EXHIBIT 10.5
Execution Copy
VOTING AGREEMENT
(Cash Equity Investor)
Agreement dated as of October 7, 2001 among the shareholder(s) listed on
the signature pages hereto (each, a "Shareholder") of TeleCorp PCS, Inc., a
Delaware corporation ("TeleCorp"), TeleCorp and AT&T Wireless PCS, LLC, a
Delaware limited liability company ("AWS").
(A) TeleCorp, AWS's parent and an affiliate of AWS are parties to an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
modified or amended from time to time, the "Merger Agreement"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
such terms in the Merger Agreement.
(B) Prior to the execution and effectiveness of this Agreement, TeleCorp,
AWS, certain management shareholders and other shareholders of TeleCorp executed
and delivered to TeleCorp and AWS Amendment No. 1 to the Stockholders' Agreement
dated as of October 7, 2001 (the "Stockholders Agreement Amendment"), to the
Stockholders' Agreement dated as of November 13, 2000, among TeleCorp, AWS and
the parties specified therein (as amended by the Stockholders Agreement
Amendment, the "Stockholders Agreement").
(C) The Stockholders Agreement Amendment amends the Stockholders Agreement
to allow for the parties hereto to enter into this Agreement and to perform
their obligations hereunder.
(D) Simultaneously with the execution of the Merger Agreement, each
Shareholder, TeleCorp and AWS agree to enter into this Agreement, and certain
other shareholders of TeleCorp (the "Other Shareholders") are entering into
agreements (the "Other Agreements") with TeleCorp and AWS that are substantially
similar in form and substance to this Agreement.
Accordingly, the parties hereto agree as follows:
1. Representations, Warranties and Covenants
Each Shareholder (with respect to itself only) hereby represents, warrants
and covenants, severally and not jointly, to each of AWS and TeleCorp as
follows:
(a) Title
As of the date hereof, such Shareholder owns beneficially and of record
the number of shares of each class of capital stock of TeleCorp set forth after
such Shareholder's name on Exhibit A hereto (with respect to each Shareholder,
the capital stock specified after such Shareholder's name on Exhibit A hereto
shall be referred to herein as the "Shares"). The term "beneficial owner" and
all correlative expressions are used in this Agreement as defined in Rules 13d-3
and 16a-1 under the Securities Exchange Act of 1934, as amended.
(b) Right to Vote
As of the date hereof and as of the date of the Titan Stockholders'
Meeting (which, for purposes of this Agreement, includes any adjournment or
postponement thereof), except for this Agreement or as otherwise permitted by
this Agreement, such Shareholder has full legal power, authority and right to
vote all of the Shares, to the extent the Shares carry the right to vote thereon
and have not been Transferred in accordance herewith, in favor of the approval
and authorization of the Merger Agreement, the Merger and the Related Agreements
(to the extent TeleCorp is a party thereto) and the other transactions
contemplated thereby (collectively, the "Titan Proposals") without the consent
or approval of, or any other action on the part of, any other person or entity.
Without limiting the generality of the foregoing, such Shareholder has not
entered into any voting agreement with any person or entity with respect to any
of the Shares, granted any person or entity any proxy (revocable or irrevocable)
or power of attorney with respect to any of the Shares, deposited any of the
Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting its legal power, authority or right to
vote the Shares in favor of the Titan Proposals except for this Agreement.
From and after the date hereof, except as otherwise permitted by this
Agreement or prohibited by order of a court of competent jurisdiction, such
Shareholder will not commit any act that could restrict or otherwise affect its
legal power, authority and right to vote all of the Shares, to the extent the
Shares carry the right to vote thereon and have not been Transferred in
accordance herewith, in favor of the Titan Proposals. Without limiting the
generality of the foregoing, except for this Agreement and as otherwise
permitted by this Agreement, from and after the date hereof, each Shareholder
will not enter into any voting agreement with any person or entity with respect
to any of the Shares (including without limitation any amendment, modification,
waiver or supplement to Section 3.7 or Article 4 of the Stockholders Agreement),
grant any person or entity any proxy (revocable or irrevocable) or power of
attorney with respect to any of the Shares, deposit any of the Shares in a
voting trust or otherwise enter into any agreement or arrangement with any
person or entity limiting or affecting such Shareholder's legal power, authority
or right to vote the Shares in favor of the approval of the Titan Proposals.
(c) Authority
Such Shareholder has full legal power, authority and right to execute and
deliver, and to perform his or its obligations under, this Agreement. This
Agreement has been duly and validly executed and delivered by such Shareholder
and constitutes a valid and binding agreement of such Shareholder enforceable
against such Shareholder in accordance with its terms, subject to (i)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors rights generally and (ii) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(d) Conflicting Instruments
The execution and delivery of this Agreement and the performance by such
Shareholder of his or its agreements and obligations hereunder will not result
in any breach or violation of or be in conflict with or constitute a default
under any term of any agreement, judgment, injunction, order, decree, law,
regulation or arrangement to which such Shareholder is a party or by which such
Shareholder (or any of his or its assets) is bound, except for any such breach,
violation, conflict or default which, individually or in the aggregate, would
not impair or adversely affect such Shareholder's ability to perform its
obligations under this Agreement.
2. Restrictions on Transfer
(a) Restrictions
Subject to Section 2(b), prior to the Effective Time, each Shareholder
agrees not to (i) Transfer (or to agree to Transfer) any Shares owned of record
or beneficially by such Shareholder or (ii) effect, directly or indirectly, or
through any arrangement with a third party pursuant to which such third party
may effect, directly or indirectly, any short sales of any AWS Common Stock
received in connection with the Merger. Each Shareholder agrees that nothing
herein or in the Stockholders Agreement Amendment shall (or shall be construed
to) relieve such Shareholder of its obligations under Article 4 of the
Stockholders Agreement, and that the provisions of said Article 4 shall remain
in full force and effect in accordance with their terms.
(b) Exceptions
Notwithstanding the restrictions set forth in Section 2(a), the following
Transfers shall be permitted under this Agreement:
(i) From and after the date hereof, the Transfer of an Applicable
Number of Shares held by each Shareholder.
(ii) Commencing on the earlier of the date of the Titan
Stockholders' Meeting and March 31, 2002, the Transfer of an additional
Applicable Number of Shares held by each Shareholder.
(iii) Commencing on the earlier of the Effective Time and June 30,
2002, the Transfer of an additional Applicable Number of Shares held by
each Shareholder.
(iv) Transfers to any Affiliated Successor (as defined in the
Stockholders Agreement) and Transfers by operation of law, provided, that
any such Affiliated Successor or successor by operation of law, as the
case may be, agrees in writing to become bound by the terms of this
Agreement.
(c) Aggregation
(i) The number of Shares that a Shareholder may Transfer pursuant to
Section 2(b)(i) may be increased, in accordance with clause (iv) below, by
the number (if any) of Shares that one or more Other Shareholders were
entitled to Transfer, but did not Transfer, pursuant to Section 2(b)(i).
(ii) The number of Shares that a Shareholder may Transfer pursuant
to Section 2(b)(ii) may be increased, in accordance with clause (iv)
below, by the number (if any) of Shares that one or more Other
Shareholders were entitled to Transfer, but did not Transfer, pursuant to
Section 2(b)(ii).
(iii) The number of Shares that a Shareholder may Transfer pursuant
to Section 2(b)(iii) may be increased, in accordance with clause (iv)
below, by the number (if any) of Shares that one or more Other
Shareholders were entitled to Transfer, but did not Transfer, pursuant to
Section 2(b)(iii).
(iv) A Shareholder may assign its right in whole or in part to
Transfer a number of Shares pursuant to Section 2(b)(i), 2(b)(ii) or
2(b)(iii) to one or more Other Shareholders only pursuant to a written
instrument of assignment, a copy of which must be delivered to AWS
promptly upon execution.
(d) Definitions
"Applicable Number of Shares" means, with respect to a Shareholder,
one-third (1/3) of the number of shares of Class A Voting Common Stock owned of
record or beneficially by such Shareholder as of the date hereof.
"Transfer" means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, pledge, hypothecation, or the grant,
creation or sufferage of a lien or encumbrance in or upon, or the gift,
placement in trust, or the constructive sale or other disposition of such
security (including transfers by testamentary or intestate succession) or any
right, title or interest therein (including but not limited to any right or
power to vote to which the holder thereof may be entitled, whether such right or
power is granted by proxy or otherwise), or the record or beneficial ownership
thereof, the offer to make such a sale, transfer, constructive sale or other
disposition, and each agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing. The term "constructive sale" means a
short sale with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security or entering
into any other hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership.
3. Agreement to Vote
Each Shareholder hereby irrevocably and unconditionally agrees to vote or
to cause to be voted all of the Shares, to the extent the Shares carry the right
to vote thereon and have not been Transferred in accordance herewith, at the
Titan Stockholders Meeting and at any other annual or special meeting of
shareholders of TeleCorp where any such proposal is submitted, and in connection
with any written consent of stockholders, (a) in favor of the Titan Proposals
and (b) against (i) approval of any proposal made in opposition to or in
competition with the transactions contemplated by the Merger Agreement, (ii) any
merger, consolidation, sale of assets, business combination, share exchange,
reorganization or recapitalization of TeleCorp or any of its subsidiaries, with
or involving any party other than as contemplated by the Merger Agreement, (iii)
any liquidation or winding up of TeleCorp, (iv) any extraordinary dividend by
TeleCorp, (v) any change in the capital structure of TeleCorp (other than
pursuant to the Merger Agreement) and (vi) any other action that may reasonably
be expected to impede, interfere with, delay, postpone or attempt to discourage
the consummation of the transactions contemplated by the Merger Agreement or
result in a breach of any of the covenants, representations, warranties or other
obligations or agreements of TeleCorp under the Merger Agreement, which would
materially and adversely affect TeleCorp or AWS or their respective abilities to
consummate the transactions contemplated by the Merger Agreement.
4. Additional Agreements
Each Shareholder and AWS hereby irrevocably and unconditionally agrees to
vote or to cause to be voted all of the Shares, to the extent the Shares carry
the right to vote thereon and have not been Transferred in accordance herewith,
at any annual or special meeting of shareholders of TeleCorp where such proposal
is submitted, and in connection with any written consent of stockholders,
against authorizing TeleCorp to seek the consent of the FCC to permit the Class
A Voting Common Stock and Voting Preference Common Stock to vote and act as a
single class as contemplated by Section 4.12(c)(iv) of the Amended and Restated
Certificate of Incorporation of TeleCorp.
5. Granting of Proxy
In furtherance of the terms and provisions of this Agreement, each
Shareholder hereby grants an irrevocable proxy (subject to Section 11(b)),
coupled with an interest, to each of the President and the Secretary of AWS to
vote all of the Shares beneficially owned by such Shareholder in favor of the
Titan Proposals and in accordance with the provisions of Sections 3 and 4. Each
Shareholder hereby ratifies and approves of each and every action taken by the
President or the Secretary of AWS pursuant to the foregoing proxy.
Notwithstanding the foregoing, if requested by AWS, each Shareholder will
execute and deliver applicable proxy material in furtherance of the provisions
of Sections 3 and 4 and this Section 5.
6. Action in Shareholder Capacity Only
Each Shareholder who is an officer or director of TeleCorp makes no
agreement or understanding herein as director or officer of TeleCorp. Each
Shareholder signs solely in his capacity as a record holder and beneficial owner
of Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of TeleCorp.
7. Invalid Provisions
If any provision of this Agreement shall be invalid or unenforceable under
applicable law, such provision shall be ineffective to the extent of such
invalidity or unenforceability only, without it affecting the remaining
provisions of this Agreement.
8. Executed in Counterparts
This Agreement may be executed in counterparts each of which shall be an
original with the same effect as if the signatures hereto and thereto were upon
the same instrument.
9. Specific Performance
The parties hereto agree that the failure for any reason of a Shareholder
to perform any of his or its agreements or obligations under this Agreement
would cause irreparable harm or injury to TeleCorp and AWS with respect to which
money damages would not be an adequate remedy. Accordingly, each Shareholder
agrees that, in seeking to enforce this Agreement against such Shareholder, each
of AWS and TeleCorp shall be entitled to specific performance and injunctive and
other equitable relief in addition to any other remedy available at law, equity
or otherwise.
10. GOVERNING LAW; SUBMISSION TO JURISDICTION
THE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. EACH OF THE
PARTIES HERETO IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT HEREOF BROUGHT BY ANY OTHER PARTY HERETO OR ITS SUCCESSORS OR ASSIGNS
MAY BE BROUGHT AND DETERMINED IN THE STATE AND FEDERAL COURTS OF THE STATE OF
DELAWARE, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD
TO ANY SUCH ACTION OR PROCEEDING FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, TO THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY CLAIM (A) THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE AFORESAID COURTS FOR ANY REASON,
(B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION OF ANY SUCH
COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER THROUGH
SERVICE OF JUDGMENT, EXECUTION OF JUDGMENT, OR OTHERWISE), AND (C) TO THE
FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, THAT (I) THE SUIT, ACTION OR
PROCEEDING IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER AND (III) THIS AGREEMENT, OR THE
SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.
11. Amendments; Termination
(a) This Agreement may not be modified, amended, altered or supplemented,
except upon the execution and delivery of a written agreement executed by all
parties hereto.
(b) Except for provisions of this Agreement that by their terms survive
the termination hereof, the provisions of this Agreement shall terminate upon
the earliest to occur of (i) the consummation of the Merger, (ii) December 31,
2002, (iii) the date of effectiveness of any amendment to the Merger Agreement
that changes the type or amount of merger consideration in a way that is
materially adverse to any of the Shareholder(s) party to this Agreement and (iv)
the termination of the Merger Agreement in accordance with its terms.
12. Additional Shares
If, after the date hereof, any Shareholder acquires beneficial or record
ownership of any additional shares of capital stock of TeleCorp (any such
shares, "Additional Shares"), including, without limitation, upon exercise of
any option, warrant or right to acquire shares of capital stock of TeleCorp or
through any stock dividend or stock split, the provisions of this Agreement
applicable to the Shares shall thereafter be applicable to such Additional
Shares as if such Additional Shares had been Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by any Shareholder of beneficial ownership of such Additional
Shares.
13. Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal successors (including,
in the case of any individual Shareholder or any other individual, any
executors, administrators, estates, legal representatives and heirs of such
Shareholder or such individual) and permitted assigns (other than transferees of
any Shares Transferred pursuant to Section 2(b)); provided, however, that,
except as otherwise provided in this Agreement, no party may assign, delegate or
otherwise transfer any of its rights or obligations, under this Agreement,
without the consent of AWS, in the case of any Shareholder, the consent of the
Shareholder(s) and TeleCorp, in the case of AWS, and the consent of AWS, in the
case of TeleCorp. Without limiting the scope or effect of the restrictions on
Transfer set forth in Section 2, each Shareholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, other than any Shares
Transferred pursuant to Section 2(b).
14. Expenses
Promptly (but not later than three days) after the date hereof, TeleCorp
shall pay all fees and expenses incurred by the Shareholder(s) and the Other
Shareholders (other than management shareholders of TeleCorp) in connection with
the negotiation, execution and delivery of this Agreement and the Other
Agreements, not to exceed $25,000 in the aggregate for all such Other
Shareholders.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TELECORP PCS, INC.
By /s/ Thomas H. Sullivan
----------------------------------
Name: Thomas H. Sullivan
Title: Chief Financial Officer and
Executive Vice President
AT&T WIRELESS PCS, LLC
By AT&T WIRELESS SERVICES, INC.
Its Manager
By /s/ Robert Stokes, Jr.
----------------------------------
Name: Robert Stokes, Jr.
Title: Vice President
HCB CAPITAL FUND, L.P.
By: James M. Hoak & Co., its general
parter
By: /s/ James Hoak
----------------------------------
Name: James Hoak
Title:
Number of shares of Class A Voting
Common Stock
--------------------------------------
HOAK COMMUNICATIONS
PARTNERS, L.P.
By: HCP Investments, L.P., its general
parter
By: Hoak Partners, LLC, its general
parter
By: /s/ James Hoak
----------------------------------
Name: James Hoak
Title:
Number of shares of Class A Voting
Common Stock
--------------------------------------
Exhibit A to the Voting Agreement - Hoak Communications and
HCP Capital Fund, L.P.
Class C Class D Series C
Class A Common Common Preferred
Shareholder Common Stock Stock Stock Stock
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Hoak Communications
Partners 10,054,900 18,494 133,510 33,009.47
HCP Capital Fund, L.P. 919,881 1,691 12,212 3,018.35
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TOTAL: 10,974,781 20,185 145,722 36,027.82