EXHIBIT 10.2
VOTING AGREEMENT
Agreement dated as of February 28, 2000 among each of the shareholders
listed on the signature pages hereto (each, a "Shareholder") of TeleCorp PCS,
Inc., a Delaware corporation ("Virginia"), Virginia and Tritel Inc., a Delaware
corporation ("Mississippi").
(A) Virginia, Mississippi and certain other parties are parties to an
Agreement and Plan of Reorganization and Contribution dated as of the date
hereof (the "Reorganization Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned such terms in the
Reorganization Agreement.
(B) Each of Mississippi and Virginia agreed to enter into the
Reorganization Agreement on the condition that the parties hereto enter into
this Voting Agreement.
Accordingly, the parties hereto agree as follows:
1. Representations and Warranties of Each Shareholder. Each
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Shareholder hereby represents and warrants, severally and not jointly, to
Mississippi and Virginia as follows (with respect to itself only):
(a) Title. As of the date hereof, each Shareholder beneficially owns
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the amount and class of capital stock of Virginia set forth after such
Shareholder's name on Exhibit A attached hereto (with respect to each
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Shareholder, the capital stock specified after such Shareholder's name on
Exhibit A hereto shall be referred to herein as the "Shares").
(b) Right to Vote. As of the date hereof and as of the date of the
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Virginia Stockholder Meeting, except for this Agreement or as otherwise
permitted by this Agreement, each Shareholder has full legal power, authority
and right to vote all Shares, to the extent the Shares carry rights to vote
thereon, in favor of the Virginia Proposals without the consent or approval of,
or any other action on the part of, any other person or entity. Without limiting
the generality of the foregoing, except for this Agreement or as otherwise
permitted by this Agreement or as disclosed in Schedule 1 hereto, each
Shareholder has not entered into any voting agreement with any person or entity
with respect to any Shares, granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any Shares, deposited any
Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting its legal power, authority or right to
vote the Shares in favor of the Virginia Proposals. From and after the date
hereof, except as otherwise permitted by this Agreement, each Shareholder will
not commit any act that could restrict or otherwise affect such legal power,
authority and right to vote all Shares, to the extent the Shares carry the right
to vote thereon, in favor of the Virginia Proposals. Without limiting the
generality of the foregoing, except as otherwise permitted by this Agreement,
from and after the date hereof, each Shareholder will not enter into any voting
agreement with any person or entity with respect to any of the Shares, grant any
person or entity any proxy (revocable or irrevocable) or power of attorney with
respect to any of the Shares, deposit any of the Shares in a voting trust or
otherwise enter into any agreement or arrangement limiting or affecting such
Shareholder's legal power,
authority or right to vote the Shares in favor of the approval of the Virginia
Proposals (other than this Agreement).
(c) Authority. Each Shareholder has full legal power, authority and right
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to execute and deliver, and to perform his obligations under, this Agreement.
This Agreement has been duly and validly executed and delivered by each
Shareholder and constitutes a valid and binding agreement of each Shareholder
enforceable against each Shareholder in accordance with its terms, subject to
(i) bankruptcy, insolvency, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors rights generally and (ii) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(d) Conflicting Instruments; No Transfer. Neither the execution and
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delivery of this Agreement nor the performance by each Shareholder of his
agreements and obligations hereunder will result in any breach or violation of
or be in conflict with or constitute a default under any term of any agreement,
judgment, injunction, order, decree, law, regulation or arrangement to which
such Shareholder is a party or by which such Shareholder (or any of his assets)
is bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or adversely affect such
Shareholder's ability to perform its obligations under this Agreement.
2. Restriction on Transfer. Each Shareholder agrees that (other than
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pursuant to the Reorganization Agreement) he will not, and will not agree to,
sell, assign, dispose of, encumber, mortgage, hypothecate or otherwise transfer
(collectively, "Transfer') any Shares, including, without limitation, tender any
of the shares in a tender offer.
3. Agreement to Vote of Each Shareholder. Each Shareholder hereby
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irrevocably and unconditionally agrees to vote or to cause to be voted all
Shares, to the extent the Shares carry the right to vote thereon, at the
Virginia Stockholders Meeting and at any other annual or special meeting of
shareholders of Virginia where any such proposal is submitted (a) in favor of
the Virginia Proposals and (b) against (i) approval of any proposal made in
opposition to or in competition with the transactions contemplated by the
Reorganization Agreement, (ii) any merger, consolidation, sale of assets,
business combination, share exchange, reorganization or recapitalization of
Virginia or any of its subsidiaries, with or involving any party other than as
contemplated by the Reorganization Agreement, (iii) any liquidation or winding
up of Virginia, (iv) any extraordinary dividend by Virginia, (v) any change in
the capital structure of Virginia (other than pursuant to the Reorganization
Agreement) and (vi) any other action that may reasonably be expected to impede,
interfere with, delay, postpone or attempt to discourage the consummation of the
transactions contemplated by the Reorganization Agreement or result in a breach
of any of the covenants, representations, warranties or other obligations or
agreements of Virginia under the Reorganization Agreement which would materially
and adversely affect Virginia or Mississippi or their respective abilities to
consummate the transactions contemplated by the Reorganization Agreement.
4. Granting of Proxy. In furtherance of the terms and provisions of
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the Agreement, each shareholder hereby grants an irrevocable proxy (Subject to
Section 10(b)), coupled with an interest, to the President and Secretary of
Mississippi to vote all Shares beneficially owned by such Shareholder in favor
of the approval of the Virginia Proposals and
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against any of the matters specified in clause (b) of Section 3. Each
Shareholder hereby ratifies and approves of each and every action taken by
Mississippi pursuant to the foregoing proxy. Notwithstanding the foregoing, if
requested by Mississippi, each Shareholder will execute and deliver applicable
proxy material in furtherance of the provisions of Section 3.
5. Action in Shareholder Capacity Only. Each Shareholder makes no
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agreement or understanding herein as director or officer of Virginia. Each
Shareholder signs solely in his capacity as a record holder and beneficial owner
of the Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of Virginia.
6. Invalid Provisions. If any provision of this Agreement shall be
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invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
7. Executed in Counterparts. This Agreement may be executed in
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counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument.
8. Specific Performance. The parties hereto agree that if for any
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reason any Shareholder fails to perform any of his agreements or obligations
under this Agreement irreparable harm or injury to Virginia and Mississippi
would be caused with respect to which money damages would not be an adequate
remedy. Accordingly, each Shareholder agrees that, in seeking to enforce this
Agreement against each Shareholder, each of Mississippi and Virginia shall be
entitled, in addition to any other remedy available at law, equity or otherwise,
to specific performance and injunctive and other equitable relief.
9. Governing Law; Submission to Jurisdiction. The Agreement shall be
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governed by, and construed and enforced in accordance with, the domestic laws of
the State of Delaware without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware. Each of the parties hereto irrevocably agrees
that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the
other party hereto or its successors or assigns may be brought and determined in
the courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the nonexclusive
jurisdiction of the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (b) that it or its property is exempt
or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of judgment, execution of
judgment, or otherwise), and (c) to the fullest extent permitted by the
applicable law, that (i) the suit, action or proceeding in such court is brought
in an inconvenient forum, (ii) the venue of such suit, action or proceeding
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is improper and (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
10. Amendments; Termination. (a) This Agreement may not be modified,
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amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by all parties hereto.
(b) The provisions of this Agreement shall terminate upon the earliest to
occur of (i) the consummation of the Mergers, and (ii) the date which is two
years after the date hereof and (iii) the termination of the Reorganization
Agreement.
(c) For purposes of this Agreement, the term "Reorganization Agreement"
includes the Reorganization Agreement, as the same may be modified or amended
from time to time.
11. Additional Shares. If, after the date hereof, any Shareholder
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acquires beneficial ownership of any additional shares of capital stock of
Virginia (any such shares, "Additional Shares"), including, without limitation,
upon exercise of any option, warrant or right to acquire Shares of capital stock
of Virginia or through any stock dividend or stock split, the provisions of this
Agreement applicable to the Shares shall be applicable to such Additional Shares
as if such Additional Shares had been Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by any Shareholder of beneficial ownership of such Additional
Shares.
12. Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
legal successors (including, in the case of any Shareholder or any other
individual, any executors, administrators, estates, legal representatives and
heirs of such Shareholder or such individual) and permitted assigns; provided,
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however, that, except as otherwise provided in this Agreement, no party may
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assign, delegate or otherwise transfer any of its rights or obligations, under
this Agreement, without the consent of Mississippi and Virginia, in the case of
any Shareholder, the Shareholders and Virginia, in the case of Mississippi, and
the Shareholders and Mississippi, in the case of Virginia. Without limiting the
scope or effect of the restrictions on Transfer set forth in Section 2 hereof,
each Shareholder agrees that this Agreement and the obligations hereunder shall
attach to the Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 28 day of February, 2000.
TeleCorp PCS, Inc.
By:________________________________
Name:____________________________
Title:___________________________
Tritel, Inc.
By:________________________________
Name:____________________________
Title:___________________________
Gerald T. Vento
By:________________________________
Name:____________________________
Title:___________________________
Thomas H. Sullivan
By:________________________________
Name:____________________________
Title:___________________________
EXHIBIT A
Shareholder Name Amount and Class of Shares
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Gerald T. Vento Class A Common Stock: 4,974,449 (1)
Class C Common Stock: 105,444
Class D Common Stock: 14,503 (2)
Voting Preference Common Stock:
Series C Preferred Stock: 420
Series E Preferred Stock 11,235
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(1) Consists of 492,064 shares of Class A Common Stock held by TeleCorp
Investment Corp. II, L.L.C. (TIC II) and 4,482,385 shares of Class A Common
Stock held by Mr. Vento. Mr. Vento serves as a manager and is a member of
TIC II.
(2) Consists of 11,366 shares of Class D Common Stock held by TIC II and 3,137
shares of Class D Common Stock held by Mr. Vento. Mr. Vento is a manager and
a member of TIC II.
Shareholder Name Amount and Class of Shares
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Thomas H. Sullivan Class A Common Stock: 3,220,955 (3)
Class C Common Stock: 65,373
Class D Common Stock: 12,065 (4)
Voting Preference Common Stock: 1,540
Series C Preferred Stock: 109
Series E Preferred Stock 6,984
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(3) Consists of 492,064 shares of Class A Common Stock held by TIC II and
2,728,891 shares of Class A Common Stock held by Thomas H. Sullivan. Mr.
Sullivan serves as manager and is the manager of a member of TIC II.
(4) Consists of 11,366 shares of Class D Common Stock held by TIC II and 699
shares of Class D Common Stock held by Mr. Sullivan. Mr. Sullivan serves as
a manager and is the manager of a member of TIC II.
SCHEDULE 1
The Stockholders' Agreement, dated as of June 17, 1998, by and among
TeleCorp PCS, Inc., Thomas H. Sullivan, Gerald T. Vento and the other
stockholders named therein.
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