<PAGE>
As filed with the Securities and Exchange Commission on October 21, 1999
Registration No. 333-85149
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRITON PCS HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 4812 23-2974475
(State or other (Primary Standard (IRS Employer
jurisdiction Industrial Identification Number)
of incorporation or Classification Code)
organization)
375 Technology Drive
Malvern, Pennsylvania 19355
(610) 651-5900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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David D. Clark
Chief Financial Officer and Senior Vice President
Triton PCS Holdings, Inc.
375 Technology Drive
Malvern, Pennsylvania 19355
(610) 651-5900
(Address, including zip code, and telephone number, including area code, of
agent for service)
Copies to:
Leonard J. Baxt William A. Robinson Alan Dean
John W. McNamara Triton PCS Holdings, Davis Polk & Wardwell
Dow, Lohnes & Albertson, Inc. 450 Lexington Avenue
PLLC 375 Technology Drive New York, New York 10017
1200 New Hampshire Ave., Malvern, Pennsylvania (212) 450-4000
N.W. 19355
Washington, D.C. 20036 (610) 651-5900
(202) 776-2000
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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Explanatory Note
No form of prospectus is filed with this amendment No. 4 to the
registration statement. This amendment is being filed solely to file Exhibit
10.47.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than the
underwriting discounts and commissions. All amounts shown are estimates except
for the Securities and Exchange Commission registration fee and the NASD
filing fee. All of these fees are being paid by Triton.
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<S> <C>
Registration Fee................................................. $ 50,952
NASD Filing Fee.................................................. 18,828
Blue Sky Fees and Expenses....................................... 10,000
Legal Fees and Expenses.......................................... 990,000
Accounting Fees and Expenses..................................... 150,000
Printing and Engraving Fees...................................... 200,000
Miscellaneous.................................................... 100,000
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Total............................................................ $1,519,780
==========
</TABLE>
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Item 14. Indemnification of Directors and Officers
The Delaware General Corporation Law authorizes corporations to limit or
eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the
corporation, directors must exercise an informed business judgment based on
all material information reasonably available to them. In the absence of the
limitations authorized by the Delaware statute, directors could be accountable
to corporations and their stockholders for monetary damages for conduct that
does not satisfy their duty of care. Although the statute does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The second restated
certificate of incorporation limits the liability of Triton's directors to
Triton or its stockholders to the fullest extent permitted by the Delaware
statute. Specifically, the directors of Triton will not be personably liable
for monetary damages for breach of a director' s fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
Triton or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law (which relates
to the unlawful payment of dividend or unlawful stock purchase or redemption
by a corporation) or (iv) for any transaction from which a director derived an
improper personal benefit. The inclusion of this provision in the second
restated certificate of incorporation may have the effect of reducing the
likelihood of derivative litigation against directors and may discourage or
deter stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such an action, if successful, might
otherwise have benefited Triton and its stockholders. Under the applicable
provisions of the Delaware General Corporation Law, in general, a corporation
may indemnify its directors, officers, employees or agents against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by them in connection with any action, suit
or proceeding brought by third parties to which they may be made parties by
reason of their being or having been directors, officers, employees or agents
and shall so indemnify such persons only if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe their conduct was unlawful. The second restated
certificate of incorporation gives Triton the power to indemnify its officers,
directors, employees and agents to the full extent permitted by Delaware law.
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Immediately prior to the consummation of the offering, Triton plans to
enter into indemnification agreements with each of its directors and certain
of its executive officers which generally provide for indemnification of the
director or officer to the fullest extent provided by law. In addition, Triton
has purchased directors' and officers' liability insurance coverage for its
directors and certain of its officers in amounts customary for similarly
situated companies.
Item 15. Recent Sales of Unregistered Securities
The information set forth in this Item 15 gives effect to a 23-for-1 stock
split of the Registrant's outstanding common stock to be effected immediately
prior to the completion of the offering.
In October 1997, the Registrant issued to Michael Kalogris and Steven
Skinner 1,805,380.40 shares and 1,354,035.30 shares, respectively, of its
Common Stock in connection with the Registrant's formation. The aggregate
consideration paid for such securities was $1,373.66. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In February 1998, the Registrant issued to one of its executive officers
72,215.17 shares of its Common Stock in connection with the anticipated
closing of the transactions contemplated by the Securities Purchase Agreement.
The aggregate consideration paid for such securities was $31.40. Such
securities were issued pursuant to the exemption set forth in Section 4(2) of
the Securities Act.
In February 1998, the Registrant issued to AT&T Wireless PCS, Inc. 732,371
shares of its Series A Convertible Preferred Stock and 366,131 shares of its
Series D Convertible Preferred Stock in connection with the closing of the
transactions contemplated by the Securities Purchase Agreement. The aggregate
consideration paid for such securities was $109,850,200. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In February 1998, the Registrant issued to several institutional investors
and two of its executive officers an aggregate of 1,400,000 shares of its
Series C Convertible Preferred Stock in connection with the closing of the
transactions contemplated by the Securities Purchase Agreement. The aggregate
consideration paid for such securities was $45.0 million paid at the time of
the transaction and irrevocable commitments to contribute an additional
aggregate $95.0 million to the Registrant over a three-year period. To date,
$35 million of these commitments have been contributed, and we expect to
receive the remaining $60 million by November 30, 1999. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In February 1998, the Registrant issued 315,941.8 shares of its Common
Stock to several of its officers and 965,878.33 shares of its Common Stock to
the trust established pursuant to the Registrant's Common Stock Trust
Agreement for Management Employees, dated as of February 4, 1998 in connection
with the closing of the transactions contemplated by the Securities Purchase
Agreement. The aggregate consideration paid for such securities was $557.31.
Such securities were issued pursuant to the exemption set forth in Section
4(2) of the Securities Act.
In March 1998, the Registrant issued to one of its institutional
stockholders 80,000 shares of its Series C Convertible Preferred Stock. The
aggregate consideration paid for such securities was $8.0 million. Such
securities were issued pursuant to the exemption set forth in Section 4(2) of
the Securities Act.
In May 1998, the Registrant issued to J.P. Morgan Securities Inc., Chase
Securities Inc. and Lehman Brothers Inc. $511,989,000 principal amount at
maturity of 11% Senior Subordinated Discount Notes due 2008. The aggregate
consideration paid for such securities was approximately $291.0 million in net
proceeds. Such securities were issued pursuant to the exemption set forth in
Section 4(2) of the Securities Act.
In June 1998, the Registrant issued to each of its two independent
directors 16,261 shares of its Common Stock from the trust established
pursuant to its Restated Common Stock Trust for Management Stockholders and
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Independent Directors dated as of June 26, 1998. The aggregate consideration
paid for such securities was $14.14. Such securities were issued pursuant to
the exemption set forth in Section 4(2) of the Securities Act.
In June 1998, the Registrant issued to its institutional stockholders an
aggregate of 270,000 shares of its Series C Convertible Preferred Stock in
connection with the closing of the Myrtle Beach Acquisition. The aggregate
consideration paid for such securities was $27.0 million. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In June 1998, the Registrant issued 709,474.56 shares of its Common Stock
to its management stockholders and independent directors and 184,965.08 shares
of its Common Stock to the trust established pursuant to its Amended and
Restated Common Stock Trust for Management Stockholders and Independent
Directors in connection with the closing of the Myrtle Beach Acquisition. The
aggregate consideration paid for such securities was $388.89. Such securities
were issued pursuant to the exemption set forth in Section 4(2) of the
Securities Act.
In December 1998, the Registrant redeemed from two of its institutional
stockholders an aggregate of 35,602 shares of its Series C Convertible
Preferred Stock. The aggregate purchase price paid for such securities was
$3,560,200. The Registrant contemporaneously reissued to its other
institutional stockholders the 35,602 shares of its Series C Convertible
Preferred Stock. The aggregate consideration paid for such securities was
$3,560,200. Such securities were issued pursuant to the exemption set forth in
Section 4(2) of the Securities Act.
In December 1998, the Registrant issued to AT&T Wireless PCS Inc.
134,813.49 shares of its Series D Convertible Preferred Stock in connection
with the closing of the Norfolk Acquisition. The aggregate value of such
securities was $13,481,349 and the shares were issued in partial consideration
of AT&T Wireless' sale to the Registrant of personal communications services
licenses and other assets. Such securities were issued pursuant to the
exemption set forth in Section 4(2) of the Securities Act.
In December 1998, the Registrant issued to several institutional investors
an aggregate of 165,186.51 shares of its Series C Convertible Preferred Stock
in connection with the closing of the Norfolk Acquisition. The aggregate
consideration paid for such securities was $16,518,651. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In December 1998, the Registrant issued 596,623.91 shares of its Common
Stock to its management stockholders and independent directors and 170,042.68
shares of its Common Stock to the trust established pursuant to its Amended
and Restated Common Stock Trust for Management Stockholders and Independent
Directors in connection with the closing of the Norfolk Acquisition. The
aggregate consideration paid for such securities was $333.33. Such securities
were issued pursuant to the exemption set forth in Section 4(2) of the
Securities Act.
In January 1999, the Registrant issued to one of its executive officers
61,745.57 shares of its Common Stock. The aggregate consideration paid for
such securities was $26.85. Such securities were issued pursuant to the
exemption set forth in Section 4(2) of the Securities Act.
In June 1999 the Registrant issued to AT&T Wireless PCS, Inc. 53,881.64
shares of its Series A Convertible Preferred Stock and 42,738.98 shares of its
Series D Convertible Preferred Stock in connection with the closing of the
transactions contemplated by the License Exchange and Acquisition Agreement.
The aggregate value of such securities was $9,662,062 and the shares were
issued in partial consideration of AT&T Wireless' contribution to the
Registrant of personal communications services licenses. Such securities were
issued pursuant to the exemption set forth in Section 4(2) of the Securities
Act.
In June 1999, the Registrant issued 85,154.05 shares of its Common Stock to
its management stockholders and independent directors and 24,067.89 shares of
its Common Stock to the trust established pursuant to its Amended and Restated
Common Stock Trust for Management Stockholders and Independent Directors in
connection with the closing of the transactions contemplated by the License
Exchange and Acquisition
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Agreement. The aggregate consideration paid for such securities was $47.49.
Such securities were issued pursuant to the exemption set forth in Section
4(2) of the Securities Act.
In June 1999, the Registrant issued to each of thirteen of its officers
42,366 shares of its Common Stock from the trust established pursuant to its
Amended and Restated Common Stock Trust for Management Stockholders and
Independent Directors. The aggregate consideration paid for such securities
was $239.46. Such securities were issued pursuant to the exemption set forth
in Section 4(2) of the Securities Act.
In July 1999, the Registrant issued to one of its officers 42,366 shares of
its Common Stock from the trust established pursuant to its Amended and
Restated Common Stock Trust for Management Stockholders and Independent
Directors. The aggregate consideration paid for such securities was $18.42.
Such securities were issued pursuant to the exemption set forth in Section
4(2) of the Securities Act.
In August 1999, the Registrant issued to four of its officers an aggregate
of 356,500 shares of its Common Stock from the trust established pursuant to
its Amended and Restated Common Stock Trust for Management Stockholders and
Independent Directors. The aggregate consideration paid for such securities
was $155.00. Such securities were issued pursuant to the exemption set forth
in Section 4(2) of the Securities Act.
In September 1999, the Registrant issued to its two independent directors
and one of its officers an aggregate of 3,400 shares of its Series C
Convertible Preferred Stock pursuant to stock purchase agreements with each of
such individuals. The aggregate consideration paid for such securities was
$340,000. Such securities were issued pursuant to the exemption set forth in
Section 4(2) of the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
Exhibit Index
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Exhibit
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*1.1 Form of Underwriting Agreement
*3.1 Restated Certificate of Incorporation of Triton PCS Holdings, Inc.
*3.2 Amendment to the Restated Certificate of Incorporation of Triton PCS
Holdings, Inc. dated November 27, 1998.
*3.3 Amendment to the Restated Certificate of Incorporation of Triton PCS
Holdings, Inc. dated May 28, 1999.
*3.4 Form of Second Restated Certificate of Incorporation of Triton PCS
Holdings, Inc.
*3.5 Amended and Restated Bylaws of Triton PCS Holdings, Inc.
*3.6 Form of Second Amended and Restated Bylaws of Triton PCS Holdings,
Inc.
*4.1 Specimen Common Stock Certificate
*5.1 Opinion of Dow Lohnes & Albertson, pllc regarding the validity of the
Class A common stock.
10.1 Indenture, dated as of May 4, 1998, between Triton PCS, Inc., the
Guarantors party thereto and PNC Bank, National Association
(incorporated by reference to Exhibit 4.1 to the Form S-4 Registration
Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-
57715).
10.2 First Supplemental Indenture, dated as of March 30, 1999, to the
Indenture dated as of May 4, 1998 (incorporated by reference to
Exhibit 4.1 to the Form 10-Q of Triton PCS, Inc. and its subsidiaries,
for the quarter ended March 31, 1999).
10.3 Credit Agreement, dated as of February 3, 1998 (the "Credit
Agreement"), among Triton PCS, Inc., Triton PCS Holdings, Inc., the
Lenders (as defined therein) party thereto, and The Chase Manhattan
Bank, as administrative agent (incorporated by reference to Exhibit
10.1 to the Form S-4 Registration Statement of Triton PCS, Inc. and
its subsidiaries, File No. 333-57715).
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
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10.4 First Amendment, Consent and Waiver, dated as of April 16, 1998, to
the Credit Agreement (incorporated by reference to Exhibit 10.2 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
10.5 Second Amendment, dated as of July 29, 1998, to the Credit Agreement
(incorporated by reference to Exhibit 10.2.1 to Amendment No. 1 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
10.6 Fourth Amendment, dated as of March 29, 1999, to the Credit Agreement
(incorporated by reference to Exhibit 10.1 to the Form 10-Q of Triton
PCS, Inc. and its subsidiaries, for the quarter ended March 31, 1999).
*10.7 Fifth Amendment, dated as of September 22, 1999, to the Credit
Agreement
10.8 Securities Purchase Agreement, dated as of October 8, 1997, (the
"Securities Purchase Agreement") among AT&T Wireless PCS, Inc., the
cash equity investors listed on the signature pages thereto, the
management stockholders listed on the signature pages thereto and
Triton PCS, Inc., now known as Triton PCS Holdings, Inc. (incorporated
by reference to Exhibit 10.3 to the Form S-4 Registration Statement of
Triton PCS, Inc. and its subsidiaries, File No. 333-57715).
10.9 Amendment No. 1 to Securities Purchase Agreement, dated as of March
10, 1998 (incorporated by reference to Exhibit 10.4 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.10 Closing Agreement, dated as of February 4, 1998, among AT&T Wireless
PCS, Inc., the cash equity investors listed on the signature pages
thereto, the management stockholders listed on the signature pages
thereto, and Triton PCS Holdings, Inc. (incorporated by reference to
Exhibit 10.5 to the Form S-4 Registration Statement of Triton PCS,
Inc. and its subsidiaries, File No. 333-57715).
10.11 Asset Purchase Agreement, dated as of March 10, 1998, between Triton
PCS, Inc. and Vanguard Cellular Systems of South Carolina, Inc.
(incorporated by reference to Exhibit 10.6 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.12 Preferred Stock Purchase Agreement by and among Cash Equity Investors,
Management Stockholders, Independent Directors, and Triton PCS
Holdings, Inc. dated as of June 29, 1998 (incorporated by reference to
Exhibit 10.7 to Amendment No. 1 to the Form S-4 Registration Statement
of Triton PCS, Inc. and its subsidiaries, File No. 333-57715).
*10.13 License Exchange and Acquisition Agreement dated as of June 8, 1999 by
and among Triton PCS Holdings, Inc., Triton PCS License Company
L.L.C., and AT&T Wireless PCS, Inc.
*10.14 Preferred Stock Repurchase and Issuance Agreement, dated as of
December 7, 1998 by and among J.P. Morgan Investment Corporation,
Sixty Wall Street SBIC Fund, L.P., the investors listed as cash equity
investors on the signature pages thereto, Triton PCS Holdings, Inc.,
and certain of Triton PCS Holdings, Inc.'s other stockholders listed
on the signature pages thereto.
*10.15 Norfolk Preferred Stock Purchase Agreement, dated as of December 31,
1998 by and among the cash equity investors listed on Schedule I
thereto, the management stockholders listed on Schedule II thereto,
the independent directors listed on Schedule III thereto, and Triton
PCS Holdings, Inc.
10.16 AT&T Wireless Services Network Membership License Agreement, dated as
of February 4, 1998, between AT&T Corp. and Triton PCS Operating
Company L.L.C. (incorporated by reference to Exhibit 10.8 to the Form
S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries,
File No. 333-57715).
*10.17 Amendment No. 1 to AT&T Wireless Services Network Membership License
Agreement, dated as of December 31, 1998, between AT&T Corp. and
Triton PCS Operating Company L.L.C.
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
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*10.18 Amendment No. 2 to AT&T Wireless Services Network Membership
License Agreement, dated as of June 8, 1999, between AT&T Corp. and
Triton PCS Operating Company L.L.C.
10.19 Stockholders' Agreement, dated as of February 4, 1998, among AT&T
Wireless PCS, Inc., Triton PCS Holdings, Inc., CB Capital
Investors, L.P., J.P. Morgan Investment Corporation, Sixty Wall
Street SBIC Fund, L.P., Private Equity Investors III, L.P., Equity-
linked Investors-II, Toronto Dominion Capital (USA), Inc., First
Union Capital Partners, Inc., DAG-Triton PCS, L.P., Michael E.
Kalogris, Steven R. Skinner, David D. Clark, Clyde Smith, Patricia
Gallagher and David Standig (incorporated by reference to Exhibit
10.9 to the Form S-4 Registration Statement of Triton PCS, Inc. and
its subsidiaries, File No. 333-57715).
*10.20 Amendment No. 1 to Stockholders' Agreement, dated as of December
31, 1998, among AT&T Wireless PCS, Inc., Triton PCS Holdings, Inc.,
CB Capital Investors, L.P., J.P. Morgan Investment Corporation,
Sixty Wall Street SBIC Fund, L.P., Private Equity Investors III,
L.P., Equity-linked Investors-II, Toronto Dominion Capital (USA),
Inc., First Union Capital Partners, Inc., DAG-Triton PCS, L.P.,
Michael E. Kalogris, Steven R. Skinner, David D. Clark, Clyde
Smith, David Standig, Michael Mears, Michael E. Kalogris, as
Trustee under Amended and Restated Common Stock Trust Agreement for
Management Employees and Independent Directors, dated June 26,
1998, Scott Anderson and John Beletic.
*10.21 Amendment No. 2 to Stockholders' Agreement, dated as of June 8,
1999, among AT&T Wireless PCS, Inc., Triton PCS Holdings, Inc., CB
Capital Investors, L.P., J.P. Morgan Investment Corporation, Sixty
Wall Street SBIC Fund, L.P., Private Equity Investors III, L.P.,
Equity-linked Investors-II, Toronto Dominion Capital (USA), Inc.,
First Union Capital Partners, Inc., DAG-Triton PCS, L.P., Michael
E. Kalogris, Steven R. Skinner, David D. Clark, Clyde Smith, David
Standig, Michael Mears, Michael E. Kalogris, as Trustee under
Amended and Restated Common Stock Trust Agreement for Management
Employees and Independent Directors, dated June 26, 1998, Scott
Anderson and John Beletic.
10.22 Investors Stockholders' Agreement, dated as of February 4, 1998,
among CB Capital Investors, L.P., J.P. Morgan Investment
Corporation, Sixty Wall Street SBIC Fund, L.P., Private Equity
Investors III, L.P., Equity-Linked Investors-II, Toronto Dominion
Capital (USA), Inc., DAG-Triton PCS, L.P., First Union Capital
Partners, Inc., and the stockholders named therein (incorporated by
reference to Exhibit 10.10 to the Form S-4 Registration Statement
of Triton PCS, Inc. and its subsidiaries, File No. 333-57715).
10.23 Intercarrier Roamer Service Agreement, dated as of February 4,
1998, between AT&T Wireless Services, Inc. and Triton PCS Operating
Company L.L.C. (incorporated by reference to Exhibit 10.11 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
*10.24 Amendment No. 1 to Intercarrier Roamer Service Agreement, dated as
of December 31, 1998, between AT&T Wireless Services, Inc. and
Triton PCS Operating Company L.L.C.
*10.25 Amendment No. 2 to Intercarrier Roamer Service Agreement, dated as
of June 8, 1999, between AT&T Wireless Services, Inc. and Triton
PCS Operating Company L.L.C.
++10.26 Ericsson Acquisition Agreement, dated as of March 11, 1998, between
Triton Equipment Company L.L.C. and Ericsson, Inc. (incorporated by
reference to Exhibit 10.15 to Amendment No. 2 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries,
File No. 333-57715).
*++++10.27 First Addendum to Acquisition Agreement, dated as of May 24, 1999,
between Triton PCS Equipment Company L.L.C. and Ericsson, Inc.
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
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10.28 Employment Agreement, dated as of February 4, 1998, among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Michael E.
Kalogris (incorporated by reference to Exhibit 10.16 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.29 Amendment No. 1 to Employment Agreement, dated as of June 29, 1998,
among Triton Management Company, Inc., Triton PCS Holdings, Inc., and
Michael E. Kalogris (incorporated by reference to Exhibit 10.16.1 to
Amendment No. 1 to the Form S-4 Registration Statement of Triton PCS,
Inc. and its subsidiaries, File No. 333-57715).
10.30 Amendment No. 2 to the Employment Agreement by and among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Michael E.
Kalogris, dated December, 1998 (incorporated by reference to Exhibit
10.39 to Post-Effective Amendment No. 2 to the Form S-4 Registration
Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-
57715).
10.31 Amendment No. 3 to the Employment Agreement by and among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Michael E.
Kalogris, dated June 8, 1999 (incorporated by reference to Exhibit
10.40 to Post-Effective Amendment No. 2 to the Form S-4 Registration
Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-
57715).
10.32 Employment Agreement, dated as of January 8, 1998, between Triton
Management Company and Clyde Smith (incorporated by reference to
Exhibit 10.17 to the Form S-4 Registration Statement of Triton PCS,
Inc. and its subsidiaries, File No. 333-57715).
10.33 Employment Agreement, dated as of February 4, 1998, between Triton
Management Company and Steven R. Skinner (incorporated by reference to
Exhibit 10.18 to Amendment No. 1 to the Form
S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries,
File No. 333-57715).
10.34 Amendment No. 1 to Employment Agreement, dated as of June 29, 1998,
among Triton Management Company, Inc., Triton PCS Holdings, Inc., and
Steven R. Skinner (incorporated by reference to Exhibit 10.18.1 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
10.35 Amendment No. 2 to the Employment Agreement by and among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Steven R.
Skinner, dated as of December 31, 1998 (incorporated by reference to
Exhibit 10.41 to Post-Effective Amendment No. 2 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.36 Amendment No. 3 to the Employment Agreement by and among Triton
Management Company, Inc., Triton PCS Holdings, Inc. and Steven R.
Skinner, dated as of June 8, 1999 (incorporated by reference to
Exhibit 10.42 to Post-Effective Amendment No. 2 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.37 Amended and Restated Common Stock Trust Agreement for Management
Employees and Independent Directors, dated as of June 26, 1998
(incorporated by reference to Exhibit 10.19 to Amendment No. 1 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
10.38 Form of Pledge Agreement, dated as of February 4, 1998, between
certain shareholders and Triton PCS, Inc. Each of (a) Michael E.
Kalogris, (b) Steven R. Skinner, (c) Sixty Wall Street SBIC Fund,
L.P., (d) CB Capital Investors, L.P., (e) J.P. Morgan Investment
Corporation, (f) DAG-Triton PCS, L.P., (g) First Union Capital
Partners, Inc., (h) Toronto Dominion Capital (USA), Inc. and
(i) Private Equity Investors III, L.P., are party to separate Pledge
Agreements. The terms of each Pledge Agreement are identical other
than (1) the shareholder party thereto and (2) the number of shares of
stock held by such shareholder and, therefore, the number of shares
subject to the applicable Pledge Agreement (incorporated by reference
to Exhibit 10.20 to Amendment No. 2 to the Form S-4 Registration
Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-
57715).
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit
-------
<C> <S>
++10.39 Master Tower Site Lease Agreement, dated as of May 28, 1998, between
Triton PCS Property Company L.L.C. and AT&T Corp (incorporated by
reference to Exhibit 10.23 to Amendment No. 1 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.40 Independent Director Stock Award Plan adopted as of February 4, 1998
(incorporated by reference to Exhibit 10.24 to Amendment No. 1 to the
Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries, File No. 333-57715).
10.41 Asset Purchase Agreement dated as of August 20, 1998 between Triton
PCS Holdings, Inc. and AT&T Wireless PCS, Inc (incorporated by
reference to Exhibit 10.29 to Amendment No. 1 to the Form S-4
Registration Statement of Triton PCS, Inc. and its subsidiaries, File
No. 333-57715).
10.42 Asset Purchase Agreement, dated as of July 13, 1999, among Triton PCS
Operating Company, L.L.C., Triton PCS Property Company L.L.C. and
American Tower, L.P (incorporated by reference to Exhibit 10.38 to
Post-Effective Amendment No. 2 to the Form S-4 Registration Statement
of Triton PCS, Inc. and its subsidiaries, File No. 333-57715).
10.43 Form of Stockholders Letter Agreement for management employees
(incorporated by reference to Exhibit 10.43 to Post-Effective
Amendment No. 2 to the Form S-4 Registration Statement of Triton PCS,
Inc. and its subsidiaries, File No. 333-57715).
10.44 Form of Stockholders Letter Agreement for independent directors
(incorporated by reference to Exhibit 10.44 to Post-Effective
Amendment No. 2 to the Form S-4 Registration Statement of Triton PCS,
Inc. and its subsidiaries, File No. 333-57715).
*10.45 Triton PCS Holdings, Inc. 1999 Stock and Incentive Plan.
*10.46 Triton PCS Holdings, Inc. Employee Stock Purchase Plan.
**10.47 Form of First Amended and Restated Stockholders' Agreements among AT&T
Wireless PCS, L.L.C., Triton PCS Holdings, Inc., CB Capital Investors,
L.P., J.P. Morgan Investment Corporation, Sixty Wall Street SBIC Fund,
L.P., Private Equity Investors III, L.P., Equity-linked Investors-II,
Toronto Dominion Capital (USA), Inc., First Union Capital Partners,
Inc., DAG-Triton PCS, L.P., Michael E. Kalogris, Steven R. Skinner,
David D. Clark, Clyde Smith, Patricia Gallagher and David Standig
*10.48 Form of Amendment No. 1 to Investors Stockholders' Agreement among CB
Capital Investors, L.P., J.P. Morgan Investment Corporation, Sixty
Wall Street SBIC Fund, L.P., Private Equity Investors III, L.P.,
Equity-Linked Investors-II, Toronto Dominion Capital (USA), Inc., DAG-
Triton PCS, L.P., First Union Capital Partners, Inc., and the
stockholders named therein
*16.1 Letter from KPMG LLP.
*21.1 Subsidiaries of Triton PCS Holdings, Inc.
*23.1 Consent of Dow, Lohnes & Albertson, PLLC (included in their opinion
filed as Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP.
*23.3 Consent of Arthur Andersen LLP.
*24.1 Power of Attorney (set forth on the signature page of this
registration statement).
*27.1 Financial Data Schedule
</TABLE>
- --------
* Previously filed with the Registration Statement.
** Filed herewith.
++ Portions of this exhibit have been omitted under an SEC order granting
confidential treatment under the Securities Act.
++++ Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and the omitted portions have been filed separately
with the Securities and Exchange Commission,
II-8
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors and
Shareholders of Triton PCS Holdings, Inc.:
Our audits of the combined financial statements of Triton PCS Holdings, Inc.
and Predecessor Company, as defined in Note 1 to the combined financial
statements, and its subsidiaries referred to in our report dated October 7,
1999, except as to the information in Note 19, for which the date is , 1999
appearing in this Registration Statement on Form S-1 also included an audit of
the financial statement schedule. In our opinion, the financial statement
schedule presents fairly, in all material respects, the information set forth
therein when read in conjunction with the related combined financial
statements.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
October 7, 1999, except as to the information in Note 19, for which the date is
, 1999
II-9
<PAGE>
Financial Statement Schedule
VALUATION AND QUALIFYING ACCOUNTS
($000's)
<TABLE>
<CAPTION>
Deductions
Additions credited
Balance at charged to to Add Balance
Beginning cost and costs and Myrtle Beach at end
of year expenses expenses acquisitions year
---------- ---------- ---------- ------------ -------
<S> <C> <C> <C> <C> <C>
Year ended December 31,
1997................... -- -- -- -- --
Allowance for doubtful
accounts............... -- -- -- -- --
Year ended December 31,
1998................... -- -- -- -- --
Allowance for doubtful
accounts............... -- $636 $480 $915 $1,071
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provision, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim of
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted against the Registrant by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed part of this Registration
Statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Triton PCS
Holdings, Inc. has duly caused this amendment no. 4 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Malvern, Commonwealth of Pennsylvania, on October
21, 1999.
Triton PCS Holdings, Inc.
/s/ Michael Kalogris
By: _________________________________
Michael Kalogris
Chief Executive Officer and
Chairman of the Board of
Directors
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 4 to the registration statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael Kalogris Chief Executive Officer October 21, 1999
______________________________________ and Chairman of the Board
Michael Kalogris of Directors (Principal
Executive Officer)
* President, Chief Operating October 21, 1999
______________________________________ Officer and Director
Steven Skinner
* Senior Vice President, October 21, 1999
______________________________________ Chief Financial Officer
David D. Clark and Secretary (Principal
Financial Officer)
* Vice President and October 21, 1999
______________________________________ Controller (Principal
William A. Robinson Accounting Officer)
* Director October 21, 1999
______________________________________
Scott Anderson
* Director October 21, 1999
______________________________________
John Beletic
* Director October 21, 1999
______________________________________
Arnold Chavkin
</TABLE>
II-11
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director October 21, 1999
______________________________________
Mary Hawkins-Key
* Director October 21, 1999
______________________________________
John Watkins
</TABLE>
*Power of Attorney
Michael Kalogris, by signing his name hereto, does sign this document on
behalf of each of the persons indicated above for whom he is attorney-in-fact
pursuant to a power of attorney duly executed by such person and filed with
the Securities and Exchange Commission.
/s/ Michael Kalogris
By: _________________________________
Michael Kalogris
Attorney-in-fact
II-12
<PAGE>
EXHIBIT 10.47
===================================================================
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
by and among
AT&T WIRELESS PCS, L.L.C.,
CASH EQUITY INVESTORS,
MANAGEMENT STOCKHOLDERS,
INDEPENDENT DIRECTORS
and
TRITON PCS HOLDINGS, INC.
dated as of October __, 1999
===================================================================
<PAGE>
TABLE OF CONTENTS
-------------------
Page
----
[to be provided]
<PAGE>
Schedules
- ---------
Schedule I Cash Equity Investors
Schedule II Management Stockholders and Independent Directors
Schedule III Stockholders
Schedule IV Core Service Features
Schedule V Minimum Build-Out Plan
Schedule VI PCS Territory
Schedule VII TDMA Quality Standards
Schedule VIII [Intentionally Omitted]
Schedule IX Capital Budgets
Schedule X Voting Agreements
Schedule XI Critical Network Elements
Schedule XII Licenses
Schedule XIII Unfunded Commitments
Exhibits
- ---------
Exhibit A Restated Bylaws
Exhibit B Restated Certificate
Exhibit C Form of Advanced Network Services Agreement
Exhibit D Form of Resale Agreement
<PAGE>
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
--------------------------------------------------
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of October __,
1999 (this "Agreement"), by and among AT&T WIRELESS PCS, L.L.C., a Delaware
---------
limited liability company and successor to AT&T Wireless PCS Inc., a Delaware
corporation (together with its Affiliated Successors, "AT&T PCS"), the investors
--------
listed on Schedule I (individually, each a "Cash Equity Investor" and,
---------- --------------------
collectively, with any of its Affiliated Successors, the "Cash Equity
-----------
Investors"), the individuals listed on Schedule II (individually, each a
-----------
"Management Stockholder" and, collectively, the "Management Stockholders"), the
- ----------------------- -----------------------
individuals listed on Schedule II (individually, an "Independent Director" and
----------- --------------------
collectively, the "Independent Directors"), and Triton PCS Holdings, Inc., a
---------------------
Delaware corporation (the "Company"). Each of the foregoing Persons, together
-------
with all other Persons who, in connection with a Transfer (as hereinafter
defined) are required to become a party to this Agreement (other than the
Company) are sometimes referred to herein, individually, as a "Stockholder" and,
-----------
collectively, as the "Stockholders".
------------
RECITALS
----------
WHEREAS, the Company and the Stockholders are parties to that certain
Stockholders' Agreement dated as of February 4, 1998, as amended (as so amended,
the "Original Stockholders' Agreement");
--------------------------------
WHEREAS, the Company is anticipated to consummate in the near future an
initial public offering ("IPO") of 9,375,000 shares of its Class A Common Stock
---
(as hereinafter defined);
WHEREAS, the total number of authorized shares of all classes of stock
("Company Stock") that the Company has the authority to issue is 650,000,000,
---------------
consisting of (a) 70,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"), of which (i) 1,000,000 shares are designated
---------------
"Series A Convertible Preferred Stock" (the "Series A Preferred Stock"), (ii)
------------------------
50,000,000 shares are designated "Series B Preferred Stock" (the "Series B
--------
Preferred Stock"), (iii) 3,000,000 shares are designated "Series C Convertible
- ---------------
Preferred Stock" (the "Series C Preferred Stock"), and (iv) 16,000,000 shares
------------------------
are designated "Series D Convertible Preferred Stock" (the "Series D Preferred
------------------
Stock") and (b) 580,000,000 shares of common stock, par value $0.01 per share
- -----
(the "Common Stock"), of which (i) 520,000,000 shares are designated "Class A
------------
Common Stock" (the "Class A Common Stock"), and (ii) 60,000,000 shares are
--------------------
designated "Class B Non-Voting Common Stock" (the "Class B Non-Voting Common
-------------------------
Stock");
- -----
WHEREAS, upon consummation of the IPO each Stockholder will be the
registered owner of the respective shares of Company Stock set forth opposite
its name on Schedule III;
------------
4
<PAGE>
WHEREAS, the parties desire to enter into this Agreement in order to (a)
amend and restate as hereinafter set forth the Original Stockholders' Agreement,
(b) to enter into certain agreements regarding the management of the Company and
(c) to impose certain restrictions with respect to the sale, transfer or other
disposition of Company Stock on the terms and conditions hereinafter set forth;
and
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
1. Certain Definitions.
-------------------
"Act" shall have the meaning set forth in Section 10.1(a).
--- ---------------
"Adopted Service Features" shall mean the Core Service Features and
------------------------
additional service features that are adopted by the Company's PCS Systems in
accordance with the terms of Section 8.2.
-----------
"Advice" shall have the meaning set forth in Section 5(d)(xvii).
------ ------------------
"Affiliate" shall mean, with respect to any Person other than a natural
---------
person, any other Person that, either directly or indirectly through one or more
intermediaries, controls, or is controlled by or is under common control with
such Person and, with respect to any natural Person, any trust for the exclusive
benefit of such natural Person and/or any member of such natural Person's
Immediate Family in which such Person is the sole trustee thereof; provided,
however, for purposes of Section 8.6, "Affiliate" shall not include (x) Persons
-----------
who conduct business in the Territory in whom a Cash Equity Investor or any of
their respective Affiliates had made an investment or held securities on
February 4, 1998 in the ordinary course of their business, or any such Person
who conducts business in the Territory in whom a Cash Equity Investor or any of
their respective Affiliates made an investment after February 4, 1998 or makes
an investment after the date hereof if such Cash Equity Investor or Affiliate
thereof controls such Person on a temporary basis where reasonably necessary to
protect its investment, or any Person who serves as an officer, director or is a
partner of any such Person who is affiliated with a Cash Equity Investor, or (y)
The Chase Manhattan Bank, The Toronto Dominion Bank, Morgan Guaranty Trust
Company of New York and First Union Corporation. As used in this Agreement,
"control", "controlled" or "controlling" shall mean possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliated Successor" shall mean, with respect to any Person, an Affiliate
--------------------
thereof that is a transferee or a successor in interest to any or all of such
Person's Company Stock and that is required to become a party to this Agreement
in accordance with the terms hereof; provided,
5
<PAGE>
however, that, for purposes of Section 4, with respect to any Cash Equity
---------
Investor, "Affiliated Successor" shall also include partners, limited partners
or members of a Cash Equity Investor that are transferees of Company Stock
pursuant to distributions in accordance with the partnership agreement or
operating agreement of such Cash Equity Investor.
"Agreement" shall have the meaning set forth in the preamble.
---------
"Arbitration Rules" shall have the meaning set forth in Section 12.8(d).
----------------- ---------------
"AT&T Licensee" shall mean any Person that owns FCC licenses to provide
-------------
Commercial Mobile Radio Service, which Person is authorized to provide any such
services using the phrase "Member, AT&T Wireless Services Network" or other
service marks of AT&T Corp.
"AT&T PCS" shall have the meaning set forth in the preamble.
--------
"AT&T PCS Contributed Licenses" shall mean, collectively, (i) the
-----------------------------
License(s) defined as the "AT&T PCS Contributed Licenses" in the Securities
Purchase Agreement, (ii) the License(s) defined as the "AT&T PCS Contributed
License in the Norfolk Purchase Agreement, and (iii) the License(s) defined as
the "AT&T PCS Transferred License" in the License Exchange and Acquisition
Agreement.
"AT&T PCS Retained Licenses" shall mean, collectively, (i) the License(s)
--------------------------
defined as the "AT&T PCS Retained Licenses" in the Securities Purchase Agreement
and (ii) the License(s) defined as the "AT&T PCS Retained License" in the
Norfolk Purchase Agreement.
"AWS" shall mean AT&T Wireless Services, Inc., a Delaware corporation.
---
"Beneficially Own" shall have the meaning set forth in Rule 13d-3 of the
----------------
Exchange Act.
"Board of Directors" shall mean the Board of Directors of the Company.
------------------
"BTA" shall mean a geographic area established by the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, pp. 3839, as modified by the
FCC to form the initial geographic area of license for the C, D, E and F blocks
of broadband PCS spectrum as defined in Section 24.202 of the FCC's rules.
"Business" shall mean the business of (a) owning, constructing and
--------
operating systems to provide Company Communications Services on frequencies
licensed to the Company for Commercial Mobile Radio Services pursuant to the
Licenses as described on Schedule XII; (b) providing to end-users and resellers,
------------
solely within the Territory, Company Communications Services available on such
systems, (c) providing in connection with such Company Communications Services,
solely within the Territory, the Adopted Service Features and (subject
6
<PAGE>
to the immediately following sentence) telecommunications services incidental or
ancillary to such Company Communications Services (including, by way of example,
bundling additional telecommunications services with Company Communications
Services), and (d) marketing and offering the services and features described in
clauses (b) and (c) within the Territory, including advertising such services
and features using broadcast and other media, so long as such advertising
extends beyond the Territory only when and to the extent necessary to reach
customers and potential customers in the Territory. The activities described in
clauses (a) and (b) shall be the indispensable requisite, and primary business,
of the Company and, to the extent the Company provides telecommunications
services incidental or ancillary thereto, the Company and its Subsidiaries shall
be only the agent or reseller for the provider thereof and shall not own or
lease the facilities used to provide such services, except that (i) the Company
may own or lease facilities that, in the aggregate, do not have a purchase price
to the Company and its Subsidiaries in excess of $10 million, and the Company
may be a facilities based provider of services using such facilities, and (ii)
after completion of the Minimum Build Out Plan and certification that Company
Systems meet the TDMA Quality Standards, the amount of $10 million set forth in
clause (i) hereof shall be increased to $100 million.
"Cash Equity Investors" shall have the meaning set forth in the preamble.
---------------------
"Cellular System" shall mean a cellular mobile radio telephone system
---------------
constructed and operated in a "metropolitan statistical area" as defined by the
FCC or a "rural service area" as defined by the FCC (or any successor
territorial designation or subdivision thereof authorized by the FCC)
exclusively using the 824 MHZ to 894 MHZ frequencies pursuant to a License
therefor issued by the FCC.
"Cellular Territory" shall mean the geographic area in respect of which the
------------------
Company acquires Permitted Cellular Licenses.
"Class A Common Stock" shall have the meaning set forth in the third
--------------------
recital.
"Class B Non-Voting Common Stock" shall have the meaning set forth in the
-------------------------------
third recital.
"Closing Agreement" shall have the meaning set forth in Section 12.2(a).
----------------- ---------------
"Commission" shall mean the Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act.
"Common Stock" shall have the meaning set forth in the third recital.
------------
"Company" shall have the meaning set forth in the preamble.
-------
"Company Asset Sale" shall have the meaning set forth in Section 7.4(a).
------------------ --------------
7
<PAGE>
"Company Communications Services" shall mean mobile wireless
-------------------------------
telecommunications services (including the transmission of voice, data, image or
other messages or content) provided solely within the Territory, initiated or
terminated using TDMA and frequencies licensed by the FCC, to or from subscriber
equipment that is capable of usage during routine movement throughout the area
covered by a cell site and routine handing off between cell sites, and is either
intended for such usage or is temporarily fixed to a specific location on a
short term basis (e.g., a bank of wireless telephones temporarily installed
during a special event of limited duration). Without limiting the foregoing,
Company Communications Services shall include wireless office services if such
services comply with this definition. Company Communications Services shall
also include the transmissions between the Company's cell sites and the
Company's switch or switches in the Territory, handing off transmissions at the
Company's switch or switches for termination by other carriers, and receiving
transmissions to the Company's customers handed off at the Company's switch or
switches, in each case for the purpose of facilitating Company Communications
Services described in the first sentence.
"Company Merger" shall have the meaning set forth in Section 7.4(a).
-------------- --------------
"Company Sale Notice" shall have the meaning set forth in Section 6.2(a).
------------------- --------------
"Company Stock" shall have the meaning set forth in the third recital.
-------------
"Company Systems" shall mean the systems owned and operated by the Company
---------------
to provide Company Communications Services in the Territory.
"Confidential Information" shall have the meaning assigned to such term in
------------------------
Section 7.7(a).
- --------------
"Core Service Features" shall mean the service features set forth on
---------------------
Schedule IV.
- -----------
"CPR" shall have the meaning set forth in Section 12.8(c).
---- ---------------
"Demand Notice" shall have the meaning set forth in Section 5(a)(i).
------------- ---------------
"Demand Registration" shall have the meaning set forth in Section 5(a)(i).
------------------- ---------------
"Demanding Stockholder" shall have the meaning set forth in Section
--------------------- -------
5(a)(i).
"Desai" shall mean Private Equity Investors III, L.P. and Equity-Linked
-----
Investors-II.
"Dispute" shall have the meaning set forth in Section 12.8(a).
------- ---------------
"Disqualifying Transaction" shall mean a merger, consolidation, asset
-------------------------
acquisition or disposition, or other business combination involving AT&T Corp.
(or its Affiliates) and another
8
<PAGE>
Person, which other Person (together with its Affiliates) (a) derives from
telecommunications businesses annual revenues in excess of five billion dollars
(based on its most recently ended fiscal year), (b) derives less than one third
of its aggregate revenues from the provision of wireless telecommunications
(based on its most recently ended fiscal year for which such information is
available), (c) owns FCC Licenses to offer (and does offer) mobile wireless
telecommunications services serving more than 25% of the POP's within the
Territory, and (d) with respect to which AT&T PCS has given written notice to
the Company and the other Stockholders specifying that such merger,
consolidation, asset acquisition or disposition or other business combination
shall be a Disqualifying Transaction for purposes of this Agreement and the
transactions contemplated hereby.
"Employment Agreements" shall mean the Employment Agreements dated as of
---------------------
February 4, 1998 between Triton Management Company, Inc., a wholly-owned
Subsidiary of the Company, and each of Michael E. Kalogris and Steven R.
Skinner, as the same may be amended, modified or supplemented in accordance with
the terms thereof.
"Equity Securities" shall mean any class or series of common stock or
-----------------
preferred stock, or options, rights, warrants, conversion rights or appreciation
rights relating thereto, or any other type of equity security of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
------------
"FAA" shall have the meaning set forth in Section 12.8(e).
--- ---------------
"FCC" shall mean the Federal Communications Commission or similar
---
regulatory authority established in replacement thereof.
"Federal Arbitration Act" shall have the meaning set forth in Section
----------------------- -------
12.8(e).
- -------
"Final Order" shall mean 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.
"First Offer" shall have the meaning set forth in Section 4.2(a).
----------- --------------
"First Offer Period" shall have the meaning set forth in Section 4.2(b).
------------------ --------------
9
<PAGE>
"First Offeree" shall have the meaning set forth in Section 4.2(a).
------------- --------------
"Governmental Authority" means a Federal, state or local court,
----------------------
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"Immediate Family" shall mean an individual's spouse, children (including
----------------
adopted children), grandchildren, parents, grandparents, and siblings.
"Inclusion Event" shall have the meaning set forth in Section 4.3(a).
--------------- --------------
"Inclusion Event Offeree" shall have the meaning set forth in Section
----------------------- -------
4.3(a).
- ------
"Inclusion Event Purchaser" shall have the meaning set forth in Section
------------------------- -------
4.3(a).
- ------
"Inclusion Notice" shall have the meaning set forth in Section 4.3(a).
---------------- --------------
"Inclusion Stock" shall have the meaning set forth in Section 4.3(a).
--------------- --------------
"Indemnified Party" shall have the meaning set forth in Section 5(e)(v).
----------------- ---------------
"Indemnified Stockholder" shall have the meaning set forth in Section
----------------------- -------
5(e)(i).
- -------
"Indemnifying Party" shall have the meaning set forth in Section 5(e)(v).
------------------ ---------------
"Independent Director" shall have the meaning set forth in the preamble.
--------------------
"IPO" shall have the meaning set forth in the second recital.
---
"IPO Date" shall mean, in connection with the IPO, the first date on which
--------
(a) the Class A Common Stock shall have been registered pursuant to an
effective Registration Statement under the Securities Act, (b) the aggregate
gross proceeds received by the Company in connection with such Registration
Statement(s) equals or exceeds $20 million, and (c) the Class A Common Stock
shall be listed for trading on the New York Stock Exchange or the American Stock
Exchange or authorized for trading on NASDAQ, including without limitation its
National Market System.
"Joint Marketing Period" shall have the meaning set forth in Section
-------
6.2(a).
- ------
"JPMI" shall have the meaning set forth in Section 3.1(d).
---- --------------
"J.P. Morgan" shall have the meaning set forth in Section 3.1(d).
----------- --------------
10
<PAGE>
"Law" shall mean 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.
"License" shall mean 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.
"License Exchange and Acquisition Agreement" shall mean the License
------------------------------------------
Exchange and Acquisition Agreement among the Company, Triton PCS License Company
L.L.C., and AT&T PCS, dated as of June 8, 1999, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
"Liens" shall mean, with respect to any asset, any mortgage, lien, pledge,
-----
charge, security interest, right of first refusal or right of others therein or
encumbrance of any nature whatsoever in respect of such asset.
"Management Stockholder" shall have the meaning set forth in the preamble.
----------------------
"Majority in Interest" shall mean, with respect to the Cash Equity
--------------------
Investors, Persons that Beneficially Own, in the aggregate more than 50% of the
aggregate number of shares of Common Stock Beneficially Owned by all such
Persons.
"Majority of the Southeast Region" shall mean PCS Systems and Cellular
--------------------------------
Systems owned by AT&T PCS and its Affiliates covering a majority of the POPs in
all such PCS Systems and Cellular Systems in the Southeast Region.
"Majority of the United States" shall mean PCS Systems and Cellular Systems
-----------------------------
owned by AT&T PCS and its Affiliates covering a majority of the POPs in all such
PCS Systems and Cellular Systems in the United States.
"Minimum Build-Out Plan" shall mean the build-out plan for the Company's
----------------------
PCS Systems set forth on Schedule V hereto.
----------
"Model Procedures" shall have the meaning set forth in Section 12.8(c).
---------------- ---------------
"MTA" shall mean a geographic area established by the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, pp. 3839, as modified by the
FCC to form the initial geographic area of license for the A and B blocks of
broadband PCS spectrum as defined in Section 24.202 of the FCC's rules.
11
<PAGE>
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"NASDAQ" shall mean the National Association of Securities Dealers'
------
Automated Quotation System.
"Network Membership License Agreement" shall mean the Network Membership
------------------------------------
License Agreement between Triton Operating and AT&T Corp., dated February 4,
1998, as the same may be amended, modified or supplemented in accordance with
the terms thereof.
"Norfolk Purchase Agreement" shall mean the Asset Purchase Agreement
--------------------------
between the Company and AT&T PCS dated as of August 20, 1998, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"Offer Notice" shall have the meaning set forth in Section 4.2(a).
------------ --------------
"Offered Shares" shall have the meaning set forth in Section 4.2(a).
-------------- --------------
"Original Management Stockholders" shall mean, collectively, Michael E.
--------------------------------
Kalogris and Steven R. Skinner.
"Original Stockholders' Agreement" shall have the meaning set forth in the
--------------------------------
first recital.
"Overlap Territory" shall mean that portion of the Territory in which a
-----------------
Person or its Affiliates (other than AT&T PCS and its Affiliates) that is party
to a transaction meeting the description of a transaction set forth in clauses
(a), (b) and (c) of the definition of a Disqualifying Transaction owns an FCC
License to offer Commercial Mobile Radio Services.
"PCS System" shall mean a mobile communication system constructed and
----------
operated in a BTA or a MTA (or any successor territorial designations or
subdivision thereof authorized by the FCC) exclusively using the 1850 MHZ to
1910 MHZ and 1930 MHZ to 1990 MHZ frequencies, or portions thereof, pursuant to
a License therefor issued by the FCC.
"PCS Territory" shall mean the territory described on Schedule VI hereto.
------------- -----------
"Permitted Cellular License" shall have the meaning assigned to such term
--------------------------
in Section 7.11(b).
---------------
"Permitted Consolidation Transaction" shall have the meaning set forth in
-----------------------------------
Section 7.11(a).
- ---------------
"Permitted Merger Participant" shall mean an AT&T Licensee that (i) owns
----------------------------
one or more FCC Licenses to provide Commercial Mobile Radio Services that were
acquired from AT&T
12
<PAGE>
PCS or its Affiliates in all or any part of the Knoxville, TN, Memphis, TN,
Little Rock, AK, Detroit, MI, St. Louis, MO, Atlanta, GA, Boston, MA,
Louisville, KY, Nashville, TN and Columbus, OH MTA's and (ii) on the date of
acquisition from AT&T PCS of any such FCC Licenses to provide Commercial Mobile
Radio Service referred to in clause (i) hereof, owned FCC Licenses covering at
least 8 million POPs, and in which AT&T PCS or its Affiliates has not disposed
of more than one-half of its original equity interest therein.
"Person" shall mean an individual, corporation, partnership, limited
------
liability company, association, joint stock company, Governmental Authority,
business trust or other legal entity.
"Piggyback Notice" shall have the meaning set forth in Section 5(b)(i).
---------------- ---------------
"Piggyback Registration" shall have the meaning set forth in Section
---------------------- -------
5(b)(i).
- -------
"POPs" shall mean, with respect to any Licensed area, the residents of such
----
area based on the most recent publication by Equifax Marketing Decision Systems,
Inc.
"Preferred Stock" shall have the meaning set forth in the third recital.
---------------
"Prohibited Transferee" shall mean any Person that is one of the three
---------------------
(excluding any Person excluded from this definition by reason of the proviso
hereto) largest carriers (other than AT&T Corp.) of telecommunications services
that as of the date hereof constitute interexchange services (based on revenue
derived from the provision of such telecommunications services during the most
recent fiscal year for which such information is available) or an Affiliate
thereof; provided, however, that such Person shall not constitute a Prohibited
Transferee if (a) a material portion of such Person's business is also the
business of providing wireless communications systems, and (b) TDMA is utilized
in a substantial majority of such Person's wireless communications systems.
"Prospectus" shall have the meaning set forth in Section 5(d)(i).
---------- ---------------
"Purchase Notice" shall have the meaning set forth in Section 4.2(b).
--------------- --------------
"Qualified Holder" shall mean (a) any Stockholder or group of Stockholders
----------------
that Beneficially Owns shares of Series C Preferred Stock and Common Stock
reasonably expected to, upon sale, result in aggregate gross proceeds of at
least $25 million, or (b) AT&T PCS for so long as it Beneficially Owns, greater
than two-thirds of the initial issuance to AT&T PCS of shares of Series A
Preferred Stock (as appropriately adjusted for stock splits, stock dividends and
the like).
"Registrable Securities" shall mean (a) the Common Stock now owned or
----------------------
hereafter acquired by any Stockholder or issuable upon conversion or exchange of
any Equity Security, and (b) all Common Stock issued or issuable upon
conversion, exchange or exercise of any Equity Security which is issued pursuant
to a stock split, stock dividend or other similar
13
<PAGE>
distribution or event with respect to Common Stock but with respect to any
Common Stock, only until such time as such Common Stock (i) has been effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (ii) has been sold to the public pursuant to
Rule 144 (or any similar provision then in force), (iii) shall otherwise have
been transferred, a new certificate evidencing such Common Stock without a
legend restricting further transfer shall have been delivered by the Company,
and subsequent public distribution of such Common Stock shall neither require
registration under the Securities Act nor qualification (or any similar filing)
under any state securities or "blue sky" law then in effect, or (iv) shall have
ceased to be issued and outstanding.
"Registration" shall have the meaning set forth in Section 5(d).
------------ ------------
"Registration Expenses" shall have the meaning set forth in Section 5(g).
--------------------- ------------
"Registration Statement" shall have the meaning set forth in Section
---------------------- -------
5(d)(i).
- -------
"Regulatory Problem" shall mean, with respect to any SBIC Holder, any set
------------------
of facts or circumstances wherein it has been asserted by any Governmental
Authority (or any SBIC Holder reasonably believes in good faith that there is a
substantial risk of such assertion) that such SBIC Holder and its Affiliates are
not entitled to hold, or exercise any significant right with respect to, the
Company Stock.
"Related Agreements" shall mean each of the Network Membership License
------------------
Agreement, the Employment Agreements, the Resale Agreement and the Roaming
Agreement.
"Representatives" shall have the meaning set forth in Section 7.7.
--------------- -----------
"Resale Agreement" shall mean the form of Resale Agreement between Triton
----------------
Operating and AWS or an Affiliate thereof, attached hereto as Exhibit D, as the
---------
same may be amended, modified or supplemented in accordance with the terms
thereof.
"Restated Bylaws" shall mean the Second Amended and Restated Bylaws of the
---------------
Company in the form of Exhibit A, as the same may be amended, modified or
---------
supplemented in accordance with the terms thereof.
"Restated Certificate" shall mean the Second Restated Certificate of
--------------------
Incorporation of the Company, in the form of Exhibit B, as the same may be
---------
amended, modified or supplemented in accordance with the terms thereof.
"Roaming Agreement" shall mean the Intercarrier Roamer Service Agreement
-----------------
between Triton Operating and AWS, dated February 4, 1998, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
14
<PAGE>
"Rule 144" shall mean Rule 144 promulgated under the Securities Act (or any
--------
similar rule as may be in effect from time to time).
"Sale Notice" shall have the meaning set forth in Section 7.4(d).
----------- --------------
"Sale Offer" shall have the meaning set forth in Section 7.4(d).
---------- --------------
"Sale Transaction" shall have the meaning set forth in Section 7.4(c).
---------------- --------------
"SBIC" shall mean a small business investment company licensed under the
----
SBIC Act.
"SBIC Act" means the Small Business Investment Company Act of 1958, as
--------
amended.
"SBIC Holder" shall mean each Cash Equity Investor that is an SBIC.
-----------
"Section 6.2 Period" shall have the meaning set forth in Section 6.2.
------------------ -----------
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Securities Purchase Agreement" shall mean the Securities Purchase
-----------------------------
Agreement, dated as of October 8, 1997, among the Company and the Stockholders,
as the same may be amended, modified or supplemented in accordance with the
terms thereof.
"Seller" shall have the meaning set forth in Section 4.2(a).
------ --------------
"Selling Stockholders" shall have the meaning set forth in Section 4.3(a).
-------------------- --------------
"Series A Preferred Director" shall have the meaning set forth in Section
--------------------------- -------
3.11.
- ----
"Series A Preferred Stock" shall have the meaning set forth in the third
------------------------
recital.
"Series B Preferred Stock" shall have the meaning set forth in the third
------------------------
recital.
"Series C Preferred Stock" shall have the meaning set forth in the third
------------------------
recital.
"Series D Preferred Stock" shall have the meaning set forth in the third
------------------------
recital.
"Sixty Wall Street" shall have the meaning set forth in Section 3.1(d).
----------------- --------------
"Southeast Region" shall mean the geographic area comprising Washington,
----------------
D.C., and the States of Alabama, Florida, Georgia, Kentucky, Maryland,
Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West
Virginia.
15
<PAGE>
"Stockholder" shall have the meaning set forth in the preamble.
-----------
"Subject Market" shall mean, with respect to any announcement by AT&T PCS
--------------
or its Affiliates of a transaction meeting the description of a transaction set
forth in clauses (a), (b) and (c) of the definition of a Disqualifying
Transaction, the PCS System owned and operated by AT&T PCS and its Affiliates in
any of Charlotte, North Carolina, Atlanta, Georgia, Baltimore/Washington, D.C.
or Richmond, Virginia BTA.
"Subsidiary" shall mean, with respect to any Person, a corporation or other
----------
entity of which 50% or more of the voting power of the voting equity securities
or equity interests is owned, directly or indirectly, by such Person.
"Substantial Company Breach" shall mean a material breach by the Company or
--------------------------
its Subsidiaries of their respective obligations under any of Sections 8.1(a),
----------------
8.2, 8.3, or 8.5(a) of this Agreement, if and only if any such material breach
- -------------------
is not cured within 30 days of notice thereof from AT&T PCS to the Company or,
if such breach is not capable of being cured within such thirty (30) day period,
within one hundred eighty (180) days of such notice, provided the Company is
using best efforts to cure such material breach as soon as reasonably
practicable.
"TDMA" shall mean the North American Time Division Multiple Access
----
standard set by the Cellular Telecommunications Industry Association, IS54/136,
and any standard that is based upon, or is an upgrade from, or is a successor
to, such standard, if and only if such new or upgraded standard is (i) adopted
by AT&T PCS and its Affiliates in a Majority of the Southeast Region, (ii)
technologically compatible in all material respects with the standard then being
used in a Majority of the United States (including without limitation for the
purpose of facilitating roaming, handoff and automatic call delivery between
systems), and the User Interface in PCS Systems using such new or upgraded
standard will not differ from the User Interface in a Majority of the United
States in a manner that would be material to customers, or (iii) is approved in
writing by AT&T PCS.
"TDMA Quality Standards" shall mean the quality standards applicable to
----------------------
TDMA PCS Systems and Cellular Systems owned and operated by AT&T PCS and its
Affiliates in the Southeast Region, which, as currently in effect, are set forth
on Schedule VII, as the same may be amended from time to time, provided any such
------------
amended standards shall become effective one hundred twenty (120) days after
notice thereof is given to the Company.
"Territory" shall mean the PCS Territory and the Cellular Territory;
---------
provided, however, that in the event that, after consummation of a Disqualifying
Transaction, AT&T PCS terminates its and its Affiliates' obligations under
Section 8.6 with respect to any Overlap Territory, the "Territory" shall exclude
- -----------
the Overlap Territory solely for the purpose of determining the rights and
obligations of AT&T PCS and the Company hereunder.
"Transfer" shall have the meaning set forth in Section 4.1(b).
-------- --------------
16
<PAGE>
"Triton Operating" shall mean Triton PCS Operating Company L.L.C., a
----------------
Delaware limited liability company which is a wholly-owned Subsidiary of the
Company.
"Unfunded Commitment", with respect to any Cash Equity Investor or Original
-------------------
Management Stockholder, the amount set forth opposite such Person's name on
Schedule XII.
- ------------
"User Interface" shall mean the process, functional commands, and look and
--------------
feel by which a mobile wireless telecommunications service subscriber operates
and utilizes the mobile wireless telecommunications services and service
features provided by a PCS System, including the sequence and detail of specific
commands or service codes, the detailed operation and response of subscriber
equipment to the sequence of keys pressed to effect subscriber equipment
function, the response of subscriber equipment to the activation of these keys
or signals or data from the PCS System, the manner in which information is
displayed on the screen of subscriber equipment, and the use of announcement
tones and messages.
Each definition or pronoun herein shall be deemed to refer to the singular,
plural, masculine, feminine or neuter as the context requires. Words such as
"herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to this
Agreement as a whole, unless the context otherwise requires.
2. Restated Certificate and Restated Bylaws. The Restated Certificate
----------------------------------------
in effect as of the date hereof is in the form of Exhibit B hereto. The
---------
Restated Bylaws of the Company in effect as of the date hereof are in the form
of Exhibit A hereto.
---------
3. Management of Company.
---------------------
3.1 Board of Directors. The Board of Directors shall consist of
------------------
seven (7) directors; provided, however, that the number of directors
constituting the Board of Directors shall be reduced in the circumstances set
forth in this Section 3.1. Each of the Stockholders (other than J.P. Morgan)
-----------
hereby agrees that it will vote all of the shares of its Common Stock owned or
held of record by it (whether now owned or hereafter acquired), in person or by
proxy, to:
(a) cause the election of directors (and thereafter the continuation
in office) of two (2) individuals selected by holders of a Majority in Interest
of the Common Stock Beneficially Owned by the Cash Equity Investors, in their
sole discretion;
(b) provide Desai with the right, so long as it Beneficially Owns at
least 4.6 million shares of Common Stock, to designate one (1) one individual
who shall be entitled to attend each meeting of the Board of Directors as an
observer, including meetings during which the Company's annual budget is
discussed and presented (such observer shall have the right to receive all Board
of Directors materials and shall also have the right to meet quarterly with
management of the Company to consult on the business affairs of the Company);
and
17
<PAGE>
(c) provide that so long as AT&T PCS has the right to nominate one
director in accordance with the Restated Certificate, up to two (2) Regional
Directors (in regions overlapping with or in geographic proximity to the
Territory) who shall have the right to attend each meeting of the Board of
Directors as observers. Any nomination or designation of directors and the
acceptance thereof pursuant to this Section 3.1 shall be evidenced in writing.
-----------
In the event that CB Capital Investors, L.P., or J.P. Morgan
Investment Corporation ("JPMI") or Sixty Wall Street SBIC Fund, L.P. ("Sixty
---- -----
Wall Street"; JPMI and Sixty Wall Street are hereinafter referred to
- -----------
collectively as "J.P. Morgan") shall fail to satisfy any portion of their
-----------
respective Unfunded Commitments when due in accordance with Section 2.2 of the
Securities Purchase Agreement or Section 3.10 hereof, and such failure is not
------------
cured by CB Capital Investors, L.P. or J.P. Morgan, as applicable, or any other
Cash Equity Investor within thirty-five (35) days thereof, then, until such
failure is cured, the right of the Cash Equity Investors to designate two (2)
directors pursuant to Section 3.1(a) shall be reduced to a right to designate
--------------
one (1) director (subject to reinstatement upon cure of such failure) and the
director designated by CB Capital Investors, L.P. or J.P. Morgan, as applicable,
pursuant to such right of the Cash Equity Investors, or, in the case of a
default by CB Capital Investors, L.P. and J.P. Morgan and two (2) directors
designated by the Cash Equity Investors pursuant to Section 3.1(a), shall resign
--------------
(or the other directors or Stockholders shall remove them) from the Board of
Directors and the remaining directors shall take such action so that the number
of directors constituting the entire Board of Directors shall be reduced
accordingly.
3.2 [Intentionally Omitted]
3.3 [Intentionally Omitted]
3.4 [Intentionally Omitted]
3.5 [Intentionally Omitted]
3.6 [Intentionally Omitted]
3.7 Transactions between the Company and the Stockholders or their
--------------------------------------------------------------
Affiliates. Except for this Agreement, the Securities Purchase Agreement and
- ----------
the Related Agreements and the transactions contemplated hereby and thereby and
any other arms-length agreements or transactions entered into from time to time
between the Company and its Subsidiaries, on the one hand, and AT&T PCS and its
Affiliates, on the other hand, no Stockholder or any Affiliate of any
Stockholder shall enter into any transaction with the Company or any Subsidiary
of the Company unless such transaction is approved by a majority of the
disinterested members of the Board of Directors. For purposes hereof, a
director shall be deemed to be disinterested with respect to any such
transaction if such director was not designated a director by the Stockholder
that (or an Affiliate of which) proposed to engage in
18
<PAGE>
such transaction with the Company or any Subsidiary of the Company and such
member is not an officer, director, partner, employee, stockholder of, or
consultant to, such Stockholder or any of its Affiliates.
3.8 [Intentionally Omitted]
3.9 Voting Agreements and Voting Trusts. Except as disclosed on
-----------------------------------
Schedule X, each Stockholder agrees that it will not, directly or indirectly,
- ----------
deposit any of his or its shares of Series C Preferred Stock, Series D Preferred
Stock and/or Common Stock in a voting trust or other similar arrangement or,
except as expressly provided herein, subject such shares to a voting agreement
or other similar arrangements. AT&T PCS covenants and agrees that it will not,
directly or indirectly, enter into a voting or similar agreement with any
Transferee of shares of Series A Preferred Stock.
3.10 Additional Capital Contributions. Each Cash Equity Investor and
--------------------------------
Original Management Stockholder shall contribute to the capital of the Company
no later than November 30, 1999 an aggregate additional amount equal to its
Unfunded Commitment. Pursuant to Section 7 of the Closing Agreement, such
contributions shall be made directly to Triton PCS, Inc., a Delaware
corporation that is a wholly-owned Subsidiary of the Company.
3.11 Series A Preferred Director. For so long as AT&T PCS shall have
---------------------------
the right to nominate a Series A Preferred Director (the "Series A Preferred
------------------
Director") to the Board of Directors in accordance with the Restated
- --------
Certificate, each of the Stockholders hereby agrees that it will vote all of the
shares of Series C Preferred Stock and Common Stock owned or held of record by
it (whether now owned or hereafter acquired), in person or by proxy, to cause
the election of any such Series A Preferred Director so nominated by AT&T PCS to
serve on the Board of Directors and such obligation of the Stockholders to cause
the election of any such Series A Preferred Director shall continue until the
termination of this Agreement in accordance with Section 12.3.
------------
4. Transfers of Shares.
-------------------
4.1 General.
-------
(a) [Intentionally Omitted]
(b) Each Stockholder agrees that at all times on and after the IPO
Date it shall not, directly or indirectly, transfer, sell, assign, pledge,
tender or otherwise grant, create or suffer to exist a Lien in or upon, give,
place in trust, or otherwise voluntarily or involuntarily (including transfers
by testamentary or intestate succession) dispose of by operation of law, offer
or otherwise (any such action being referred to herein as a "Transfer") any of
--------
the shares of Series D Preferred Stock or Common Stock Beneficially Owned by
such Stockholder as of the date hereof or which may hereafter be acquired by
such Stockholder, except that a Cash Equity
19
<PAGE>
Investor may Transfer shares of Series C Preferred Stock and Common Stock to
another Cash Equity Investor and a Stockholder may Transfer (i) shares of Series
D Preferred Stock and Common Stock to an Affiliated Successor, and (ii) shares
of Common Stock after complying first with Section 4.2 and next with Section
----------- -------
4.3, if applicable; provided, however, a Stockholder shall not be required to
- ---
comply with Section 4.2 if such Stockholder first complies with the applicable
-----------
provisions of Section 4.4 in connection with Transfers of Common Stock (x)
-----------
pursuant to a Registration of Common Stock under Section 5 which is an
---------
underwritten offering and constitutes a bona fide distribution of such Common
Stock pursuant to such Registration, (y) pursuant to Rule 144, or (z) in any
single transaction or series of related transactions to one or more Persons
which results in the Transfer by such Stockholder (together with any other
Stockholder participating in such single transaction or series of related
transactions) of not more than ten percent (10%) of the Common Stock on a fully
diluted basis (excluding for such purposes the Series A Preferred Stock).
(c) Notwithstanding anything to the contrary contained in Section
-------
4.1(b), prior to February 4, 2001, each Stockholder agrees that it will not
- ------
Transfer any shares of Series C Preferred Stock or Common Stock Beneficially
Owned by it as of the date hereof or which may hereafter be acquired by it to
any Person other than an Affiliated Successor.
(d) AT&T PCS agrees that it will not (i) Transfer any shares of Series
D Preferred Stock held by it to any Person other than to an Affiliated
Successor; provided, however, that nothing contained in this Section 4.1(d)
--------------
shall limit AT&T PCS' right to Transfer in accordance with the terms of this
Agreement any shares of Series C Preferred Stock or Common Stock issued upon
conversion of any such shares of Series D Preferred Stock. Moreover, AT&T PCS
may Transfer its shares of Series A Preferred Stock free from any restrictions
on Transfer of such shares under this Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
-------
4, (i) Section 4.1 shall not apply to the pledge by the Cash Equity Investors of
- - -----------
the Series C Preferred Stock or Common Stock as security for their Unfunded
Commitments pursuant to a pledge agreement in favor of the Company or to any
Transfer of shares of Series C Preferred Stock or Common Stock in connection
with the exercise by the Company of its remedies pursuant to any such pledge
agreement, and (ii) a Cash Equity Investor that is a SBIC Holder that is
required to dispose of its investment in the Company by reason of a breach by
the Company of Section 6.6(d) of the Securities Purchase Agreement or a
Regulatory Problem, may Transfer its shares of Series C Preferred Stock or
Common Stock without complying with the terms of Section 4.3.
-----------
4.2 Right of First Offer.
--------------------
(a) If a Stockholder (each a "Seller") desires to Transfer any or all
------
of its shares of Company Stock (collectively, the "Offered Shares"), such Seller
shall give written notice (the "Offer Notice") to the Company and to each
------------
Stockholder entitled to become the First
20
<PAGE>
Offeree of such Offered Shares, as determined below. Each Offer Notice shall
describe in reasonable detail the number of shares of each class of Offered
Shares, the cash purchase price requested and all other material terms and
conditions of the proposed Transfer. The Offer Notice shall constitute an
irrevocable offer (a "First Offer") to sell all (and not less than all) of the
-----------
Offered Shares to the First Offeree(s) at a cash price equal to the price
contained in such Offer Notice and upon the same terms as the terms contained in
such Offer Notice. The First Offeree(s) shall have the irrevocable right and
option, exercisable as provided below, but not the obligation, to accept the
First Offer as to all (and not less than all) of the Offered Shares. The "First
-----
Offeree(s)" shall be determined as follows:
- ----------
(i) If the Seller is a Cash Equity Investor, AT&T PCS shall
be First Offeree;
(ii) If the Seller is AT&T PCS, each Cash Equity Investor
shall be the First Offeree; and
(iii) If the Seller is any Stockholder other than a Cash
Equity Investor, AT&T PCS shall be the First Offeree.
(b) The option provided for herein shall be exercisable by the First
Offeree(s) by giving written notice (a "Purchase Notice"), that the First
---------------
Offeree desires to purchase all (and not less than all) of such Offered Shares
from the Seller, the Stockholders (other than the Seller) and the Company not
later than ten (10) business days (the "First Offer Period") after the date of
------------------
the Offer Notice. If the Cash Equity Investors are First Offeree and two or
more Cash Equity Investors notify the Seller of their desire to purchase all of
the Offered Shares, then each Cash Equity Investor shall acquire the proportion
of such Offered Shares as the number of shares of Company Stock owned by such
Cash Equity Investor bears to the total number of shares of Company Stock owned
by all Cash Equity Investors who elected to purchase all of the Offered Shares.
If Offered Shares are purchased by more than one purchaser, the purchase price
shall be allocated among the parties purchasing the shares on the basis of the
number of shares being so purchased. The purchase of the Offered Shares by the
First Offeree(s) shall be closed at the principal executive offices of the
Company on a date specified by the First Offeree(s) upon at least five (5)
business days' notice, that is within thirty (30) days after the expiration of
the First Offer Period; provided, however, that if such purchase is subject to
the consent of the FCC or any public service or public utilities commission, the
purchase of the Offered Shares shall be closed on the first business day after
all such consents shall have been obtained by Final Order.
(c) If the First Offeree(s) decline (which shall include the failure
to give timely notice of acceptance) to purchase all of the Offered Shares
subject to the First Offer within the First Offer Period, the Seller shall have
the right (for a period of ninety (90) days following the expiration of the
First Offer Period) to consummate the sale of the Offered Shares to any Person;
provided, however, that the purchase price of such Offered Shares payable by
21
<PAGE>
such Person must be at least equal to the cash purchase price thereof set forth
in the Offer Notice and all other terms and conditions of any such sale shall
not be more beneficial to such third party than those contained in the Offer
Notice. If any Offered Shares are not sold pursuant to the provisions of this
Section 4.2 prior to the expiration of the ninety (90) day period specified in
- -----------
the immediately preceding sentence, such Offered Shares shall become subject
once again to the provisions and restrictions hereof.
(d) The purchase price of any Offered Shares Transferred pursuant to
this Section 4.2 shall be payable in cash by certified bank check or by wire
-----------
transfer of immediately available funds.
4.3 Rights of Inclusion.
-------------------
(a) No Stockholder shall, directly or indirectly, Transfer, in any
single transaction or series or related transactions to one or more Persons who
are not Affiliated Successors of such Stockholder (each such Person an
"Inclusion Event Purchaser") shares of Series C Preferred Stock or Common Stock
- --------------------------
(collectively, "Inclusion Stock") in circumstances in which, after giving effect
---------------
to such Transfer, whether acting alone or in concert with any other Stockholder
(such parties referred to herein as "Selling Stockholders") would result in such
--------------------
Selling Stockholder(s) Transferring twenty-five percent (25%) or more of the
outstanding shares of Inclusion Stock outstanding on the date of such proposed
Transfer on a fully diluted basis (excluding for such purposes the Series A
Preferred Stock) (an "Inclusion Event"), unless the terms and conditions of such
---------------
sale to such Inclusion Event Purchaser shall include an offer to AT&T PCS, the
Cash Equity Investors and the Management Stockholders other than the Selling
Stockholder (each, an "Inclusion Event Offeree") to Transfer to such Inclusion
-----------------------
Event Purchasers up to that number of shares of any class of Inclusion Stock
then Beneficially Owned by each Inclusion Event Offeree that bears the same
proportion to the total number of shares of Inclusion Stock at that time
Beneficially Owned (without duplication) by each such Inclusion Event Offeree as
the number of shares of Inclusion Stock being Transferred by the Selling
Stockholders (including shares of Inclusion Stock theretofore Transferred if in
any applicable series of related transactions) bears to the total number of
shares of Inclusion Stock at the time Beneficially Owned (without duplication)
by the Selling Stockholders (including shares of Inclusion Stock theretofore
Transferred if in any applicable series of related transactions). If the
Selling Stockholders receive a bona fide offer from an Inclusion Event Purchaser
to purchase shares of Inclusion Stock in circumstances in which, after giving
effect to such sale would result in an Inclusion Event, and which offer such
Selling Stockholders wish to accept, the Selling Stockholders shall then cause
the Inclusion Event Purchaser's offer to be reduced to writing (which writing
shall include an offer to purchase shares of Inclusion Stock from each Inclusion
Event Offeree according to the terms and conditions set forth in this Section
-------
4.3) and the Selling Stockholders shall send written notice of the Inclusion
- ---
Event Purchaser's offer (the "Inclusion Notice") to each Inclusion Event
----------------
Offeree, which Inclusion Notice shall specify (i) the names of the Selling
Stockholders, (ii) the names and addresses of the proposed acquiring Person,
(iii) the amount of shares proposed to be Transferred and the price, form of
consideration and other terms
22
<PAGE>
and conditions of such Transfer (including, if in a series of related
transactions, such information with respect to shares of Inclusion Stock
theretofore Transferred), (iv) that the acquiring Person has been informed of
the rights provided for in this Section 4.3 and has agreed to purchase shares of
-----------
Inclusion Stock in accordance with the terms hereof, and (v) the date by which
each other Selling Stockholder may exercise its respective rights contained in
this Section 4.3, which date shall not be less than thirty (30) days after the
-----------
giving of the Inclusion Notice. The Inclusion Notice shall be accompanied by a
true and correct copy of the Inclusion Event Purchaser's offer. At any time
within thirty (30) days after receipt of the Inclusion Notice, each Inclusion
Event Offeree may accept the offer included in the Inclusion Notice for up to
such number of shares of Inclusion Stock as is determined in accordance with
this Section 4.3, by furnishing written notice of such acceptance to each
-----------
Selling Stockholder, and delivering, to an escrow agent (which shall be a bank
or a law or accounting firm designated by the Company), on behalf of the Selling
Stockholders, the certificate or certificates representing the shares of
Inclusion Stock to be sold pursuant to such offer by each Inclusion Event
Offeree, duly endorsed in blank, together with a limited power of attorney
authorizing the escrow agent, on behalf of the Inclusion Event Offeree, to sell
the shares to be sold pursuant to the terms of such Inclusion Event Purchaser's
offer.
In the event that the Inclusion Event Purchaser does not agree to
purchase all of the shares of Inclusion Stock proposed to be sold by the Selling
Stockholders and the Inclusion Event Offeree, then each Selling Stockholder and
Inclusion Event Offeree shall have the right to sell to the Inclusion Event
Purchaser that number of shares of Inclusion Stock as shall be equal to (x) the
number of shares of Inclusion Stock which the Inclusion Event Purchaser has
agreed to purchase times (y) a fraction, the numerator of which is the number of
shares of Inclusion Stock Beneficially Owned (without duplication) by such
Selling Stockholder or Inclusion Event Offeree and the denominator of which is
the aggregate number of shares of Inclusion Stock Beneficially Owned (without
duplication) by all Selling Stockholders and Inclusion Event Offeree. If any
Inclusion Event Offeree desires to sell less than its proportionate amount of
shares of Inclusion Stock that it is entitled to sell pursuant to this Section
-------
4.3, then the Selling Stockholders and the remaining Inclusion Event Offeree
- ---
shall have the right to sell to the Inclusion Event Purchaser an additional
amount of shares of Inclusion Stock as shall be equal to (x) the number of
shares of Inclusion Stock not being sold by any such Inclusion Event Purchasers
times (y) a fraction, the numerator of which is the number of shares of
Inclusion Stock owned such Selling Stockholder or remaining Inclusion Event
Offeree and the denominator of which is the aggregate number of shares of
Inclusion Stock Beneficially Owned (without duplication) by all Selling
Stockholders and remaining Inclusion Event Offeree. Such process shall be
repeated in series until all of the remaining Inclusion Event Offeree agree to
sell their remaining proportionate number of shares of Inclusion Stock.
(b) The purchase from each Inclusion Event Offeree pursuant to this
Section 4.3 shall be on the same terms and conditions, including the price per
- -----------
share received by the Selling Stockholders and stated in the Inclusion Notice
provided to each Inclusion Event Offeree. In the event that the Inclusion Stock
is Common Stock, all Inclusion Event Offeree shall be required, as a condition
of participating in such transaction, to convert its Preferred
23
<PAGE>
Stock into Common Stock and Transfer Common Stock to the Inclusion Event
Purchaser. In the event that the Inclusion Stock is Series C Preferred Stock
and after giving effect to the rights of the Inclusion Event Offeree to sell
their pro rata share of Series C Preferred Stock or Common Stock pursuant to
this Section 4.3 the Inclusion Event Purchaser shall be required to purchase
-----------
both Series C Preferred Stock and Common Stock, the purchase price allocable to
holders of Series C Preferred Stock, on the one hand, and to holders of Common
Stock, on the other hand, shall be determined by an independent committee of the
Board of Directors selected from among those directors who were not designated
by any Selling Stockholders or Inclusion Event Offeree.
(c) Simultaneously with the consummation of the sale of the shares of
Inclusion Stock of the Selling Stockholders and each Inclusion Event Offeree to
the Inclusion Event Purchaser pursuant to the Inclusion Event Purchaser's offer,
the Selling Stockholders shall notify each Inclusion Event Offeree and shall
cause the purchaser to remit to each Inclusion Event Offeree the total sales
price of the shares of Inclusion Stock held by each Inclusion Event Offeree sold
pursuant thereto and shall furnish such other evidence of the completion and
time of completion of such sale and the terms thereof as may be reasonably
requested by each Inclusion Event Offeree.
(d) If within thirty (30) days after receipt of the Inclusion Notice,
an Inclusion Event Offeree has not accepted the offer contained in the Inclusion
Notice, such Inclusion Event Offeree shall be deemed to have waived any and all
rights with respect to the sale described in the Inclusion Notice (but not with
respect to any subsequent sale, to the extent this Section 4.3 is applicable to
-----------
such subsequent sale) and the Selling Stockholders shall have sixty (60) days in
which to sell not more than the number of shares of Inclusion Stock described in
the Inclusion Notice, on terms not more favorable to the Selling Stockholders
than were set forth in the Inclusion Notice; provided, however, that if such
purchase is subject to the consent of the FCC or any public service or public
utilities commission, the purchase of the Offered Shares shall be closed on the
first business day after all such consents shall have been obtained by Final
Order.
4.4 Right of First Negotiation. In the event that a Stockholder
--------------------------
desires to Transfer any shares of Common Stock following the IPO Date in a
Transfer described in clauses (x), (y) or (z) of Section 4.1(b), such
--------------
Stockholder shall give written notice thereof to AT&T PCS, such notice to
specify, among other things, the number of shares that such Stockholder desires
to sell. For the applicable first negotiation period hereinafter set forth,
AT&T PCS shall have the exclusive right to negotiate with such Stockholder with
respect to the purchase of such shares; it being understood and agreed that such
exclusive right shall not be deemed to be a right of first offer or right of
first refusal for the benefit of AT&T PCS and such Stockholder shall have the
right to reject any offer made by AT&T PCS during such applicable first
negotiation period. Upon the expiration of such applicable first negotiation
period, such Stockholder shall have the right (for the applicable offer period
hereinafter set forth with respect to each applicable first negotiation period),
following the expiration of such applicable first negotiation period, to offer
and sell such shares included in such written notice on such terms and
conditions as shall be
24
<PAGE>
acceptable to such Stockholder in its sole discretion. If any of such shares
included in such written notice are not sold pursuant to the provisions of this
Section 4.4 prior to the expiration of the applicable offer period, such shares
- -----------
shall become subject once again to the provision and restrictions hereof.
If a Stockholder desires to Transfer shares of Common Stock (a) pursuant to
a Registration of Common Stock under Section 5 in an underwritten offering that
---------
constitutes a bona fide distribution of such Common Stock pursuant to such
Registration, the applicable first negotiation period shall be ten (10) days and
the applicable offer period upon the expiration of such first negotiation period
shall be one hundred twenty (120) days, (b) pursuant to Rule 144, the applicable
first negotiation period shall be three (3) hours (it being understood and
agreed that such Stockholder shall, in addition to giving written notice of such
proposed Transfer by facsimile, use commercially reasonable efforts to contact
AT&T PCS by telephone in accordance with Section 12.1) and the applicable offer
------------
period upon the expiration of such first negotiation period shall be five (5)
business days, and (c) in any single transaction or series of related
transactions to one or more Persons which will result in the Transfer by such
Stockholder (together with any other Stockholder participating in such single
transaction or series of related transactions) of not more than ten percent
(10%) of the Common Stock on a fully diluted basis (excluding for such purposes
the Series A Preferred Stock), the applicable first negotiation period shall be
one (1) business day, so long as notice of such proposed Transfer is given to
AT&T PCS prior to 9:00 A.M. on the day prior to the date of such proposed
Transfer (it being understood and agreed that such Stockholder shall, in
addition to giving written notice of such proposed Transfer by facsimile, use
commercially reasonable efforts to contact AT&T PCS by telephone in accordance
with Section 12.1) and the applicable offer period upon the expiration of such
------------
first negotiation period shall be ten (10) business days.
4.5 Additional Conditions to Permitted Transfers.
--------------------------------------------
(a) As a condition to any Transfer to an Affiliated Successor
permitted pursuant to Section 4.2 or Section 4.3, each transferee that is not a
----------- -----------
party hereto shall, prior to such Transfer, agree in writing to be bound by all
of the provisions of this Agreement applicable to the Stockholders (and shall
thereby become a Stockholder for all purposes of this Agreement). Any Transfer
without compliance with such provisions of this Agreement shall be null and void
and such transferee shall have no rights as a Stockholder of the Company.
(b) Notwithstanding anything to the contrary contained in this
Agreement, each Stockholder agrees that it will not effect a Transfer of shares
of Company Stock to a Prohibited Transferee; provided, however, that nothing
contained in this Section 4.5(b) shall be construed to prohibit a Transfer of
--------------
Common Stock by a Stockholder after the IPO Date pursuant to an underwritten
Registration or in accordance with the provisions of Rule 144. It shall be
deemed a breach of this Section 4.5(b) by a Stockholder Beneficially Owning more
--------------
than 10% of the Common Stock outstanding if any Prohibited Transferee shall
acquire, directly or
25
<PAGE>
indirectly, in a private sale Beneficial Ownership of more than 33 1/3% of any
class of equity securities or equity interest in, such Stockholder.
(c) [Intentionally Omitted]
4.6 Representations and Warranties. A Stockholder purchasing shares
------------------------------
of Company Stock pursuant to Section 4.2 shall be entitled to receive
-----------
representations and warranties from the transferring Stockholder that such
Stockholder has the authority (corporate or otherwise) to sell such shares, is
the sole owner of such shares, and has good and valid title to such shares, free
and clear of any and all Liens (other than pursuant to this Agreement, the
Restated Certificate or any Related Agreement), and that the sale of such shares
does not violate any agreement to which it is a party or by which it is bound.
4.7 Stop Transfer.
-------------
(a) The Company agrees not to effect any Transfer of shares of Company
Stock by any Stockholder whose proposed Transfer is subject to Sections 4.2, 4.3
-----------------
or 4.4 until it has received evidence reasonably satisfactory to it that the
- ------
rights provided to any other Stockholders pursuant to such Sections, if
applicable to such Transfer, have been complied with and satisfied in all
respects. If any portion of such Stockholder's Unfunded Commitment shall remain
unpaid on the date of such proposed Transfer, then, as a condition of such
Transfer, such Person purchasing such Company Stock shall, or another Cash
Equity Investor may, execute an instrument in form satisfactory to the Company
agreeing to pay in full such Stockholder's Unfunded Commitment outstanding on
the date of such proposed Transfer, provided, however, that such Stockholder
shall not be released from its obligation in respect of such Unfunded
Commitment. No Transfer of any shares of Preferred Stock and/or Common Stock
shall be made except in compliance with all applicable securities laws. Any
Transfer made in violation of this Agreement shall be null and void.
(b) The Company agrees that it will not, without the prior written
consent of AT&T PCS, Transfer, issue or dispose of any Equity Securities to a
Prohibited Transferee except that purchases of Common Stock by a Prohibited
Transferee in connection with a Registration of Common Stock shall not
constitute a violation of this Section 4.7(b).
--------------
5. Registration Rights.
-------------------
(a) Demand Registration Rights.
--------------------------
(i) Right to Demand Registration. From and after the ninety-first
----------------------------
(91st) day following the IPO Date (or such longer period as may be required by
the managing underwriters of the Company's initial public offering) and, subject
to Section 4.1(d), each of (A) AT&T PCS, (B) a Qualified Holder, and (C)
--------------
Management Stockholders that in the aggregate Beneficially Own at least 50.1% of
the shares of Common Stock then Beneficially
26
<PAGE>
Owned by the Management Stockholders (each a "Demanding Stockholder" and,
---------------------
collectively, the "Demanding Stockholders") shall have the right to make a
----------------------
written request to the Company for registration with the Commission, under and
in accordance with the provisions of the Securities Act, of all or part of their
Registrable Securities pursuant to an underwritten offering (a "Demand
------
Registration"), which request shall specify the number of Registrable Securities
- ------------
proposed to be sold by each Demanding Stockholder; provided, however, that (x)
the Company need not effect a Demand Registration unless the sale of the
Registrable Securities proposed to be sold by the Demanding Stockholder shall
reasonably be expected to result in aggregate gross proceeds to such Demanding
Stockholder of at least $10 million, and (y) if the Board of Directors
determines that a Demand Registration would interfere with any pending or
contemplated material acquisition, disposition, financing or other material
transaction, the Company may defer a Demand Registration (including by
withdrawing any Registration Statement filed in connection with a Demand
Registration); so long as that the aggregate of all such deferrals shall not
exceed one hundred twenty (120) days in any 360 day period. Demand Registration
shall not be deemed a Demand Registration hereunder until such Demand
Registration has been declared effective by the Commission (without interference
by any stop order, injunction or other order or requirement of the Commission or
other governmental agency, for any reason), and maintained continuously
effective for a period of at least three (3) months or such shorter period when
all Registrable Securities included therein have been sold in accordance with
such Demand Registration; provided, however, that a Qualified Holder may, not
more frequently than once in any twelve (12) month period, request that the
Demand Registration be a shelf registration that is maintained continuously
effective for a period of at least six (6) months or such shorter period when
all Registrable Securities included therein have been sold in accordance with
such Demand Registration. A Demanding Stockholder may make a written request
for a Demand Registration in accordance with the foregoing in respect of Equity
Securities that it intends to convert into shares of Common Stock upon the
effectiveness of the Registration Statement prepared in connection with such
demand, and the Company shall fulfill its obligations under this Section 5 in a
---------
manner that permits such Demanding Stockholder to exercise its conversion rights
in respect of such Equity Securities and substantially contemporaneously sell
the shares of Common Stock issuable upon such conversion under such Registration
Statement.
The Company will not be obligated to effect more than two (2) separate
Demand Registrations during any twelve (12) month period; provided, however,
that only one (1) request for a Demand Registration may be exercised by AT&T PCS
and/or Management Stockholders that in the aggregate Beneficially Own at least
50.1% of the shares of Common Stock then Beneficially Owned by the Management
Stockholders during any twelve (12) month period.
Within ten (10) days after receipt of the request for a Demand
Registration, the Company will send written notice (the "Demand Notice") of such
-------------
Registration request and its intention to comply therewith to all Stockholders
who are holders of Registrable Securities and, subject to Section 5(a)(ii), the
----------------
Company will include in such Demand Registration all Registrable Securities of
such Stockholders with respect to which the Company has received written
requests
27
<PAGE>
for inclusion therein within twenty (20) days after the last date such
Demand Notice was deemed to have been given pursuant to Section 12.1.
------------
(ii) Priority on Demand Registration. If the managing underwriter
-------------------------------
or underwriters advise the Company and the holders of the Registrable Securities
to be registered in writing that in its or their opinion that, the number of
Registrable Securities proposed to be sold in such Registration and any other
securities of the Company requested or proposed to be included in such
Registration exceeds the number that can be sold in such offering without (A)
creating a substantial risk that the proceeds or price per share that will be
derived from such Registration will be reduced or that the number of Registrable
Securities to be registered is too large a number to be reasonably sold, or (B)
materially and adversely affecting such Registration in any other respect, the
Company will (x) include in such Registration the aggregate number of
Registrable Securities recommended by the managing underwriter (the number of
Registrable Securities to be registered for each Stockholder to be reduced pro
rata based on the amount of Registrable Securities each of the Stockholders
requested to be included in such Registration), and (y) not allow any securities
s other than Registrable Securities to be included in such Registration unless
all Registrable Securities requested to be included shall have been included
therein, and then only to the extent recommended by the managing underwriter or
determined by the Company after consultation with an investment banker of
nationally recognized standing (notification of which number shall be given by
the Company to the holders of Registrable Securities).
(iii) Selection of Underwriters. The offering of such Registrable
-------------------------
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering. The Demanding Stockholder that initiated such Demand
Registration will select a managing underwriter or underwriters of recognized
national standing to administer the offering, which managing underwriter or
underwriters shall be reasonably acceptable to the Company.
(b) Piggyback Registration Rights.
-----------------------------
(i) Right to Piggyback. If the Company proposes to register any
------------------
shares of Common Stock (or securities convertible into or exchangeable for
Common Stock) with the Commission under the Securities Act (other than a
Registration on Form S-4 or Form S-8, or any successor forms), and the
Registration form to be used may be used for the Registration of the Registrable
Securities (a "Piggyback Registration"), the Company will give written notice (a
----------------------
"Piggyback Notice") to all Stockholders, at least thirty (30) days prior to the
----------------
anticipated filing date, of its intention to effect such a Registration, which
notice will specify the proposed offering price (if determined at that time),
the kind and number of securities proposed to be registered, the distribution
arrangements and will, subject to Section 5(b)(ii), include in such Piggyback
----------------
Registration all Registrable Securities with respect to which the Company has
received written requests (which requests have not been withdrawn) for inclusion
therein within twenty (20) days after the last date such Piggyback Notice was
deemed to have been given pursuant to Section 12.1.
------------
28
<PAGE>
If at any time after giving the Piggyback Notice and prior to the effective date
of the Registration Statement filed in connection with such Registration, the
Company determines for any reason not to register or to delay Registration, the
Company may, at its election, give written notice of such determination to each
holder of Registrable Securities that has requested inclusion of Registrable
Securities in such Registration and (A) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such Registration, and (B) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities.
(ii) Priority on Piggyback Registrations. If the managing underwriter
-----------------------------------
or underwriters, if any, advise the Company and the holders of Registrable
Securities in writing that in its or their opinion, that the number or kind of
securities proposed to be sold in such Registration (including Registrable
Securities to be included pursuant to Section 5(b)(i)) exceeds the number that
----------------
can be sold in such offering without (A) creating a substantial risk that the
proceeds or price per share the Company will derive from such Registration will
be reduced, or that the number of shares to be registered is too large a number
to be reasonably sold or (B) materially and adversely affecting such
Registration in any other respect, without any reduction in the amount of
securities the Company proposes to issue and sell for its own account or in the
amount of securities any other security holder proposes to sell for its own
account pursuant to a demand Registration right, the number of Registrable
Securities to be registered for each Demanding Stockholder shall be reduced pro
---
rata based on the amount of Registrable Securities each of the Demanding
- ----
Stockholders requested to be included in such Registration, to the extent
necessary to reduce the number of Registrable Securities to be registered to the
number recommended by the managing underwriter or determined by the Company
after consultation with an investment banker of nationally recognized standing
(notification of which number shall be given by the Company to the holders of
Registrable Securities of such determination).
(c) Selection of Underwriters. Except as set forth in Section
------------------------- -------
5.1(a)(iii), the Company (by action of the Board of Directors) will select a
- -----------
managing underwriter or underwriters to administer the offering, which managing
underwriter or underwriters will be of nationally recognized standing.
(d) Registration Procedures. With respect to any Demand Registration
-----------------------
or Piggyback Registration (each, a "Registration"), the Company shall, subject
------------
to Sections 5(a)(i) and (5)(a)(ii) and Sections 5(b)(i) and 5(b)(ii), as
------------------------------- -----------------------------
expeditiously as practicable:
(i) prepare and file with the Commission, as promptly as reasonably
practicable (but in no event more than forty-five (45) days) after the receipt
of the Registration requests under Sections 5(a) or 5(b), a registration
---------------------
statement or registration statements (each, a "Registration Statement") relating
----------------------
to the applicable Registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof;
29
<PAGE>
cooperate and assist in any filings required to be made with the NASD; and use
its reasonable best efforts to cause such Registration Statement to become and
(to the extent provided herein) remain effective; provided, however, that before
filing a Registration Statement or prospectus related thereto (a "Prospectus")
----------
or any amendments or supplements thereto, the Company shall furnish to the
holders of the Registrable Securities covered by such Registration Statement and
the underwriters, if any, copies of all such documents proposed to be filed,
which documents will be subject to the reasonable review of such holders and
underwriters and their respective counsel, and the Company shall not file any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which the holders of a majority of the Registrable Securities covered
by such Registration Statement or the underwriters, if any, shall reasonably
object;
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement as may be necessary to keep each
Registration Statement effective for three (3) months (six (6) months in the
case of any shelf registration requested by a Qualified Holder pursuant to this
Section 5) or such shorter period that will terminate when all Registrable
- ---------
Securities covered by such Registration Statement have been sold; cause each
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) promptly notify the selling holders of Registrable Securities
and the managing underwriters, if any (and, if requested by any such person or
entity, confirm such advice in writing), (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (B) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus or for additional
information; (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; (D) if at any time the representations and
warranties of the Company contemplated by subsection (xiv) of this subsection
(d) below cease to be true and correct; (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and (F) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated therein by
reference in order to make the statements therein not misleading;
30
<PAGE>
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of (I) the Registration Statement, or (II)
the qualification of the Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction at the earliest possible time;
(v) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(vi) furnish to each selling holder of Registrable Securities and each
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(vii) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such selling holder of Registrable Securities underwriters may reasonably
request in order to facilitate the public sale or other disposition of the
securities owned by such selling holder;
(viii) prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the selling
holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the Registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions in the United States as any seller or underwriter
reasonably requests in writing, use its reasonable best efforts to obtain all
appropriate registrations, permits and consents required in connection
therewith, and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
31
<PAGE>
(ix) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and to be in such denominations and registered
in such names as the managing underwriters may request at least two (2) business
days prior to any sale of Registrable Securities to the underwriters;
(x) use its reasonable best efforts to cooperate with any selling
holder to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities;
(xi) upon the occurrence of any event contemplated by subsection
(iii)(F) above, promptly prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(xii) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or, if not so listed, cause such
Registrable Securities to be authorized for trading on the NASDAQ National
Market System if any similar securities issued by the Company are then so
authorized, if requested by the holders of a majority of such Registrable
Securities or the managing underwriters, if any;
(xiii) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities;
(xiv) enter into such customary agreements (including in the case of a
Demand Registration that is an underwritten offering, an underwriting agreement
in customary form) and take all such other actions reasonably required in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the Registration is an underwritten
Registration, (A) make such representations and warranties to the holders of
such Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings; (B) use reasonable best efforts to obtain opinions of counsel to the
Company and updates thereof (which opinions of counsel shall be in form, scope
and substance reasonably satisfactory to the managing underwriters, if any, and
to the holders of a majority of the Registrable Securities being sold),
addressed to each selling holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as
32
<PAGE>
may be reasonably requested by such holders and underwriters; (C) use reasonable
best efforts to obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters by underwriters in connection with primary underwritten
offerings; and (D) deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the Registrable Securities being sold
and the managing underwriters, if any, to evidence compliance with subsection
(xi) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. All the above in this
Section 5(d)(xiv) shall be done at each closing under each underwriting or
- -----------------
similar agreement or as and to the extent required thereunder;
(xv) make available for inspection by a representative of each
Demanding Stockholder, any underwriter participating in any disposition pursuant
to such Registration, and any attorney or accountant retained by the sellers or
underwriter, copies or extracts of all financial and other records, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary, in the opinion of the holders' or underwriter's counsel, to enable
them to fulfill their due diligence responsibilities; and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in connection
with such Registration Statement; provided, however, that the Company shall not
be required to comply with this paragraph (xv) unless such person executes
confidentiality agreements whereby such person agrees that any records,
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons and used only in
connection with the proposed Registration unless disclosure of such records,
information or documents is required by court or administrative order or any
regulatory body having jurisdiction; and each seller of Registrable Securities
agrees that it will, upon learning that disclosure of such records, information
or documents is sought in a court of competent jurisdiction or by a governmental
agency, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of any records,
information or documents deemed confidential; provided further, however,
notwithstanding any designation of confidentiality by the Company, confidential
information shall not include information which (i) becomes generally available
to the public other than as a result of a disclosure by or on behalf of any such
Person, or (ii) becomes available to any such Person on a non-confidential basis
from a source other than the Company or its advisors, provided that such source
is not to such Person's knowledge bound by a confidentiality agreement with or
other obligations of secrecy to the Company or another party with respect to
such information;
(xvi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12)-month period (or ninety (90) days, if such period is
a fiscal year) (A) commencing at the end of any fiscal quarter in which
33
<PAGE>
Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering, or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement, which statements shall
cover said twelve (12)-month periods; and
(xvii) promptly prior to the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus (after
initial filing of the Registration Statement), provide copies of such document
to counsel to the selling holders of Registrable Securities and to the managing
underwriters, if any, make the Company's executive officers and other
representatives available for discussion of such document and make such changes
in such document prior to the filing thereof as counsel for such selling holders
or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to which
any Registration is being effected to furnish to the Company such information
regarding the proposed distribution of such securities as the Company may from
time to time reasonably request in writing. Each holder of Registrable
Securities agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(d)(xi), such holder shall forthwith discontinue
----------------
disposition of Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 5(d)(xi), or
----------------
until it is advised in writing (the "Advice") by the Company that the use of the
------
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus; and,
if so directed by the Company, such holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
seller's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company gives
any such notice, the time periods regarding the maintenance of the effectiveness
of any Registration Statement in Sections 5(d)(ii) shall be extended by the
-----------------
number of days during the period from and including the date of the receipt of
such notice pursuant to Section 5(d)(iii)(F) hereof to and including the date
--------------------
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectuses contemplated by Section 5(d)(xi) or the Advice.
----------------
(e) Indemnification.
----------------
(i) In the event of the Registration or qualification of any
Registrable Securities under the Securities Act or any other applicable
securities laws pursuant to the provisions of this Section 5, the Company agrees
---------
to indemnify and hold harmless each Stockholder thereby offering such
Registrable Securities for sale (an "Indemnified Stockholder"), underwriter,
-----------------------
broker or dealer, if any, of such Registrable Securities, and each other person,
if any, who controls any such Indemnified Stockholder, underwriter, broker or
dealer within the meaning of the Securities Act or any other applicable
securities laws, from and against any and all losses, claims, damages, expenses
or liabilities (or actions in respect thereof), joint or several,
34
<PAGE>
to which such Indemnified Stockholder, underwriter, broker or dealer or
controlling person may become subject under the Securities Act or any other
applicable federal or state securities laws or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered or qualified under the Securities Act or
any other applicable securities laws, any preliminary prospectus or final
prospectus relating to such Registrable Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of any rule or regulation under the Securities Act or any other
applicable federal or state securities laws applicable to the Company or
relating to any action or inaction required by the Company in connection with
any such Registration or qualification, and will reimburse each such Indemnified
Stockholder, underwriter, broker or dealer and each such controlling person for
any legal or other expenses reasonably incurred by such Indemnified Stockholder,
underwriter, broker or dealer or controlling person in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, expense or liability arises out
of or is based upon an untrue statement or omission contained in such
Registration Statement, such preliminary prospectus, such final prospectus or
such amendment or supplement thereto, made in reliance upon and in conformity
with written information furnished to the Company by such Indemnified
Stockholder, underwriter, broker, dealer or controlling person specifically and
expressly for use in the preparation thereof or by the failure of such
Indemnified Stockholder, underwriter, broker or dealer, or controlling person to
deliver a copy of the Registration Statement, such preliminary prospectus, such
final prospectus or such amendment or supplement thereto after the Company has
furnished such party with a sufficient number of copies of the same and such
party failed to deliver or otherwise provide a copy of the final prospectus to
the person asserting an untrue statement or omission or alleged untrue statement
or omission at or prior to the written confirmation of the sale of securities to
such person, if such statement or omission was in fact corrected in such final
prospectus.
(ii) In the case of an underwritten offering in which the Registration
Statement covers Registrable Securities, the Company agrees to enter into an
underwriting agreement in customary form and substance with such underwriters
and to indemnify the underwriters, their officers and directors, if any, and
each person, if any, who controls such underwriters within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same
extent as provided in the preceding paragraph with respect to the
indemnification of the holders of Registrable Securities; provided, however, the
Company shall not be required to indemnify any such underwriter, or any officer
or director of such underwriter or any person who controls such underwriter
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the extent that the loss, claim, damage, expense or liability
(or actions in respect thereof) for which indemnification is sought results from
such underwriter's failure to deliver or otherwise provide a copy of the final
prospectus to
35
<PAGE>
the person asserting an untrue statement or omission or alleged untrue statement
or omission at or prior to the written confirmation of the sale of securities to
such person, if such statement or omission was in fact corrected in such final
prospectus.
(iii) In the event of the Registration or qualification of any
Registrable Securities of the Stockholders under the Securities Act or any other
applicable federal or state securities laws for sale pursuant to the provisions
hereof, each Indemnified Stockholder agrees severally, and not jointly, to
indemnify and hold harmless the Company, each person who controls the Company
within the meaning of the Securities Act, and each officer and director of the
Company from and against any losses, claims, damages, expenses or liabilities
(or actions in respect thereof), joint or several, to which the Company, such
controlling person or any such officer or director may become subject under the
Securities Act or any other applicable securities laws or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Securities were registered or qualified under the Securities Act or any other
applicable securities laws, any preliminary prospectus or final prospectus
relating to such Registrable Securities, or any amendment or supplement thereto,
or arise out of or are based upon an untrue statement therein or the omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which untrue statement or omission was
made therein in reliance upon and in conformity with written information
furnished to the Company by such Indemnified Stockholder specifically and
expressly for use in connection with the preparation thereof, and will reimburse
the Company, such controlling person and each such officer or director for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, an Indemnified Stockholder's liability under this
Section 5(e)(iii) shall not exceed the net proceeds received by such Indemnified
- -----------------
Stockholder with respect to the sale of any Registrable Securities.
(iv) In the case of an underwritten offering of Registrable
Securities, each holder of a Registrable Security included in a Registration
Statement shall agree to enter into an underwriting agreement in customary form
and substance with such underwriters, and to indemnify such underwriters, their
officers and directors, if any, and each person, if any, who controls such
underwriters within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, to the same extent as provided in the preceding
paragraph with respect to indemnification by such holder of the Company, but
subject to the same limitation as provided in Section 5(e)(ii) with respect to
----------------
indemnification by the Company of such underwriters, officers, directors and
control persons.
(v) Promptly after receipt by a person entitled to indemnification
under this Section 5(e) (an "Indemnified Party") of notice of the commencement
------------ -----------------
of any action or claim relating to any Registration Statement filed under this
Section 5 as to which indemnity may be sought hereunder, such Indemnified Party
- ---------
will, if a claim for indemnification hereunder in respect thereof is to be made
against any other party hereto (an
36
<PAGE>
"Indemnifying Party"), give written notice to each such Indemnifying Party of
------------------
the commencement of such action or claim, but the omission to so notify each
such Indemnifying Party will not relieve any such Indemnifying Party from any
liability which it may have to any Indemnified Party otherwise than pursuant to
the provisions of this Section 5(e) and shall also not relieve any such
------------
Indemnifying Party of its obligations under this Section 5(e) except to the
------------
extent that any such Indemnifying Party is actually prejudiced thereby. In case
any such action is brought against an Indemnified Party, and such Indemnified
Party notifies an Indemnifying Party of the commencement thereof, such
Indemnifying Party will be entitled (at its own expense) to participate in and,
to the extent that it may wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense, with counsel reasonably satisfactory
to such Indemnified Party, of such action and/or to settle such action and,
after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party will not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof, other
than the reasonable cost of investigation; provided, however, that no
Indemnifying Party shall consent to the entry of any judgment or enter into any
settlement agreement without the prior written consent of the Indemnified Party
unless such Indemnified Party is fully released and discharged from any such
liability, and no Indemnified Party shall consent to the entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an Indemnifying Party without the consent of each Indemnifying
Party. Notwithstanding the foregoing, the Indemnified Party shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (a) the
employment of such counsel shall have been authorized in writing by the
Indemnifying Party in connection with the defense of such suit, action, claim or
proceeding; (b) the Indemnifying Party shall not have employed counsel
(reasonably satisfactory to the Indemnified Party) to take charge of the defense
of such action, suit, claim or proceeding; or (c) such Indemnified Party shall
have reasonably concluded, based upon the advice of counsel, that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
the defenses available to such Indemnified Party. If any of the events
specified in clauses (a), (b) or (c) of the preceding sentence shall have
occurred or shall otherwise be applicable, then the fees and expenses of one
counsel or firm of counsel selected by a majority in interest of the indemnified
parties (and reasonably acceptable to the Indemnifying Party) shall be borne by
the Indemnifying Party. If, in any such case, the Indemnified Party employs
separate counsel, the Indemnifying Party shall not have the right to direct the
defense of such action, suit, claim or proceeding on behalf of the Indemnified
Party and the Indemnified Party shall assume such defense and/or settle such
action; provided, however, that an Indemnifying Party shall not be liable for
the settlement of any action, suit, claim or proceeding effected without its
prior written consent, which consent shall not be unreasonably withheld.
37
<PAGE>
The provisions of this Section 5(e) shall be in addition to any
------------
liability which any party may have to any other party and shall survive any
termination of this Agreement.
(f) Contribution. If for any reason the indemnification provided for
------------
in Section 5(e)(i) or 5(e)(iii) is unavailable to an Indemnified Party as
----------------------------
contemplated therein, then the Indemnifying Party, in lieu of indemnification
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such loss, claim, damage, expense or liability (or action in respect
thereof) in such proportion as is appropriate to reflect not only the relative
benefits received by the Indemnified Party and the Indemnifying Party, but also
the relative fault of the Indemnified Party and the Indemnifying Party, as well
as any other relevant equitable considerations, provided that no Stockholder
shall be required to contribute in an amount greater than the difference between
the net proceeds received by such Stockholder with respect to the sale of any
Registrable Securities and all amounts already contributed by such Stockholder
with respect to such claims, including amounts paid for any legal or other fees
or expenses incurred by such Stockholder. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of any such
fraudulent misrepresentation. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
(g) Registration Expenses. Except as hereinafter provided, all
---------------------
expenses incident to the Company's performance of or compliance with this
Section 5 will be borne by the Company, including, without limitation, all
- ---------
Registration and filing fees under the Securities Act and the Exchange Act, the
fees and expenses of the counsel and accountants for the Company (including the
expenses of any "cold comfort" letters and special audits required by or
incident to the performance of such persons), all other costs and expenses of
the Company incident to the preparation, printing and filing under the
Securities Act of the Registration Statement (and all amendments and supplements
thereto), and furnishing copies thereof and of the Prospectus included therein,
all out-of-pocket expenses of underwriters customarily paid for by issuers to
the extent provided for in any underwriting agreement, the costs and expenses
incurred by the Company in connection with the qualification of the Registrable
Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
NASDAQ and all other costs and expenses incurred by the Company in connection
with any Registration hereunder. In addition, the Company shall pay or
reimburse the sellers of Registrable Securities the reasonable fees and expenses
of one attorney to such sellers incurred in connection with a registration
(collectively, with the expenses referred to in the immediately preceding
sentence, the "Registration Expenses"). Except as provided in the immediately
---------------------
38
<PAGE>
preceding sentence, each Stockholder shall bear the costs and expenses of any
underwriters' discounts and commissions, brokerage fees or transfer taxes
relating to the Registrable Securities sold by such Stockholder and the fees and
expenses of any attorneys, accountants or other representatives retained by the
Stockholder.
(h) Participation in Underwritten Registrations. No Stockholder may
-------------------------------------------
participate in any underwritten Registration hereunder unless such Stockholder
(i) agrees to sell its Registrable Securities on the basis provided in any
customary and reasonable underwriting arrangements approved by the persons
entitled hereunder to select the underwriter, and (ii) accurately completes in a
timely manner and executes all questionnaires, powers of attorney, underwriting
agreements, indemnities and other documents customarily required under the terms
of such underwriting arrangements.
(i) Holdback Agreements.
-------------------
(i) Each holder of Registrable Securities whose securities are
included in a Registration Statement agrees not to effect any public sale or
distribution of the issue being registered or a similar security of the Company,
or any securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during the fifteen (15) days prior to, and during the ninety
(90)-day period (or such longer period as requested by the managing underwriter
or underwriters in the case of an underwritten public offering) beginning on,
the effective date of such Registration Statement (except as part of such
Registration), if and to the extent requested by the managing underwriter or
underwriters in an underwritten public offering.
(ii) The Company agrees not to effect any public sale or distribution
of the issue being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities
(other than any such sale or distribution of such securities in connection with
any merger or consolidation by the Company or any Subsidiary or the acquisition
by the Company or any Subsidiary of the capital stock or substantially all of
the assets of any other Person), during the fifteen (15) days prior to, and
during the ninety (90)-day period beginning on, the effective date of each
Demand Registration.
(j) Public Information Reporting. The Company hereby covenants and
----------------------------
agrees to and with the Stockholders that at all times following the IPO Date it
shall provide and file such financial and other information concerning the
Company as may from time to time be required by the Commission and any other
governmental authority having jurisdiction, so as to comply with all reporting
requirements under the Exchange Act, and shall, upon request, state in writing
that it has complied with all such requirements, and further agrees that, for so
long as (following the IPO Date) the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company shall comply in all respects with
paragraph (c)(2) of Rule 144.
39
<PAGE>
6. Disqualifying Transactions.
--------------------------
6.1 Company Conversion Rights. In the event AT&T PCS terminates its
-------------------------
obligations under Section 8.6 pursuant to Section 8.8(c) with respect to any
----------- --------------
Overlap Territory, the Company shall have the following rights which may be
exercised by the Company in its sole discretion during the sixty (60) day period
commencing on the date of such termination:
(a) (i) The Company shall have the right in accordance with the
Restated Certificate to cause AT&T PCS and such Section 4.8 Transferee (as
defined in the Restated Certificate) to exchange either (A) all, or (B) a
proportionate number of shares of Series A Preferred Stock then owned by AT&T
PCS and each Section 4.8 Transferee equal to a fraction, the numerator of which
is the number of POPS in the Overlap Territory and the denominator of which is
the total number of POPS in the Territory, of the shares of Series A Preferred
Stock then owned by AT&T PCS and each Section 4.8 Transferee for an equivalent
number of shares of Series B Preferred Stock determined in accordance with the
Restated Certificate; and
(ii) The Company shall have the right in accordance with the
Restated Certificate to cause AT&T PCS and each Section 4.8 Transferee to
exchange either (A) all or (B) a proportionate number equal to a fraction, the
numerator of which is the number of 38 POPs in the Overlap Territory, and the
denominator of which is the total number of POPs in the Territory, of the shares
of Series D Preferred Stock owned by AT&T PCS on the date hereof (or Series C
Preferred Stock or Common Stock into which such shares shall have been
converted) and that AT&T PCS continues to own on the date such right is
exercised by the Company for that number of shares of Series B Preferred Stock
as shall be equal to the aggregate purchase price paid by AT&T PCS for all of
such shares of Series D Preferred Stock, Series C Preferred Stock or Common
Stock that AT&T PCS or such Section 4.8 Transferee then owns (including any
Series C Preferred Stock or Common Stock into which such Series D Preferred
Stock shall have been converted) divided by the liquidation preference of the
Series B Preferred Stock determined in accordance with the Restated Certificate;
provided, however, that (x) if the Company exercises its right under clause
(i)(A) of this Section 6.1(a) it shall be required to exercise its right under
--------------
clause (ii)(A) of this Section 6.1(a), and vice versa; and if the Company
--------------
exercises its right under clause (i)(B) of the Section 6.1(a) it shall be
--------------
required to exercise its right under clause (ii)(B) of this Section 6.1(a) and
--------------
vice versa, and (y) the provisions of this Section 6.1(a) shall not apply to any
--------------
Section 4.8 Transferee which is a Cash Equity Investor.
(b) The Company may redeem the shares of Series B Preferred Stock
at any time as provided in the Restated Certificate.
6.2 Joint Marketing Right. During the period commencing on the date
---------------------
of announcement by AT&T PCS of a transaction meeting the description of a
transaction set forth
40
<PAGE>
in clauses (a), (b) and (c) of the definition of a Disqualifying Transaction
(unless AT&T PCS notifies the Company it has waived its right to declare such
transaction a Disqualifying Transaction in which event, this Section 6.2 shall
-----------
not be applicable to such transaction) and terminating on the later of (x) six
(6) months after the date of consummation of such transaction, and (y) if
applicable, the date by which AT&T PCS is required under applicable law to
dispose of any PCS System or Cellular System serving a Subject Market (the
"Section 6.2 Period"), the following provisions shall apply:
------------------
(a) If AT&T PCS proposes to sell, transfer or assign to any Person
which is not an Affiliate of AT&T PCS any Subject Market, AT&T PCS shall give
written notice (the "Company Sale Notice") to the Company and the Company shall
-------------------
have the right, exercisable by written notice given within ten (10) days of
receipt of the Company Sale Notice, to elect to cause AT&T PCS to offer for sale
jointly with the Company for a period of one hundred eighty (180) days the
Subject Markets covered by the Company Sale Notice together with all of the
Territory included in the MTA that includes the Subject Markets (the "Joint
-----
Marketing Period"). In the event that AT&T PCS has granted similar rights to
- ----------------
the rights set forth in this Section 6.2 to any Permitted Merger Participant and
-----------
any Subject Market is also a "Subject Market" under the terms of any agreement
between AT&T PCS and any such Permitted Merger Participant, the Company agrees
that any territory of the Permitted Merger Participant that is required under
the terms of such agreement to be offered for sale jointly with any Subject
Markets shall be offered for sale jointly with such Subject Markets and all of
the Territory included in the MTA that includes such Subject Markets. During
the Joint Marketing Period, AT&T PCS shall not sell the Subject Markets other
than in a transaction that includes the Subject Markets and the Territory
included in the MTA that includes the Subject Markets, provided, however, that
neither AT&T PCS nor the Company shall be obligated to enter into a transaction
for such Subject Markets and such Territory other than on terms acceptable to
each of them in their sole discretion. This Section 6.2 shall cease to apply to
-----------
any Subject Market upon the earlier of (x) if the Company fails to make the
joint marketing election with respect to the applicable Subject Market within
the ten (10) day period referred to above, the expiration of such ten (10) day
period, or (y) if the Company makes the joint marketing election with respect to
the applicable Subject Market, upon the expiration of the Joint Marketing
Period.
(b) Nothing contained in this Section 6.2 shall (x) be construed to
-----------
require AT&T PCS to deliver a Company Sale Notice with respect to any Subject
Market except during the Section 6.2 Period, (y) extend the obligation of AT&T
PCS set forth in this Section 6.2 beyond the expiration of the Section 6.2
-----------
Period or (z) apply to any sale, transfer or assignment of any Subject Market
pursuant to an agreement executed on any date not within the Section 6.2 Period.
(c) Nothing in this Agreement shall be construed to require AT&T PCS
to deliver the notice described in clause (d) of the definition of a
Disqualifying Transaction, including, without limitation, circumstances in which
AT&T PCS or its Affiliates enters into any
41
<PAGE>
transaction meeting the description of a transaction set forth in clauses (a),
(b) and (c) of the definition of a Disqualifying Transaction.
7. Additional Rights and Covenants.
-------------------------------
7.1 Financial Statements. The Company shall provide to each
--------------------
Stockholder (a) within seventy-five (75) days after the end of each fiscal
quarter (other than the fourth fiscal quarter) or such shorter periods as is
required pursuant to the terms of the Company's senior indebtedness, the
unaudited consolidated balance sheet of the Company and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of
income, surplus and cash flows for such period and year-to-date and (b) within
one hundred twenty (120) days after the end of each fiscal year, the audited
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such year and the related unaudited consolidated statements of income, surplus
and cash flows for such year. All financial statements and information provided
pursuant to this Section 7.1 shall constitute Confidential Information under
-----------
Section 7.7.
- -----------
7.2 [Intentionally Omitted]
7.3 Access. The Company shall permit, and shall cause each of its
------
Subsidiaries to permit, upon reasonable notice, during normal business hours,
each Qualified Holder and Desai, for so long as it has the right to an observer
to the Board of Directors pursuant to Section 3.1, and its directors, officers,
-----------
employees, attorneys, accountants, representatives, consultants and other
agents, at the sole expense of such Qualified Holder, to (a) visit and inspect
any of the properties and facilities of the Company and its Subsidiaries, (b)
examine and make copies of and extracts from the corporate and financial records
of the Company and its Subsidiaries, (c) discuss the affairs, finances and
accounts of the Company or any such Subsidiary with any of its officers,
directors and key employees and its independent accountants, and (d) otherwise
investigate the properties, businesses and operations of the Company and its
Subsidiaries, in each case as such Qualified Holder reasonably deems necessary;
provided, however, that (i) each Qualified Holder may exercise its rights
pursuant to this Section 7.3 no more than three times in any 12-month period and
-----------
(ii) J.P. Morgan shall not have any of the rights afforded to any Qualified
Holder in this Section 7.3. The Company shall, and shall cause each of its
-----------
Subsidiaries and the officers, directors and employees of the Company and its
Subsidiaries to, cooperate fully in connection with such inspection,
examinations and discussions. The presentation of a copy of this Agreement by
any Qualified Holder to the independent accountants of the Company or any of its
Subsidiaries shall constitute permission by the Company or such Subsidiary to
its independent accountants to participate in discussions with such Qualified
Holder.
7.4 Merger, Sale or Liquidation of the Company.
------------------------------------------
(a) Except for transactions permitted pursuant to Section 7.11 and to
------------
the extent permitted in this Section 7.4, the Company shall not, and shall not
-----------
permit any of its
42
<PAGE>
Subsidiaries to, except with the prior written consent of AT&T PCS or in
accordance with Sections 7.4(b) and 7.4(c), effect (i) any merger, combination
--------------------------
or consolidation of the Company or such Subsidiary with or into any other entity
(regardless of whether the Company or such Subsidiary is the surviving entity in
any such transaction) (any such merger, combination or consolidation is referred
to as a "Company Merger"), (ii) any sale or disposition of a substantial portion
--------------
of its assets (a "Company Asset Sale"), or (iii) the liquidation, dissolution or
------------------
winding up of the Company or such Subsidiary.
(b) The Company and its Subsidiaries may effect a Company Merger,
without the prior written consent of AT&T PCS, (i) in which the only constituent
corporations are two or more of the Company's wholly owned Subsidiaries, (ii) in
which the only constituent corporations are the Company and one or more of its
wholly owned Subsidiaries and the Company is the surviving corporation, or (iii)
between a Subsidiary of the Company and another entity for the purpose of
acquiring such other entity; provided, that (x) such transaction does not affect
the capital structure of the Company, except to the extent the Company issues
common stock to the stockholders of the other entity pursuant to the terms of
such Company Merger, (y) the surviving corporation is a direct or indirect
wholly owned Subsidiary of the Company, and (z) the consummation of such
transaction does not violate Section 8.1(a).
--------------
(c) The Company and its Subsidiaries may effect any of the
transactions described in clauses (i) or (ii) of Section 7.4(a) (a "Sale
-------------- ----
Transaction"), without the prior written consent of AT&T PCS, if (a) such
- -----------
transaction has no material effect on AT&T PCS' equity interest in the Company
(and the seniority thereof) or its rights under this Agreement, (b) the
Company's direct or indirect interest in its assets is unaffected by such
transaction in any material respect, and (c) such transaction is otherwise
equivalent in all material respects to AT&T PCS to the sale by each of the other
Stockholders of its equity interests in the Company for cash or marketable
securities; provided, that any such Sale Transaction shall nevertheless be
subject to a right of first offer in accordance with the provisions of Section
-------
7.4(d).
- ------
(d) Prior to entering into a Sale Transaction, the Company shall give
written notice (the "Sale Notice") to AT&T PCS. Each Sale Notice shall describe
-----------
in reasonable detail all material terms of the proposed Sale Transaction. The
Sale Notice shall constitute an irrevocable offer (a "Sale Offer") to enter into
----------
the Sale Transaction with AT&T PCS on the terms set forth in the Sale Notice.
AT&T PCS shall have the irrevocable right and option, but not the obligation, to
accept the Sale Offer in whole but not in part by giving written notice of its
acceptance of such offer within thirty (30) days of the date of the Sale Notice
is given. The Sale Transaction shall be closed at the principal executive
offices of the Company within thirty (30) days after the acceptance by AT&T PCS
of the Sale Offer; provided, however, that, if the Sale Transaction is subject
to the consent of the FCC or any public service or public utilities commission,
the Sale Transaction shall be closed on the fifth business day after all such
consents shall have been obtained by Final Order. If AT&T PCS declines (which
shall include the failure to give timely notice of acceptance) to accept the
Sale Offer, the Company shall have the right
43
<PAGE>
(for a period of ninety (90) days following the expiration of the thirty (30)
day acceptance period referred to above) to close a Sale Transaction on the
terms described in the Sale Offer (except that the price must be at least 95% of
the price set forth in the Sale Offer); provided, however, that, if the consent
of the FCC or any public service or public utilities commission is required, the
Sale Transaction may be closed not later than the fifth business day after all
such consents shall have been obtained by Final Order. If, after giving a Sale
Offer, the Company does not close a Sale Transaction in accordance with the
terms of the immediately preceding sentence, the Company shall not effect any
Sale Transaction without giving another Sale Notice in accordance with this
Section 7.4(d).
- --------------
7.5 Wholly-Owned Subsidiaries. All of the Company's Subsidiaries
-------------------------
shall be direct or indirect wholly owned Subsidiaries of the Company, and the
Company shall not, and shall not permit any Subsidiary to, sell or issue,
transfer, encumber or otherwise dispose of any shares of capital stock of any of
the Company's Subsidiaries to any Person other than the Company and its direct
or indirect wholly owned Subsidiaries, except for a pledge of any such shares in
connection with the incurrence of indebtedness.
7.6 [Intentionally Omitted]
7.7 Confidentiality.
---------------
(a) Each party shall, and shall cause each of its Affiliates, and its
and their respective stockholders, members, managers, directors, officers,
employees and agents (collectively "Representatives") to, keep secret and retain
---------------
in strictest confidence any and all information relating to the Company or any
other party that is designated in writing by the party providing such
information or the Company as confidential ("Confidential Information") and
------------------------
shall not disclose such information, and shall cause its Representatives not to
disclose such information, to anyone except such Affiliates, Representatives or
any other Person that agrees in writing to keep in confidence all such
information in accordance with the terms of this Section 7.7. Each party agrees
-----------
to use such information received from another party or the Company only in
connection with its ownership interest in the Company but not for any other
purpose. All such information furnished pursuant to this Agreement shall be
returned promptly to the party to whom it belongs upon request by such party.
(b) 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 7.7, the party whose Confidential Information shall be disclosed, or
- -----------
threatened to be disclosed, shall have the right and remedy to have this Section
-------
7.7 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 7.7 shall be construed to limit the
-----------
right of any party to collect money damages in the event of breach of this
Section 7.7.
- -----------
44
<PAGE>
(c) 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, in any filing with any
regulatory agency, court or other authority or any disclosure to a trustee of
public debt of a party to the extent that the disclosing party determines in
good faith that it is required by Law, regulation or the terms of such debt to
do so; provided, however, 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 an opportunity to contest such
disclosure if possible.
7.8 [Intentionally Omitted]
7.9 AT&T PCS Retained Licenses. In the event that AT&T PCS desires
--------------------------
to Transfer all or any of the AT&T PCS Retained Licenses in the Territory at any
time prior to February 4, 2006, AT&T PCS shall give written notice thereof to
the Company at least thirty (30) days prior to entering into a binding agreement
to sell such AT&T PCS Retained Licenses in the Territory such notice to specify
among other things, the AT&T PCS Retained Licenses in the Territory that it
desires to sell. For a period of thirty (30) days after the date such notice is
given, the Company shall have the right to negotiate with AT&T PCS with respect
to the purchase of all, but not less than all, of such AT&T Retained Licenses in
the Territory; it being understood and agreed that such right shall not be
deemed to be a right of first offer or right of first refusal for the benefit of
the Company and AT&T PCS shall have the right to reject any offer made by the
Company during such thirty (30) day period. In the event no binding agreement
to sell all or any of such AT&T PCS Retained Licenses in the Territory is
entered into prior to the expiration of the one hundred and eighty (180) day
period following the expiration of such (30) day period, such Licenses shall
become subject once again to the provision and restrictions hereof.
7.10 Regulatory Cooperation. Each of the Stockholders severally
----------------------
agrees to comply with the last sentence of Section 6.7 of the Securities
Purchase Agreement.
7.11 Permitted Transactions. Notwithstanding the terms of Section
---------------------- -------
7.4(a) and 8.4(a):
- -----------------
(a) after completion of the Minimum Build-Out Plan and certification
that Company Systems meet the TDMA Quality Standards, the Company and its
Subsidiaries may effect a merger, combination of consolidation with or into a
Permitted Merger Participant or acquire all or substantially all of the assets
of a Permitted Merger Participant or sell all or substantially all of the assets
of the Company and its Subsidiaries to a Permitted Merger Participant (any such
transaction being referred to as a "Permitted Consolidation Transaction"), so
-----------------------------------
long as such transaction is approved by the Board of Directors and the holders
of the Company's capital stock to the extent such approval is required pursuant
to the Restated Certificate or applicable law; and
45
<PAGE>
(b) the Company may acquire FCC Licenses (each such License a
"Permitted Cellular License") authorizing the holder to provide in a specified
- ---------------------------
geographic area using specified frequencies in respect of which the Board of
Directors has determined that the acquisition of such License (and any other
assets being acquired together therewith) is a demonstrably superior alternative
to constructing a PCS System in the applicable area within the PCS Territory,
provided that, (i) a majority of the POPs included in the geographic area
covered by such License are within the PCS Territory, (ii) none of AT&T PCS, any
Affiliate thereof or any AT&T Licensee owns an interest in an FCC License to
provide Commercial Mobile Radio Service in such geographic area, and (iii) the
ownership of such License will not conflict with, or cause AT&T PCS, any
Affiliate thereof or any AT&T Licensee to be in violation or breach of any
agreement, instrument, Law or License applicable to or binding upon such Person
or its assets. Notwithstanding the foregoing, the Company shall not acquire any
Permitted Cellular License if the acquisition of such License would adversely
affect the Company's ability to satisfy its obligations under the first sentence
of Section 8.1(b).
--------------
8. Operating Arrangements.
----------------------
8.1 Construction of Company Systems.
-------------------------------
(a) The Company hereby agrees to construct, or cause its Subsidiaries
to construct, Company Systems covering the Territory on a schedule no less rapid
than is set forth in the Minimum Build-Out Plan. Company Systems shall be
technologically compatible in all material respects with systems being used in a
Majority of the Southeast Region (including without limitation for the purpose
of facilitating roaming and handoff between systems), and will to the extent
technologically feasible implement the same User Interface as such systems, with
the intention that the User Interface in Company Systems will not differ from
the User Interface in a Majority of the Southeast Region in a manner that would
be material to customers.
(b) The Company and AT&T PCS hereby agree that the Company shall
assume and be obligated to satisfy the construction requirements set forth in 47
CFR (S)24.203 with respect to the AT&T PCS Retained Licenses in the Territory
and the AT&T PCS Contributed Licenses. The Company and AT&T PCS agree from time
to time at the request of the Company or AT&T PCS, as applicable, to provide the
other with information concerning the status of construction of its PCS Systems
to enable such party to determine the level of compliance with such construction
requirements with respect to the AT&T PCS Retained Licenses and AT&T PCS
Contributed Licenses, as applicable.
(c) The Company will arrange for all necessary microwave relocation in
connection with the AT&T PCS Contributed Licenses and pay, assume or (if
applicable) reimburse AT&T PCS or its Affiliates for any obligation to pay, any
reasonable costs incurred by it or AT&T PCS in connection with any such
microwave relocation, provided, that nothing contained herein shall require the
Company to pay any costs incurred in connection with microwave relocation in
connection with the AT&T PCS Retained Licenses.
46
<PAGE>
8.2 Service Features. Company Systems will offer the Core Service
----------------
Features. Company Systems will also offer, at the written request of AT&T PCS,
additional service features that AT&T PCS has notified the Company it will
provide in a Majority of the Southeast Region, unless the Board of Directors
reasonably determines that the provision of such additional features would be
financially detrimental to the Company. Unless the Board of Directors makes
such a determination, any such additional features shall be adopted within one
hundred twenty (120) days after the request by AT&T PCS. The Critical Network
Elements are set forth on Schedule XI.
-----------
8.3 Quality Standards. The Company shall use commercially reasonable
--------------------
efforts to cause the Company Systems to comply with the TDMA Quality Standards.
Without limiting the foregoing, with respect to each material portion of a
Company System (such as a city) that the Company places in commercial service,
on or prior to the first anniversary of the date such material portion is placed
in commercial service, the Company shall cause each such material portion to
achieve a level of compliance with the TDMA Quality Standards equal to at least
the average level of compliance achieved by comparable PCS and Cellular Systems
owned and operated by AT&T PCS taking into account, among other things, the
relative stage of development thereof. In the event that the Company fails to
achieve such level of compliance, the Company shall not be deemed to be in
material breach of this provision if such noncompliance is cured within thirty
(30) days of notice thereof from AT&T PCS to the Company, or, if such breach is
not capable of being cured within such thirty (30) day period using commercially
reasonable efforts, within one hundred eighty (180) days of such notice,
provided the Company is using commercially reasonable efforts to cure such
material breach as soon as reasonably practicable.
8.4 No Change of Business.
---------------------
(a) Subject to Section 7.11, the Company will not, and will not
------------
permit any of its Subsidiaries to, without obtaining the prior written consent
of AT&T PCS, do any of the following: (i) conduct, directly or indirectly, any
business other than the Business, (ii) make any material change to the Minimum
Build Out Plan in the Territory, or (iii) effect any transaction, agreement or
arrangement which has or could reasonably be expected to have the effect of
materially impairing or materially limiting the ability of (x) subscribers to
Cellular Systems and PCS Systems in which AT&T PCS or its Affiliates have an
ownership interest to utilize the Company Systems for roaming, or (y) AT&T PCS
or its Affiliates to resell wireless service on the Company Systems; it being
understood that clause (i) shall not be deemed to restrict the business of the
Company in any Overlap Territory.
(b) [Intentionally Omitted]
(c) If at any time during the term of this Agreement AT&T PCS and
its Affiliates determine to discontinue use of TDMA in a Majority of the United
States: (i) the
47
<PAGE>
Company will have the right to cease to use TDMA and may adopt the new
technology adopted by AT&T PCS and its Affiliates in a Majority of the United
States or implement any other alternative technology in Company Systems, and, if
it exercises such right, the definition of Company Systems shall be
automatically deemed to be modified by substituting a reference to such new or
alternative technology in lieu of the reference in such definition to TDMA, and
(ii) the obligations of AT&T PCS and its Affiliates pursuant to Section 8.6
-----------
shall terminate and be of no further force or effect, unless within sixty (60)
days of notice by AT&T PCS to the Company specifying that AT&T PCS and its
Affiliates have determined to discontinue use of TDMA in a Majority of the
United States, the Company agrees to implement in Company Systems on a
reasonable schedule the new technology adopted by AT&T PCS and its Affiliates in
a Majority of the United States. In the event AT&T PCS desires to test any
technology that is an alternative to TDMA in any PCS System or Cellular System
contiguous to the Territory, AT&T PCS hereby agrees to notify the Company at
least thirty (30) days before conducting such test and will conduct such tests
in a manner that does not have a material adverse effect on the Company.
8.5 Preferred Provider.
------------------
(a) The Company and its Subsidiaries shall not market, offer,
provide or resell interexchange services, except (i) interexchange services that
constitute Company Communication Services and (ii) interexchange services
procured from AT&T Corp. or an Affiliate thereof designated by AT&T Corp. Such
interexchange services shall be provided by AT&T Corp. or such Affiliate at a
reasonable rate per minute, subject to mutual agreement as to all the terms of
the agreement to provide such services, including, without limitation, the
volume commitment and duration.
(b) With respect to services other than interexchange services,
when the Company or a Subsidiary does not itself develop, or is not permitted to
develop, one or more telecommunications services that are offered or provided in
connection with the conduct of its Business (including, by way of example, local
telephone services or voicemail), but instead procures such services, the
Company shall request in writing that AT&T PCS provide such services (directly
or through an Affiliate designated by it) and, provided, that AT&T PCS (or a
designated Affiliate) offers to provide such telecommunication services to the
Company on reasonably competitive terms, the Company or such Subsidiary shall
procure such services from AT&T PCS (or such Affiliate thereof).
8.6 Exclusivity.
-----------
(a) None of the Stockholders or their respective Affiliates will
provide or resell, or act as the agent for any Person offering, within the
Territory, Company Communications Services except that, AT&T PCS and its
Affiliates may (i) resell, or act as the Company's agent for, Company
Communications Services provided by the Company in accordance with the Resale
Agreement (or any other agreement between AT&T PCS and its Affiliates, on the
one hand, and the Company, on the other hand), including bundling any such
48
<PAGE>
Company Communications Services with other telecommunications services marketed,
offered and provided or resold by such Person, (ii) provide or resell wireless
telecommunications services to or from specific locations (such as buildings or
office complexes), even if the subscriber equipment used in connection with such
service may be capable of routine movement within a limited area (such as a
building or office complex), and even if such subscriber equipment may be
capable of obtaining other telecommunications services beyond such limited area
(which other services may include routine movement beyond such limited area) and
handoff between the service to such specific locations and such other
telecommunications services; provided, however, that if AT&T PCS or any of its
Affiliates sells such mobile wireless subscriber equipment such equipment shall
be capable of providing (but not necessarily on an exclusive basis) Company
Communications Services and (iii) resell Company Communications Services
provided by a Person other than the Company in any geographical area within the
Territory in which the Company has not placed a Company System into commercial
service (it being understood that in the event that AT&T PCS or any of its
Affiliates that is reselling Company Communication Services of a Person other
than the Company in a geographic area within the Territory at the time the
Company places a portion of a Company System including such geographic area into
commercial service, AT&T PCS or its Affiliates, as applicable, shall terminate
such resale arrangement with respect to such geographic areas within thirty (30)
days of the date such portion of a Company System is placed in commercial
service). AT&T PCS agrees to provide the Company with not less than sixty (60)
days' prior notice of AT&T PCS' intention to engage in any resale activities
described in clause (iii) hereof to provide the Company with the opportunity to
discuss such proposed resale activities with AT&T PCS, such notice to include
(x) a reasonable description of such resale activities (including, without
limitation, the identity, if known by AT&T PCS at such time, of the Person AT&T
PCS intends to engage to provide such Company Communication Services) and (y)
AT&T PCS' confirmation that only dual band/dual mode phones shall be used in
connection with such resale activities. AT&T PCS further agrees that upon a
Company System being placed into commercial operation in any such geographic
area within the Territory it will transfer all of its subscribers in such
geographic area to the Company System either directly to the Company or on the
terms and subject to the conditions contained in the Resale Agreement. In
connection with any such transfer, AT&T PCS will use its best efforts to
facilitate such transfer, including cooperating with the Company regarding the
form(s) of notice to be sent to such subscribers informing them of such
transfer. To the extent the "other telecommunications services" referred to in
clause (ii) of the first sentence of this Section 8.6(a) constitute Company
--------------
Communications Services, neither AT&T PCS nor any of its Affiliates may provide
or resell, or act as agent for any Person offering, such "other
telecommunications services" except in accordance with the terms of clause (i)
of the first sentence of this Section 8.6(a). Nothing herein shall be construed
--------------
to limit in any respect any advertising and promotional and similar activities
by AT&T PCS or its Affiliates or any Cash Equity Investor or any of its
Affiliates.
(b) With respect to the markets listed on Schedules 1 and 2 to the
Roaming Agreement, each of AT&T PCS and the Company shall, and shall cause each
of its Affiliates to, in its and such Affiliates' capacity as Home Carrier: (i)
program and direct its
49
<PAGE>
authorized dealers to program the subscriber equipment provided by it or such
authorized dealers to its customers, at the time it is provided to such
customers, (to the extent such programming is technologically feasible) so that
the Company or AT&T PCS, as the case may be, and such Affiliates, in its and
such Affiliates' capacity as Serving Carrier, is the preferred provider of
service in the markets listed on such Schedules 1 and 2, and (ii) refrain, and
direct its authorized dealers to refrain, from inducing any of its customers to
change or, except at such customer's request in the event the quality of the
Company's services do not meet industry standards, changing the programming
described in clause (i) above. For the purpose of this Section 8.6(b), the terms
--------------
"Affiliate," "Home Carrier" and "Serving Carrier" shall have the meanings
ascribed thereto in the Roaming Agreement.
8.7 Other Business; Duties; Etc. Except to the extent expressly set
---------------------------
forth in Section 8.6, AT&T PCS and each Cash Equity Investor and any Person
-----------
affiliated with AT&T PCS or a Cash Equity Investor may engage in or possess an
interest in other business ventures, and may engage in any other activities, of
every kind and description (whether or not competitive with the business of the
Company or otherwise affecting the Company), independently or with others and
shall owe no duty or liability to the Company, the other Stockholders or their
Affiliates in connection therewith. None of the Company or the other
Stockholders shall have any rights in or to such independent ventures or the
income or profits therefrom by virtue of this Agreement or any of the Related
Agreements. Without limiting the generality of the foregoing, in the event that
AT&T PCS or a Cash Equity Investor or a Person affiliated with AT&T PCS or a
Cash Equity Investor develops inventions which are patentable or are otherwise
trade secrets relevant to the Business, AT&T PCS or such Cash Equity Investor or
affiliated Person shall nevertheless retain ownership of such invention and may
license it to the Company if the Company so desires and if mutually satisfactory
terms are agreed to. The Company shall also have the right to develop any
inventions related to the Business deemed desirable by it and to retain title to
such inventions. To the extent that, at law or in equity, AT&T PCS or a Cash
Equity Investor or any Person affiliated with AT&T PCS or a Cash Equity Investor
would have duties (including fiduciary duties) and liabilities to the Company,
or to the Stockholders, different from or in addition to those provided in this
Section 8.7 and Section 8.6 with respect to the subject matter of such Sections,
- ----------- -----------
all rights of the Company and the Stockholders arising out of such duties and
liabilities are hereby waived and no such Person shall be liable to the Company
or to any Stockholder for its good faith reliance on the provisions of this
Section 8.7.
- -----------
8.8 Acknowledgments and Termination of Exclusivity.
----------------------------------------------
(a) The Stockholders hereby expressly acknowledge that none of
the Stockholders would have been willing to enter into this Agreement or make
contributions to the capital of the Company, except for each other Stockholder's
and its Affiliates willingness to enter into this Agreement (including without
limitation the provisions set forth in this Section 8) and the Related
---------
Agreements.
50
<PAGE>
(b) Without limiting the foregoing, and without limiting the
remedies that may be available to it at law or in equity, in the event of a
Substantial Company Breach, the obligations of AT&T PCS and its Affiliates under
Section 8.6 shall automatically terminate and be of no further force or effect.
- -----------
(c) Upon consummation of a Disqualifying Transaction, AT&T PCS may,
by notice to the Company, terminate its and its Affiliates' obligations under
Section 8.6 with respect to any Overlap Territory, provided that the obligations
- -----------
of AT&T PCS and its Affiliates pursuant to Section 8.6(b)(ii) shall continue in
------------------
effect with respect to the then existing customers of the PCS Systems and
Cellular Systems owned and operated by AT&T PCS and its Affiliates (and their
respective successors pursuant to the applicable Disqualifying Transaction)
before giving effect to such Disqualifying Transaction, so long as such
customers remain customers of such systems and such systems continue to be owned
or operated by AT&T PCS or its Affiliates. Notwithstanding the foregoing, in
the event that the Company exercises its right pursuant to Section 6.1 to
-----------
convert all of the shares of Company Stock owned by AT&T PCS into Series B
Preferred Stock, the reference in this Section 8.8(c) to the "Overlap Territory"
--------------
shall be deemed to refer to the Territory.
8.9 Equipment, Discounts and Roaming. AT&T PCS acknowledges and
--------------------------------
agrees that, subject to the terms of Sections 8.1 and 8.5, the Company shall
--------------------
have the sole discretion to select (a) the equipment vendor(s) for the
infrastructure to be constructed by the Company and (b) billing and other
vendors providing goods and services to the Company. If reasonably requested by
the Company, AT&T PCS agrees to use all commercially reasonable efforts to
assist representatives of the Company in obtaining discounts from any AT&T PCS
vendor with whom the Company is negotiating for the purchase of any such
subscriber or infrastructure equipment or billing services. In addition, AT&T
PCS agrees to use all commercially reasonable efforts to enable the Company to
become a party to the roaming agreements between AT&T PCS and its Affiliates and
operators of other Cellular Systems and PCS Systems or, subject to the Company
agreeing to the obligations thereunder, entitled to the rights and benefits of
AT&T PCS under such roaming agreements. The two immediately preceding sentences
shall not be construed to require AT&T PCS or its Affiliates to take any action
that AT&T PCS or such Affiliate determines in its sole discretion to be adverse
to its interests.
8.10 ANS Agreement. At the request of the Company, AT&T PCS shall
-------------
cause AWS to enter into an Advanced Network Services Agreement with the Company,
substantially in the form of Exhibit C.
---------
8.11 Resale Agreements.
-----------------
(a) From time to time, upon the request of AT&T PCS, the Company
shall enter into a Resale Agreement relating to the Territory, with AT&T PCS and
any of its Affiliates and, with respect to any geographic area within the
Territory, one other Person
51
<PAGE>
designated by AT&T PCS, provided such other Person is licensed to provide
telecommunications services in such geographic area under the service marks used
by AT&T Corp. and such other Person qualifies as a reseller under any generally
applicable standards the Company establishes for its resellers from time to time
and upon the request of AT&T PCS, the Company shall enter into an agency
agreement authorizing AT&T PCS and any of its Affiliates and, with respect to
any geographic area within the Territory, one other Person designated by AT&T
PCS, provided such other Person is licensed to provide telecommunications
services in such geographic area under the service marks used by AT&T Corp. and
such other Person qualifies as an agent under any generally applicable standards
the Company establishes for its agents from time to time. Any such agency
agreements shall provide that the Company shall pay the agent a commission at
the rate then generally offered to the Company's agents and shall otherwise be
on commercially reasonable terms. At no time shall there be more than one Person
(other than AT&T PCS and its Affiliates) designated by AT&T PCS as a reseller or
an agent with respect to any geographic area within the Territory.
(b) It is the intention of the parties that, in light of AT&T PCS's
equity interest in the Company and the other arrangements between AT&T PCS and
its Affiliates and the Company (including the roaming revenues anticipated to be
earned by the Company from subscribers of AT&T PCS and its Affiliates), the
rates, terms and conditions of Service (as defined in the Resale Agreement)
provided by the Company pursuant to the Resale Agreement or any other agreement
between AT&T PCS or such other reseller and the Company shall be at least as
favorable to AT&T PCS or such other reseller, taken as a whole, as the rates,
terms and conditions of Service, taken as a whole, provided by the Company to
any other Customer (as defined in the Resale Agreement) and, to the extent
permitted by applicable law, such rates, terms and conditions shall be superior
to those provided to any other Customer. Without limiting the foregoing, the
rate plans offered by the Company pursuant to any Resale Agreement shall be
designed to result in the average actual rate per minute paid by the Reseller
for Service being at least 25% below the weighted average actual rate per minute
billed by the Company to its subscribers for access and air time, but excluding
revenues for features, taxes, toll or other non-rate items. The Company and
Reseller shall negotiate commercially reasonable reductions to such resale rate
based upon increased volume commitments (including roaming charges incurred by
subscribers of AT&T PCS and its Affiliates).
8.12 Non-Solicitation.
----------------
(a) AT&T PCS hereby covenants and agrees that from and after the
date hereof until six months after the date on which it shall cease to own any
Equity Securities that neither AT&T PCS nor its Affiliates shall solicit for
employment any employee of the Company; provided, however, that, nothing
contained in this Section 8.12(a) shall prevent AT&T PCS or its Affiliates from
---------------
engaging in a general solicitation for employment that is not directed at
employees of the Company.
52
<PAGE>
(b) The Company hereby covenants and agrees that from and after the
date hereof until six months after the date on which AT&T PCS or its Affiliates
shall cease to own any Equity Securities that neither the Company nor its
Affiliates shall solicit for employment any employee of the AT&T PCS or its
Affiliates; provided, however, that nothing contained in this Section 8.12(b)
---------------
shall prevent the Company or its Affiliates from engaging in a general
solicitation for employment that is not directed at employees of AT&T PCS and
its Affiliates.
8.13 Co-Location. The Company agrees to permit on commercially
-----------
reasonable terms AT&T PCS and its Affiliates to install, operate and maintain
cell site equipment owned or used by AT&T PCS and its Affiliates in their
respective businesses on the towers, buildings and other locations at which the
Company's cell site equipment is installed, operated and maintained. AT&T PCS
and its Affiliates agree to permit on commercially reasonable terms the Company
to install, operate and maintain cell site equipment owned or used by the
Company in its business on the towers, buildings and other locations at which
AT&T PCS and its Affiliates cell site equipment is installed, operated and
maintained.
9. After-Acquired Shares; Recapitalization.
---------------------------------------
9.1 After Acquired Shares; Recapitalization.
---------------------------------------
(a) All of the provisions of this Agreement shall apply to all of
the shares of Equity Securities now owned or hereafter issued or transferred to
a Stockholder or to his, her or its Affiliated Successors in consequence of any
additional issuance, purchase, exchange or reclassification of shares of Equity
Securities, corporate reorganization, or any other form of recapitalization, or
consolidation, or merger, or share split, or share dividend, or which are
acquired by a Stockholder or its Affiliated Successors in any other manner.
(b) Whenever the number of outstanding shares of Equity Securities
is changed by reason of a stock dividend or a subdivision or combination of
shares effected by a reclassification of shares, each specified number of share
s referred to in this Agreement shall be adjusted accordingly.
9.2 Amendment of Restated Certificate. Whenever the number of shares
---------------------------------
of authorized Company Stock is not sufficient in order to issue shares of
Preferred Stock or Common Stock upon conversion of Preferred Stock or Common
Stock in accordance with the Restated Certificate, (i) the Company shall
promptly amend the Restated Certificate in order to authorize a sufficient
number of shares of Company Stock, and (ii) each Stockholder agrees to vote its
shares of Preferred Stock and Common Stock in favor of any such amendment.
53
<PAGE>
10. Share Certificates.
------------------
10.1 Restrictive Endorsements; Replacement Certificates.
--------------------------------------------------
(a) Each certificate representing the shares of Equity Securities
now or hereafter held by a Stockholder (including any such certificate delivered
upon conversion of the Preferred Stock) or delivered in substitution or exchange
for any of the foregoing certificates shall be stamped with legends in
substantially the following form:
The shares represented by this Certificate have been acquired for
investment and have not been registered under the Securities Act of 1933,
as amended (the "Act"), or under any state securities or "Blue Sky" laws.
---
Said securities may not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of, unless and until registered under
the Act and the rules and regulations thereunder and all applicable state
securities or "Blue Sky" laws or exempted therefrom under the Act and all
applicable state securities or "Blue Sky" laws.
The shares represented by this Certificate are also subject to a
Stockholders' Agreement dated as of February 4, 1998, as the same may be
amended, modified or supplemented in accordance with the terms thereof, a
copy of which is on file at the offices of the Company and will be
furnished by the Company to the holder hereof upon written request. Such
Stockholders' Agreement provides, among other things, for the granting of
certain restrictions on the sale, transfer, pledge hypothecation or other
disposition of the shares represented by this Certificate, and that under
certain circumstances, the holder hereof may be required to sell the shares
represented by this Certificate. By acceptance of this Certificate, each
holder hereof agrees to be bound by the provisions of such Stockholders'
Agreement. The Company reserves the rights to refuse to transfer the
shares represented by this Certificate unless and until the conditions to
transfer set forth in such Stockholders' Agreement have been fulfilled.
Each Stockholder agrees that he, she or it will deliver all certificates
for shares of Equity Securities owned by him, her or it to the Company for the
purpose of affixing such legends thereto.
10.2 Lost or Destroyed Certificates. Upon receipt of evidence
------------------------------
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any certificate representing shares of Equity Securities subject
to this Agreement and of a bond or other indemnity reasonably satisfactory to
the Company, and upon reimbursement to the Company of all reasonable expenses
incident thereto, and upon surrender of such certificate, if mutilated, the
Company will make and deliver a new certificate of like tenor in lieu of such
lost, stolen, destroyed or mutilated certificate.
54
<PAGE>
11. Equitable Relief. The parties hereto agree and declare that legal
----------------
remedies may be inadequate to enforce the provisions of this Agreement and that,
in addition to being entitled to exercise all of the rights provided herein or
in the Restated Certificate or granted by law, including recovery of damages,
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
12. Miscellaneous.
-------------
12.1 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, by facsimile transmission, 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:
If to AT&T PCS:
c/o AT&T Wireless Services, Inc.
7277 164/th/ Avenue, NE
Redmond, Washington 98052
Attention: Mary Hawkins-Key
Telephone: (425) 580-8116
Facsimile: (425) 580-8075
With a copy to:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, NJ 07920
Attention: Corporate Secretary
Telephone: [complete]
Facsimile: [complete]
and
Friedman Kaplan & Seiler LLP
875 Third Avenue, 8th Floor
New York, New York 10022
Attention: Gregg S. Lerner
Telephone: (212) 833-1100
Facsimile: (212) 355-6401
55
<PAGE>
If to a Cash Equity Investor, to its address set forth on Schedule I.
----------
With a copy to:
Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attention: Mark S. Wojciechowski
Telephone: (212) 506-2525
Facsimile: (212) 262-1910
If to a Management Stockholder:
c/o Triton PCS, Inc.
375 Technology Drive
Malvern, Pennsylvania 19355
Attention: Michael E. Kalogris
Steven R. Skinner
Telephone: (610) 651-5900
Facsimile: (610) 993-2683
With a copy to:
Kleinbard, Bell & Brecker LLP
1900 Market Street, Suite 700
Philadelphia, Pennsylvania 19103
Attention: Howard J. Davis
Telephone: (215) 568-2000
Facsimile: (215) 568-0140
If to the Company, to it:
c/o Triton PCS, Inc.
375 Technology Drive
Malvern, PA 19355
Attention: Michael E. Kalogris
Steven R. Skinner
Telephone: (610) 651-5900
Facsimile: (610) 993-2683
With a copy to each other party sent to the addresses set forth in
this Section 12.1.
------------
56
<PAGE>
12.2 Entire Agreement; Amendment; Consents.
-------------------------------------
(a) This Agreement, together with the Closing Agreement, dated as of
February 4, 1998, among the Company, the Cash Equity Investors and the Original
Management Stockholders (the "Closing Agreement") constitutes the entire
-----------------
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
(b) No change or modification of this Agreement shall be valid,
binding or enforceable unless the same shall be in writing and signed by the
Company and the holders of a majority of the shares of each class of capital
stock held by the parties hereto, including AT&T PCS, 66 2/3% of the Common
Stock Beneficially Owned by the Cash Equity Investors, and 60.1% of the Common
Stock Beneficially Owned by the Management Stockholders; provided, however, that
in the event any party hereto shall cease to own any shares of Equity
Securities such party hereto shall cease to be a party to this Agreement and the
rights and obligations of such party hereunder shall terminate, except to the
extent otherwise provided in Section 4.7(a) with respect to any Unfunded
--------------
Commitment.
(c) Whenever in this Agreement the consent or approval of a
Stockholder is required, except as expressly provided herein, such consent or
approval may be given or withheld in the sole and absolute discretion of each
Stockholder.
12.3 Term.
----
(a) Subject to Sections 12.3(b), 12.3(c) and 12.4, this Agreement
----------------------------------
shall terminate upon the earliest to occur of any of the following events:
(i) The consent in writing of all of the parties hereto; or
(ii) February 4, 2009; or
(iii) One Stockholder shall Beneficially Own all of the
Common Stock.
(b) Notwithstanding anything contained herein to the contrary, (i)
the provisions of Sections 3 and 4 shall terminate on the earlier to occur of a
----------------
termination pursuant to Section 12.3(a) and February 4, 2008, and (ii) the
---------------
provisions of Sections 4.7(b), 7.4, 7.6 and 8.4(a), shall terminate, and neither
------------------------------------
the Company nor any Stockholder shall be required to obtain AT&T PCS's prior
written consent as required under such Sections, on the earlier to occur of (i)
a termination pursuant to Section 12.3(a) and (ii) (x) with respect to the
---------------
period prior to February 4, 2006, the date on which AT&T PCS shall cease to
Beneficially Own more than two-thirds of the number of shares of Series A
Preferred Stock that AT&T PCS Beneficially Owned on
57
<PAGE>
February 4, 1998, and (y) with respect to the period on or after February 4,
2006, the date on which AT&T PCS shall cease to Beneficially Own more than two-
thirds of the number of shares of Common Stock that AT&T PCS Beneficially Owned
on February 4, 1998.
(c) Notwithstanding anything contained herein to the contrary, in
the event the Cash Equity Investors shall Beneficially Own less than (i) one
half but more than one quarter of the number of shares of Common Stock
Beneficially Owned by the Cash Equity Investors on February 4, 1998, the number
of directors the Cash Equity Investors shall be permitted to designate under
Section 3.1(a) shall be reduced to one, and (ii) one-quarter of the number of
- --------------
shares of Common Stock Beneficially Owned by the Cash Equity Investors on
February 4, 1998, the provisions of Section 3.1(a) shall terminate. In the event
--------------
the number of directors the Cash Equity Investors are entitled to designate is
reduced pursuant to Section 12.3(c)(i), one of the directors designated by the
------------------
Cash Equity Investors under Section 3.1(a) shall resign (or the other directors
--------------
or Stockholders shall remove them from the Board of Directors) and the remaining
directors shall take such action so that the number of directors constituting
the entire Board of Directors shall be reduced accordingly. In the event the
provisions of Section 3.1(a) are terminated pursuant to Section 12.3(c)(ii), the
-------------- -------------------
directors designated by the Cash Equity Investors pursuant to Section 3.1(a)
--------------
shall resign (or the other directors or Stockholders shall remove them from the
Board of Directors) and the remaining directors shall take such action so that
the number of directors constituting the entire Board of Directors is reduced by
two (2) individuals.
12.4 Survival. Nothing contained in Section 12.3 shall impair any
-------- ------------
rights or obligations of any party hereto arising prior to the time of the
termination of this Agreement, or which may arise by an event causing the
termination of this Agreement. The provisions of Section 5 shall survive any
---------
termination of this Agreement pursuant to Section 12.3 and shall continue in
------------
full force and effect until February 4, 2018. The provisions of Section 7.7 and
-----------
Article 12 shall survive the termination of this Agreement.
- ----------
12.5 Waiver. No failure or delay on the part of any Stockholder in
------
exercising any right, power or privilege hereunder, nor any course of dealing
between the Company and any Stockholder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the simultaneous or later exercise of any other right, power or
privilege. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights and remedies which any Stockholder would otherwise
have. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Stockholders or any of
them to take any other or further action in any circumstances without notice or
demand.
12.6 Obligations Several. The obligations of each Stockholder under
-------------------
this Agreement shall be several with respect to each such Stockholder.
58
<PAGE>
12.7 Governing Law. This Agreement shall be governed and construed
-------------
in accordance with the law of the State of Delaware.
12.8 Dispute Resolution.
------------------
(a) The parties shall use and strictly adhere to the following dispute
resolution processes, except as otherwise expressly provided in this Section
-------
12.8, to resolve any and all disputes, controversies or claims, whether based on
- ----
contract, tort, statute, fraud, misrepresentation or any other legal or
equitable theory (hereinafter, "Dispute(s)"), arising out of or relating to this
----------
Agreement (and any prior agreement this Agreement supersedes), including without
limitation, its making, termination, non-renewal, its alleged breach and the
subject matter of this Agreement (e.g., products or services furnished hereunder
or those related to those furnished):
(b) The parties shall first attempt to settle each Dispute through
good faith negotiations. The aggrieved party shall initiate such negotiations
by giving the other party(ies) written notice of the existence and nature of the
Dispute. The other party(ies) shall in a writing to the aggrieved party
acknowledge such notice of Dispute within ten (10) business days. Such
acknowledgment may also set forth any Dispute that the acknowledging party
desires to have resolved in accordance with this Section.
(c) Thereafter, if any Dispute is not resolved by the parties through
negotiation within thirty (30) calendar days of the date of the notice of
acknowledgment, either party may terminate informal negotiations with respect to
that Dispute and request that the Dispute be submitted to non-binding mediation.
Any mediation of a Dispute under this Section shall be conducted by the CPR
Institute for Dispute Resolution ("CPR") in accordance with the then current CPR
---
"Model Mediation Procedure for Business Disputes" ("Model Procedures") and the
----------------
procedures specified in this Section to the extent that they conflict with,
modify or add to such Model Procedures. Any demand for initiation of mediation
of a Dispute must be given in writing to both the other party(is) involved and
to the CPR and must set forth the nature of the Dispute. Each party to the
mediation shall bear its own expenses with respect to mediation and the parties
shall share equally the fees and expenses of the CPR and the mediator. The
failure by a party to timely pay its share of the mediation fees and expenses of
the CPR and the mediator shall be a bar to arbitration under Section 12.8(d) of
---------------
that party's Dispute(s). Any mediation under this Section shall be conducted
within the State of New York at a site selected by the mediator that is
reasonably convenient to the parties. Each party shall be represented in the
mediation by representatives having final settlement authority with respect to
the Dispute(s). All information and documents disclosed in mediation by any
party shall remain private and confidential to the disclosing party and may not
be disclosed by any party outside the mediation. No privilege or right with
respect to any information or document disclosed in mediation shall be waived or
lost by such disclosure.
59
<PAGE>
(d) Any Dispute not finally resolved after negotiation and mediation
in accordance with Section 12.8(b) and 12.8(c) shall, upon the written demand of
---------------------------
any involved party delivered to the other party(is) and the CPR, be finally
resolved through binding arbitration in accordance with the then current CPR
"Non-Administered Arbitration Rules" ("Arbitration Rules") and the procedures
-----------------
specified in this Section to the extent that they conflict with, modify or add
to such Arbitration Rules. Any Dispute of any other party not finally resolved
after negotiation and mediation pursuant to this Section may be made a part of
the arbitration demanded by another party, provided that the written notice of
demand for arbitration of that Dispute is received by the CPR before selection
of an arbitrator by the CPR. Any demand for arbitration of a Dispute received
by the CPR after the selection of the arbitrator must be resolved through a
separate arbitration proceeding in accordance with this Section. Each party
shall bear its own expenses with respect to arbitration and the parties shall
share equally the fees and expenses of the CPR and the arbitrator. Unless
otherwise mutually agreed by the parties in writing, the arbitration shall be
conducted by one (1) neutral arbitrator. The arbitration shall be conducted in
the State of New York at a site selected by the arbitrator that is reasonably
convenient to the parties. The arbitrator shall be bound by and strictly
enforce the terms of the Agreement and may not limit, expand, or otherwise
modify the terms of this Agreement. The arbitrator shall make a good faith
effort to apply applicable law, but an arbitration decision and award shall not
be subject to review because of errors of law. The arbitrator shall have the
sole authority to resolve issues of the arbitrability of any Dispute, including
the applicability or running of any statute of limitation. The arbitrator shall
not have power to award damages in connection with any Dispute in excess of
actual compensatory damages or to award punitive damages and each party
irrevocably waives any claim thereto. The arbitrator shall not have the power
to order pre-hearing discovery of documents or the taking of depositions. The
arbitrator may compel, to the extent provided by the FAA (as hereinafter
defined), attendance of witnesses and the production of documents at the
hearing. The arbitrator's decision and award shall be made and delivered to the
parties within six (6) months of selection of the arbitrator by the CPR and
judgment on the award by the arbitrator may be entered by any court having
jurisdiction thereof.
(e) This Section shall be interpreted, governed by and enforced in
accordance with the United States Arbitration Act, 9 U.S.C. Sections 114 (the
"Federal Arbitration Act" or "FAA"). The laws of the State of New York, except
- ------------------------ ---
those pertaining to choice of law, arbitration of disputes and those pertaining
to the time limits for bringing an action that conflict with the terms of this
Dispute Resolution provision, shall govern all other substantive matters
pertaining to the interpretation and enforcement of the other terms of this
Agreement with respect to any Dispute. Any party to a Dispute, which is the
subject of a notice initiating the Dispute resolution procedures under this
Section, may seek a temporary injunction in any state or federal court of
competent jurisdiction to the limited extent necessary to preserve the status
quo during the pendency of final resolution of a Dispute in accordance with this
Section. If court proceedings to stay litigation of a Dispute or compel
arbitration of a Dispute are necessary, the party who unsuccessfully opposes
such proceedings shall pay all associated costs, expenses, and attorneys' fees
that the other party reasonably incurs in connection with such court
60
<PAGE>
proceedings. An order to pay such costs, expenses and attorney fees shall
become part of any decision and award of the arbitrator of the Dispute. An
arbitrator appointed pursuant to Section 12.8(d) to resolve a Dispute may also
----------------
issue such injunctive orders and shall have the power to modify or dissolve the
injunctive order of any court to the extent it pertains to the Dispute which the
arbitrator has been selected to finally resolve. The parties, their
representatives, other participants, and the mediator and arbitrator shall hold
the existence, content, and result of the mediation and arbitration of a Dispute
in confidence except to the limited extent necessary to enforce a final
settlement agreement or to obtain and secure enforcement of or a judgment on an
arbitration decision and award.
(f) The statute(s) of limitation applicable to any Dispute shall be
tolled upon initiation of the Dispute resolution procedures under this Section
and shall remain tolled until the Dispute is resolved by mediation or
arbitration under this Section. Tolling shall cease if the aggrieved party with
a Dispute does not initiate mediation within sixty (60) calendar days after good
faith negotiations are terminated by any party and, after mediation of a
Dispute, if the aggrieved party with a Dispute does not initiate a demand for
arbitration within sixty (60) calendar days after mediation is terminated.
However, any Dispute is forever barred that has not expressly been made the
subject of the written notice required under Section 12.8(b) above within 365
---------------
days after the date the Party asserting the Dispute first knows or should have
known of the existence of the acts or omissions that give rise to such Dispute.
(g) Unless the parties mutually agree in writing, Disputes relating to
trademarks (including service marks), patents and copyrights shall not be
resolved in accordance with the Dispute resolution procedures set forth in this
Section and shall be resolved as otherwise provided in this Agreement.
(h) The Company and each of the Stockholders hereby irrevocably
consents to the exclusive jurisdiction of the state or federal courts in the
State of New York, and all state or federal courts competent to hear appeals
therefrom, over any actions which may be commenced against any of them under or
in connection with this Agreement. The Company and each Stockholder hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which any of them may now or hereafter have to the laying of venue of
any such dispute brought in such court or any defense of inconvenient forum for
the maintenance of such dispute in the Southern District of New York and New
York County. The Company and each Stockholder hereby agree that a judgment in
any such dispute may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. The Company and each Stockholder hereby
consent to process being served by any party to this Agreement in any actions by
the transmittal of a copy thereof in accordance with the provisions of Section
-------
12.1.
- ----
12.9 Benefit and Binding Effect; Severability. This Agreement shall
----------------------------------------
be binding upon and shall inure to the benefit of the Company, its successors
and assigns, and each of the Stockholders and their respective executors,
administrators and personal representatives and heirs and permitted assigns. If
any term or other provision of this Agreement is invalid,
61
<PAGE>
illegal or incapable of being enforced by any law or public policy or any
listing requirement applicable to the Common Stock, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto affected by such determination
in any material respect shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the provisions hereof are given effect as
originally contemplated to the greatest extent possible.
12.10 Amendment of Bylaws. The Stockholders agree that the terms of
-------------------
this Agreement shall supersede any inconsistent provision that is contained in
the Restated Bylaws and, to the extent required by Delaware law or the Restated
Bylaws, this Agreement shall be deemed to constitute a written action taken by
the Stockholders of the Company and shall be deemed an amendment of the Restated
Bylaws.
12.11 Authorized Agent of AT&T PCS. AT&T PCS hereby authorizes
----------------------------
Wireless PCS, Inc. as its agent, with full power to execute, in the name of and
on behalf of AT&T PCS, the Related Agreements to which AT&T PCS is a party and
any and all other documents that AT&T PCS is required to execute and deliver,
and to give and receive all notices, requests, consents, amendments, demands and
other communications to or from AT&T PCS, hereunder or thereunder. Each party
hereto (other than AT&T PCS) shall be entitled to rely on the full power and
authority of Wireless PCS, Inc. to act on behalf of AT&T PCS in accordance with
this Section 12.11. Nothing contained in this Section 12.11 shall relieve AT&T
-------------- -------------
PCS from complying with its obligations under this Agreement or any of the
Related Agreements to which it is a party.
12.12 FCC Approval. Notwithstanding anything contained in this
------------
Agreement to the contrary, no transaction or action contemplated herein shall be
consummated and no interests or rights transferred, converted or exchanged prior
to receiving FCC approval with respect thereto to the extent such approval is
necessary.
12.13 Expenses. The Company shall pay the reasonable fees and
--------
expenses of counsel to the Stockholders incurred in connection with the
preparation, negotiation and execution of this Agreement and of any amendment or
modification hereof. Except as provided in Sections 5(g) and 12.14, all other
-----------------------
attorneys' fees incurred by the Stockholders in connection with this Agreement
(including, without limitation, in the preparation of notices (and responses
thereto) and consents) shall be borne by the Stockholder(s) incurring such fees.
12.14 Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
62
<PAGE>
12.15 Headings. The captions in this Agreement are for convenience
--------
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
12.16 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.
[signature pages follow]
63
<PAGE>
[signature pages to First Amended and Restated Stockholders' Agreement]
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed by its duly authorized officers as of the date first
written above.
AT&T PCS WIRELESS L.L.C.
By:_______________________________________________
Name:
Title:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc., its general partner
By:_______________________________________________
Name:
Title:
J.P. MORGAN INVESTMENT CORPORATION
By:_______________________________________________
Name:
Title:
SIXTY WALL STREET SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation, its
general partner
By:_______________________________________________
Name:
Title:
[signatures continued on next page]
64
<PAGE>
[signatures continued from previous page]
PRIVATE EQUITY INVESTORS III, L.P.
By: Rohit M. Desai Associates III, L.L.C., its
general partner
By:_______________________________________________
Name:
Title:
EQUITY-LINKED INVESTORS-II
By: Rohit M. Desai Associates-II, its general
partner
By:_______________________________________________
Name:
Title:
TORONTO DOMINION CAPITAL (U.S.A.), INC.
By:_______________________________________________
Name:
Title:
FIRST UNION CAPITAL PARTNERS, INC.
By:_______________________________________________
Name:
Title:
[signatures continued on next page]
65
<PAGE>
[signatures continued from previous page]
DAG-TRITON PCS, L.P.
By: Duff Ackerman Goodrich, LLC, its general
partner
By:_______________________________________________
Name:
Title:
--------------------------------------------------
Michael E. Kalogris
--------------------------------------------------
Michael E. Kalogris, as Trustee under Amended and
Restated Common Stock Trust Agreement for
Management Employees and Independent Directors
dated June 26, 1998
--------------------------------------------------
Steven R. Skinner
--------------------------------------------------
David D. Clark
--------------------------------------------------
Clyde Smith
--------------------------------------------------
Michael Mears
[signatures continued on next page]
66
<PAGE>
[signatures continued from previous page]
--------------------------------------------------
Scott Anderson
--------------------------------------------------
John Beletic
--------------------------------------------------
Stephen McNulty
--------------------------------------------------
William Robinson
--------------------------------------------------
Daniel Hopkins
--------------------------------------------------
Laura Porter
--------------------------------------------------
Kristine Robinson
--------------------------------------------------
Andrew Davies
--------------------------------------------------
Mike James
[signatures continued on next page]
67
<PAGE>
[signatures continued from previous page]
--------------------------------------------------
Shekhar Deshpande
--------------------------------------------------
Christine Davies
--------------------------------------------------
Daniel Graney
--------------------------------------------------
Gerald Dudzik
--------------------------------------------------
Mark Davis
--------------------------------------------------
Nicholas Pepenelli
--------------------------------------------------
R.A. Robinson
--------------------------------------------------
Scott Basham
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Patricia Gallagher
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David Standig
68
