EXHIBIT 10.10.1
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STOCK PURCHASE AGREEMENT
by and among
VIPER WIRELESS, INC.
TELECORP HOLDING CORP., INC.
and TELECORP PCS, INC.
Dated as of March 1, 1999
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STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT dated as of March 1, 1999 by and among Viper
Wireless, Inc., a Delaware corporation (the "Company"), TeleCorp Holding Corp.,
Inc. a Delaware corporation (the "Purchaser") and TeleCorp PCS, Inc., a Delaware
corporation (the "Parent").
WHEREAS, the Purchaser is the wholly-owned subsidiary of the Parent;
WHEREAS the Company is seeking to raise $25,000,000 from investors to fund its
participation in the reauction conducted by the Federal Communications
Commission ("FCC") for the sale of broadband Personal Communications Services
("PCS") licenses (the "PCS Licenses") in the "C" Block (the "PCS "C" Block
Auction"), as set forth in Parts 1 and 24 of Title 47 of the Code of Federal
Regulations (the "CFR"), scheduled to commence on March 23, 1999;
WHEREAS, the Purchaser is committing to invest up to $25,000,000 in the
Company at one or more Closings (hereinafter defined) in consideration of the
issuance by the Company of 100,000 shares of its Series A Preferred Stock, $.01
par value per share and 42,500 shares of its Class B Common Stock, no par value
per share (collectively, the "Securities"), and the Company wishes to issue and
sell the Securities to the Purchaser, all on the terms and subject to the
conditions herein set forth;
WHEREAS, in order to fund the Purchaser's purchase of the Securities, the
Parent wishes to contribute up to $25,000,000 to the capital of the Purchaser,
but solely subject to the terms and conditions set forth, and the Purchaser is
willing to accept such capital contribution subject to said terms and
conditions.
NOW THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereafter set
forth, the parties agree as follows: covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
"Accrued Dividend" with respect to any date, means $250 multiplied by
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0.10 multiplied by a fraction, the numerator of which is the number of days
elapsed since the Closing Date and the denominator is 365.
"Affiliate" means, with respect to any Person, any other Person that
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directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
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the power to direct or cause the direction of the
management and policies of a Person, directly or indirectly, whether through the
ownership of securities or partnership or other ownership interests, by contract
or otherwise.
"Aggregate Commitment" means $25,000,000.
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"Agreement" means this Stock Purchase Agreement, as the same may be
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amended, modified or supplemented in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or a legal
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holiday in New York, New York or any other day on which commercial banks in New
York, New York are authorized by law or governmental decree to close.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase or
subscribe for any of the foregoing or any warrants, rights or options to
purchase or subscribe for any such warrants, rights or options.
"Claim" has the meaning set forth in Section 8.5(a).
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"Class A Common Stock" means the Class A Common Stock, no par value
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per share, of the Company.
"Class B Common Stock" means the Class B Common Stock, no par value
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per share, of the Company.
"Closing" has the meaning set forth in Section 3.1.
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"Closing Date" has the meaning set forth in Section 3.1.
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"Common Stock" means, collectively, Class A Common Stock and Class B
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Common Stock.
"Company" has the meaning set forth in the preamble.
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"Confidential Information" means any and all information regarding the
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business, finances, operations, products, services and customers of the Person
specified and its Affiliates, in written or oral form or in any other medium.
"Consents" means all consents and approvals of Governmental
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Authorities or other third parties necessary to authorize, approve or permit the
parties hereto to consummate the Transactions and for the Company to operate its
business after the Closing Date as currently contemplated.
"Courts" has the meaning set forth in Section 10.6.
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"Credit Agreement" means the agreement among the Parent, the lenders
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and the agents referred to therein, as of July 17, 1998, providing a credit
facility having aggregate commitments of $525 million, as amended to date and as
the same may be further amended, modified or supplemented in accordance with the
terms thereof.
"Excess Funds" has the meaning set forth in Section 2.1(b).
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"FCC" means the Federal Communications Commission or similar
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regulatory authority established in replacement thereof.
"FCC Law" means the Communications Act of 1934, as amended, including
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as amended by the Telecommunications Act of 1996, and the rules, regulations and
policies promulgated thereunder.
"Funding Date" and "Funding Dates" and have the meanings set forth in
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Section 2.1.
"Governmental Authority" means a Federal, state or local court,
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legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"Indemnified Party" has the meaning set forth in Section 8.4(a).
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"Indemnifying Party" has the meaning set forth in Section 8.4(a).
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"Initial Cash Contribution" means $17,818,549.
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"Law" means applicable common law and any statute, ordinance, code or
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other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"License" means a license, permit, certificate of authority, waiver,
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approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Losses" has the meaning set forth in Section 8.2.
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"Material Adverse Effect" means a material adverse effect on the
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business, financial condition, assets, liabilities or results of operations or
prospects of the Person specified.
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"PCS" has the meaning set forth in the preamble.
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"PCS `C' Block Auction" has the meaning set forth in the preamble.
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"PCS Licenses" has the meaning set forth in the preamble.
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"Person" means an individual, corporation, partnership, limited
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liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"Preferred Stock" means the Series A Preferred Stock, no par value per
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share, of the Company.
"Purchaser" has the meaning set forth in the preamble.
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"Required Funds" has the meaning set forth in Section 2.1(b).
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"Restated Certificate" means the Amended and Restated Certificate of
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Incorporation of the Company, dated as of the Closing Date.
"Section 8.2 Indemnified Party" has the meaning set forth in Section
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8.2.
"Section 8.3 Indemnified Party" has the meaning set forth in Section
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8.3.
"Securities" has the meaning set forth in the preamble.
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"Securities Act" means the Securities Act of 1933, as amended.
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"Subsidiary" shall mean, with respect to any Person, a corporation or
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other entity of which 50% or more of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"Transactions" means the transactions contemplated by this Agreement.
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When a reference is made in this Agreement to an Article or a Section,
such reference shall be to an Article or a Section of this Agreement unless
otherwise indicated. Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The use of a gender herein shall be deemed to include the
neuter, masculine and feminine genders whenever necessary or appropriate.
Whenever the word "herein" or "hereof" is used in this Agreement, it shall be
deemed to refer to this Agreement and not to a particular Section of this
Agreement unless expressly stated otherwise.
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ARTICLE II
PURCHASE AND SALE
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OF SECURITIES; CERTAIN RESTRICTIONS ON TRANSFER
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2.1. Purchase and Sale of Securities. (a) Upon the terms and subject to
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the conditions hereof and in reliance upon the representations, warranties and
agreements herein contained: (i) effective upon the Closing, Purchaser hereby
irrevocably commits to contribute to the capital of the Company an amount equal
to its Aggregate Commitment, and (ii) at the Closing, shall contribute to the
capital of the Company an amount equal to its Initial Cash Contribution and the
Company shall accept such capital contribution. Upon prior notice from the
Company, Purchaser shall contribute to the capital of the Company additional
amounts as requested by the Company, up to an aggregate amount equal to its
Aggregate Commitment over the Initial Cash Contribution, on the dates specified
by the Company in such notices (each such date, a "Funding Date" and
collectively with the Closing Date, the "Funding Dates"). The obligation of the
Purchaser to make such additional capital contributions in respect of its
Aggregate Commitment in accordance with this Section 2.1 is sometimes referred
to herein as the "Unfunded Commitment." The Purchaser acknowledges and agrees
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that its obligation to make capital contributions to the Company after the
Closing Date in respect of its Unfunded Commitment constitutes an irrevocable
and unconditional obligation, and shall not be subject to counterclaim, set-off,
deduction or defense, or to abatement, suspension, deferment, diminution or
reduction for any reason whatsoever. By way of amplification, and not in
limitation of the foregoing, the Purchaser further acknowledges and agrees to
fulfill its obligations in respect of its Unfunded Commitment regardless of any
claims it may have against any other Person (whether or not related to the
Transactions) and regardless of the existence or non-existence of any facts or
circumstances (whether or not such facts and circumstances existed on the date
hereof or the Closing Date or were then known by it).
(b) In the event that the amounts paid to the Company on the Funding
Dates exceeds the amount required by the Company (i) to acquire any PCS Licenses
awarded to the Company at the PCS `C' Block Auction and (ii) to pay fees and
expenses incurred in connection with the Transactions (the "Required Funds"),
the Company shall use its best efforts to secure the return of the excess of
such funds over the Required Funds (the "Excess Funds") as soon as practicable
and shall, no later than the 2nd Business Day following the return of the Excess
Funds from the FCC (the "Redemption Date"), redeem from the Purchaser that
number of shares of Preferred Stock which is equal to the amount of the Excess
Funds divided by the sum of (x) $250 and (y) the Accrued Dividend as of the
Redemption Date (the "Redeemed Shares"). Upon such redemption, the Purchaser
shall deliver to the Company a stock certificate or certificates, duly endorsed
for transfer to the Company, or accompanied by duly endorsed stock powers,
representing the Redeemed Shares. As payment in full for the Redeemed Shares,
and against delivery of the stock certificate or certificates therefor as
aforesaid, upon such redemption, the Company shall deliver to the Purchaser, by
federal wire transfer of immediately available funds in accordance with wire
transfer instructions provided by the Purchaser, an amount equal to the Excess
Funds.
(c) In the event that the Company is not awarded any PCS Licenses at
the PCS `C' Block Auction, or the Company shall stop bidding at the PCS `C'
Block Auction, the
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Company shall use its best efforts to secure the return of its funds as soon as
is practicable and shall, within 2 business days of the return of its funds from
the FCC, redeem from the Purchaser all of the Preferred Stock purchased
hereunder. Upon such redemption, the Purchaser shall deliver to the Company a
stock certificate or certificates, duly endorsed for transfer to the Company, or
accompanied by duly endorsed stock powers, representing such Preferred Stock. As
payment in full for such Preferred Stock, and against delivery of the stock
certificate or certificates therefor as aforesaid, upon such redemption, the
Company shall deliver to the Purchaser, by federal wire transfer of immediately
available funds in accordance with wire transfer instructions provided by the
Purchaser, an amount equal to the Purchase Price.
(d) In order to fund the purchase of the Securities, on or before
each of the Funding Dates, upon prior notice from the Purchaser, the Parent
shall, subject to the conditions set forth herein, contribute the amounts
specified by the Purchaser, up to an aggregate of $25,000,000, to the capital of
the Purchaser (the "Capital Contributions"). The Capital Contributions shall be
used only for the purchase of the Securities by the Purchaser and for no other
purpose. In the event that the Purchaser receives from the Company Excess Funds
pursuant to subsections 2.1(b) or 2.1(c) above, the Purchaser shall immediately
return the full amount of the Excess Funds to the Parent as a return of capital.
The Parent acknowledges and agrees that its obligation to make capital
contributions to the Purchaser constitutes an irrevocable and unconditional
obligation, and shall not be subject to counterclaim, set-off, deduction or
defense, or to abatement, suspension, deferment, diminution or reduction for any
reason whatsoever. By way of amplification, and not in limitation of the
foregoing, the Parent further acknowledges and agrees to fulfill its obligations
in respect of its capital contributions regardless of any claims it may have
against any other Person (whether or not related to the Transactions) and
regardless of the existence or non-existence of any facts or circumstances
(whether or not such facts and circumstances existed on the date hereof or the
Closing Date or were then known by it).
2.2 Issuance of Securities. At the Closing, the Company shall issue and
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deliver to the Purchaser the shares of Class B Common Stock and Preferred Stock
set forth on Schedule I attached hereto. At each subsequent Funding Date, the
Company shall issue and deliver to the Purchaser the number of shares of
preferred stock which are equal to100,000 multiplied by the quotient of the
dollar amount contributed on such Funding date divided by the Aggregate
Commitment.
2.3 Restrictive Legends. Each certificate representing the Securities
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will bear a legend, in addition to any legends otherwise required by Law,
reading substantially as follows until such Securities have been sold pursuant
to an effective registration statement under the Securities Act, Rule 144 under
the Securities Act, or an opinion of counsel reasonably satisfactory in form and
substance to the Company and otherwise in full compliance with any other
applicable restrictions on transfer, including those contained in this
Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE `ACT'), OR UNDER ANY
STATE SECURITIES OR `BLUE SKY' LAWS. SAID SECURITIES MAY NOT BE
SOLD, TRANSFERRED,
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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."
2.4. Use of Proceeds. The Company shall use the net cash proceeds of its
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sale of Securities to the Purchaser hereunder to fund its purchase of PCS
Licenses at the PCS `C' Block Auction and to pay fees and expenses incurred in
connection with the Transactions.
ARTICLE III
CLOSING
3.1. Time and Place of Closing. Upon the terms and subject to the
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conditions hereof, the closing of the Transactions (the "Closing") shall take
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place at the offices of McDermott, Will & Emery, 28 State Street, Floor 33,
Boston, Massachusetts at 10:00 a.m. local time simultaneously with the execution
hereof, or at such other place and/or time and/or on such other date as the
parties may agree (the "Closing Date"). The Closing shall be deemed to have
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occurred as of 12:01 a.m. on the Closing Date.
3.2. Closing Actions and Deliveries. To effect the purchase and sale of the
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Securities and consummate the other Transactions, the parties shall on the
Closing Date take the following actions:
(a) Capital Contribution. The Parent shall contribute an amount equal
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to the Initial Cash Contribution to the Purchaser.
(b) Purchaser Payment. The Purchaser shall deliver to the Company by
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wire transfer of immediately available funds to the account designated by the
Company on or prior to the Closing Date an amount equal to the Initial Cash
Contribution.
(c) Delivery of Securities. The Company shall deliver to the Purchaser
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certificates duly executed by authorized signatories of the Company,
representing the Securities to be issued to it in accordance with the terms of
Section 2.2.
(d) Other Deliveries. The parties shall execute and deliver or cause
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to be executed and delivered all other documents, instruments, opinions and
certificates contemplated by this Agreement to be delivered at the Closing or
necessary and appropriate in order to consummate the Transactions contemplated
to be consummated on the Closing Date.
3.3. Closing Costs; Taxes and Fees. The Company shall pay or cause to be
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paid at the Closing or, if due prior to the Closing or thereafter, promptly when
due, all transfer taxes (including sales taxes, gross receipts taxes, stamp
taxes, and other taxes) payable solely as a result of a transfer of the
Contributions pursuant to this Agreement, but excluding any federal, state,
local or other jurisdictional income taxes (or franchise, excise, gross receipts
or other taxes that are generally
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imposed on a party on a periodic basis as a result of a party's status,
presence, conduct of business, holding of assets, income, revenues, activities
or other items).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows:
4.1. Organization, Power and Authority.
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(a) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the Laws of its jurisdiction of organization and has
the requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, and each other instrument, document, certificate and
agreement required or contemplated to be executed, delivered and performed by it
hereunder and thereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where
the character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary other than any such jurisdiction
in which the failure to be so qualified would not have a Material Adverse Effect
on it or materially adversely affect the Transactions.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it have been duly and validly authorized by
its Board of Directors (or equivalent body) and no other proceedings on its part
which have not been taken (including, without limitation, approval of its
stockholders, partners or members) are necessary to authorize this Agreement or
to consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
(f) As of the Closing Date, after giving effect to the Transactions,
it is not in breach of any obligation under this Agreement.
4.2. Consents; No Conflicts. Neither the execution, delivery and
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performance by it of this Agreement nor the consummation of the Transactions
will (a) conflict with, or result in a breach or violation of, any provision of
its organizational documents; (b) subject to obtaining the Consents set forth on
Schedule 4.2, constitute, with or without the giving of notice or passage of
time or both, a breach, violation or default, create a Lien, or give rise to any
right of termination, modification, cancellation, prepayment or acceleration,
under (i) any Law or License or (ii) any note, bond,
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mortgage, indenture, lease, agreement or other instrument, in each case which is
applicable to or binding upon it or any of its assets; or (c) require any
Consent, other than those set forth on Schedule 4.2 or the approval of its board
of directors, general partner, stockholders or similar constituent bodies, as
the case may be (which approvals have been obtained), except in each case, where
such breach, violation, default, Lien, right, or the failure to obtain or give
such Consent would not have a Material Adverse Effect on it or materially
adversely affect the Transactions. To its knowledge, there is no fact relating
to it or its Affiliates that would be reasonably expected to prevent it from
consummating the Transactions.
4.3. Litigation. There is no action, proceeding or investigation pending
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or, to its knowledge, threatened against it or any of its properties or assets
that would be reasonably expected to have an adverse effect on its ability to
consummate the Transactions to which it is a party or to fulfill its obligations
under this Agreement or which seeks to prevent or challenge the Transactions.
4.4. FCC Compliance. It complies with all eligibility rules issued by the
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FCC to hold broadband PCS Licenses, including without limitation, FCC rules on
foreign ownership. Set forth opposite its name on Schedule 4.4 are all
"attributable" interests (within the meaning of Section 20.6 of the FCC's Rules)
that it holds in CMRS licenses that overlap the territory covered by the PCS
Licenses to be bid on at the PCS "C" Block Auction.
4.5. Brokers. It has not employed any broker, finder or investment banker
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or incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transactions.
4.6. No Distribution. It is acquiring the Securities to be acquired by it
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hereunder for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof (other than in compliance with the
Securities Act and all applicable state securities laws).
4.7. Investor Acknowledgments. (a) It is an "accredited investor" as
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defined in Regulation D of the Securities Act. Its representatives have been
provided an opportunity to ask questions of, and have received answers thereto
from, the Company and its representatives regarding the terms and conditions of
its purchase of Securities, and the Company and its proposed business generally,
and have obtained all additional information requested by it to verify the
accuracy of all information furnished to it in connection with such purchase.
(b) It has such knowledge and experience in financial and business
affairs that it is capable of evaluating the merits and risks of purchasing the
Securities it is purchasing hereunder.
(c) It is not relying on and acknowledges that no representation is
being made by the Company or any of its officers, employees, Affiliates, agents
or representatives, except for representations and warranties expressly set
forth in this Agreement, and, in particular, it is not relying on, and
acknowledges that no representation is being made in respect of, (x) any
projections, estimates or budgets delivered to or made available to them of
future revenues, expenses or expenditures, or future results of operations and
(y) any other information or documents delivered or made available to it or its
representatives, except for representations and warranties expressly set forth
in this Agreement and such information and documents obtained by it as a
stockholder of the
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Company and through its representatives who serve as members of the Company's
board of directors, as the case may be.
(d) In deciding to invest in the Company, it has relied exclusively
on the representations and warranties expressly set forth in this Agreement, and
the investigations made by itself and its representatives and its and such
representatives' knowledge of the industry in which the Company proposes to
operate. Based solely on such representations and warranties and such
investigations and knowledge and such information obtained by him or it by
virtue of his or its status as a stockholder of the Company, and through its
representatives who serve as members of the Company's board of directors, as the
case may be, it has determined that the Securities it is acquiring are a
suitable investment for it.
(e) The Purchaser understands that the Securities purchased hereby may
not be sold, transferred, or otherwise disposed of without registration under
the Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Securities or an available
exemption from registration under the Securities Act, the Securities must be
held indefinitely. In particular, the Purchaser is aware that none of the
Securities may be sold pursuant to Rule 144 promulgated under the Securities Act
unless all of the conditions of that Rule are met. Among the conditions for use
of Rule 144 may be the availability of current information to the public about
the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as follows:
5.1. Organization, Power and Authority. (a) The Company is a corporation
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duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation and has the requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted and as proposed to be conducted.
(b) It has the requisite power, authority and/or legal capacity to
execute, deliver and perform this Agreement and each other instrument, document,
certificate and agreement required or contemplated to be executed, delivered and
performed by it hereunder and thereunder to which it is or will be a party.
(c) The Company is duly qualified to do business in each jurisdiction
where the character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary other than any such
jurisdiction in which the failure to be so qualified would not have a Material
Adverse Effect on it or materially adversely affect the Transactions.
(d) The execution and delivery of this Agreement and the consummation
of the Transactions by it have been duly and validly authorized by its Board of
Directors and shareholders and, except for the filing of an amendment to the
Company's Restated Certificate with the office of
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the Secretary of State of Delaware, no other proceedings which have not been
taken are necessary to authorize this Agreement or to consummate the
Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes the valid and binding obligation of it, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
(f) As of the Closing, after giving effect to the Transactions, it is
not in breach of any obligation under this Agreement.
5.2. Consents; No Conflicts. Neither the execution, delivery and
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performance of this Agreement nor the consummation of the Transactions will (a)
conflict with, or result in a breach or violation of, any provision of its
organizational documents; (b) subject to obtaining the Consents set forth on
Schedule 5.2, constitute, with or without the giving of notice or passage of
time or both, a breach, violation or default, create a Lien, or give rise to any
right of termination, modification, cancellation, prepayment or acceleration,
under (i) any Law or License, or (ii) any note, bond, mortgage, indenture,
lease, agreement or other instrument, in each case which is applicable to or
binding upon it or any of its assets; or (c) require any Consent, other than
those set forth on Schedule 5.2 or the approval of its Board of Directors or its
stockholders (which approval has been obtained), except in each case where such
breach, violation, default, Lien, right, or the failure to obtain or give such
Consent would not have a Material Adverse Effect on it or materially adversely
affect the Transactions or the operation of its business after the Closing Date.
To its knowledge, there is no fact relating to it or its Affiliates that would
be reasonably expected to prevent it from consummating the Transactions or
performing its obligations under this Agreement or disqualify it from obtaining
the Consents required in order to consummate the Transactions.
5.3. Litigation. There is no action, proceeding or investigation pending
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or, to its knowledge, threatened against it or any of its properties or assets
that would have an adverse effect on its ability to consummate the Transactions
to which it is a party or to fulfill its obligations under this Agreement or to
operate its business after the Closing Date, or which seeks to prevent or
challenge the Transactions. There is no judgment, decree, injunction, rule or
order outstanding against it which would limit in any material respect its
ability to operate its business in the manner currently contemplated.
5.4. FCC Compliance. The Company complies, and after giving effect to the
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Transactions will comply, with all eligibility rules issued by the FCC to hold
broadband PCS Licenses, including FCC rules on foreign ownership and the CMRS
spectrum cap.
5.5. Brokers. It has not employed any broker, finder or investment banker
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or incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transactions.
5.6. Capitalization (a) As of the date hereof, the authorized capital stock
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of the Company consists of 15,000 shares of Class A Common Stock, of which 7,500
shares are currently issued and
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outstanding and 85,000 shares of Class B Common Stock, none of which is
currently issued and outstanding. As of the Closing Date, after giving effect to
the filing of the Restated Certificate and the Transactions there will be issued
and outstanding the shares of Preferred Stock and Common Stock set forth on
Schedule I. The record and beneficial owners of such outstanding shares of
Common Stock and Preferred Stock, as of the Closing Date, after giving effect to
the Transactions, are set forth on Schedule I.
(b) Except as set forth on Schedule 5.6, on the Closing Date, after
giving effect to the Transactions, there will not be any existing options,
warrants, calls, subscriptions, or other rights, or other agreements or
commitments, obligating the Company to issue, transfer or sell any shares of
capital stock of the Company, except the Securities being sold hereunder.
5.7. Shares. The Securities being issued to the Purchaser hereunder, when
------
issued and paid for pursuant to the terms of this Agreement and after giving
effect to the filing of the Restated Certificate, will be duly authorized,
validly issued, fully paid and non-assessable, and will be free of any Liens
caused or created by the Company, except as set forth in the Restated
Certificate.
5.8. Offering of Securities. (a) None of the Company or any Person acting
----------------------
on its behalf has offered the Securities or any similar equity securities of the
Company for sale to, or solicited any offers to buy Securities or any similar
equity securities of the Company from, any Person, other than the Purchaser and
a limited number of other "accredited investors" (as defined in Rule 501(a)
under the Securities Act).
(b) None of the Company or any Person acting on its behalf will,
directly or indirectly, take any action which might subject the offering,
issuance or sale of the Securities to the registration and prospectus delivery
requirements of Section 5 of the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Purchaser contained in Section 4.7, each of the offering and sale of Securities
under this Agreement to the Purchaser complies with all applicable requirements
of Federal and state securities laws.
5.9. Subsidiaries. The Company has no Subsidiaries.
------------
ARTICLE VI
COVENANTS
6.1. Consummation of Transactions. Each party shall use all commercially
----------------------------
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable and consistent with
applicable law to carry out all of their respective obligations under this
Agreement and to consummate the Transactions, which efforts shall include,
without limitation, the following:
(a) The parties shall use all commercially reasonable efforts to
cause the Closing to occur and the Transactions to be consummated in accordance
with the terms hereof, and, without limiting the generality of the foregoing, to
obtain all necessary Consents including the approval of
-12-
this Agreement and the Transactions by all Governmental Authorities and
agencies, including the FCC delivery and performance of this Agreement or the
consummation of the Transactions, and to make all filings with and to give all
notices to third parties which may be necessary or reasonably required in order
for the parties to consummate the Transactions.
(b) Each party shall furnish to the other parties all information
concerning such party and its Affiliates reasonably required for inclusion in
any application or filing to be made by the Company or any other party in
connection with the Transactions or otherwise to determine compliance with
applicable FCC Law.
(c) Upon the request of any other party, each party shall forthwith
execute and deliver, or cause to be executed and delivered, such further
instruments of assignment, transfer, conveyance, endorsement, direction or
authorization and other documents as may reasonably be requested by such party
in order to effectuate the purposes of this Agreement.
6.2. Use of Proceeds. The Company shall use the proceeds of the sale of
---------------
Securities only for the purposes described in Section 2.4.
6.3. Offering of Securities. None of the Company or any Person acting on
----------------------
its behalf will, directly or indirectly, take any action which might subject the
offering, license or sale of the Securities to the registration and prospectus
delivery requirements of Section 5 of the Securities Act.
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1. Survival. Except for the representations and warranties contained in
--------
Sections 4.1(a), (b), (d) and (e), and 5.1(a), (b), (d) and (e) (which shall
survive the Closing, without regard to any investigation made by any of the
parties hereto, until the expiration of the applicable statute of limitations
relating thereto), the representations and warranties made in this Agreement
shall survive the Closing without regard to any investigation made by any of the
parties hereto until the second anniversary thereof and shall thereupon expire
together with any right to indemnification in respect thereof (except to the
extent a written notice asserting a claim for breach of any such representation
or warranty and describing such claim in reasonable detail shall have been given
prior to the expiration of the applicable survival period to the party which
made such representation or warranty). The covenants and agreements contained
herein to be performed or complied with prior to the Closing shall expire at the
Closing. The covenants and agreements contained in this Agreement to be
performed or complied with after the Closing shall survive the Closing; provided
that the right to indemnification pursuant to this Article VIII in respect of a
breach of a representation or warranty shall expire upon the application of the
applicable survival period of the Closing (except to the extent written notice
asserting a claim thereunder and describing such claim
-13-
in reasonable detail shall have been given prior to such expiration to the party
from whom such indemnification is sought). After the Closing, the sole and
exclusive remedy of the parties for any breach or inaccuracy of any
representation or warranty contained in this Agreement, or any other claim
(whether or not alleging a breach of this Agreement) that arises out of the
facts and circumstances constituting such breach or inaccuracy, shall be the
indemnity provided in this Article VIII.
8.2. Indemnification by the Purchaser. The Purchaser shall indemnify and
--------------------------------
hold harmless the Company and its Affiliates, and the shareholders, members,
managers, officers, employees, agents and/or the legal representatives of any of
them (each, a "Section 8.2 Indemnified Party"), against all liabilities and
-----------------------------
expenses (including amounts paid in satisfaction of judgments, in compromise, as
fines and penalties, and as counsel fees) (collectively, "Losses") incurred by
------
him or it in connection with the investigation, defense, or disposition of any
action, suit or other proceeding in which any Section 8.2 Indemnified Party may
be involved or with which he or it may be threatened (whether arising out of or
relating to matters asserted by third parties against a Section 8.2 Indemnified
Party or incurred or sustained by such party in the absence of a third-party
claim), that arises out of or results from (a) any representation or warranty of
the Purchaser contained in this Agreement being untrue in any material respect
as of the date on which it was made or (b) any material default by the Purchaser
or any of its Affiliates in the performance of their respective obligations
under this Agreement, except to the extent (but only to the extent) any such
Losses arise out of or result from the gross negligence or willful misconduct of
such Section 8.2 Indemnified Party or its Affiliates.
8.3. Indemnification by the Company. The Company shall indemnify and hold
------------------------------
harmless the Purchaser and its Affiliates, and the shareholders, members,
managers, officers, employees, agents and/or the legal representatives of any of
them (each, a "Section 8.3 Indemnified Party"), against all Losses incurred by
-----------------------------
him or it in connection with the investigation, defense, or disposition of any
action, suit or other proceeding in which any Section 8.3 Indemnified Party may
be involved or with which he or it may be threatened (whether arising out of or
relating to matters asserted by third parties against a Section 8.3 Indemnified
Party or incurred or sustained by such party in the absence of a third-party
claim), that arises out of or results from (a) any representation or warranty of
the Company contained in this Agreement being untrue in any material respect as
of the date on which it was made or (b) any material default by the Company or
any of its Affiliates in the performance of their respective obligations under
this Agreement, except to the extent (but only to the extent) any such Losses
arise out of or result from the gross negligence or willful misconduct of such
Section 8.3 Indemnified Party or its Affiliates.
-14-
8.4. Procedures.
----------
(a) The terms of this Section 8.4 shall apply to any claim (a "Claim")
-----
for indemnification under the terms of Sections 8.2 or 8.3. The Section 8.2
Indemnified Party or Indemnified Party (each, an "Indemnified Party"), as
-----------------
the case may be, shall give prompt written notice of such Claim to the
indemnifying party (the "Indemnifying Party") under the applicable Section,
------------------
which party may assume the defense thereof, provided that any delay or failure
to so notify the Indemnifying Party shall relieve the Indemnifying Party of its
obligations hereunder only to the extent, if at all, that it is materially
prejudiced by reason of such delay or failure. The Indemnified Party shall have
the right to approve any counsel selected by the Indemnifying Party and to
approve the terms of any proposed settlement, such approval not to be
unreasonably delayed or withheld (unless, in the case of approval of a proposed
settlement, such settlement provides only, as to the Indemnified Party, the
payment of money damages actually paid by the Indemnifying Party and a complete
release of the Indemnified Party in respect of the claim in question).
Notwithstanding any of the foregoing to the contrary, the provisions of this
Article VIII shall not be construed so as to provide for the indemnification of
any Indemnified Party for any liability to the extent (but only to the extent)
that such indemnification would be in violation of applicable law or that such
liability may not be waived, modified or limited under applicable law, but shall
be construed so as to effectuate the provisions of this Article VIII to the
fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of
any Claim, the Indemnifying Party will keep the Indemnified Party advised as to
all material developments in connection with such Claim, including, but not
limited to, promptly furnishing the Indemnified Party with copies of all
material documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the
defense of any Claim within ten business days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the Indemnifying
Party's right to assume the defense pursuant to the provisions of this Article
VIII, to undertake the defense, compromise or settlement of such Claim for the
account of the Indemnifying Party. Unless and until the Indemnified Party
assumes the defense of any Claim, the Indemnifying Party shall advance to the
Indemnified Party any of its reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advancement that, in the event he or it receives any such advance, such
Indemnified Party shall reimburse the Indemnifying Party for such fees, costs
and expenses to the extent that it shall be determined that he or it was not
entitled to indemnification under this Article VIII.
(d) In no event shall an Indemnifying Party be required to pay in
connection with any Claim for more than one firm of counsel (and local counsel)
for each of the following groups of Indemnified Parties: (i) the Purchaser, its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them; and (ii) the Company, its
respective Affiliates, and the shareholders, members, managers, officers,
employees, agents and/or the legal representatives of any of them.
-15-
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Amendment and Modification. This Agreement may be amended,
--------------------------
modified or of the parties.
10.2. Waiver of Compliance; Consents. Any failure of any of the parties
------------------------------
to comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirement for a waiver of
compliance as set forth in this Section 10.2.
10.3. Notices. All notices or other communications hereunder shall be
-------
in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (return receipt
requested), postage prepaid, with an acknowledgment of receipt signed by the
addressee or an authorized representative thereof, addressed as follows (or to
such other address for a party as shall be specified by like notice; provided
that notice of a change of address shall be effective only upon receipt
thereof):
-16-
If to a Purchaser, to it:
1010 N. Glebe Road, Suite 800
Arlington, Virginia 22201
Attn: General Counsel
Facsimile: (703) 236-1376
If to the Company, to it:
1010 N. Glebe Road, Suite 800
Arlington, Virginia 22201
Attn: General Counsel
Facsimile: (703) 236-1376
10.4. Parties in Interest; Assignment. This Agreement is binding upon
-------------------------------
and is solely for the benefit of the parties hereto and their respective
permitted successors, legal representatives and permitted assigns. Neither the
Company nor the Purchaser may assign its rights and obligations hereunder
without the prior written consent of each of the other parties.
10.5. Applicable Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of New York without giving effect to
the conflicts of law principles thereof. The parties hereto hereby irrevocably
and unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the County of New York, New York (the "Courts") for any litigation arising out
------
of or relating to this Agreement and the Transactions, waive any objection to
the laying of venue of any such litigation in the Courts and agrees not to plead
or claim in any Court that such litigation brought therein has been brought in
an inconvenient forum.
10.6. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.7. Interpretation. The article and section headings contained in
--------------
this Agreement are for convenience of reference only, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement.
10.8. Entire Agreement. This Agreement, including the exhibits and
----------------
schedules hereto and thereto and the certificates and instruments delivered
pursuant to the terms of this Agreement, embody the entire agreement and
understanding of the parties hereto in respect of the Transactions. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such Transactions.
10.9. Publicity. So long as this Agreement is in effect, the parties
---------
agree to consult with each other in issuing any press release or otherwise
making any public statement with respect to the Transactions, and no party shall
issue any press release or make any such public statement prior to
-17-
such consultation, except as may be required by Law. No press release or other
public statement by the parties hereto shall disclose any of the financial terms
of the Transactions without the prior consent of the other parties, except as
may be required by Law. A breach of the provisions of this Section 10.10 by a
party shall not give rise to any right to terminate this Agreement.
10.10. Specific Performance. The parties hereto agree that irreparable
--------------------
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Courts.
10.11. Remedies Cumulative. All rights, powers and remedies provided
-------------------
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
10.12. Severability. Any provision of this Agreement that is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any court determines
that any covenant or any part of any covenant is invalid or unenforceable, such
covenant shall be enforced to the extent permitted by such court, and all other
covenants shall not thereby be affected and shall be given full effect, without
regard to the invalid portions.
10.13. Beneficiaries of Agreement. The representations, warranties,
--------------------------
covenants and agreements expressed in this Agreement are for the sole benefit of
the other parties hereto and the Section 8.2 Indemnified Parties and Section 8.3
Indemnified Parties and are not intended to benefit, and may not be relied upon
or enforced by, any other party as a third party beneficiary or otherwise.
[END OF PAGE]
-18-
[EXECUTION PAGE OF STOCK PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VIPER WIRELESS, INC.
By: /s/ Thomas H. Sullivan
------------------------------
Name: Thomas H. Sullivan
Title: President
TELECORP HOLDING CORP., INC.
By: /s/ Thomas H. Sullivan
------------------------------
Name: Thomas H. Sullivan
Title: President
TELECORP PCS, INC.
By: /s/ Thomas H. Sullivan
------------------------------
Name: Thomas H. Sullivan
Title: Executive Vice President
-19-
Stockholder Shares of Class A Shares of Class B Shares of Series A
Common Stock Common Stock Preferred Stock
Gerald Vento 3,750 0 0
Thomas Sullivan 3,750 0 0
TeleCorp Holding 0 42,500 71,274.20
Corp., Inc.
-20-
SCHEDULE 4.2
Purchaser Consents
------------------
None.
-21-
SCHEDULE 4.4
Attributable Interests
----------------------
TeleCorp Holding Corp., Inc holds the following licenses:
1. Beaumont-Port Arthur, TX BTA
2. Little Rock, AR BTA
3. Memphis, TN BTA
4. New Orleans, LA BTA
Upon the closing of the transactions contemplated by the License Acquisition
Agreement by and between Mercury PCS II, LLC and TeleCorp PCS, Inc., TeleCorp
Holding Corp., Inc. will hold:
1. Baton Rouge, LA BTA
2. Hammond, LA BTA
3. Houma-Thibodeaux, LA BTA
4. Lafayette-New Iberia, LA BTA
Upon the closing of the transactions contemplated by the License Acquisition
Agreement by and between Wireless 2000, Inc. and TeleCorp PCS, Inc., TeleCorp
Holding Corp., Inc. will hold:
1. Alexandria, LA BTA
2. Monroe, LA BTA
3. Lake Charles, LA BTA
-22-
SCHEDULE 5.2
Company Consents
----------------
None.
-23-
SCHEDULE 5.6
Outstanding Options, Warrants, etc.
-----------------------------------
None.