EXHIBIT 10.17
UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT (this "AGREEMENT") is made as of February
14, 2002, between TSI Telecommunication Holdings, LLC, a Delaware limited
liability company (the "COMPANY") and GTCR Fund VII, L.P., a Delaware limited
partnership ("GTCR FUND VII"), GTCR Fund VII/A, L.P., a Delaware limited
partnership ("GTCR FUND VII/A") and GTCR Co-Invest, L.P. ("GTCR CO-INVEST").
GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest are collectively referred to
herein as the "PURCHASERS" and individually as a "PURCHASER". Except as
otherwise indicated herein, capitalized terms used herein are defined in SECTION
6 hereof.
The parties hereto agree as follows:
Section 1. AUTHORIZATION AND CLOSING.
1A. AUTHORIZATION OF THE SECURITIES. The Company shall authorize
the issuance and sale to the Purchasers of at least 220,539.50 of its Class B
Preferred Units (the "CLASS B PREFERRED UNITS"), and at least 69,083,942.77 of
its Common Units (the "COMMON UNITS"), each having the rights and preferences
set forth in the Company's limited liability company agreement (the "LLC
AGREEMENT"). The Class B Preferred Units and the Common Units are collectively
referred to herein as the "SECURITIES."
1B. PURCHASE AND SALE OF THE SECURITIES.
(i) INITIAL CLOSING. At the Initial Closing (as defined below),
the Company shall sell to the Purchasers and, subject to the terms and
conditions set forth herein, the Purchasers shall purchase from the Company, an
aggregate of (i) 220,539.50 Class B Preferred Units at a price of $1,000 per
unit and (ii) 69,083,942.77 Common Units at a price of $0.0333 per unit. Each
Purchaser shall purchase the percentage of such Securities set forth next to
such Purchaser's name on the signature page attached hereto by payment of the
aggregate purchase price thereof by wire transfer of immediately available funds
to such account as is designated by the Company. The initial closing of the
purchase and sale of the Securities (the "INITIAL CLOSING") shall take place at
the offices of Xxxxxxxx & Xxxxx, Citigroup Center, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 a.m. on the date hereof.
(ii) The Company has been organized for the purpose of acquiring
TSI Telecommunication Services Inc. ("TSI") through a wholly-owned subsidiary
and thereafter from time to time making additional acquisitions that are
synergistic with or otherwise complementary to such initial acquisition. The
Purchasers intend to provide up to $244,687,059 in equity financing to the
Company as the equity portion of the debt and equity financing necessary to fund
such acquisitions and for other internal growth initiatives, in each case as
approved by the Board of Managers of the Company (the "BOARD") and the
Purchasers (an "APPROVED USE"). The Purchasers' obligation to purchase any
Securities pursuant to this SECTION 1B will be conditioned on the Company's not
being in default under any of its material agreements, adequate debt financing
being
available to fund any proposed acquisition or other Approved Use on terms
satisfactory to the Purchasers, and the Company's operations and the acquisition
or other Approved Use being satisfactory to the Purchasers. In order to
implement the foregoing, the Purchasers or their Affiliates will provide up to
an additional $21,847,059 in equity financing to the Company from time to time
after the Initial Closing, upon the written request of the Board in connection
with an Approved Use, by purchasing (i) Class B Preferred Units, (ii) Common
Units or (iii) any combination of such Securities at such prices, amounts and in
such proportions as the Board and the Purchasers or their Affiliates may
determine (each such purchase, a "SUBSEQUENT CLOSING"); PROVIDED that in
connection with a Subsequent Closing, any Common Units purchased by the
Purchasers will be purchased by the Purchasers, at a per unit price equal to the
lower of Original Cost or Fair Market Value (as defined in the LLC Agreement).
Each Subsequent Closing shall take place at the offices of Xxxxxxxx & Xxxxx, 000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on such date as may
be mutually agreeable to the Company and the Purchasers. At the time of any
Subsequent Closing, the Purchasers shall be entitled to receive, and the Company
shall be obligated to deliver, satisfactory representations and warranties and
all other information and documentation as the Purchasers may reasonably
request.
Section 2. CONDITIONS OF THE PURCHASERS' OBLIGATION AT THE INITIAL
CLOSING AND EACH SUBSEQUENT CLOSING. The obligation of each Purchaser to
purchase and pay for the Securities to be purchased by it at the Initial Closing
is subject to the satisfaction as of the Initial Closing of the following
conditions (other than SECTION 2O) and the obligation of each Purchaser to
purchase and pay for the Securities to be purchased by it at each Subsequent
Closing is subject to the satisfaction as of such Subsequent Closing of the
conditions set forth in SECTION 2O:
2A. REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties contained in SECTION 5 hereof shall be true and correct at and as
of the Initial Closing as though then made, except to the extent of changes
caused by the transactions expressly contemplated herein, and the Company shall
have performed in all material respects all of the covenants required to be
performed by it hereunder prior to the Initial Closing.
2B. CERTIFICATE OF FORMATION. The Company's certificate of
formation (the "CERTIFICATE OF FORMATION") shall include the provisions set
forth in EXHIBIT A attached hereto, shall be in full force and effect under the
laws of Delaware as of the Initial Closing and shall not have been amended or
modified.
2C. LIMITED LIABILITY COMPANY AGREEMENT. The Company and the
members of the Company shall have entered into a Limited Liability Company
Agreement in form and substance substantially similar to EXHIBIT B attached
hereto (the "LLC AGREEMENT"), and the LLC Agreement shall be in full force and
effect as of the Initial Closing.
2D. SENIOR MANAGEMENT AGREEMENT. The Company and, as appropriate,
one or more of its subsidiaries shall have entered into a Senior Management
Agreement, in form and substance substantially similar to EXHIBIT C attached
hereto (the "EXECUTIVE MANAGEMENT AGREEMENT") with G. Xxxxxx Xxxxx
("EXECUTIVE"), the Executive Management Agreement shall not
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have been amended or modified and shall be in full force and effect as of the
Initial Closing, and Executive shall have purchased the Securities proposed to
be purchased by him thereunder.
2E. SECURITYHOLDERS AGREEMENT. The Company, the Purchasers and
Executive shall have entered into a securityholders agreement in form and
substance substantially similar to EXHIBIT D attached hereto (the
"SECURITYHOLDERS AGREEMENT"), and the Securityholders Agreement shall be in full
force and effect as of the Initial Closing.
2F. REGISTRATION AGREEMENT. The Company, the Purchasers and
Executive shall have entered into a registration agreement in form and substance
substantially similar to EXHIBIT E attached hereto (the "REGISTRATION
AGREEMENT"), and the Registration Agreement shall be in full force and effect as
of the Initial Closing.
2G. PROFESSIONAL SERVICES AGREEMENT. TSI (as successor to TSI
Merger Sub, Inc., a Delaware corporation ("MERGER SUB")) and GTCR Xxxxxx Xxxxxx,
L.L.C., a Delaware limited liability company ("GTCR LLC"), shall have entered
into a professional services agreement in form and substance substantially
similar to EXHIBIT F attached hereto (the "PROFESSIONAL SERVICES AGREEMENT"),
and the Professional Services Agreement shall be in full force and effect as of
the Initial Closing.
2H. SUBSIDIARY CHARTER. TSI Telecommunication Holdings, Inc., a
Delaware corporation ("NEWCO") shall have duly adopted, executed and filed with
the Secretary of State of Delaware amended and restated certificate of
incorporation in form and substance substantially similar to EXHIBIT G attached
hereto (the "NEWCO CERTIFICATE"), and the Newco Certificate shall continue to be
in full force and effect as of the Initial Closing and shall not have been
further amended or modified.
2I. SUBSIDIARY BYLAWS. Newco shall have duly adopted amended and
restated bylaws in form and substance substantially similar to EXHIBIT H
attached hereto (the "NEWCO BYLAWS"), and the Newco Bylaws shall continue to be
in full force and effect as of the Initial Closing and shall not have been
further amended or modified.
2J. INITIAL CLOSING DOCUMENTS. The Company shall have delivered to
the Purchasers all of the following documents:
(i) an Officer's Certificate, dated the date of the Initial
Closing, stating that the conditions specified in SECTION 1A and SECTIONS 2A
through 2I, inclusive, have been fully satisfied;
(ii) certified copies of the resolutions duly adopted by the Board
authorizing the execution, delivery and performance of this Agreement, the LLC
Agreement, the Executive Management Agreement, the Securityholders Agreement,
the Registration Agreement, the Professional Services Agreement and each of the
other agreements contemplated hereby (the "TRANSACTION DOCUMENTS"), the issuance
and sale of the Securities and the consummation of all other transactions
contemplated by this Agreement;
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(iii) certified copies of the resolutions adopted by the shareholder
of Newco adopting the Newco Certificate and the Newco Bylaws; and
(iv) certified copies of the Company's Certificate of Formation and
LLC Agreement, each as in effect at the Initial Closing.
2K. FEES AND EXPENSES. The Company shall have reimbursed each
Purchaser for its fees and expenses as provided in SECTION 7A hereof.
2L. COMPLIANCE WITH APPLICABLE LAWS. The purchase of Securities by
the Purchasers hereunder shall not be prohibited by any applicable law or
governmental regulation, shall not subject the Purchaser to any penalty,
liability or, in each Purchaser's sole judgment, other onerous conditions under
or pursuant to any applicable law or governmental regulation, and shall be
permitted by laws and regulations of the jurisdictions to which any Purchaser is
subject.
2M. CONSENTS AND APPROVALS. The Company shall have received or
obtained all governmental, regulatory and third party consents and approvals
necessary for the consummation of the transactions contemplated by the Initial
Closing.
2N. ACQUISITION AGREEMENT The Acquisition Agreement shall be in
form and substance satisfactory to each Purchaser, shall not have been amended
or modified and shall be in full force and effect. The acquisition contemplated
by the Acquisition Agreement shall have been consummated simultaneously with the
Closing hereunder in accordance with the terms of the Acquisition Agreement.
2O. CONDITIONS TO SUBSEQUENT CLOSINGS. The obligation of each
Purchaser to purchase and pay for the Securities at any Subsequent Closing is
subject to the satisfaction as of the Subsequent Closing of the following
conditions:
(i) REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties contained in SECTION 5 hereof shall be true and correct at and as
of such Subsequent Closing as though then made, except to the extent of changes
caused by the transactions expressly contemplated herein or by the other
Transaction Documents and except for changes occurring in the ordinary course of
the Company's and its Subsidiaries' businesses which have not had a material
adverse effect on the financial condition, operating results, assets, operations
or business prospects of the Company or any Subsidiary (including the filing of
any material litigation against the Company or any Subsidiary or the existence
of any material dispute with any Person which involves a reasonable likelihood
of such litigation being commenced).
(ii) CONSENTS AND APPROVALS. The Company shall have received or
obtained all governmental, regulatory and third party consents and approvals
necessary for the consummation of the transactions contemplated by such
Subsequent Closing.
(iii) COMPLIANCE WITH APPLICABLE LAWS. The purchase of Securities by
the Purchasers hereunder shall not be prohibited by any applicable law or
governmental regulation, shall
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not subject the Purchaser to any penalty, liability or, in each Purchaser's sole
judgment, other onerous conditions under or pursuant to any applicable law or
governmental regulation, and shall be permitted by laws and regulations of the
jurisdictions to which any Purchaser is subject.
2P. WAIVER. Any condition specified in this SECTION 2 may be
waived only if such waiver is set forth in a writing executed by the Purchasers.
Section 3. COVENANTS.
3A. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company shall
deliver to the Purchasers (so long as the Purchasers hold any Securities) and to
each holder of at least 15% of the Investor Preferred and to each holder of at
least 15% of the Investor Common:
(i) as soon as available but in any event within thirty (30) days
after the end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the period from the
beginning of the fiscal year to the end of such month, and consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such monthly period, all prepared in accordance with generally accepted
accounting principles, consistently applied, subject to the absence of footnote
disclosures and to normal year-end adjustments;
(ii) accompanying the financial statements referred to in
SUBSECTION (i) above, an Officer's Certificate stating that neither the Company
nor any of its Subsidiaries is in default under any of its material agreements
or, if any such default exists, specifying the nature and period of existence
thereof and what actions the Company and its Subsidiaries have taken and propose
to take with respect thereto;
(iii) within ninety (90) days after the end of each fiscal year,
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, and consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such fiscal year, setting forth in each case comparisons to the annual budget
and to the preceding fiscal year, all prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by (a)
with respect to the consolidated portions of such statements (except with
respect to budget data), an opinion containing no exceptions or qualifications
(except for qualifications regarding specified contingent liabilities) of an
independent accounting firm of recognized national standing acceptable to the
Majority Holders, and (b) a copy of such accounting firm's annual management
letter to the Board;
(iv) promptly upon receipt thereof, any additional reports,
management letters or other detailed information concerning significant aspects
of the Company's operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other materials provided
hereunder);
(v) at least thirty (30) days prior to the beginning of each
fiscal year, an annual budget prepared on a monthly basis for the Company and
its Subsidiaries for such fiscal year
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(displaying anticipated statements of income and cash flows), and promptly upon
preparation thereof any other significant budgets prepared by the Company and
any revisions of such annual or other budgets, and within 30 days after any
monthly period in which there is a material adverse deviation from the annual
budget, an Officer's Certificate explaining the deviation and what actions the
Company has taken and proposes to take with respect thereto;
(vi) promptly (but in any event within five (5) business days)
after the discovery or receipt of notice of any default under any material
agreement to which the Company or any of its Subsidiaries is a party or any
other event or circumstance affecting the Company or any Subsidiary which is
reasonably likely to have a material adverse effect on the financial condition,
operating results, assets, operations or business prospects of the Company or
any Subsidiary (including the filing of any material litigation against the
Company or any Subsidiary or the existence of any material dispute with any
Person which involves a reasonable likelihood of such litigation being
commenced), an Officer's Certificate specifying the nature and period of
existence thereof and what actions the Company and its Subsidiaries have taken
and propose to take with respect thereto;
(vii) with reasonable promptness, such other information and
financial data concerning the Company and its Subsidiaries as any Person
entitled to receive information under this SECTION 3A may reasonably request;
and
(viii) within ten (10) days after transmission thereof, copies of all
financial statements, proxy statements, reports and any other general written
communications which the Company sends to its equityholders and copies of all
registration statements and all regular, special or periodic reports which it
files, or any of its officers or directors file with respect to the Company,
with the Securities and Exchange Commission or with any securities exchange on
which any of the Company's securities are then listed, and copies of all press
releases and other statements made available generally by the Company to the
public concerning material developments in the Company's and its Subsidiaries'
businesses.
Each of the financial statements referred to in SUBSECTIONS (i) and
(iii) shall be true and correct in all material respects as of the dates and for
the periods stated therein, subject in the case of the unaudited financial
statements to changes resulting from normal year-end audit adjustments (none of
which would, alone or in the aggregate, be materially adverse to the financial
condition, operating results, assets, operations or business prospects of the
Company and its Subsidiaries taken as a whole).
3B. INSPECTION OF PROPERTY. The Company shall permit any
representatives designated by the Purchasers (so long as the Purchasers hold any
Securities) or any holder of at least 15% of the outstanding Investor Preferred
or at least 15% of the outstanding Investor Common, upon reasonable notice and
during normal business hours and such other times as any such holder may
reasonably request, to (a) visit and inspect any of the properties of the
Company and its Subsidiaries, (b) examine the corporate and financial records of
the Company and its Subsidiaries and make copies thereof or extracts therefrom
and (c) discuss the affairs, finances and accounts of any such entities with the
directors, officers, key employees and independent accountants of the Company
and its
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Subsidiaries; PROVIDED THAT the Company shall have the right to have its chief
financial officer present at any meetings with the Company's independent
accountants.
3C. RESTRICTIONS. The Company shall not, without the prior written
consent of the Majority Holders:
(a) directly or indirectly declare or pay any dividends or make
any distributions upon any of its equity securities, other than
distributions of unpaid yield or unreturned capital on the Class A
Preferred Units or the Class B Preferred Units pursuant to the LLC
Agreement;
(b) except as expressly provided in a Senior Management Agreement,
directly or indirectly redeem, purchase or otherwise acquire, or permit any
Subsidiary to redeem, purchase or otherwise acquire, any of the Company's
equity securities (including, without limitation, warrants, options and
other rights to acquire equity securities);
(c) except as expressly contemplated by this Agreement or a Senior
Management Agreement, authorize, issue, sell or enter into any agreement
providing for the issuance (contingent or otherwise), or permit any
Subsidiary to authorize, issue, sell or enter into any agreement providing
for the issuance (contingent or otherwise) of, (i) any notes or debt
securities containing equity features (including, without limitation, any
notes or debt securities convertible into or exchangeable for equity
securities, issued in connection with the issuance of equity securities or
containing profit participation features) or (ii) any equity securities (or
any securities convertible into or exchangeable for any equity securities)
or rights to acquire any equity securities, other than the issuance of
equity securities by a Subsidiary to the Company or another Subsidiary;
(d) make, or permit any Subsidiary to make, any loans or advances
to, guarantees for the benefit of, or Investments in, any Person, except
for (A) reasonable advances to employees in the ordinary course of business
as well as travel advances, (B) relocation loans, (C) trade credit extended
to customers in the ordinary course of business and (D) Investments having
a stated maturity no greater than one year from the date the Company makes
such Investment in (1) obligations of the United States government or any
agency thereof or obligations guaranteed by the United States government,
(2) certificates of deposit of commercial banks having combined capital and
surplus of at least $50 million, (3) commercial paper with a rating of at
least "Prime-1" by Xxxxx'x Investors Service, Inc. or (4) money market
accounts investing in any of the foregoing or in substantially similar
investments;
(e) merge or consolidate with any Person or permit any Subsidiary
to merge or consolidate with any Person (other than a wholly-owned
Subsidiary);
(f) sell, lease or otherwise dispose of, or permit any Subsidiary
to sell, lease or otherwise dispose of, more than 5% of the consolidated
assets of the Company and its Subsidiaries (computed on the basis of book
value, determined in accordance with generally
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accepted accounting principles consistently applied, or fair market value,
determined by the Board in its reasonable good faith judgment) in any
transaction or series of related transactions (other than sales of
inventory in the ordinary course of business);
(g) except as contemplated by the LLC Agreement and the
Securityholders Agreement in connection with a Public Offering, liquidate,
dissolve or effect a recapitalization or reorganization in any form of
transaction (including, without limitation, any reorganization into a
corporation or a partnership);
(h) acquire, or permit any Subsidiary to acquire, any interest in
any business (whether by a purchase of assets, purchase of securities,
merger or otherwise), or enter into any joint venture;
(i) enter into the ownership, active management or operation of
any business other than the ownership of the securities of its Subsidiaries
or permit any Subsidiary to enter into the ownership, active management or
operation of any business other than the provision of inter-operability
solutions, clearing and settlement services, software and network services
and related services to telecommunications companies and other third
parties;
(j) enter into, or permit any Subsidiary to enter into, any
transaction with any of its or any Subsidiary's officers, directors,
employees or Affiliates or any individual related by blood, marriage or
adoption to any such Person (a "RELATIVE") or any entity in which any such
Person or individual owns a beneficial interest (a "RELATED ENTITY"),
except for normal employment arrangements and benefit programs on
reasonable terms and except as otherwise expressly contemplated by this
Agreement, the Executive Management Agreement and the Professional Services
Agreement;
(k) become subject to, or permit any of its Subsidiaries to become
subject to, any agreement or instrument which by its terms would (under any
circumstances) restrict (A) the right of any Subsidiary to make loans or
advances or pay dividends to, transfer property to, or repay any
Indebtedness owed to, the Company or any Subsidiary or (B) the Company's
right to perform the provisions of this Agreement, the Certificate of
Formation, the LLC Agreement or the other Transaction Documents;
(l) except as expressly contemplated by this Agreement, make any
amendment to the Certificate of Formation or the LLC Agreement which would
increase the number of authorized Securities or adversely affect or
otherwise impair the rights or the relative preferences and priorities of
the holders of the Securities under this Agreement, the Certificate of
Formation, the LLC Agreement or the other Transaction Documents; or
(m) create, incur, assume or suffer to exist, or permit any
Subsidiary to create, incur, assume or suffer to exist, Indebtedness
exceeding the amounts approved therefor by the Board in the annual budget.
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3D. AFFIRMATIVE COVENANTS. So long as the Purchasers hold any
Securities, the Company shall, and shall cause each Subsidiary to:
(a) comply with all applicable laws, rules and regulations of all
governmental authorities, the violation of which would reasonably be
expected to have a material adverse effect upon the financial condition,
operating results, assets, operations or business prospects of the Company
and its Subsidiaries taken as a whole, and pay and discharge when payable
all taxes, assessments and governmental charges (except to the extent the
same are being contested in good faith and adequate reserves therefor have
been established); and
(b) enter into and maintain appropriate nondisclosure and
noncompete agreements with its key employees.
3E. CURRENT PUBLIC INFORMATION. At all times after the Company (or
its successor) has filed a registration statement with the Securities and
Exchange Commission pursuant to the requirements of either the Securities Act or
the Securities Exchange Act, the Company (or its successor) shall file all
reports required to be filed by it under the Securities Act and the Securities
Exchange Act and the rules and regulations adopted by the Securities and
Exchange Commission thereunder and shall take such further action as any holder
or holders of Restricted Securities may reasonably request, all to the extent
required to enable such holders to sell Restricted Securities pursuant to (a)
Rule 144 adopted by the Securities and Exchange Commission under the Securities
Act (as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission or (b) a
registration statement on Form S-2 or S-3 or any similar registration form
hereafter adopted by the Securities and Exchange Commission. Upon request, the
Company (or its successor) shall deliver to any holder of Restricted Securities
a written statement as to whether it has complied with such requirements.
3F. AMENDMENT OF OTHER AGREEMENTS. The Company shall not amend,
modify or waive any provision of the Executive Management Agreement or any other
agreement with key executives of the Company without the prior written consent
of the Majority Holders. The Company shall enforce the provisions of the
Executive Management Agreement and any other agreement with key executives of
the Company and shall exercise all of its rights and remedies thereunder
(including, without limitation, any repurchase options and first refusal rights)
unless it is otherwise directed by the Majority Holders.
3G. PUBLIC DISCLOSURES. The Company shall not, nor shall it permit
any Subsidiary to, disclose any Purchaser's name or identity as an investor in
the Company in any press release or other public announcement or in any document
or material filed with any governmental entity, without the prior written
consent of such Purchaser, unless such disclosure is required by applicable law
or governmental regulations or by order of a court of competent jurisdiction, in
which case prior to making such disclosure the Company shall give written notice
to such Purchaser describing in reasonable detail the proposed content of such
disclosure and shall permit such Purchaser to review and comment upon the form
and substance of such disclosure.
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3H. UNRELATED BUSINESS TAXABLE INCOME. The Company shall not
engage in any transaction which is reasonably likely to cause the Purchasers or
any of their respective limited partners which are exempt from income taxation
under Section 501(a) of the IRC and, if applicable, any pension plan that any
such trust may be a part of, to recognize unrelated business taxable income as
defined in Section 512 and Section 514 of the IRC.
3I. XXXX-XXXXX-XXXXXX COMPLIANCE. In connection with any
transaction in which the Company is involved (a "TRANSACTION") which is required
to be reported under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended from time to time (the "HSR Act"), the Company shall prepare and file
all documents with the Federal Trade Commission and the United States Department
of Justice which may be required to comply with the HSR Act, and shall promptly
furnish all materials thereafter requested by any of the regulatory agencies
having jurisdiction over such filings, in connection with a Transaction. The
Company shall take all reasonable actions and shall file and use reasonable best
efforts to have declared effective or approved all documents and notifications
with any governmental or regulatory bodies, as may be necessary or may
reasonably be requested under federal antitrust laws for the consummation of the
Transaction. Notwithstanding the foregoing, if any Purchaser, rather than the
Company, is required to make a filing under the HSR Act in connection with a
Transaction, the Company will provide to such Purchaser all necessary
information for such filing, will facilitate such filing and will pay all fees
and expenses associated with such filing.
3J. COVENANTS FOLLOWING A PUBLIC OFFERING. Following the
consummation of a Public Offering, the obligations of the Company under SECTIONS
3A(i)-(vii), 3B, 3C, 3D, 3F and 3H shall terminate and be of no further force or
effect.
Section 4. TRANSFER OF RESTRICTED SECURITIES.
(a) Restricted Securities are transferable only pursuant to (i)
Public Offerings, (ii) Rule 144 of the Securities and Exchange Commission
(or any similar rule or rules then in force) if such rule or rules are
available and (iii) subject to the conditions specified in CLAUSE (b)
below, any other legally available means of transfer.
(b) In connection with the transfer of any Restricted Securities
(other than a transfer described in SECTIONS 4(a)(i) or (ii) above), the
holder thereof shall deliver written notice to the Company describing in
reasonable detail the transfer or proposed transfer, together with an
opinion of Xxxxxxxx & Xxxxx or other counsel which (to the Company's
reasonable satisfaction) is knowledgeable in securities law matters to the
effect that such transfer of Restricted Securities may be effected without
registration of such Restricted Securities under the Securities Act. In
addition, if the holder of the Restricted Securities delivers to the
Company an opinion of Xxxxxxxx & Xxxxx or such other counsel that no
subsequent transfer of such Restricted Securities shall require
registration under the Securities Act, the Company shall promptly upon such
contemplated transfer deliver to the prospective transferor new
certificates for such Restricted Securities which do not bear the
Securities Act legend set forth in SECTION 7C. If the Company is not
required to deliver new certificates for such Restricted Securities not
bearing such legend, the holder thereof shall not
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transfer the same until the prospective transferee has confirmed to the
Company in writing its agreement to be bound by the conditions contained in
this SECTION 4 and SECTION 7C.
(c) Upon the request of a Purchaser, the Company shall promptly
supply to such Purchaser or its prospective transferees all information
regarding the Company required to be delivered in connection with a
transfer pursuant to Rule 144A of the Securities and Exchange Commission.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a
material inducement to each Purchaser to enter into this Agreement and purchase
the Securities, the Company hereby represents and warrants to each Purchaser
that:
5A. ORGANIZATION AND POWER. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify might reasonably be expected to have a material adverse
effect on the financial condition, operating results, assets, operations or
business prospects of the Company and its Subsidiaries taken as a whole. The
Company has all requisite limited liability company power and authority and all
material licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and to carry out the transactions contemplated by this
Agreement. The copies of the Company's Certificate of Formation and the LLC
Agreement which have been furnished to the Purchaser's reflect all amendments
made thereto at any time prior to the date of this Agreement and are correct and
complete.
5B. EQUITY SECURITIES AND RELATED MATTERS.
(a) As of the Initial Closing and immediately thereafter, the
authorized equity securities of the Company shall consist of the following:
(i) an unlimited number of units designated as Class A Preferred Units,
none of which shall be issued and outstanding and all of which may only be
issued in exchange for other equity securities of the Company pursuant to
the terms of a Senior Management Agreement; (ii) an unlimited number of
units designated as Class B Preferred Units, 252,367.50 of which shall be
issued and outstanding; and (iii) an unlimited number of units designated
as Common Units, 89,099,099.10 of which shall be issued and outstanding and
990,990.99 of which shall be reserved for issuance to other executives of
the Company and its Subsidiaries as determined by the Board. As of the
Initial Closing, the Company shall not have outstanding any securities
convertible or exchangeable for any equity securities of the Company or
containing any profit participation features, nor shall it have outstanding
any rights or options to subscribe for or to purchase its equity securities
or any securities convertible into or exchangeable for its equity
securities or any equity appreciation rights or phantom equity plans other
than pursuant to and as contemplated by this Agreement, the LLC Agreement
and the Executive Management Agreement. As of the Initial Closing, the
Company shall not be subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any of its equity securities or
any warrants, options or other rights to acquire its equity securities,
except pursuant to this Agreement, the LLC Agreement, the Executive
Management Agreement and
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the Company's Certificate of Formation. As of the Initial Closing, all of
the Company's outstanding equity securities shall be validly issued, fully
paid and nonassessable.
(b) There are no statutory or, to the best of the Company's
knowledge, contractual securityholders preemptive rights or rights of
refusal with respect to the issuance of the Securities hereunder or the
issuance of the Securities pursuant to SECTION 1B(ii), except as expressly
contemplated in the Securityholders Agreement, the LLC Agreement or as
provided herein. Based in part on the investment representations of the
Purchasers in SECTION 7C hereof and of Executive in SECTION 1(f) of the
Executive Management Agreement, the Company has not violated any applicable
federal or state securities laws in connection with the offer, sale or
issuance of any of its equity securities, and the offer, sale and issuance
of the Securities hereunder and pursuant to SECTION 1B(ii) hereof do not
and will not require registration under the Securities Act or any
applicable state securities laws. To the best of the Company's knowledge,
there are no agreements between the Company's securityholders with respect
to the voting or transfer of the Company's equity securities or with
respect to any other aspect of the Company's affairs, except for the
Securityholders Agreement, the LLC Agreement, the Executive Management
Agreement, Registration Agreement and the Professional Services Agreement.
5C. SUBSIDIARIES; INVESTMENTS. Prior to the effectiveness of the
Merger (as defined in the Acquisition Agreement) Newco, Merger Sub, TSI Finance
Inc., a Delaware corporation ("FINANCE") and TSI Networks Inc., a Delaware
corporation ("NETWORKS") are the Company's only Subsidiaries. The Company owns
directly or indirectly 100% of the capital stock of each of Newco, Merger Sub,
Finance and Networks. Each of Newco, Merger Sub, Finance and Networks is duly
organized, validly existing and in good standing under the laws of Delaware,
possesses all requisite corporate power and authority and all material licenses,
permits and authorizations necessary to own its properties and to carry on its
business as now being conducted and as presently proposed to be conducted and is
qualified to do business in every jurisdiction in which its ownership of
property or the conduct of its business requires it to qualify.
5D. AUTHORIZATION; NO BREACH. The execution, delivery and
performance of this Agreement, the LLC Agreement, the Executive Management
Agreement, the Securityholders Agreement, the Registration Agreement, the
Professional Services Agreement, and all other agreements contemplated hereby to
which the Company is a party have been duly authorized by the Company. This
Agreement, the Executive Management Agreement, the Securityholders Agreement,
the Registration Agreement, the Professional Services Agreement, the Certificate
of Formation and all other agreements contemplated hereby each constitutes a
valid and binding obligation of the Company, enforceable in accordance with its
terms. The execution and delivery by the Company of this Agreement, the LLC
Agreement, the Executive Management Agreement, the Securityholders Agreement,
the Registration Agreement, the Professional Services Agreement, and all other
agreements contemplated hereby to which the Company is a party, the offering,
sale and issuance of the Securities hereunder (including pursuant to Section
1B(ii)) and the fulfillment of and compliance with the respective terms hereof
and thereof by the Company do not and will not (i) conflict with or result in a
breach of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result
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in the creation of any lien, security interest, charge or encumbrance upon the
Company's equity securities or assets pursuant to, (iv) give any third party the
right to modify, terminate or accelerate any obligation under, (v) result in a
violation of or (vi) require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or governmental body
pursuant to, the Certificate of Formation of the Company or the LLC Agreement,
or any law, statute, rule or regulation to which the Company is subject, or any
agreement, instrument, order, judgment or decree to which the Company is a party
or by which it is bound.
5E. CONDUCT OF BUSINESS; LIABILITIES. Other than the negotiation,
execution and delivery of this Agreement, the Executive Management Agreement,
the Securityholders Agreement, the Registration Agreement, the Professional
Services Agreement and the other agreements contemplated hereby and thereby,
prior to the Initial Closing, the Company has not (i) conducted any business,
(ii) incurred any expenses, obligations or liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise, whether or not known to the
Company and whether due or to become due and regardless of when asserted), (iii)
owned any assets, (iv) entered into any contracts or agreements, or (v) violated
any laws or governmental rules or regulations.
5F. LITIGATION, ETC. There are no actions, suits, proceedings,
orders, investigations or claims pending or, to the best of the Company's
knowledge, threatened against or affecting either the Company or Newco (or to
the best of the Company's knowledge, pending or threatened against or affecting
any of the officers, directors or employees of the Company or Newco with respect
to their businesses or proposed business activities) at law or in equity, or
before or by any governmental department, commission, board, bureau, agency or
instrumentality with respect to the transactions contemplated by this Agreement.
5G. BROKERAGE. Except for (i) TSI's obligations under the
Professional Services Agreement, (ii) fees payable to Xxxx Associates for
services rendered to TSI in connection with the transactions contemplated by the
Executive Management Agreement and (iii) fees payable to Xxxxxx Brothers Inc. as
financial advisor to the Company in connection with the transactions
contemplated by the Acquisition Agreement, there are no claims for brokerage
commissions, finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon the Company. The Company shall pay, and hold Purchasers
harmless against, any liability, loss or expense (including, without limitation,
attorneys' fees and out-of-pocket expenses) arising in connection with any such
claim.
5H. GOVERNMENTAL CONSENT, ETC. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the other agreements contemplated hereby, or the
consummation by the Company of any other transactions contemplated hereby or
thereby.
5I. DISCLOSURE. To the knowledge of the Company, neither this
Agreement nor any other agreement refereed to herein (including the schedules
thereto) contain any untrue statement of a material fact or omit a material fact
necessary to make each statement contained herein or therein not misleading.
There is no fact which the Company has not disclosed to the Purchaser and of
which any
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of its officers or directors is aware and which has had or might reasonably be
anticipated to have a material adverse effect upon the existing or expected
financial condition, operating results or assets of the Company and its
Subsidiaries taken as a whole.
5J. INITIAL CLOSING DATE. The representations and warranties of
the Company contained in this SECTION 5 and elsewhere in this Agreement and all
information contained in any exhibit, schedule or attachment hereto or in any
writing delivered by, or on behalf of, the Company to the Purchasers shall be
true and correct in all material respects on the date of the Initial Closing as
though then made, except as affected by the transactions expressly contemplated
by this Agreement.
Section 6. DEFINITIONS. For the purposes of this Agreement, the
following terms have the meanings set forth below:
"ACQUISITION AGREEMENT" means that certain Amended and Restated
Agreement of Merger dated as of January 14, 2002 and effective as of December 7,
2001 among TSI Telecommunication Holdings, Inc., TSI Merger Sub, Inc., TSI
Telecommunication Services Inc. and Verizon Information Services Inc.
"AFFILIATE" of any particular Person means any other Person
controlling, controlled by or under common control with such particular person
or entity. For purposes of this Agreement, all holdings of Class B Preferred
Units and Common Units by Persons who are Affiliates of each other shall be
aggregated for purposes of meeting any threshold tests under this Agreement.
"CLASS A PREFERRED UNITS" means the Class A Preferred Units as defined
in the LLC Agreement.
"INDEBTEDNESS" means all indebtedness for borrowed money (including
purchase money obligations) maturing one year or more from the date of creation
or incurrence thereof or renewable or extendible at the option of the debtor to
a date one year or more from the date of creation or incurrence thereof, all
indebtedness under revolving credit arrangements extending over a year or more,
all capitalized lease obligations and all guarantees of any of the foregoing.
"INVESTMENT" as applied to any Person means (i) any direct or indirect
purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (ii) any capital
contribution by such Person to any other Person.
"INVESTOR COMMON" means (i) any Common Units issued pursuant to this
Agreement (including, without limitation, pursuant to SECTION 1B(ii)) and (ii)
any Common Units issued or issuable with respect to the Common Units referred to
in CLAUSE (i) above by way of unit dividends or unit splits or in connection
with a combination of units, recapitalization, merger, consolidation or other
reorganization. As to any particular units of Investor Common, such units shall
cease to be Investor Common when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration statement
covering them or (b) distributed to the
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public through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar rule then in force).
"INVESTOR PREFERRED" means (i) the Class B Preferred Units issued
hereunder (including, without limitation, pursuant to SECTION 1B(ii)), and (ii)
any Class B Preferred Units issued or issuable with respect to the Class B
Preferred Units referred to in CLAUSE (i) above by way of unit dividends or unit
splits or in connection with a combination of units, recapitalization, merger,
consolidation or other reorganization. As to any particular units of Investor
Preferred, such units shall cease to be Investor Preferred when they have been
(a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (b) distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Securities Act (or any similar rule then in force).
"INVESTOR SECURITIES" means, collectively, the Investor Preferred and
the Investor Common.
"IRC" means the Internal Revenue Code of 1986, as amended, and any
reference to any particular IRC Section shall be interpreted to include any
revision of or successor to that Section regardless of how numbered or
classified.
"MAJORITY HOLDERS" means the holders of a majority of the Investor
Preferred or, if no Investor Preferred is outstanding, the holders of a majority
of the Investor Common.
"NEWCO" means TSI Telecommunication Holdings, Inc., a Delaware
corporation.
"OFFICER'S CERTIFICATE" means a certificate signed by the Company's
chief executive officer or its chief financial officer, stating that (i) the
officer signing such certificate has made or has caused to be made such
investigations as are necessary in order to permit such officer to verify the
accuracy of the information set forth in such certificate and (ii) to the best
of such officer's knowledge, such certificate does not misstate any material
fact and does not omit to state any fact necessary to make the certificate not
misleading.
"ORIGINAL COST" means, with respect to each Common Unit, $0.0333 (as
proportionately adjusted for all subsequent unit splits, unit dividends and
other recapitalizations).
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, investment fund, any other business
entity and a governmental entity or any department, agency or political
subdivision thereof.
"PROFESSIONAL SERVICES AGREEMENT" means that certain Professional
Services Agreement dated as of the date hereof between GTCR LLC and TSI Merger
Sub, Inc., as the same may be amended, supplemented or otherwise modified from
time to time.
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"PUBLIC OFFERING" means the sale in a public offering registered under
the Securities Act of equity securities of the Company or a corporate successor
to the Company.
"RESTRICTED SECURITIES" means (i) the Securities issued hereunder and
pursuant to SECTION 1B(ii) hereof and (ii) any securities issued with respect to
the securities referred to in CLAUSE (i) above by way of a unit dividend or unit
split or in connection with a combination of units, recapitalization, merger,
consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they
have (a) been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (b) become eligible
for sale pursuant to Rule 144(k) (or any similar provision then in force) under
the Securities Act or (c) been otherwise transferred and new certificates for
them not bearing the Securities Act legend set forth in SECTION 7C have been
delivered by the Company in accordance with SECTION 4(b). Whenever any
particular securities cease to be Restricted Securities, the holder thereof
shall be entitled to receive from the Company, without expense, new securities
of like tenor not bearing a Securities Act legend of the character set forth in
SECTION 7C.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental body or
agency succeeding to the functions thereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association,
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a
"Subsidiary" of any Person shall be given effect only at such times that such
Person has one or more Subsidiaries, and, unless otherwise indicated, the term
"Subsidiary" refers to a Subsidiary of the Company.
Section 7. MISCELLANEOUS.
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7A. EXPENSES. The Company agrees to pay, and hold the Purchasers
and all holders of Investor Securities harmless against liability for the
payment of, (i) the reasonable fees and expenses of their counsel arising in
connection with the negotiation and execution of this Agreement and the
consummation of the transactions contemplated by this Agreement (including,
without limitation, fees and expenses arising with respect to any subsequent
purchase of Securities pursuant to SECTION 1B(ii) hereof), (ii) the fees and
expenses incurred with respect to any amendments or waivers (whether or not the
same become effective) under or in respect of this Agreement, the LLC Agreement,
the Executive Management Agreement, the Securityholders Agreement, the
Registration Agreement, the other agreements contemplated hereby and the
Certificate of Formation, (iii) stamp and other taxes which may be payable in
respect of the execution and delivery of this Agreement or the issuance,
delivery or acquisition of any Securities purchased hereunder or in accordance
with SECTION 1B(ii) hereof, (iv) the fees and expenses incurred with respect to
the interpretation or enforcement of the rights granted under this Agreement,
the LLC Agreement, the Executive Management Agreement, the Securityholders
Agreement, the Registration Agreement, the Professional Services Agreement, the
other agreements contemplated hereby and the Certificate of Formation and (v)
such reasonable travel expenses, legal fees and other out-of-pocket fees and
expenses as have been or may be incurred by any Purchaser, its Affiliates and
its Affiliates' directors, officers and employees in connection with any
Company-related financing and in connection with the rendering of any other
services by a Purchaser or its Affiliates (including, but not limited to, fees
and expenses incurred in attending board of managers or other Company-related
meetings).
7B. REMEDIES. Each holder of Investor Securities shall have all
rights and remedies set forth in this Agreement, the LLC Agreement and the
Certificate of Formation and all rights and remedies which such holders have
been granted at any time under any other agreement or contract and all of the
rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
7C. EACH PURCHASER'S INVESTMENT REPRESENTATIONS. Each Purchaser
hereby represents (i) that it is acquiring the Restricted Securities purchased
hereunder or acquired pursuant hereto for its own account with the present
intention of holding such securities for purposes of investment, and that it has
no intention of selling such securities in a public distribution in violation of
the federal securities laws or any applicable state securities laws, (ii) that
it is an "accredited investor" and a sophisticated investor for purposes of
applicable U.S. federal and state securities laws and regulations, (iii) that
this Agreement and each of the other agreements contemplated hereby constitutes
(or will constitute) the legal, valid and binding obligation of such Purchaser,
enforceable in accordance with its terms and (iv) that the execution, delivery
and performance of this Agreement and such other agreements by the Purchaser
does not and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which such Purchaser is subject. Notwithstanding the
foregoing, nothing contained herein shall prevent any Purchaser and subsequent
holders of Restricted Securities from transferring such securities in compliance
with the provisions of SECTION 4 hereof. Each certificate for Restricted
Securities shall be imprinted with a legend in substantially the following form:
-17-
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON FEBRUARY 14, 2002 AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SPECIFIED IN THE UNIT PURCHASE AGREEMENT, DATED AS OF
FEBRUARY 14, 2002 BY AND AMONG THE ISSUER (THE "COMPANY") AND
CERTAIN INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE
THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH
CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE."
7D. CONSENT TO AMENDMENTS. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Majority Holders. No other course of dealing between the Company and the holder
of any Securities or any delay in exercising any rights hereunder or under the
Certificate of Formation shall operate as a waiver of any rights of any such
holders. For purposes of this Agreement, Securities held by the Company or any
of its Subsidiaries shall not be deemed to be outstanding.
7E. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by a Purchaser or on its behalf.
7F. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for each Purchaser's benefit as a
purchaser or holder of Securities are also for the benefit of, and enforceable
by, any subsequent holder of such Securities. The rights and obligations of each
Purchaser under this Agreement and the agreements contemplated hereby may be
assigned by such Purchaser at any time, in whole or in part, to any investment
fund managed by GTCR LLC, or any successor thereto.
7G. GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Where any accounting
determination or calculation is required to be made under this Agreement or the
exhibits hereto, such determination or calculation (unless otherwise provided)
shall be made in accordance with generally accepted accounting principles,
consistently applied, except that if because of a change in generally accepted
accounting principles the Company would have to alter a previously utilized
accounting
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method or policy in order to remain in compliance with generally accepted
accounting principles, such determination or calculation shall continue to be
made in accordance with the Company's previous accounting methods and policies.
7H. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein..
7I. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
7J. DELIVERY BY FACSIMILE. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
7K. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
section of this Agreement. The use of the word "including" in this Agreement
shall be by way of example rather than by limitation.
7L. GOVERNING LAW. The Delaware Limited Liability Company Act
shall govern all issues concerning the relative rights of the Company and its
securityholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by and construed in accordance with the internal 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.
7M. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when (i) delivered
personally to the recipient, (ii) sent to the recipient by
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reputable express courier service (charges prepaid), (iii) mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid, or (iv) telecopied to the recipient (with hard copy sent to the
recipient by reputable overnight courier service (charges prepaid) that same
day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day,
and otherwise on the next business day. Such notices, demands and other
communications shall be sent to the Purchasers and to the Company at the
addresses indicated below:
IF TO THE COMPANY:
TSI Telecommunication Holdings,
LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: G. Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AND
TSI Telecommunication Holdings,
LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Jr.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH COPIES TO:
GTCR Fund VII, L.P., GTCR Fund
VII/A, L.P. and
GTCR Co-Invest, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx
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000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO THE PURCHASERS:
GTCR Fund VII, L.P., GTCR Fund
VII/A, L.P. and
GTCR Co-Invest, L.P.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
7N. ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement on the date first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Its: President
PERCENTAGE GTCR Fund VII, L.P.
66.06%
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
33.03% GTCR Fund VII/A, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
0.91% GTCR Co-Invest, L.P.
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
SIGNATURE PAGE 1 OF 1 TO GTCR / TSI UNIT PURCHASE AGREEMENT
