Exhibit 2.6
PRINCIPAL STOCKHOLDERS AGREEMENT
CONTAINING A VOTING AGREEMENT
BY AND AMONG
TLL PARTNERS, L.L.C.
GM HOLDINGS, LLC
RAINBOW RESOURCES, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AND
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
DATED AS OF MAY 17, 2002
PRINCIPAL STOCKHOLDERS AGREEMENT
This PRINCIPAL STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of May
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17th 2002, by and among TLL Partners, L.L.C., a Delaware limited liability
company (the "Purchaser"), GM Holdings, LLC, a Tennessee limited liability
company ("Holdings"), Rainbow Resources, Inc., a Delaware corporation
("Rainbow"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual resident in the State of Texas,
and J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual resident in the State of Texas, each being
stockholders (each of the foregoing are sometimes referred to herein
individually as a "Stockholder" and collectively as "Stockholders") of Teletouch
Communications, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Purchaser, Holdings and the Company propose to enter into a
Restructuring Agreement dated as of the date hereof (the "Restructuring
Agreement"); and
WHEREAS, prior to the execution and delivery of this Agreement by any party
hereto, Purchaser has purchased: (a) from CIVC Partners I, a Delaware
partnership, 295,649 shares of Common Stock and (b) from Continental Illinois
Venture Corporation, a Delaware corporation, warrants to purchase 2,660,840
shares of Common Stock (collectively, the "Purchased Shares"); and
WHEREAS, as of the date hereof, each Stockholder "beneficially owns" (as
such term is defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended) and each Stockholder is entitled to dispose of (or to
direct the disposition of) and to vote (or to direct the voting of) the number
of shares of common stock, par value $0.001 per share of the Company (the
"Common Stock") set forth opposite the Stockholder's name on Annex A hereto, as
such shares may be adjusted by stock dividend, stock split, recapitalization,
combination, merger, consolidation, reorganization or other change in the
capital structure of the Company affecting the Common Stock (such shares of
Common Stock, together with any other shares of Common Stock the voting power
over which is acquired by the Stockholders during the period from and including
the date hereof through and including the date on which this Agreement is
terminated in accordance with its terms, are collectively referred to herein as
the Stockholder's "Subject Shares"); and
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WHEREAS, as a condition to the willingness of the Purchaser, Holdings and
the Company to enter into the Restructuring Agreement, and as an inducement and
in consideration therefor, each of the parties thereto has required that each
Stockholder agree, and each Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, capitalized terms used
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and not defined herein shall have the respective meanings ascribed to them in
the Restructuring Agreement.
ARTICLE 2
VOTING AGREEMENT
2.1 Agreement to Vote the Subject Shares. Each Stockholder, in its
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capacity as such, hereby agrees that during the period commencing on the date
hereof and continuing until the termination of this Agreement (such period, the
"Voting Period"), at any meeting (or any adjournment or postponement thereof) of
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the holders of any class or classes of the capital stock of the Company, however
called, or in connection with any written consent of the holders of any class or
classes of the capital stock of the Company, the Stockholders shall vote (or
cause to be voted) their Subject Shares (x) in favor of the approval of the
terms of the Company Stockholder Authorizations and each of the other
transactions contemplated by the Restructuring Agreement (and any actions
required in furtherance thereof) at every meeting of the stockholders of the
Company (or in connection with any written consent) at which such matters are
considered and at every adjournment thereof, (y) against any action, proposal,
transaction or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Restructuring Agreement or of the Stockholders under this
Agreement, and (z) except as otherwise agreed to in writing in advance by the
parties hereto, against the following actions or proposals (other than the
transactions contemplated by the Restructuring Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (ii) a sale, lease
or transfer of a significant part of the assets of the Company or any of its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries (each of the actions in clauses (i) or
(ii), a "Business Combination"); and (iii) (A) any change in the persons who
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constitute the board of directors of the Company that is not approved in advance
by at least a majority of the persons who were directors of the Company as of
the date of this Agreement (or their successors who were so approved); (B) any
change in the present capitalization of the Company or any amendment of the
Company's certificate of incorporation or bylaws; (C) any other material change
in the Company's corporate structure or business; or (D) any other action or
proposal involving the Company that is intended, or could reasonably be
expected, to prevent, impede, interfere with, delay, postpone, or adversely
affect the transactions contemplated by the Restructuring Agreement. Any such
vote shall be cast or consent shall be given in accordance with such procedures
relating thereto as shall ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent. Each of the Stockholders agrees not to enter into any
agreement, letter of intent, agreement in principle or understanding with any
person that violates or conflicts with or could reasonably be expected to
violate or conflict with the provisions and agreements contained in this
Agreement or the Restructuring Agreement. For the avoidance of doubt, this
Agreement is intended to constitute a voting agreement entered into under
Section 2.18(c) of the Delaware General Corporation Law for the duration of the
Voting Period.
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2.2 Legend. Each Stockholder shall promptly cause the following legend to
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be conspicuously noted on each certificate representing its Subject Shares:
"The shares represented by this certificate are subject to a Principal
Stockholders Agreement dated as of May __, 2002. The Principal Stockholders
Agreement restricts the transferability of the shares represented by this
certificate and includes a voting agreement to vote the shares represented
by this certificate."
ARTICLE 3
COVENANTS
3.1 Generally. During the Voting Period, except for pledges in existence
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as of the date hereof, each Stockholder agrees that, except as contemplated by
the terms of this Agreement, it shall not: (i) sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other agreement with respect to, or consent to, the sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of its
Subject Shares; (ii) grant any proxies or powers of attorney in respect of the
Subject Shares, deposit any of its Subject Shares into a voting trust or enter
into a voting agreement with respect to any of its Subject Shares; and (iii)
take any action that would have the effect of preventing, impeding, interfering
with or adversely affecting its ability to perform its respective obligations
under this Agreement. Notwithstanding the foregoing, nothing herein shall
prevent a Stockholder from assigning or transferring any Subject Shares
beneficially owned by such Stockholder to any trust, estate, family partnership,
foundation or charitable organization or any of its members (a "Permitted
Transferee") if such Permitted Transferee agrees in writing to be bound by all
of the provisions of this Agreement as a Stockholder hereunder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each of the Stockholders hereby represents and warrants (such
representations and warranties being made by each such Stockholder as to such
Stockholder and such Stockholder's Subject Shares only and not as to any other
Stockholder or any other Stockholder's Subject Shares)to each other Stockholder
as follows (provided, however, that the representation and warranty made in
Section 4.5 is made only by Purchaser):
4.1 Due Authority. Each Stockholder has the capacity to execute and
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deliver this Agreement and to consummate the transactions contemplated hereby.
4.2 Ownership of Shares. Each Stockholder legally or beneficially owns the
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number of shares of Common Stock set forth opposite such Stockholder's name on
Annex A hereto. The number of shares of Common Stock set forth opposite such
Stockholder's name on Annex A hereto are all of the shares of Common Stock
legally or beneficially owned by such Stockholder. Each Stockholder has sole
voting power and sole power of disposition, in each case with respect to all of
shares of Common Stock set forth opposite such Stockholder's name on Annex A
hereto, with no limitations, qualifications or restrictions on such rights,
subject only to applicable securities laws and the terms of this Agreement and
as otherwise noted on Annex A.
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4.3 No Conflicts. (i) No filing with any governmental authority, and no
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authorization, consent or approval of any other person is necessary for the
execution of this Agreement by the Stockholders and the consummation by the
Stockholders of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholders, the consummation
by the Stockholders of the transactions contemplated hereby or compliance by the
Stockholders with any of the provisions hereof shall (A) result in, or give rise
to, a violation or breach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation to which
either Stockholder is a party or by which either Stockholder or any of his or
her Subject Shares or assets may be bound, or (B) violate any applicable order,
writ, injunction, decree, judgment, statute, rule or regulation which could
reasonably be expected to adversely affect the Stockholder's ability to perform
its obligations under this Agreement.
4.4 Reliance. Each Stockholder understands and acknowledges that the
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Company and each other Stockholder party to the Restructuring Agreement is
entering into the Restructuring Agreement in reliance upon the execution and
delivery of this Agreement by such Stockholder.
4.5 Title to Purchased Shares. Purchaser represents and warrants that the
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transfer by CIVC Partners I of the Purchased Shares to Purchaser has passed to
and unconditionally vested in Purchaser good and valid title to all of the
Purchased Shares, free and clear of all claims, liens, restrictions, limitations
and encumbrances whatsoever, other than as contemplated by this Agreement or the
Restructuring Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 Stockholder Capacity. No Stockholder executing this Agreement who is
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or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each such Stockholder executes this Agreement solely in his or her
capacity as the record holder or beneficial owner of his or her Subject Shares
and nothing herein shall limit or affect any actions taken by a Stockholder in
his or her capacity as an officer or director of the Company.
5.2 Publication. Each Stockholder hereby permits the Company to publish
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and disclose0in the proxy statement (including all documents and schedules filed
with the Securities and Exchange Commission) such Stockholder's identity and
ownership of shares of Common Stock and the nature of its commitments,
arrangements, and understandings pursuant to this Agreement.
5.3 Further Actions. Each of the parties hereto agrees that it will use
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its best commercial efforts to do all things necessary to effectuate this
Agreement.
5.4 Entire Agreement. This Agreement contains the entire understanding of
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the parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings, oral and written, with
respect thereto.
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5.5 Binding Effect; Benefit; Assignment. This Agreement shall inure to the
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benefit of and be binding upon the parties hereto and their Permitted
Transferees, heirs, estates and successors. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, except by will or by the laws of descent and distribution,
without the prior written consent of each of the other parties. Nothing in this
Agreement, expressed or implied, is intended to confer on any person, other than
the parties hereto, any rights or remedies.
5.6 Amendments, Waivers, etc. This Agreement may not be amended, changed,
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supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by all of the relevant
parties hereto.
5.7 Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by facsimile
(upon confirmation of receipt), to the address set forth immediately beside such
Stockholder's name on Annex A or to such other person or address as any party
shall specify by notice in writing to each of the other parties. All such
notices, requests, demands, waivers and communications shall be deemed to have
been received on the date of delivery, except for a notice of a change of
address, which shall be effective only upon receipt thereof.
5.8 Specific Enforcement. The parties agree that irreparable damage would
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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.
Accordingly, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to
which they are entitled at law or in equity.
5.9 Remedies Cumulative. All rights, powers and remedies provided under
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this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and 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.
5.10 No Waiver. The failure of any party hereto to exercise any right,
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power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
5.11 Governing Law. This agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
5.12 Headings. The descriptive headings of this Agreement are inserted for
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convenience only, do not constitute a part of this Agreement and shall not
affect in any way the meaning or interpretation of this Agreement.
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5.13 Counterparts; Facsimiles. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument. A signature
transmitted by facsimile shall be treated for all purposes by the parties hereto
as an original and shall be binding upon the party transmitting such signature
without limitation.
5.14 Termination. This Agreement shall terminate, and no Stockholder shall
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have any rights or obligations hereunder and this Agreement shall become null
and void and have no effect upon the earliest to occur of: (a) the mutual
consent of the Stockholders; (b) the first anniversary of the date of this
Agreement; (c) the Closing; or (d) the termination of the Restructuring
Agreement; provided that termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement.
[Signature page follows]
IN WITNESS WHEREOF, each Stockholder has caused this Agreement to be duly
executed as of the day and year first above written.
TLL PARTNERS, L.L.C.
By: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
GM HOLDINGS, LLC
By: __________________________________
Name:
Title: Manager
RAINBOW RESOURCES, INC.
By: _____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________________
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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ANNEX A
LIST OF STOCKHOLDERS AND OWNERSHIP
OF COMMON STOCK
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Stockholders Address Number of Shares of
Common Stock as of
May __, 2002
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TLL Partners, L.L.C. TLL Partners, L.L.C. 295,649
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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GM Holdings, LLC GM Holdings, LLC 405,276
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Aintree Capital
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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Rainbow Resources, Inc. Rainbow Resources, Inc. 1,200,000
c/o Teletouch Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 38,942
c/o Teletouch Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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J. ▇▇▇▇▇▇ ▇▇▇▇▇▇ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ________
c/o Teletouch Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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