use its good faith efforts to obtain the
consent of each of its Boston Employees (other than the Excluded Employees) to
allow AT&T to review personnel files and to conduct background checks in
connection with the foregoing. AT&T or its Affiliates may, if it wishes,
condition any offer of employment upon the Boston Employee's passing a pre-
placement physical
-16-
<PAGE>
examination (including any required screening test) and the completion of a
satisfactory background check. AT&T shall bear the expense of such examination
but TeleCorp shall, upon reasonable notice, cooperate in the scheduling of such
examinations so long as the examinations do not unreasonably interfere with
TeleCorp's operations. As of the Closing Date, other than as specified herein,
AT&T shall have no obligation to TeleCorp, its Affiliates or to the Boston
Employees, with regard to any such Employee it has determined not to hire.
(b) TeleCorp shall pay to all of its Boston Employees all
compensation, including salaries, commissions, bonuses, deferred compensation,
severance (to the extent applicable), insurance, vacation and other compensation
or benefits to which they are entitled for periods prior to the Closing,
including all amounts, if any, payable on account of the termination of their
employment (whether payable before or after the Closing).
(c) TeleCorp shall be responsible for maintenance and distribution of
benefits accrued under any employee benefit plan (as defined in ERISA)
maintained by it, or its appropriate Affiliate, pursuant to the provisions of
such plan and any applicable Law. If TeleCorp determines that the transactions
contemplated by this Agreement will not permit a distribution to be made to a
Hired Employee (as defined below) from TeleCorp's tax qualified plan in
accordance with Section 401(k)(10) of the Code, then AT&T may in its sole
discretion elect to accept a plan-to-plan transfer of Hired Employees' plan
benefits to its own tax qualified plan. If there is no plan-to-plan transfer,
in order to permit TeleCorp, or its appropriate Affiliate, to make distributions
to any former Boston Employee who becomes a Hired Employee of the balance of
such employee's 401(k) account in TeleCorp's or its Affiliate's tax qualified
plan, if any, as soon as legally permitted, AT&T shall confirm, upon the request
of TeleCorp, the date of termination of such Employee's employment with AT&T for
any reason.
(d) All claims and obligations under, pursuant to or in connection
with any welfare, medical, insurance, disability or other employee benefit plans
of TeleCorp or any Affiliate or arising under any applicable Law affecting the
Boston Employees incurred on or before the Closing Date or resulting from or
arising from events or occurrences occurring or commencing on or before the
Closing Date will remain the responsibility of TeleCorp, or the appropriate
Affiliate, whether or not such Employees are hired by AT&T as of or after the
Closing. Neither party will have or assume any obligation or liability under or
in connection with any such plan of the other party or any Affiliate of the
other party.
(e) TeleCorp, or its appropriate Affiliate, will remain solely
responsible for, and will indemnify and hold AT&T harmless from and against all
Losses arising from or with respect to, all salaries and all severance,
vacation, holiday, continuation coverage and other compensation or benefits to
which the Boston Employees may be entitled, whether or not such Employees may be
hired by AT&T or any Affiliate of AT&T, as a result of their employment by
TeleCorp or any Affiliate of TeleCorp on or prior to the Closing Date, the
termination of their employment on or prior to the Closing Date, the
consummation of the transactions contemplated hereby or
-17-
<PAGE>
pursuant to any applicable Law or otherwise relating to their employment prior
to the Closing Date. Any liability under the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. ss. 2101, et seq., with regard to any employee
terminated on or prior to the Closing Date, or not hired by AT&T on or after the
Closing Date, shall, as a matter of contract between TeleCorp and AT&T, be the
responsibility of TeleCorp or its Affiliates. AT&T and its Affiliates shall
cooperate with TeleCorp and its Affiliates, if requested, in the giving of WARN
notices.
(f) Notwithstanding anything to the contrary herein, AT&T shall:
(i) recognize the service, before the Closing, with TeleCorp
Communications of each Boston Employee who is offered on or prior to the
Closing employment by AT&T and becomes an employee of AT&T after the
Closing Date (a "Hired Employee") for purposes of determining his or her
vacation time and sick time under AT&T's vacation and sick time policies;
(ii) recognize the service, before the Closing, with TeleCorp
Communications of each Hired Employee for purposes of participation in
AT&T's employee health and life insurance benefit plans to the same extent
as similarly situated employees of AT&T and their dependents are permitted
to participate;
(iii) give each Hired Employee credit for such employee's past
service with TeleCorp and its Affiliates as of the Closing Date (including
past service with any prior owner or operator of the other party's PCS
business) for purposes of eligibility and vesting under AT&T's 401(k) plan
to the same extent as other similarly situated employees of such party;
(iv) not subject any Hired Employee to any waiting periods or
limitations on benefits for pre-existing conditions under AT&T's employee
benefit plans, including any group health and disability plans, except to
the extent such employees were subject to such limitations under the
employee benefit plans of TeleCorp or any of its Affiliates; and
(v) give each Hired Employee credit under any group health plan for
any deductible amount previously met by such Hired Employee as of the
Closing Date under any of the group health plans of TeleCorp or any of its
Affiliates.
AT&T's obligation to comply with the foregoing provisions of this
Section 3.7(f) shall be contingent upon its having received from TeleCorp the
information necessary to enable AT&T to do so.
(g) Nothing in this Section or elsewhere in this Agreement shall be
deemed to make any employee of either party a third party beneficiary of this
Agreement.
-18-
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AT&T
AT&T represents and warrants to the TeleCorp Affiliates that, except
as set forth on the AT&T Disclosure Schedule previously delivered to TeleCorp
(the "AT&T Disclosure Schedule"), which shall be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained in this Article
IV, and the disclosure in any paragraph shall qualify only the corresponding
paragraph of this Article IV, unless a reasonable person would determine that
the disclosure contained in such paragraph contains enough information to
qualify or otherwise apply to other paragraphs of this Article IV:
4.1 Organization, Power and Authority.
---------------------------------
(a) It is duly organized, validly existing and in good standing under
the Laws of the State of Delaware and has the requisite power and authority to
hold the Wisconsin Licenses and Iowa Licenses.
(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 (the "AT&T Related Documents") and
(i) with respect to its rights, as applicable, to the AT&T Acquired Assets, to
assign the rights and obligations to acquire the AT&T Acquired Assets in
accordance with the terms and subject to the conditions of the Acquisition
Agreements, and to consummate the Transactions and (ii) with respect to its
rights, as applicable, to the AT&T Owned Assets, to convey to the Designated
TeleCorp Affiliate, as applicable, good and marketable rights to hold the AT&T
Owned Assets.
(c) It is duly qualified to do business in each jurisdiction where 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 an AT&T
Material Adverse Effect or a material adverse effect on the Transactions.
(d) The execution and delivery of this Agreement and each of the AT&T
Related Documents by it and the consummation of the Transactions by it have been
duly and validly authorized by its Board of Directors (or equivalent body) and
no other corporate proceedings on its part which have not been taken (including
approval of its stockholders, partners or members) are necessary to authorize
this Agreement or to consummate the Transactions.
(e) This Agreement and each of the AT&T Related Documents have been or
will be duly executed and delivered by it and constitute (or will constitute)
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
-19-
<PAGE>
similar Laws affecting or relating to enforcement of creditors' rights generally
or may be subject to general principles of equity.
4.2 Consents; No Conflicts. Neither the execution, delivery and performance by
----------------------
it of this Agreement and each of the AT&T Related Documents 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) constitute, with or
without the giving of notice or passage of time or both, a breach, violation or
default, create a Lien (other than Permitted Liens) on any of the AT&T Assets,
or give rise to any right of termination, modification, cancellation, prepayment
or acceleration, under (i) any Law applicable to any of the AT&T Owned Assets 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) (other than under the HSR Act and the Consent of the FCC) require any
Consent, except in the case of clauses (a) and (b), where such breach,
violation, default, Lien or right would not have an AT&T Material Adverse Effect
or a material adverse effect on the Transactions. To its knowledge, there is no
fact relating to it or its Affiliates that could be reasonably expected to
prevent it from consummating the Transactions or performing its obligations
under this Agreement or disqualify AT&T from obtaining the Consents (including
the Consent of the FCC) required in order to consummate the Transactions.
4.3 Litigation. There is no action, proceeding or investigation pending or, to
----------
its knowledge, threatened, or any order, injunction or decree outstanding,
against it or any of its properties or assets that, if adversely determined,
would be reasonably expected to have a material adverse effect on its ability to
consummate the Transactions or to fulfill its obligations under this Agreement
or Intermediary's obligations under any of the Acquisition Agreements or which
seeks to prevent or challenge the Transactions or any part thereof.
4.4 FCC Compliance. To its knowledge, it is in compliance with all eligibility
--------------
rules issued by the FCC to hold broadband PCS Licenses, including FCC rules on
foreign ownership and the CMRS spectrum cap.
4.5 Brokers. AT&T has not employed any broker, finder or investment banker and
-------
has not incurred and will not incur any liability for any brokerage fees,
commissions or finder's fees in connection with the Transactions.
4.6 Licenses. AT&T is the authorized legal and beneficial holder of, and has
--------
good, marketable rights, free and clear of any Liens, to the Wisconsin Licenses
and Iowa Licenses, evidence of which is attached as Schedule 4.6 to the AT&T
------------
Disclosure Schedule. The Wisconsin Licenses and Iowa Licenses are, and on the
Closing Date will be, valid and in full force and effect. Except for proceedings
affecting the PCS or wireless communications services industry generally, there
is not pending, nor to the knowledge of AT&T, threatened against AT&T, against
the Wisconsin Licenses and/or Iowa Licenses any application, action, petition,
objection or other pleading, or any proceeding with the FCC which questions or
contests the validity of, or seeks the revocation, nonrenewal or suspension of,
any of the Wisconsin Licenses or Iowa
-20-
<PAGE>
Licenses, which seeks the imposition of any modification or amendment with
respect thereto, or which adversely affects the ability of TeleCorp to employ
any of the Wisconsin Licenses or Iowa Licenses in its business after the Closing
Date. Neither the Wisconsin Licenses nor the Iowa Licenses are subject to any
conditions other than those appearing on the face of Wisconsin Licenses and Iowa
Licenses, as applicable, themselves, and those imposed by FCC Law. All documents
required by 47 C.F.R. Section 73.3526 to be kept in the public inspection file
are in such file, other than documents the absence of which, individually or in
the aggregate, would not be reasonably expected to have any AT&T Material
Adverse Effect, and such file will be maintained in proper order and complete up
to and through the Closing Date, except for immaterial documents.
4.7 Compliance With Laws. With respect to the Wisconsin Licenses and Iowa
--------------------
Licenses, AT&T is in, and has operated in, compliance with all applicable Laws,
including all FCC Laws, except for noncompliance that, individually or in the
aggregate, has not and would not reasonably be expected to have an AT&T Material
Adverse Effect. AT&T has not received notice to the effect that, or otherwise
been advised that, it is not in compliance with any Laws with respect to
Wisconsin Licenses and Iowa Licenses, and AT&T has not taken any action or
failed to take any action that is a violation of any such Laws with respect to
any of the Wisconsin Licenses or Iowa Licenses, except for actions or failures
to take action that, individually or in the aggregate, have not and would not
reasonably be expected to have an AT&T Material Adverse Effect or a material
adverse effect on the Transactions.
4.8 Taxes. All Federal, state, local and foreign income, franchise, sales,
-----
use, property, excise, payroll and other Tax returns and reports required to be
filed by AT&T or its Affiliates by Law where the failure to file such returns on
a duly and timely basis would reasonably be expected to result in a material
Lien on the AT&T Owned Assets or the imposition on TeleCorp of any material
liability for Taxes or assessments have been duly and timely filed in the proper
form with the appropriate Governmental Authority. All Taxes, fees and
assessments of whatever nature due or payable pursuant to said returns or
otherwise by AT&T or its Affiliates have been paid (except for such amounts as
are being contested diligently, in the appropriate forum and in good faith)
where the failure to pay or contest such amounts would reasonably be expected to
result in a material Lien on the AT&T Owned Assets or the imposition on TeleCorp
of any material liability for any Taxes or assessments. There are no Tax audits
pending and no outstanding agreements or waivers extending the statutory period
of limitations applicable to any Federal, state or local income Tax return of
AT&T or its Affiliates for any period, the result of which would reasonably be
expected to result in a material Lien on the AT&T Owned Assets or the imposition
on TeleCorp of any material liability for any Taxes or assessments. There are
no governmental investigations or other legal, administrative or Tax proceedings
pursuant to which AT&T is or could be made liable for any Taxes, penalties,
interest or other charges, the liability for which would reasonably be expected
to extend to TeleCorp as transferee of the AT&T Owned Assets, or which would
reasonably be expected to result in a material Lien on the AT&T Owned Assets
and, to the best of AT&T's knowledge, no event has occurred that would
-21-
<PAGE>
reasonably be expected to impose on TeleCorp any material liability for any
Taxes, penalties or interest due or to become due from AT&T.
4.9 Acquisition Agreements. Each of the representations and warranties made by
----------------------
AT&T or any of its Affiliates in any of the Acquisition Agreements is true,
complete and correct in all material respects as of the date hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TELECORP
TeleCorp and each other Designated TeleCorp Affiliate represents and
warrants to AT&T that, except as set forth on the TeleCorp Disclosure Schedule
previously delivered to AT&T (the "TeleCorp Disclosure Schedule") which shall be
arranged in paragraphs corresponding to the numbered and lettered paragraphs
contained in this Article V, and the disclosure in any paragraph shall qualify
only the corresponding paragraph of this Article V, unless a reasonable person
would determine that the disclosure contained in such paragraph contains enough
information to qualify or otherwise apply to other paragraphs of this Article V:
5.1 Organization, Power and Authority.
---------------------------------
(a) It is a corporation, limited liability company or limited
partnership, as applicable, duly formed, validly existing and in good standing
under the Laws of the State of Delaware and has the requisite power and
authority to hold, own, lease and operate its properties and to carry on its
business as now being conducted and proposed to be 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 and thereunder to which it is or will be a party (the "TeleCorp
Related Documents") and to convey good and marketable title and/or rights to
hold to AT&T with respect to the TeleCorp Assets and to consummate the
Transactions.
(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 TeleCorp Material
Adverse Effect or a material adverse effect on the Transactions.
(d) The execution and delivery of this Agreement and each of the
TeleCorp Related Documents by it and the consummation of the Transactions by it,
have been duly and validly authorized by its Board of Directors (or equivalent
body) and no other proceedings on its part which have not been taken (including
stockholders) are necessary to authorize this Agreement or to consummate the
Transactions.
-22-
<PAGE>
(e) This Agreement and each of the TeleCorp Related Documents have
been (or will be) duly executed and delivered by it and constitute (or will
constitute) its valid and binding obligations, 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 or may be subject to general
principles of equity.
5.2 Consents; No Conflicts. Neither the execution, delivery and performance by
----------------------
it of this Agreement and each of the TeleCorp Related Documents 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) constitute,
with or without the giving of notice or passage of time or both, a breach,
violation or default, create a Lien (other than Permitted Liens) on its assets,
including the TeleCorp Assets, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (i) any Law or the
TeleCorp Assets, 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) (other than under the HSR Act and the Consent of the
FCC) require any Consent except in the case of clauses (a) and (b) where such
breach, violation, default, Lien or right would not have a TeleCorp Material
Adverse Effect or a material adverse effect on 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 or
performing its obligations under this Agreement or disqualify it from obtaining
the Consents (including the Consent of the FCC) required in order to consummate
the Transactions.
5.3 Litigation. There is no action, proceeding or investigation pending or, to
----------
its knowledge, threatened, or any order, injunction or decree outstanding,
against it or any of its properties or assets that, if adversely determined,
would have a material adverse effect on its ability to consummate the
Transactions 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 TeleCorp which would limit in any material respect its
ability to operate its business in the manner currently contemplated.
5.4 FCC Compliance. It complies, and after giving effect to the consummation
--------------
of the Transactions will comply, with all eligibility rules issued by the FCC to
hold broadband PCS Licenses, including FCC rules on foreign ownership and the
CMRS spectrum cap.
5.5 Brokers. Except for Lehman Brothers Inc., whose fees will be paid by
-------
TeleCorp, it has not employed any broker, finder or investment banker and has
not incurred and will not incur any liability for any brokerage fees,
commissions or finder's fees in connection with the Transactions.
-23-
<PAGE>
5.6 TeleCorp Assets; Liens.
----------------------
(a) The Designated TeleCorp Affiliates transferring the TeleCorp
Assets are the sole and exclusive legal and beneficial owners of, and have good,
valid and marketable title to, the Boston Business. TeleCorp LLC is the sole
and exclusive legal and beneficial holder of, and has good, valid and
marketable rights to hold the Boston Licenses. None of the TeleCorp Assets is
subject to any Lien except Permitted Liens. Delivery by the Designated TeleCorp
Affiliates of the TeleCorp Assignments will deliver good and marketable title to
the Boston Business, and good and marketable rights to hold the Boston Licenses,
free and clear of Liens other than Permitted Liens.
(b) Sections 1 and 2(a) and Attachment E to Schedule 0.1 set forth an
accurate, correct and complete list of the depreciable assets included as part
of the TeleCorp Assets. All such machinery, equipment and other assets is in
good repair, reasonable wear and tear excepted, has been well maintained and
conforms in all respects to all applicable Laws, and such machinery and
equipment is in good working order.
(c) The applicable Designated TeleCorp Affiliate enjoys peaceful and
undisturbed possession under the TeleCorp Assigned Leases. All such leases are
in writing, valid, subsisting and in full force and effect, and there are no
uncured defaults of TeleCorp (or, to the knowledge of TeleCorp, any other party
thereto) under such leases. There exists no event, occurrence, condition or act
(including the purchase of the TeleCorp Assets hereunder) which, with the giving
of notice, the lapse of time or the happening of any further event or condition,
would become a default by TeleCorp (or, to the knowledge of TeleCorp, any other
party thereto) under any such lease. The TeleCorp Assets, including those
obtained pursuant to said TeleCorp Assigned Leases, are adequate to conduct the
operations currently conducted and presently proposed to be conducted by
TeleCorp and represent all assets of TeleCorp used or useful in the operation of
its business.
(d) Attachments A and C to Schedule 0.1 set forth an accurate, correct
------------
and complete list of the TeleCorp Real Property, including a street address and
Attachment B to Schedule 0.1 sets forth a list of all Contracts and agreements,
oral or written, encumbering, relating to or affecting the TeleCorp Real
Property or any interest therein. TeleCorp has delivered to AT&T accurate,
correct and complete copies of all such Contracts and agreements. A Designated
TeleCorp Affiliate is the sole and exclusive legal and equitable owner of all
right, title and interest in and has good, marketable and insurable title in fee
simple absolute to, and is in possession of, all TeleCorp Real Property which it
purports to own, including the buildings, structures, sidetracks and
improvements situated thereon and appurtenances thereto, in each case free and
clear of all tenancies and other possessory interests, Liens and other burdens.
All Contracts, easements, restrictions, covenants and other agreements and
undertakings affecting the TeleCorp Real Property are set forth in Schedule 0.1
------------
to the TeleCorp Disclosure Schedule and are legally valid and binding and in
full force and effect, and there are no defaults, offsets, counterclaims or
defenses thereunder, and TeleCorp has received no notice of default, offset,
counterclaim or defense under any such Contracts or agreements.
-24-
<PAGE>
(e) None of the TeleCorp Real Property is located within a flood or
lakeshore erosion hazard area. Neither the whole nor any portion of any
TeleCorp Real Property has been condemned, requisitioned or otherwise taken by
any public authority, and no notice of any such condemnation, requisition or
taking has been received. No such condemnation, requisition or taking is
threatened or contemplated. TeleCorp has no knowledge of any public
improvements which may result in special assessments against or otherwise affect
the TeleCorp Real Property.
(f) The TeleCorp Real Property is in compliance in all material
respects with all applicable zoning, building, health, fire, water, use or
similar Laws. The zoning of each parcel of TeleCorp Real Property permits the
existing improvements and the continuation following consummation of the
transaction contemplated hereby of the operations of TeleCorp as presently
conducted thereon. TeleCorp has all licenses, certificates of occupancy,
permits and authorizations required to operate TeleCorp and utilize the TeleCorp
Real Property. TeleCorp has all easements and rights necessary to conduct its
business, including easements for all utilities, services, roadway, railway and
other means of ingress and egress. The TeleCorp Real Property as conveyed
pursuant to this Agreement shall include all rights to any off-site facilities
necessary to ensure compliance in all material respects with all zoning,
building, health, fire, water, use or similar statutes, codes, ordinances, Laws,
rules or regulations. No fact or condition exists which would result in the
termination or impairment of access to the TeleCorp Real Property or
discontinuation of sewer, water, electric, gas, telephone, waste disposal or
other utilities or services. The facilities servicing the TeleCorp Real
Property are in full compliance with all codes, Laws, rules and regulations.
(g) TeleCorp has delivered to AT&T accurate, correct and complete
copies of all existing title insurance policies, title reports, surveys,
environmental audits and similar reports, if any, with respect to each parcel of
TeleCorp Real Property.
5.7 TeleCorp Assets. Except for items included in the TeleCorp Excluded
---------------
Assets, the TeleCorp Assets constitute all of the assets primarily relating to,
and includes substantially all the assets necessary to conduct, the Boston
Business as it is being conducted on the date of this Agreement and in
compliance with all applicable legal requirements.
5.8 Environmental and Safety Laws.
-----------------------------
(a) Each parcel of TeleCorp Real Property is, and has in the past
been, in compliance in all material respects with all, and is not subject to any
liability under any, Environmental Laws and all applicable statutes, Laws or
regulations relating to occupational health and safety. There are no actions,
activities, circumstances, conditions, events or incidents, including the
release, emission, discharge, presence or disposal of any Materials of
Environmental Concern, which could interfere with or prevent continued
compliance with all Environmental Laws (as defined below).
(b) Except as expressly authorized under applicable Environmental
Laws, there is not currently, and has not in the past been, any release,
emission,
-25-
<PAGE>
discharge, presence or disposal of any Materials of Environmental Concern into
the environment (including the air, surface and groundwater and surface and
subsurface soils) at, on, into, under, or originating at any TeleCorp Real
Property. No TeleCorp Real Property is or has been the location of any hazardous
waste treatment, storage or disposal facility, any underground storage tank, or
any facilities or equipment containing asbestos or polychlorinated biphenyls. No
Lien has been imposed by a governmental entity or third party in connection with
the presence of any Materials of Environmental Concern on any TeleCorp Real
Property.
(c) TeleCorp has not (i) received any written communication from a
governmental, quasi-governmental or regulatory agency or other entity, citizens'
group, director, officer or employee of TeleCorp or other Person, alleging that
TeleCorp, any of its predecessors in interest or any Affiliate of TeleCorp is
not in compliance with or has violated any Environmental Law or that TeleCorp,
any of its predecessors in interest or any Affiliate of TeleCorp has any
liability under any Environmental Law or under common Law with respect to
pollution and/or protection of human health and/or the environment (including,
without limitation, any release, emission, discharge, presence or disposal of
any Materials of Environmental Concern); (ii) received any request for
information, notice or administrative inquiry under any Environmental Law; or
(iii) entered into or been subject to any consent decree, compliance order, or
administrative order with respect to any Environmental Law or any liability
under common Law with respect to pollution and/or protection of human health
and/or the environment (including, without limitation, any release, emission,
discharge, presence or disposal of any Materials of Environmental Concern), in
any event with respect to any parcel of TeleCorp Real Property.
(d) Neither TeleCorp, nor any Affiliate of TeleCorp, has conducted, or
arranged for the conduct of, an environmental audit, investigation or assessment
of any of TeleCorp's facilities or operations or of any TeleCorp Real Property.
TeleCorp has not received and has no knowledge of, and none of its Affiliates
has received, any such audit, investigation or assessment conducted by any other
party.
5.9 TeleCorp Assigned Agreements. Schedule 5.9 to the TeleCorp Disclosure
---------------------------- ------------
Schedule contains a complete and accurate list of all material agreements of
TeleCorp (including the TeleCorp Assigned Leases) relating primarily to the
conduct of the Boston Business (the "TeleCorp Assigned Agreements"). Schedule
--------
5.9 to the TeleCorp Disclosure Schedule includes with respect to each TeleCorp
- ---
Assigned Agreement, whether oral or written, the names of the parties, the date
thereof, and its title or other general description. Each TeleCorp Assigned
Agreement sets forth the entire arrangement and understanding between TeleCorp
and the respective third-parties with respect to the subject matter thereof and,
except as indicated in such Schedule, there have been no amendments or side or
supplemental arrangements to or in respect of any TeleCorp Assigned Agreement.
TeleCorp has furnished to AT&T true and correct copies of all written TeleCorp
Assigned Agreements as currently in effect. Each TeleCorp Assigned Agreement is
valid and in full force and effect, and TeleCorp has performed all obligations
required to be performed by it thereunder. TeleCorp is not in default under or
in breach or violation of any TeleCorp Assigned Agreement or any other
agreement,
-26-
<PAGE>
decree, order, statute or governmental rule or regulation applicable to it,
except where such breach, violation or default would not have a TeleCorp
Material Adverse Effect or a material adverse effect on the Swap Transactions.
The execution and delivery of this Agreement and the consummation of the
Transactions will not result in default, breach or violation of any TeleCorp
Assigned Agreement, except where such breach, violation or default would not
have a TeleCorp Material Adverse Effect or a material adverse effect on the Swap
Transactions. There is no event which has occurred or existing condition which
constitutes, or with notice or lapse of time or both, would constitute a default
under any TeleCorp Assigned Agreement or would cause the acceleration of any
obligation of any party thereto, or give rise to any right of termination or
cancellation or cause the creation of any Lien (other than Permitted Liens) on
any of the TeleCorp Assets except where such default would not have a TeleCorp
Material Adverse Effect or a material adverse effect on the Swap Transactions.
With respect to each TeleCorp Assigned Agreement which is to be assigned to AT&T
pursuant to the terms thereof, AT&T will succeed to all the rights and benefits
of TeleCorp thereunder, subject only to the obligations of TeleCorp arising
thereunder after the Closing Date. TeleCorp will not modify, amend or waive any
provisions of any TeleCorp Assigned Agreement in a manner that would adversely
affect the TeleCorp Assets or terminate any TeleCorp Assigned Agreement prior to
the Closing other than in the ordinary course of business and with the prior
written consent of AT&T.
5.10 License. TeleCorp LLC is the authorized legal holder, free and clear of any
-------
Liens, of the Boston Licenses, evidence of which is attached as Schedule 5.10.
-------------
The Boston Licenses are, and on the Closing Date the Boston Licenses will be,
valid and in full force and effect. Except for proceedings affecting the PCS or
wireless communications services industry generally, there is not pending, nor
to the knowledge of TeleCorp, threatened against it or against the Boston
Licenses, any application, action, petition, objection or other pleading, or any
proceeding with the FCC which questions or contests the validity of, or seeks
the revocation, nonrenewal or suspension of, the Boston Licenses, which seeks
the imposition of any modification or amendment with respect thereto, or which
adversely affects the ability of AT&T and its Affiliates to employ the Boston
Licenses in its business after the Closing Date. None of the Boston Licenses is
subject to any conditions other than those appearing on the face of such Boston
License itself and those imposed by FCC Law. All documents required by 47
C.F.R. Section 73.3526 to be kept in the public inspection file are in such
file, other than documents the absence of which, individually or in the
aggregate, would not be reasonably expected to have any TeleCorp Material
Adverse Effect, and such file will be maintained in proper order and complete up
to and through the Closing Date, except for immaterial documents. To TeleCorp's
knowledge, each cell site included in the Boston Assets has been constructed,
and is operating substantially in compliance with, the terms of the Boston
Licenses and the Law.
5.11 Compliance With Laws. TeleCorp is in, and has operated in, compliance with
--------------------
all applicable Laws, including all FCC Laws, except for noncompliance that,
individually or in the aggregate, has not and would not reasonably be expected
to have a TeleCorp Material Adverse Effect. It has not received notice to the
effect that, or otherwise been advised that, it is not in compliance with any
Laws, including with respect to the Boston
-27-
<PAGE>
Licenses or TeleCorp Assets, and it has not taken any action or failed to take
any action that is a violation of any such Laws, including with respect to the
Boston Licenses or the TeleCorp Assets, except for actions or failures to take
action that, individually or in the aggregate, have not and would not reasonably
be expected to have a TeleCorp Material Adverse Effect or a material adverse
effect on the Transactions.
5.12 Taxes. All Federal, state, local and foreign income, franchise, sales,
-----
use, property, excise, payroll and other Tax returns and reports required to be
filed by TeleCorp or its Affiliates by Law where the failure to file such
returns on a duly and timely basis would reasonably be expected to result in a
material Lien on the TeleCorp Assets or the imposition on AT&T of any material
liability for Taxes or assessments have been duly and timely filed in the proper
form with the appropriate Governmental Authority. All Taxes, fees and
assessments of whatever nature due or payable pursuant to said returns or
otherwise by TeleCorp or its Affiliates have been paid (except for such amounts
as are being contested diligently, in the appropriate forum and in good faith)
where the failure to pay or contest such amounts would reasonably be expected to
result in a material Lien on the TeleCorp Assets or the imposition on AT&T of
any material liability for any Taxes or assessments. There are no Tax audits
pending and no outstanding agreements or waivers extending the statutory period
of limitations applicable to any Federal, state or local income Tax return of
TeleCorp or its Affiliates for any period, the result of which would reasonably
be expected to result in a material Lien on the TeleCorp Assets or the
imposition on AT&T of any material liability for any Taxes or assessments.
There are no governmental investigations or other legal, administrative or Tax
proceedings pursuant to which TeleCorp is or could be made liable for any Taxes,
penalties, interest or other charges, the liability for which would reasonably
be expected to extend to AT&T as transferee of the TeleCorp Assets, or which
would reasonably be expected to result in a material Lien on the TeleCorp Assets
and, to the best of TeleCorp's knowledge, no event has occurred that would
reasonably be expected to impose on AT&T any material liability for any Taxes,
penalties or interest due or to become due from TeleCorp.
5.13 Insurance. TeleCorp and its Affiliates have at all times maintained in
---------
full force and effect property damage, liability and other insurance with
respect to the TeleCorp Assets with financially sound and reputable insurers at
levels of coverage reasonable and customary in the telecommunications industry.
TeleCorp has not received written notice from any such insurance carrier (i)
threatening a suspension, revocation, modification or cancellation of any
insurance policy or a material increase in any premium in connection therewith,
or (ii) informing TeleCorp that any coverage will or may not be available in the
future on substantially the same terms as now in effect.
5.14 Undisclosed Liabilities. Neither TeleCorp nor any of its Affiliates has
-----------------------
any material liabilities, commitments or obligations (including without
limitation unasserted claims whether known or unknown), whether absolute or
contingent, liquidated or unliquidated, or due or to become due or otherwise,
relating to the TeleCorp Assets except for liabilities, commitments and
obligations (i) that have arisen since April 1, 1999 in the ordinary course of
business consistent with past practice or (ii) that are set forth on Section
5.14 of the TeleCorp Disclosure Schedule.
-28-
<PAGE>
5.15 Inventory. The values at which inventories of TeleCorp included in the
---------
TeleCorp Assets are shown on the TeleCorp Books and Records have been determined
in accordance with the normal valuation policy of TeleCorp, consistently applied
and in accordance with generally accepted accounting principles. Such
inventories consist of items of (a) usable, merchantable quality which are new,
unused, undamaged, not defective and possess valid manufacturer's warranties,
and (b) a mix which is consistent with TeleCorp's past practices.
5.16 Labor Relations. TeleCorp is not a party to any collective bargaining
---------------
agreement covering the Boston Employees, and there are no controversies,
grievances or arbitrations pending or, to TeleCorp's knowledge, threatened
between TeleCorp and any of its current or former Boston Employees, or any labor
or other collective bargaining unit representing any current or former Boston
Employee, that could reasonably be expected to result in a labor strike,
dispute, slow-down or work stoppage. There are no administrative charges,
arbitration or mediation proceedings or court complaints relating to the Boston
Employees pending or, to TeleCorp's knowledge, threatened against TeleCorp
before the U.S. Equal Employment Opportunity Commission or any state or federal
court or agency or any other entity concerning alleged employment
discrimination, employment contract violation or any other matters relating to
the employment of labor. There is no unfair labor practice charge or complaint
relating to the Boston Employees pending or, to TeleCorp's knowledge, threatened
against TeleCorp before the National Labor Relations Board or any similar state
or local body. To the knowledge of TeleCorp, TeleCorp is not, and for the 12-
month period prior to the date of this Agreement has not been, the subject of
any union organizational campaign with respect to the Boston Employees.
TeleCorp has no material labor negotiations in process with any labor union or
other labor organization covering the Boston Employees.
5.17 Licenses and Permits. All material Licenses (other than FCC Licenses) held
--------------------
in connection with the operation of the TeleCorp Assets are in full force and
effect, except where the failure of any thereof to be in full force and effect
would not reasonably be expected to have a TeleCorp Material Adverse Effect, and
there are no proceedings in which TeleCorp is a party, pending or, to its
knowledge, threatened, which would result in the revocation or modification of
such Licenses, except where such revocation or modification would not reasonably
be expected to have a TeleCorp Material Adverse Effect.
5.18 Employee Benefits. Schedule 5.18 contains a complete list of each material
-----------------
employee benefit plan, program, policy, practice, or other arrangement providing
compensation or benefit to any Boston Employee that is sponsored or maintained
by TeleCorp or any of its Affiliates or to which any of them contributes or is
obligated to contribute, including without limitation any employee welfare
benefit plan within the meaning of Section 3(1) of ERISA, any employee pension
benefit plan within the meaning of Section 3(2) of ERISA (whether or not such
plan is subject to ERISA) and any bonus, incentive, deferred compensation,
vacation, stock purchase, stock option, severance, employment, change of control
or fringe benefit plan, program or agreement.
-29-
<PAGE>
5.19 No Material Adverse Change. Since April 1, 1999, there has been no change,
effect, circumstance or condition known to any of the TeleCorp Affiliates that
has had or is reasonably likely to result in a TeleCorp Material Adverse Change.
5.20 Affiliate Agreements. No Affiliate of TeleCorp is a party to any material
transaction with TeleCorp relating to the Boston Business not in the ordinary
course of business.
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to Obligations of All Parties. The obligation of each of the
----------------------------------------
parties to consummate the Transactions contemplated to occur at the Closing (or
at any earlier closing of the acquisition of any of the AT&T Acquired Assets)
shall be conditioned on the following (each condition to be applied only to the
applicable AT&T Acquired Asset in respect of any early closing of the
acquisition of such AT&T Acquired Asset), unless waived, in writing, by each of
the parties at or prior to Closing:
(a) Any filings required to be made under the HSR Act shall have been
made and any applicable waiting period under the HSR Act shall have expired or
been terminated.
(b) The Consent of the FCC to each of the License transfers
contemplated as part of the Swap Transaction shall have been obtained pursuant
to a Final Order (as defined below), free of any conditions materially adverse
to TeleCorp or AT&T, other than those applicable to the PCS or wireless
communications services industry generally. For the purposes of this Agreement,
"Final Order" means an action or decision that has been granted by the FCC as to
which (i) no request for a stay or similar request is pending, no stay is in
effect, the action or decision has not been vacated, reversed, set aside,
annulled or suspended and any deadline for filing such request that may be
designated by statute or regulation has passed, (ii) no petition for rehearing
or reconsideration or application for review is pending and the time for the
filing of any such petition or application has passed, (iii) the FCC does not
have the action or decision under reconsideration on its own motion and the time
within which it may effect such reconsideration has passed and (iv) no appeal is
pending, including other administrative or judicial review, or in effect and any
deadline for filing any such appeal that may be designated by statute or rule
has passed.
(c) All Consents by any Governmental Authority (other than the
Consents referred to in paragraphs (a) and (b) above) required to permit the
consummation of the Transactions shall have been obtained, except where the
failure to obtain such Consents would not be reasonably expected to have an AT&T
Material Adverse Effect or a TeleCorp Material Adverse Effect or to materially
adversely affect the Transactions or the ability of any of the parties to
perform its obligations under this Agreement.
-30-
<PAGE>
(d) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any Law 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) as a result of the Transactions, impair in
any material respect the operations of TeleCorp or any of its Affiliates or AT&T
or any of its Affiliates.
6.2 Conditions to Obligations of TeleCorp. The obligation of the Designated
-------------------------------------
TeleCorp Affiliates to consummate the Transactions contemplated to occur at the
Closing (or at any earlier closing of the acquisition of any of the AT&T
Acquired Assets) shall be further conditioned upon the satisfaction or
fulfillment, at or prior to the Closing, of the following conditions (each
condition to be applied only to the applicable AT&T Acquired Asset in respect of
any early closing of the acquisition of such AT&T Acquired Asset), unless
waived, in writing, by TeleCorp:
(a) The representations and warranties of AT&T contained herein shall
be true and correct, in each case when made and at and as of the Closing (other
than 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 in each case to the extent that the failure of
such representations and warranties to be true and correct in the aggregate does
not have an AT&T Material Adverse Effect.
(b) AT&T and its Affiliates shall have performed in all material
respects all agreements contained herein required to be performed by it at or
before the Closing.
(c) AT&T shall have delivered, or caused to be delivered, (i) to
TeleCorp the documents required pursuant to Section 2.2(b) and (ii) to the
Intermediary the AT&T Assignments, the Cash Consideration, the Asset Payment and
each of the other documents and instruments required pursuant to Section 2.2(a).
(d) TeleCorp shall have received any Consent of the lenders required
pursuant to the terms of that certain Credit Agreement dated as of July 17, 1998
among TeleCorp and the lenders and agents party thereto, as amended.
(e) TeleCorp shall have acquired all right, title and interest in the
assets of Indus pursuant to the Indus Purchase Agreement (or the assets
permitted to be substituted therefor), free of any and all Liens held by AT&T or
any of its Affiliates other than a right of first refusal should TeleCorp sell
such assets.
6.3 Conditions to the Obligations of AT&T. The obligation of AT&T to
-------------------------------------
consummate the Transactions contemplated to occur at the Closing (or at any
earlier closing of the acquisition of any of the AT&T Acquired Assets) shall be
further conditioned upon the satisfaction or fulfillment, at or prior to the
Closing, of the following conditions (each condition to be applied only to the
applicable AT&T Acquired
-31-
<PAGE>
Asset in respect of any early closing of the acquisition of such AT&T Acquired
Asset), unless waived, in writing, by AT&T:
(a) The representations and warranties of TeleCorp contained herein
shall be true and correct, in each case when made and at and as of the Closing
(other than 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 in each case to the extent that the
failure of such representations and warranties to be true and correct in the
aggregate does not have an TeleCorp Material Adverse Effect.
(b) Each of the TeleCorp Affiliates shall have performed in all
material respects all agreements contained herein required to be performed by it
at or before the Closing.
(c) TeleCorp shall have delivered, or caused to be delivered, (i) to
AT&T the documents required pursuant to Section 2.2(d) and (ii) to Intermediary
the TeleCorp Assignments, the Stock Consideration, if applicable, and other
agreements and instruments required pursuant to Section 2.2(c).
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 Survival. The representations and warranties contained in Sections 4.1(a),
--------
(b), (d), (e) and (f), and Sections 5.1(a), (b), (d), (e) and (f) and Section
5.6(a) 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), and the representations and warranties contained
herein in Sections 4.9 shall survive the Closing until the expiration of the
corresponding representations and warranties made by AT&T or any of its
Affiliates in the Acquisition Agreements. The representations and warranties
contained in Sections 4.8 and 5.12 shall not survive the Closing. All other
representations and warranties made in this Agreement shall terminate on the
second anniversary of the Closing Date. The right to indemnification pursuant
to this Article VII in respect of a breach of a representation or warranty that
survives the Closing shall expire upon the application of the applicable
survival period (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 that
survives the Closing 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 VII.
7.2 Indemnification by AT&T. AT&T shall indemnify and hold harmless TeleCorp
-----------------------
and its Affiliates, and the shareholders, members, managers, officers,
employees, agents and/or the legal representatives of any of them (each, a
"TeleCorp Indemnified Party"),
-32-
<PAGE>
against all liabilities and expenses (collectively, "Losses") incurred by any
TeleCorp Indemnified Party (including, without limitation, amounts paid in
satisfaction of judgments, in compromise, as fines and penalties, and as counsel
fees and Losses incurred in connection with the investigation, defense, or
disposition of any action, suit or other proceeding in which any TeleCorp
Indemnified Party may be involved or with which any TeleCorp Indemnified Party
may be threatened (whether arising out of or relating to matters asserted by
third parties against a TeleCorp Indemnified Party or incurred or sustained by
such party in the absence of a third-party claim)), that arise out of or result
from (a) any representation or warranty of AT&T contained in this Agreement
being untrue (other than Section 4.8), (b) any default by AT&T or any of its
Affiliates in the performance of their respective obligations under this
Agreement, (c) the ownership or operation of any of the AT&T Owned Assets and
the conduct of AT&T's business prior to the Closing Date or (d) the ownership or
operation of any of the TeleCorp Assets and the conduct of AT&T's business after
the Closing Date, except to the extent (but only to the extent) that any such
Losses arise out of or result from the gross negligence or willful misconduct of
such TeleCorp Indemnified Party or its Affiliates, provided, however, that the
-------- -------
aggregate liability of AT&T to indemnify TeleCorp Indemnified Parties against
Losses arising out of or resulting from (x) any representation or warranty of
AT&T contained in this Agreement being untrue (other than Section 4.8), or (y)
any default by AT&T 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 AT&T) be limited to
$100 Million Dollars.
7.3 Indemnification by TeleCorp. TeleCorp shall indemnify and hold harmless
---------------------------
AT&T and its Affiliates, and the shareholders, members, managers, officers,
employees, agents and/or the legal representatives of any of them (each, an
"AT&T Indemnified Party"), against all Losses incurred by any AT&T Indemnified
Party (including, without limitation, amounts paid in satisfaction of judgments,
in compromise, as fines and penalties, and as counsel fees and Losses incurred
in connection with the investigation, defense, or disposition of any action,
suit or other proceeding in which any AT&T Indemnified Party may be involved or
with which any AT&T Indemnified Party may be threatened (whether arising out of
or relating to matters asserted by third parties against an AT&T Indemnified
Party or incurred or sustained by such party in the absence of a third party
claim)) that arise out of or result from (a) any representation or warranty of
TeleCorp contained in this Agreement (other than Section 5.12) being untrue (b)
any default by TeleCorp or any of its Affiliates in the performance of their
respective obligations under this Agreement, (c) the ownership or operation of
any of the TeleCorp Assets and the conduct of TeleCorp's business prior to the
Closing Date, (d) if the Closing occurs, the ownership or operation of the AT&T
Acquired Assets prior to the Closing Date or the obligations and other
provisions of the Acquisition Agreements, or (e) the ownership or operation of
any of the AT&T Assets and the conduct of TeleCorp's business after the Closing
Date, except to the extent (but only to the extent) that any such Losses arise
out of or result from the gross negligence or willful misconduct of such AT&T
Indemnified Party or its Affiliates; provided, however, that the aggregate
-------- -------
liability of TeleCorp to indemnify AT&T Indemnified Parties against Losses
arising out of or resulting from (x) any representation or warranty of TeleCorp
contained in this
-33-
<PAGE>
Agreement (other than Section 5.12) being untrue , or (y) any default by
TeleCorp 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 TeleCorp) be limited to $100
Million Dollars.
7.4 Procedures.
----------
(a) The terms of this Section 7.4 shall apply to any third-party claim
(a "Claim") that may result in indemnification under the terms of Sections 7.2
or 7.3. The TeleCorp Indemnified Party or AT&T 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
Indemnifying Party and to approve the terms of any proposed settlement, such
approvals 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 VII 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 VII to the fullest extent permitted by Law.
(b) If 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 promptly furnishing the
Indemnified Party with copies of all material documents filed or served in
connection therewith.
(c) If the Indemnifying Party fails to assume the defense of any Claim
within thirty (30) 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 VII, 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 advance that, in the event he,
she 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, she or it was not entitled to indemnification under this
Article VII.
-34-
<PAGE>
(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) AT&T, its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them; and (ii) TeleCorp and its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them.
7.5 Tax costs and Tax benefits. The amount of any Losses for which
--------------------------
indemnification is provided under any of Sections 7.2 or 7.3, shall be (i)
increased to take account of any net Tax cost incurred by the indemnified party
arising from the receipt of indemnity payments hereunder (grossed up for such
increase) and (ii) reduced to take account of any net Tax benefit realized by
the indemnified party arising from the incurrence or payment of any such Losses.
In computing the amount of any such Tax cost or Tax benefit, the indemnified
party shall be deemed to recognize all other items of income, gain, loss,
deduction or credit before recognizing any item arising from the receipt of any
indemnity payment hereunder or the incurrence or payment of any indemnified
Losses. Any indemnification payment hereunder shall initially be made without
regard to this Section and shall be increased or reduced to reflect any such net
Tax cost (including gross-up) or net Tax benefit only after the indemnified
party has actually realized such cost or benefit. For purposes of this
Agreement, an indemnified party shall be deemed to have "actually realized" a
net Tax cost or a net Tax benefit to the extent that, and at such time as, the
amount of Taxes payable by such indemnified party is increased above or reduced
below, as the case may be, the amount of Taxes that such indemnified party would
be required to pay but for the receipt of the indemnity payment or the
incurrence or payment of such Losses, as the case may be. The amount of any
increase or reduction hereunder shall be adjusted to reflect any final
determination (which shall include the execution of Form 870-AD or successor
form) with respect to the indemnified party's liability for Taxes and payments
between the parties to this Agreement to reflect such adjustment shall be made
if necessary. Any indemnity payment under this Agreement shall be treated as an
adjustment to the value of the asset upon which its underlying claim was based,
unless a final determination (which shall include the execution of a Form 870-AD
or successor form) with respect to the indemnified party or any of its
Affiliates causes any such payment not to be treated as an adjustment to the
value of the asset for United States Federal income Tax purposes.
ARTICLE VIII
TERMINATION
8.1 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;
-35-
<PAGE>
(b) by any party by written notice to the other parties, if the
Closing of all the Swap Transactions shall not have occurred on or before
December 31, 2000; provided, however, that if the Transactions shall not have
-------- -------
been consummated solely due to the waiting period (or any extension thereof) or
approvals under the HSR Act or approvals or consent of the FCC not having
expired or been terminated or received, then such date shall be extended to
March 31, 2001; and provided, further, 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 party, if the
consummation of the Transactions shall be prohibited by a final, nonappealable
order, decree or injunction of a court of competent jurisdiction.
8.2 Effect of Termination; Tax Responsibility.
-----------------------------------------
(a) Upon 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.
(b) Upon a termination of this Agreement pursuant to Section 8.1, all
provisions of this Agreement shall terminate, except Section 1.4(b), Section 3.2
and this Section 8.2, and Articles VII, IX and X, except that nothing herein
will relieve any party from liability for any breach of this Agreement. Upon
such termination, Intermediary promptly shall return to TeleCorp all documents,
instruments and other property delivered to Intermediary by or at the direction
of TeleCorp pursuant to the provisions hereof, including, without limitation,
the TeleCorp Assignments and the Stock Consideration, if any, and return to AT&T
all documents, instruments and other property delivered to Intermediary by or at
the direction of AT&T pursuant to the provisions hereof, including, without
limitation, the AT&T Assignments, the Cash Consideration and the Asset Payment.
(c) Whether or not the Closing occurs, all costs and expenses incurred
in connection with this Agreement and the Transactions shall be paid by the
party incurring such expenses. Notwithstanding the foregoing, (i) TeleCorp
shall pay or cause to be paid at the Closing or, if due prior to the Closing,
shall reimburse AT&T at Closing for, or thereafter, promptly when due, all
Transfer Taxes (including sales taxes, gross receipts taxes, stamp taxes, and
other similar taxes) payable solely as a result of a transfer of assets 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) ("Transfer Taxes") relating to the
transfer of the TeleCorp Assets; (ii) AT&T shall pay or cause to be paid at the
Closing or, if due prior to the Closing, shall reimburse TeleCorp at Closing
for, or thereafter, promptly when due, all transfer taxes (including sales
taxes, gross receipts taxes, stamp taxes, and other similar taxes) payable
solely as a result of a transfer of assets pursuant to this Agreement, but
excluding any federal, state, local or
-36-
<PAGE>
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) relating to the AT&T Owned Assets, (iii) in
the case of any Taxable period that includes (but does not begin on) the Closing
Date (the "Tax Period") (x) real, personal and intangible property Taxes
(collectively, "Property Taxes") of AT&T for the AT&T Owned Assets on the one
hand, and the Property Taxes of TeleCorp for the TeleCorp Assets on the other
hand, for the pre-Closing Tax period shall be equal to the amount of such
Property Taxes for the entire Tax Period multiplied by a fraction, the numerator
of which is the number of full days during the Tax Period that are in the pre-
Closing Tax period and the denominator of which is the number of days in the Tax
Period; and (y) the Taxes (other than Property Taxes, income Taxes and Transfer
Taxes) of AT&T in respect of the AT&T Owned Assets, on the one hand, and
TeleCorp in respect of the TeleCorp Assets on the other hand, for the pre-
Closing Tax period shall be computed as if such Taxable period ended as of the
opening of business on the Closing Date; and (iv) TeleCorp and AT&T shall each
be responsible, with respect to their respective transferred assets, for
preparing and filing all Federal, state, local and other Tax returns and
conducting Tax audits that relate to operations or events affecting Tax periods
ending prior to the Closing Date, including Tax returns the due date of which is
after the Closing Date (or in the case of income Taxes, any Tax period).
(d) Notwithstanding any other provision of this Agreement:
(i) AT&T shall be responsible for, and shall hold the TeleCorp
Indemnified Parties harmless from and against (A) any income Taxes imposed
on AT&T or any of its Affiliates, (B) any Taxes (other than income Taxes)
imposed on AT&T or any of its Affiliates, which Taxes are not related to
nor imposed on or with respect to the AT&T Assets and (C) any Taxes (other
than income Taxes and Transfer Taxes) imposed on or with respect to (x) the
AT&T Owned Assets for any taxable period, or portion thereof, ending prior
to the Closing Date or (y) with respect to the TeleCorp Assets for any
taxable period, or portion thereof, beginning on the Closing Date
(calculated, in the case of (x) and (y) for a Tax Period, as set forth
above in Section 8.2(c));
(ii) TeleCorp shall be responsible for, and shall hold the AT&T
Indemnified Parties harmless from and against (A) any income Taxes imposed
on TeleCorp or any of its Affiliates, (B) any Taxes (other than income
Taxes) imposed on TeleCorp or any of its Affiliates, which Taxes are not
related to nor imposed on or with respect to the TeleCorp Assets and (C)
any Taxes (other than income Taxes and Transfer Taxes) imposed on or with
respect to (x) the TeleCorp Assets for any taxable period, or portion
thereof, ending prior to the Closing Date or (y) with respect to the AT&T
Owned Assets for any taxable period, or portion thereof, beginning on the
Closing Date (calculated, in the case of (x) and (y) for a Tax Period, as
set forth above in Section 8.2(c)); and
(iii) AT&T and TeleCorp, respectively, shall be entitled to control
in all respects (and no other Person shall have any rights with respect to)
any audit,
-37-
<PAGE>
examination or other Tax proceeding by or with a Governmental Authority
with respect to any consolidated, combined or unitary Tax return or any
other income Tax Return of AT&T (or any of its Affiliates) or TeleCorp (or
any of its Affiliates), respectively.
(e) In the case of an audit, examination or other Tax proceeding for a
Tax Period by or with a Governmental Authority which may result in
indemnification pursuant to Section 8.2(d)(i)(C) or 8.2(d)(ii)(C), the
provisions of Section 7.4 shall apply, provided that the party with respect to
which the claim by the Governmental Authority is greater shall, solely for
purposes of this sentence, have the rights and obligations set forth in Section
7.4 of the "Indemnifying Party," and the other party shall, solely for purpose
of the sentence, have the rights and obligations set forth in Section 7.4 of the
"Indemnified Party," with respect to such proceeding.
(f) TeleCorp and AT&T shall each pay one-half of all fees required to
be paid (i) under the HSR Act relating to the Transactions hereunder, and (ii)
to the FCC in connection with the filing of the applications for transfer of the
Licenses contemplated to be transferred in the Swap Transactions.
ARTICLE IX
DEFINITIONS
For purposes of this Agreement:
"ABC," "ABC Licenses" and "ABC Acquisition Agreement" have the
meanings set forth in the recitals.
"Acquisition Agreements" has the meaning set forth in the recitals.
"Affiliate" means, with respect to any Person, any other Person that
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
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.
Notwithstanding the foregoing, for purposes of this Agreement, neither TeleCorp
and its Subsidiaries, on the one hand, nor AT&T and its Subsidiaries , on the
other hand, shall be considered an Affiliate of the other.
"Agreement" has the meaning set forth in the preamble.
"Asset Payment" has the meaning set forth in the recitals.
"AT&T" has the meaning set forth in the preamble.
"AT&T Acquired Assets" has the meaning set forth in the recitals.
-38-
<PAGE>
"AT&T Acquisition Assignments" has the meaning set forth in Section
2.2(a).
"AT&T Assets" has the meaning set forth in the recitals.
"AT&T Assignments" has the meaning set forth in Section 2.2(a).
"AT&T Disclosure Schedule" has the meaning set forth in Article IV.
"AT&T Entities" has the meaning set forth in the preamble.
"AT&T Indemnified Party" has the meaning set forth in Section 7.3.
"AT&T License Assignments" has the meaning set forth in Section
2.2(a).
"AT&T Material Adverse Effect" means any change, event or effect that
is materially adverse to the business, assets (including intangible assets),
financial condition or results of operations of the AT&T Assets, taken as a
whole, excluding any adverse change in, or effect on, the financial condition or
revenues of the AT&T Assets to the extent attributable to (i) general economic
conditions in the United States and (ii) conditions affecting the wireless
communications industry generally.
"AT&T Owned Assets" has the meaning set forth in the recitals.
"AT&T Related Documents" has the meaning set forth in Section 4.1(b).
"Boston Business" has the meaning set forth in the recitals.
"Boston Employees" has the meaning set forth in Section 3.7(a).
"Boston Licenses" has the meaning set forth in the recitals.
"BTA" means the unit of division (of which there are four hundred
ninety-three (493)) for the United States of America, devised by Rand McNally
based upon geography, population and other factors, which units form the basis
for the auction by the FCC of a portion of the Licenses for PCS Systems for
Basic Trading Areas, as defined by the FCC.
"Business Day" means any day other than a Saturday, Sunday or a legal
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.
"Cash Consideration" has the meaning set forth in recitals.
"Closing" has the meaning set forth in Section 2.1.
"Closing Date" has the meaning set forth in Section 2.1.
-39-
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Confidential Information" means any and all information regarding the
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
Authorities or other third parties necessary to authorize, approve or permit the
parties hereto to consummate the Transactions and for TeleCorp to operate its
business (including the AT&T Assets) after the Closing Date as currently
contemplated.
"Contract" means any contract, mortgage, deed of trust, bond,
indenture, lease, license, note, franchise, certificate, option, warrant, right
or other instrument, document, obligation or agreement, whether written or oral.
"Designated Transferee" has the meaning set forth in Section 10.14.
"DOJ" has the meaning set forth in Section 3.1(d)(iii).
"Environmental Laws" means: the Comprehensive Response, Compensation
and Liability Act, as amended by the Superfund Amendments and Reauthorization
Act (42 U.S.C. (S) 9601 et seq.) ("CERCLA") and/or the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act (42 U.S.C. (S) 6901 et
seq.) ("RCRA") and/or the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
seq.) ("TSCA") and/or the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. (S) 136 et seq.) ("FIFRA") and/or the Clean Air Act (42 U.S.C. (S) 7401
et seq.) ("CAA") and/or the Federal Water Pollution Control Act (33 U.S.C. (S)
1251 et seq.) ("FWPCA") and/or the Safe Drinking Water Act (42 U.S.C. (S) 300f
et seq.) ("SDWA") and/or the Oil Pollution Act of 1990 (33 U.S.C. (S)(S) 2701-
2761) ("OPA") and/or the Emergency Planning and Community Right-to-Know Act of
1986 (42 U.S.C. (S)(S) 11001-11050) ("EPCRA") including any amendments or
extensions thereof; and/or the Building Occupancy Code Administration,
Occupational Safety and Health Act (29 U.S.C. (S)(S) 651 et seq.) and Codes of
the National Fire Protection Association; and all statutes, laws, regulations,
rules, ordinances, codes, licenses, permits, guidelines, standards, orders,
requirements, approvals and similar items of all governmental agencies,
departments, commissions, boards and instrumentalities of the United States, any
foreign country, or any state, or any political subdivision thereof relating to
pollution and/or the protection of human health and/or the environment,
including, without limitation, those relating to reporting, licensing,
permitting, investigating, removing or remediating Materials of Environmental
Concern.
"Excluded Employees" has the meaning set forth in Section 3.7(a).
"FCC" means the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"FCC Applications" has the meaning set forth in Section 3.1(d)(i).
-40-
<PAGE>
"FCC Law" means the Communications Act of 1934, as amended, including
as amended by the Telecommunications Act of 1996, and the rules, regulations and
policies promulgated thereunder.
"Final Order" has the meaning set forth in Section 6.1(b).
"First Transfer Date" has the meaning set forth in Section 1.4.
"FTC" has the meaning set forth in Section 3.1(d)(iii).
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency, commission or regulatory or administrative
authority or instrumentality.
"Hired Employee" has the meaning set forth in Section 3.7(f)(i).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" and "Indemnifying Party" have the meanings set
forth in Section 7.4.
"Indus" has the meaning set forth in the recitals.
"Indus Purchase Agreement" has the meaning set forth in the recitals.
"Intellectual Property" means any (a) trademarks, trade dress, trade
names, service marks, logos and other similar proprietary rights, (b) domain
names, (c) copyrights and (d) patents and patentable know-how, inventions and
processes.
"Intermediary" has the meaning set forth in the recitals.
"Intermediary Agreement" has the meaning set forth in the recitals.
"Iowa Licenses" has the meanings set forth in the recitals.
"Law" means applicable common law and any statute, ordinance, code or
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.
"Letter of Instruction" has the meaning set forth in Section 2.2(e).
"License" means a license, permit, certificate of authority, waiver,
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.
-41-
<PAGE>
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, option, title defect, restriction, 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 7.2.
"Materials of Environmental Concern" means any substance: (a) the
presence of which requires investigation or remediation under any Environmental
Law; or (b) which is defined as a "hazardous waste," "hazardous substance,"
"hazardous material," toxic substance, pollutant or contaminant under any
Environmental Law; or (c) which is identified under any Environmental Laws as
toxic, explosive, corrosive, flammable, ignitable, reactive, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
restricted or regulated by any governmental, quasi-governmental or regulatory
authority, agency, department, commission, board, agency or instrumentality of
the United States, any foreign country, or any state, or any political
subdivision thereof; or (d) without limitation, which includes or contains
gasoline, diesel fuel or other petroleum hydrocarbons or byproducts.
"MTA" means the unit of division (of which there are fifty-one (51))
for the United States of America, devised by Rand McNally based upon geography,
population and other factors, which units form the basis for the auction by the
FCC of a portion of the Licenses for PCS Systems for Major Trading Areas, as
defined by the FCC.
"New York Courts" has the meaning set forth in Section 10.5.
"PCS" means Personal Communications Services, which is the term to
describe the services that may be provided as a result of obtaining the
Licenses, the exchanges of which are contemplated hereby, under FCC Law.
"Permitted Liens" means (a) Liens for Taxes, assessments and
governmental charges, in each case not yet due and payable, (b) zoning laws or
ordinances or any similar Laws, (c) rights reserved to any Governmental
Authority to regulate the affected property, (d) Liens described on Schedule 5.6
------------
of the TeleCorp Disclosure Schedule, which liens do not individually or in the
aggregate interfere with the right or ability of the applicable party to own,
use enjoy or operate the applicable assets in the manner currently used or to
convey good and marketable title or enforceable rights thereto, (e) as to leased
property the interests of the lessors thereof, (f) FCC Liens, and (g) as to Real
Property, any easements, rights-of-way, servitudes, conditions, covenants,
restrictions and minor imperfections or irregularities in title, in each case,
which are reflected in the public records and which do not individually or in
the aggregate interfere with the right or ability of the applicable party to
own, use, enjoy or operate the Real Property in the manner currently used or to
convey good, marketable and indefeasible fee simple title to the same; provided,
--------
that "Permitted Liens" will not include any Lien which could prevent or inhibit
in any way (other than as permitted under clause (f)) the conduct of the
business of the affected Party.
-42-
<PAGE>
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"Polycell," "Polycell Licenses" and "Polycell Acquisition Agreement"
have the meanings set forth in the recitals.
"Polycell Buyer" has the meaning set forth in the recitals.
"POPs" mean the Paul Kagan Associates, Inc. estimate of the 1999
population of a geographic area.
"Property Taxes" has the meaning set forth in Section 8.2(c).
"Qualified Intermediary" means a "qualified intermediary" as defined
in Regulations section 1.1031(k)-1(g)(4)(iii).
"Regulations" means the Treasury Department regulations (including
temporary regulations) promulgated under the Code.
"Replacement Assets" has the meaning set forth in Section 1.4.
"Representatives" has the meaning set forth in Section 3.2(a).
"Stock Consideration" has the meaning set forth in the recitals.
"Subsidiary" shall mean, with respect to any Person, a corporation or
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.
"Swap Transactions" has the meaning set forth in the recitals.
"Tax" or "Taxes" means any Federal, state, local or foreign tax, fee
or other like assessment or charge of any kind, including any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, value-added, transfer, franchise, profits, license, withholding on
amounts paid to or by the taxpayer, payroll, employment, excise, severance,
stamp, capital stock occupation, property, environmental or windfall tax,
premium, custom, duty or other tax of any kind whatsoever, including any
interest, penalty or addition thereto.
"Tax Period" has the meaning set forth in Section 8.2(c).
"TeleCorp" has the meaning set forth in the preamble.
"TeleCorp Assets" has the meaning set forth in the recitals.
"TeleCorp Assigned Agreements" has the meaning set forth in Section
5.9.
-43-
<PAGE>
"TeleCorp Assigned Leases" means those leases included in the TeleCorp
Assets.
"TeleCorp Assignments" has the meaning set forth in Section 2.2(c).
"TeleCorp Books and Records" means all engineering records, files,
data, drawings, blueprints, schematics, reports, lists, plans and procedures and
all other files of correspondence, lists, records and reports concerning the
Boston Business, including subscribers and prospective subscribers of the Boston
Business, dealings with Governmental Authorities with respect to the Boston
Business, including all reports filed with respect to the Boston Business by or
on behalf of TeleCorp or any Affiliate with the FCC, and including all
documents, reports and records relating to any employee of the Business who has
given consent to disclosure of such documents, reports and records or which may
otherwise be transferred without violation of the Law.
"TeleCorp Disclosure Schedule" has the meaning set forth in Article V.
"TeleCorp Entities" has the meaning set forth in the preamble.
"TeleCorp Excluded Assets" means (i) bonds, letters of credit, surety
instruments and other similar items; (ii) cash and cash equivalents, including
cash relating to customer subscriber prepayments and deposits, and notes
receivable; (iii) Intellectual Property held by TeleCorp or any of its
Affiliates, other than AT&T; (iv) assets, rights or properties of TeleCorp or
its Affiliates used or held for use other than principally in connection with
the Boston Business, and (v) Claims, rights and interest in and to any refunds
of taxes or fees of any nature, or other Claims against third parties, relating
to the operation of the Boston Business prior to the Closing Date.
"TeleCorp Indemnified Party" has the meaning set forth in Section 7.2.
"TeleCorp Material Adverse Effect" means any change, event or effect
that is materially adverse to the business, assets (including intangible
assets), financial condition or results of operations of the TeleCorp Assets or
the Boston Business, taken as a whole, excluding any adverse change in, or
effect on, the financial condition or revenues of the TeleCorp Assets or the
Boston Business to the extent attributable to (i) general economic conditions in
the United States and (ii) conditions affecting the wireless communications
industry generally.
"TeleCorp Real Property" means (i) any real property or facility
presently or previously owned by TeleCorp or any of its predecessors in
interest; (ii) any real property or facility presently or previously leased to
TeleCorp (or any predecessor in interest) by any Person; (iii) any real property
or facility presently or previously operated for TeleCorp or any of its
predecessors in interest by any Person; (iv) any real property or facility
presently or previously used or occupied by TeleCorp or any of its predecessors
in interest; and/or (v) any real property or facility at which the products or
equipment of TeleCorp or any of its predecessors in interest have been or are
being installed or used, in any event that is or was used in connection with
TeleCorp's operation of a PCS business in the areas covered by, or which are
otherwise included as part of the TeleCorp Assets.
-44-
<PAGE>
"TeleCorp Related Documents" has the meaning set forth in Section
5.1(b).
"Transfer Taxes" has the meaning set forth in Section 8.2(c).
"Transactions" means the Swap Transactions and other transactions
contemplated by this Agreement.
"Wisconsin Licenses" have the meanings set forth in the recitals.
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 "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 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
permits consent by or on 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, by overnight courier service, 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):
-45-
<PAGE>
If to AT&T at:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, NJ 07920
Attention: Marilyn J. Wasser
Fax: (908) 221-6618
With a copy to:
Wachtell Lipton, Rosen & Katz
51 West 52/nd/ Street
New York, NY 10019
Attention: Steve A. Rosenblum and Trevor S. Norwitz
Fax: (212) 403-2000
Friedman, Kaplan & Seiler
875 Third Avenue
New York, NY
Attention: Gary Friedman
Fax:
If to TeleCorp or its Affiliates, to TeleCorp at:
1010 North Glebe Road, Suite 800
Arlington, Virginia 22201
Attention: Thomas H. Sullivan
Facsimile: (703) 236-1376
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: Alicia M.V. Wyman
Facsimile: (617) 592-2241
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Attention: Brian Hoffman
Fax: (212) 504-6666
10.4 Parties in Interest; Assignment. This Agreement is binding upon, and is
-------------------------------
solely for the benefit of (except to the extent set forth in Section 10.13) the
parties hereto and their respective Affiliates, permitted successors, legal
representatives and permitted
-46-
<PAGE>
assigns. Subject to Section 10.14, neither party may assign its rights and
obligations hereunder without the prior written consent of the other party.
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 NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA LOCATED IN THE
STATE OF 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.
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. Facsimile signatures on this Agreement
shall be deemed to be original signatures for all purposes.
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 Schedule
----------------
hereto 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 the
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, including state and Federal securities Laws.
No press release or other public statement by a party shall disclose any of the
financial terms of the Transactions without the prior consent of the other
party, 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 if 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
-47-
<PAGE>
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 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
parties hereto and the TeleCorp Indemnified Parties and AT&T 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 Designated Transferee. It is understood and agreed between the parties
---------------------
that TeleCorp or AT&T, respectively, may cause one or more of its direct or
indirect Affiliates or wholly owned Subsidiaries (each a "Designated
Transferee") to acquire all or part of the AT&T Assets or TeleCorp Assets,
respectively, hereunder; provided, that notwithstanding any such designation,
--------
TeleCorp and AT&T, respectively, shall remain fully liable for all of its
obligations and those of the Designated Transferee hereunder; provided, further,
-------- -------
that AT&T may cause its Designated Transferee to pay all or part of the Asset
Payment or Cash Consideration payable hereunder.
10.15 Access to Records. From and after the Closing Date (i) AT&T shall
-----------------
furnish TeleCorp with reasonable access to AT&T's books and records that after
the Closing are in the custody and control of AT&T and that relate solely to the
AT&T Assets as TeleCorp may reasonably request in order to comply with their
obligations under Law, and (ii) TeleCorp shall furnish AT&T with reasonable
access to TeleCorp's books and records that after the Closing are in the custody
and control of TeleCorp and that relate solely to the Boston Licenses and
TeleCorp Assets as AT&T reasonably request in order to comply with its
obligations under Law.
10.16 Agency. TeleCorp is hereby appointed agent of the Designated TeleCorp
------
Affiliates for purposes of effecting the transactions contemplated hereunder.
-48-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AT&T WIRELESS PCS, LLC
By:
Name:
Title:
TELECORP PCS, INC.
By:
Name:
Title:
TELECORP PCS, LLC
By:
Name:
Title:
TELECORP HOLDING CORP., INC.
By:
Name:
Title:
TELECORP COMMUNICATIONS, INC.
By:
Name:
Title:
-49-
<PAGE>
TELECORP EQUIPMENT LEASING, L.P.
By:
Name:
Title:
TELECORP REALTY, LLC
By:
Name:
Title:
-50-
<PAGE>
EXHIBIT 10.2
VOTING AGREEMENT
Agreement dated as of February 28, 2000 among each of the shareholders
listed on the signature pages hereto (each, a "Shareholder") of TeleCorp PCS,
Inc., a Delaware corporation ("Virginia"), Virginia and Tritel Inc., a Delaware
corporation ("Mississippi").
(A) Virginia, Mississippi and certain other parties are parties to an
Agreement and Plan of Reorganization and Contribution dated as of the date
hereof (the "Reorganization Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned such terms in the
Reorganization Agreement.
(B) Each of Mississippi and Virginia agreed to enter into the
Reorganization Agreement on the condition that the parties hereto enter into
this Voting Agreement.
Accordingly, the parties hereto agree as follows:
1. Representations and Warranties of Each Shareholder. Each
--------------------------------------------------
Shareholder hereby represents and warrants, severally and not jointly, to
Mississippi and Virginia as follows (with respect to itself only):
(a) Title. As of the date hereof, each Shareholder beneficially owns
-----
the amount and class of capital stock of Virginia set forth after such
Shareholder's name on Exhibit A attached hereto (with respect to each
---------
Shareholder, the capital stock specified after such Shareholder's name on
Exhibit A hereto shall be referred to herein as the "Shares").
(b) Right to Vote. As of the date hereof and as of the date of the
-------------
Virginia Stockholder Meeting, except for this Agreement or as otherwise
permitted by this Agreement, each Shareholder has full legal power, authority
and right to vote all Shares, to the extent the Shares carry rights to vote
thereon, in favor of the Virginia Proposals without the consent or approval of,
or any other action on the part of, any other person or entity. Without limiting
the generality of the foregoing, except for this Agreement or as otherwise
permitted by this Agreement or as disclosed in Schedule 1 hereto, each
Shareholder has not entered into any voting agreement with any person or entity
with respect to any Shares, granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any Shares, deposited any
Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting its legal power, authority or right to
vote the Shares in favor of the Virginia Proposals. From and after the date
hereof, except as otherwise permitted by this Agreement, each Shareholder will
not commit any act that could restrict or otherwise affect such legal power,
authority and right to vote all Shares, to the extent the Shares carry the right
to vote thereon, in favor of the Virginia Proposals. Without limiting the
generality of the foregoing, except as otherwise permitted by this Agreement,
from and after the date hereof, each Shareholder will not enter into any voting
agreement with any person or entity with respect to any of the Shares, grant any
person or entity any proxy (revocable or irrevocable) or power of attorney with
respect to any of the Shares, deposit any of the Shares in a voting trust or
otherwise enter into any agreement or arrangement limiting or affecting such
Shareholder's legal power,
<PAGE>
authority or right to vote the Shares in favor of the approval of the Virginia
Proposals (other than this Agreement).
(c) Authority. Each Shareholder has full legal power, authority and right
---------
to execute and deliver, and to perform his obligations under, this Agreement.
This Agreement has been duly and validly executed and delivered by each
Shareholder and constitutes a valid and binding agreement of each Shareholder
enforceable against each Shareholder in accordance with its terms, subject to
(i) bankruptcy, insolvency, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors rights generally and (ii) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(d) Conflicting Instruments; No Transfer. Neither the execution and
------------------------------------
delivery of this Agreement nor the performance by each Shareholder of his
agreements and obligations hereunder will result in any breach or violation of
or be in conflict with or constitute a default under any term of any agreement,
judgment, injunction, order, decree, law, regulation or arrangement to which
such Shareholder is a party or by which such Shareholder (or any of his assets)
is bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or adversely affect such
Shareholder's ability to perform its obligations under this Agreement.
2. Restriction on Transfer. Each Shareholder agrees that (other than
-----------------------
pursuant to the Reorganization Agreement) he will not, and will not agree to,
sell, assign, dispose of, encumber, mortgage, hypothecate or otherwise transfer
(collectively, "Transfer') any Shares, including, without limitation, tender any
of the shares in a tender offer.
3. Agreement to Vote of Each Shareholder. Each Shareholder hereby
-------------------------------------
irrevocably and unconditionally agrees to vote or to cause to be voted all
Shares, to the extent the Shares carry the right to vote thereon, at the
Virginia Stockholders Meeting and at any other annual or special meeting of
shareholders of Virginia where any such proposal is submitted (a) in favor of
the Virginia Proposals and (b) against (i) approval of any proposal made in
opposition to or in competition with the transactions contemplated by the
Reorganization Agreement, (ii) any merger, consolidation, sale of assets,
business combination, share exchange, reorganization or recapitalization of
Virginia or any of its subsidiaries, with or involving any party other than as
contemplated by the Reorganization Agreement, (iii) any liquidation or winding
up of Virginia, (iv) any extraordinary dividend by Virginia, (v) any change in
the capital structure of Virginia (other than pursuant to the Reorganization
Agreement) and (vi) any other action that may reasonably be expected to impede,
interfere with, delay, postpone or attempt to discourage the consummation of the
transactions contemplated by the Reorganization Agreement or result in a breach
of any of the covenants, representations, warranties or other obligations or
agreements of Virginia under the Reorganization Agreement which would materially
and adversely affect Virginia or Mississippi or their respective abilities to
consummate the transactions contemplated by the Reorganization Agreement.
4. Granting of Proxy. In furtherance of the terms and provisions of
-----------------
the Agreement, each shareholder hereby grants an irrevocable proxy (Subject to
Section 10(b)), coupled with an interest, to the President and Secretary of
Mississippi to vote all Shares beneficially owned by such Shareholder in favor
of the approval of the Virginia Proposals and
-2-
<PAGE>
against any of the matters specified in clause (b) of Section 3. Each
Shareholder hereby ratifies and approves of each and every action taken by
Mississippi pursuant to the foregoing proxy. Notwithstanding the foregoing, if
requested by Mississippi, each Shareholder will execute and deliver applicable
proxy material in furtherance of the provisions of Section 3.
5. Action in Shareholder Capacity Only. Each Shareholder makes no
-----------------------------------
agreement or understanding herein as director or officer of Virginia. Each
Shareholder signs solely in his capacity as a record holder and beneficial owner
of the Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of Virginia.
6. Invalid Provisions. If any provision of this Agreement shall be
------------------
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
7. Executed in Counterparts. This Agreement may be executed in
------------------------
counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument.
8. Specific Performance. The parties hereto agree that if for any
--------------------
reason any Shareholder fails to perform any of his agreements or obligations
under this Agreement irreparable harm or injury to Virginia and Mississippi
would be caused with respect to which money damages would not be an adequate
remedy. Accordingly, each Shareholder agrees that, in seeking to enforce this
Agreement against each Shareholder, each of Mississippi and Virginia shall be
entitled, in addition to any other remedy available at law, equity or otherwise,
to specific performance and injunctive and other equitable relief.
9. Governing Law; Submission to Jurisdiction. The Agreement shall be
-----------------------------------------
governed by, and construed and enforced in accordance with, the domestic laws of
the State of Delaware without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware. Each of the parties hereto irrevocably agrees
that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the
other party hereto or its successors or assigns may be brought and determined in
the courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the nonexclusive
jurisdiction of the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (b) that it or its property is exempt
or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of judgment, execution of
judgment, or otherwise), and (c) to the fullest extent permitted by the
applicable law, that (i) the suit, action or proceeding in such court is brought
in an inconvenient forum, (ii) the venue of such suit, action or proceeding
-3-
<PAGE>
is improper and (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
10. Amendments; Termination. (a) This Agreement may not be modified,
-----------------------
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by all parties hereto.
(b) The provisions of this Agreement shall terminate upon the earliest to
occur of (i) the consummation of the Mergers, and (ii) the date which is two
years after the date hereof and (iii) the termination of the Reorganization
Agreement.
(c) For purposes of this Agreement, the term "Reorganization Agreement"
includes the Reorganization Agreement, as the same may be modified or amended
from time to time.
11. Additional Shares. If, after the date hereof, any Shareholder
-----------------
acquires beneficial ownership of any additional shares of capital stock of
Virginia (any such shares, "Additional Shares"), including, without limitation,
upon exercise of any option, warrant or right to acquire Shares of capital stock
of Virginia or through any stock dividend or stock split, the provisions of this
Agreement applicable to the Shares shall be applicable to such Additional Shares
as if such Additional Shares had been Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by any Shareholder of beneficial ownership of such Additional
Shares.
12. Successors and Assigns. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
legal successors (including, in the case of any Shareholder or any other
individual, any executors, administrators, estates, legal representatives and
heirs of such Shareholder or such individual) and permitted assigns; provided,
--------
however, that, except as otherwise provided in this Agreement, no party may
- --------
assign, delegate or otherwise transfer any of its rights or obligations, under
this Agreement, without the consent of Mississippi and Virginia, in the case of
any Shareholder, the Shareholders and Virginia, in the case of Mississippi, and
the Shareholders and Mississippi, in the case of Virginia. Without limiting the
scope or effect of the restrictions on Transfer set forth in Section 2 hereof,
each Shareholder agrees that this Agreement and the obligations hereunder shall
attach to the Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 28 day of February, 2000.
TeleCorp PCS, Inc.
By:________________________________
Name:____________________________
Title:___________________________
Tritel, Inc.
By:________________________________
Name:____________________________
Title:___________________________
Gerald T. Vento
By:________________________________
Name:____________________________
Title:___________________________
Thomas H. Sullivan
By:________________________________
Name:____________________________
Title:___________________________
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Shareholder Name Amount and Class of Shares
---------------- --------------------------
<S> <C> <C>
Gerald T. Vento Class A Common Stock: 4,974,449 (1)
Class C Common Stock: 105,444
Class D Common Stock: 14,503 (2)
Voting Preference Common Stock:
Series C Preferred Stock: 420
Series E Preferred Stock 11,235
</TABLE>
____________
(1) Consists of 492,064 shares of Class A Common Stock held by TeleCorp
Investment Corp. II, L.L.C. (TIC II) and 4,482,385 shares of Class A Common
Stock held by Mr. Vento. Mr. Vento serves as a manager and is a member of
TIC II.
(2) Consists of 11,366 shares of Class D Common Stock held by TIC II and 3,137
shares of Class D Common Stock held by Mr. Vento. Mr. Vento is a manager and
a member of TIC II.
<TABLE>
<CAPTION>
Shareholder Name Amount and Class of Shares
---------------- --------------------------
<S> <C> <C>
Thomas H. Sullivan Class A Common Stock: 3,220,955 (3)
Class C Common Stock: 65,373
Class D Common Stock: 12,065 (4)
Voting Preference Common Stock: 1,540
Series C Preferred Stock: 109
Series E Preferred Stock 6,984
</TABLE>
______________
(3) Consists of 492,064 shares of Class A Common Stock held by TIC II and
2,728,891 shares of Class A Common Stock held by Thomas H. Sullivan. Mr.
Sullivan serves as manager and is the manager of a member of TIC II.
(4) Consists of 11,366 shares of Class D Common Stock held by TIC II and 699
shares of Class D Common Stock held by Mr. Sullivan. Mr. Sullivan serves as
a manager and is the manager of a member of TIC II.
<PAGE>
SCHEDULE 1
The Stockholders' Agreement, dated as of June 17, 1998, by and among
TeleCorp PCS, Inc., Thomas H. Sullivan, Gerald T. Vento and the other
stockholders named therein.
-7-
<PAGE>
EXHIBIT 10.3
Execution Copy
VOTING AGREEMENT
Agreement dated as of February 28, 2000 among each of the shareholders
listed on the signature pages hereto (each, a "Shareholder") of Tritel, Inc., a
Delaware corporation ("Mississippi"), Mississippi and TeleCorp PCS, Inc., a
Delaware corporation ("Virginia").
(A) Virginia, Mississippi and certain other parties are parties to an
Agreement and Plan of Reorganization and Contribution dated as of the date
hereof (the "Reorganization Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned such terms in the
Reorganization Agreement.
(B) Each of Virginia and Mississippi agreed to enter into the
Reorganization Agreement on the condition that the parties hereto enter into
this Voting Agreement.
Accordingly, the parties hereto agree as follows:
1. Representations and Warranties of Each Shareholder. Each
--------------------------------------------------
Shareholder hereby represents and warrants, severally and not jointly, to
Virginia and Mississippi as follows (with respect to itself only):
(a) Title. As of the date hereof, each Shareholder beneficially
-----
owns the amount and class of capital stock of Mississippi set forth after such
Shareholder's name on Exhibit A attached hereto (with respect to each
---------
Shareholder, the capital stock specified after such Shareholder's name on
Exhibit A hereto shall be referred to herein as the "Shares").
(b) Right to Vote. As of the date hereof and as of the date of the
-------------
Mississippi Stockholder Meeting, except for this Agreement or as otherwise
permitted by this Agreement, each Shareholder has full legal power, authority
and right to vote all Shares, to the extent the Shares carry rights to vote
thereon, in favor of the Mississippi Proposals without the consent or approval
of, or any other action on the part of, any other person or entity. Without
limiting the generality of the foregoing, except for this Agreement or as
otherwise permitted by this Agreement or as disclosed in Schedule 1 hereto, each
Shareholder has not entered into any voting agreement with any person or entity
with respect to any Shares, granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any Shares, deposited any
Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting its legal power, authority or right to
vote the Shares in favor of the Mississippi Proposals. From and after the date
hereof, except as otherwise permitted by this Agreement, each Shareholder will
not commit any act that could restrict or otherwise affect such legal power,
authority and right to vote all Shares, to the extent the Shares carry the right
to vote thereon, in favor of the Mississippi Proposals. Without limiting the
generality of the foregoing, except as otherwise permitted by this Agreement,
from and after the date hereof, each Shareholder will not enter into any voting
agreement with any person or entity with respect to any of the Shares, grant any
person or entity any proxy (revocable or irrevocable) or power of attorney with
respect to any of the Shares, deposit any of the Shares in a voting trust or
otherwise enter into any agreement or arrangement limiting or affecting such
Shareholder's legal power,
<PAGE>
authority or right to vote the Shares in favor of the approval of the
Mississippi Proposals (other than this Agreement).
(c) Authority. Each Shareholder has full legal power, authority and
---------
right to execute and deliver, and to perform his obligations under, this
Agreement. This Agreement has been duly and validly executed and delivered by
each Shareholder and constitutes a valid and binding agreement of each
Shareholder enforceable against each Shareholder in accordance with its terms,
subject to (i) bankruptcy, insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors rights generally and (ii)
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
(d) Conflicting Instruments; No Transfer. Neither the execution and
------------------------------------
delivery of this Agreement nor the performance by each Shareholder of his
agreements and obligations hereunder will result in any breach or violation of
or be in conflict with or constitute a default under any term of any agreement,
judgment, injunction, order, decree, law, regulation or arrangement to which
such Shareholder is a party or by which such Shareholder (or any of his assets)
is bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or adversely affect such
Shareholder's ability to perform its obligations under this Agreement.
2. Restriction on Transfer. Each Shareholder agrees that (other
-----------------------
than pursuant to the Reorganization Agreement) he will not, and will not agree
to, sell, assign, dispose of, encumber, mortgage, hypothecate or otherwise
transfer (collectively, "Transfer') any Shares, including, without limitation,
tendering any of the shares in a tender offer.
3. Agreement to Vote of Each Shareholder. Each Shareholder hereby
-------------------------------------
irrevocably and unconditionally agrees to vote or to cause to be voted all
Shares, to the extent the Shares carry the right to vote thereon, at the
Mississippi Stockholders Meeting and at any other annual or special meeting of
shareholders of Mississippi where any such proposal is submitted (a) in favor of
the Mississippi Proposals and (b) against (i) approval of any proposal made in
opposition to or in competition with the transactions contemplated by the
Reorganization Agreement, (ii) any merger, consolidation, sale of assets,
business combination, share exchange, reorganization or recapitalization of
Mississippi or any of its subsidiaries, with or involving any party other than
as contemplated by the Reorganization Agreement, (iii) any liquidation or
winding up of Mississippi, (iv) any extraordinary dividend by Mississippi, (v)
any change in the capital structure of Mississippi (other than pursuant to the
Reorganization Agreement) and (vi) any other action that may reasonably be
expected to impede, interfere with, delay, postpone or attempt to discourage the
consummation of the transactions contemplated by the Reorganization Agreement or
result in a breach of any of the covenants, representations, warranties or other
obligations or agreements of Mississippi under the Reorganization Agreement
which would materially and adversely affect Virginia or Mississippi or their
respective abilities to consummate the transactions contemplated by the
Reorganization Agreement.
4. Granting of Proxy. In furtherance of the terms and provisions of
-----------------
this Agreement, each Shareholder hereby grants an irrevocable proxy (subject to
Section 10(b)), coupled with an interest, to the President and Secretary of
Virginia to vote all Shares beneficially
-2-
<PAGE>
owned by such Shareholder in favor of the approval of the Mississippi Proposals
and against any of the matters specified in clause (b) of Section 3. Each
Shareholder hereby ratifies and approves of each and every action taken by
Virginia pursuant to the foregoing proxy. Notwithstanding the foregoing, if
requested by Virginia, each Shareholder will execute and deliver applicable
proxy material in furtherance of the provisions of Section 3.
5. Action in Shareholder Capacity Only. Each Shareholder makes no
-----------------------------------
agreement or understanding herein as director or officer of Mississippi. Each
Shareholder signs solely in his capacity as a record holder and beneficial owner
of the Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of Mississippi.
6. Invalid Provisions. If any provision of this Agreement shall be
------------------
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
7. Executed in Counterparts. This Agreement may be executed in
------------------------
counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument.
8. Specific Performance. The parties hereto agree that if for any
--------------------
reason any Shareholder fails to perform any of his agreements or obligations
under this Agreement irreparable harm or injury to Virginia and Mississippi
would be caused with respect to which money damages would not be an adequate
remedy. Accordingly, each Shareholder agrees that, in seeking to enforce this
Agreement against each Shareholder, each of Virginia and Mississippi shall be
entitled, in addition to any other remedy available at law, equity or otherwise,
to specific performance and injunctive and other equitable relief.
9. Governing Law; Submission to Jurisdiction. The Agreement shall
-----------------------------------------
be governed by, and construed and enforced in accordance with, the domestic laws
of the State of Delaware without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware. Each of the parties hereto irrevocably agrees
that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the
other party hereto or its successors or assigns may be brought and determined in
the courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the nonexclusive
jurisdiction of the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (b) that it or its property is exempt
or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of judgment, execution of
judgment, or otherwise), and (c) to the fullest extent permitted by the
applicable law, that (i) the suit, action or proceeding in such court is brought
in an inconvenient forum, (ii) the venue of such suit, action or proceeding
-3-
<PAGE>
is improper and (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
10. Amendments; Termination. (a) This Agreement may not be modified,
-----------------------
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by all parties hereto.
(b) The provisions of this Agreement shall terminate upon the
earliest to occur of (i) the consummation of the Mergers, and (ii) the date
which is two years after the date hereof and (iii) the termination of the
Reorganization Agreement.
(c) For purposes of this Agreement, the term "Reorganization
Agreement" includes the Reorganization Agreement, as the same may be modified or
amended from time to time.
11. Additional Shares. If, after the date hereof, any Shareholder
-----------------
acquires beneficial ownership of any additional shares of capital stock of
Mississippi (any such shares, "Additional Shares"), including, without
limitation, upon exercise of any option, warrant or right to acquire Shares of
capital stock of Mississippi or through any stock dividend or stock split, the
provisions of this Agreement applicable to the Shares shall be applicable to
such Additional Shares as if such Additional Shares had been Shares as of the
date hereof. The provisions of the immediately preceding sentence shall be
effective with respect to Additional Shares without action by any person or
entity immediately upon the acquisition by any Shareholder of beneficial
ownership of such Additional Shares.
12. Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective legal successors (including, in the case of any Shareholder or any
other individual, any executors, administrators, estates, legal representatives
and heirs of such Shareholder or such individual) and permitted assigns;
provided, however, that, except as otherwise provided in this Agreement, no
- -------- -------
party may assign, delegate or otherwise transfer any of its rights or
obligations, under this Agreement, without the consent of Virginia and
Mississippi, in the case of any Shareholder, the Shareholders and Mississippi,
in the case of Virginia, and the Shareholders and Virginia in the case of
Mississippi. Without limiting the scope or effect of the restrictions on
Transfer set forth in Section 2 hereof, each Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 28 day of February, 2000.
Tritel, Inc.
By: _________________________
Name: ___________________
Title: __________________
TeleCorp PCS, Inc.
By: _________________________
Name: ___________________
Title: __________________
E.B. Martin, Jr.
By: _________________________
Name: ___________________
Title: __________________
William M. Mounger, II
By: _________________________
Name: ___________________
Title: __________________
<PAGE>
EXHIBIT A
Shareholder Name Amount and Class of Shares
---------------- --------------------------
E.B. Martin Jr. Class A Common 2,384,544
Class C Common 690,224
Voting Preference 3
Shareholder Name Amount and Class of Shares
---------------- --------------------------
William M. Mounger, II Class A Common 2,384,544 (directly)
Class A Common 2,379,072.22 (indirectly
through a trust, Trillium
PCS, and M3, LLC)
Class C Common 690,224
Class D Common 148,598.04 (indirectly
through Trillium PCS and
M3, LLC)
Voting Preference 3
- ---------
Note: Mounger has a controlling interest in Trillium PCS, LLC and M3, LLC.
<PAGE>
SCHEDULE 1
The Stockholders' Agreement, dated as of January 7, 1999, by and among
Tritel, Inc., William M. Mounger, II, E.B. Martin, Jr. and the other
stockholders named therein.
