FORM OF VOTING AGREEMENT
(Cash Equity Investor)
Agreement dated as of October __, 2001 among the shareholder(s) listed
on the signature pages hereto (each, a "Shareholder") of TeleCorp PCS, Inc., a
Delaware corporation ("TeleCorp"), TeleCorp and AT&T Wireless PCS, LLC, a
Delaware limited liability company ("AWS").
(A) TeleCorp, AWS's parent and an affiliate of AWS are parties to an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
modified or amended from time to time, the "Merger Agreement"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
such terms in the Merger Agreement.
(B) Prior to the execution and effectiveness of this Agreement,
TeleCorp, AWS, certain management shareholders and other shareholders of
TeleCorp executed and delivered to TeleCorp and AWS Amendment No. 1 to the
Stockholders' Agreement dated as of October 7, 2001 (the "Stockholders Agreement
Amendment"), to the Stockholders' Agreement dated as of November 13, 2000, among
TeleCorp, AWS and the parties specified therein (as amended by the Stockholders
Agreement Amendment, the "Stockholders Agreement").
(C) The Stockholders Agreement Amendment amends the Stockholders
Agreement to allow for the parties hereto to enter into this Agreement and to
perform their obligations hereunder.
(D) Simultaneously with the execution of the Merger Agreement, each
Shareholder, TeleCorp and AWS agree to enter into this Agreement, and certain
other shareholders of TeleCorp (the "Other Shareholders") are entering into
agreements (the "Other Agreements") with TeleCorp and AWS that are substantially
similar in form and substance to this Agreement.
Accordingly, the parties hereto agree as follows:
1. Representations, Warranties and Covenants
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Each Shareholder (with respect to itself only) hereby represents,
warrants and covenants, severally and not jointly, to each of AWS and TeleCorp
as follows:
(a) Title
As of the date hereof, such Shareholder owns beneficially and of record
the number of shares of each class of capital stock of TeleCorp set forth after
such Shareholder's name on Exhibit A hereto (with respect to each Shareholder,
the capital stock specified after such Shareholder's name on Exhibit A hereto
shall be referred to herein as the "Shares"). The term "beneficial owner" and
all correlative expressions are
used in this Agreement as defined in Rules 13d-3 and 16a-1 under the Securities
Exchange Act of 1934, as amended.
(b) Right to Vote
As of the date hereof and as of the date of the Titan Stockholders'
Meeting (which, for purposes of this Agreement, includes any adjournment or
postponement thereof), except for this Agreement or as otherwise permitted by
this Agreement, such Shareholder has full legal power, authority and right to
vote all of the Shares, to the extent the Shares carry the right to vote thereon
and have not been Transferred in accordance herewith, in favor of the approval
and authorization of the Merger Agreement, the Merger and the Related Agreements
(to the extent TeleCorp is a party thereto) and the other transactions
contemplated thereby (collectively, the "Titan Proposals") without the consent
or approval of, or any other action on the part of, any other person or entity.
Without limiting the generality of the foregoing, such Shareholder has not
entered into any voting agreement with any person or entity with respect to any
of the Shares, granted any person or entity any proxy (revocable or irrevocable)
or power of attorney with respect to any of the Shares, deposited any of the
Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting its legal power, authority or right to
vote the Shares in favor of the Titan Proposals except for this Agreement.
From and after the date hereof, except as otherwise permitted by this
Agreement or prohibited by order of a court of competent jurisdiction, such
Shareholder will not commit any act that could restrict or otherwise affect its
legal power, authority and right to vote all of the Shares, to the extent the
Shares carry the right to vote thereon and have not been Transferred in
accordance herewith, in favor of the Titan Proposals. Without limiting the
generality of the foregoing, except for this Agreement and as otherwise
permitted by this Agreement, from and after the date hereof, each Shareholder
will not enter into any voting agreement with any person or entity with respect
to any of the Shares (including without limitation any amendment, modification,
waiver or supplement to Section 3.7 or Article 4 of the Stockholders Agreement),
grant any person or entity any proxy (revocable or irrevocable) or power of
attorney with respect to any of the Shares, deposit any of the Shares in a
voting trust or otherwise enter into any agreement or arrangement with any
person or entity limiting or affecting such Shareholder's legal power, authority
or right to vote the Shares in favor of the approval of the Titan Proposals.
(c) Authority
Such Shareholder has full legal power, authority and right to execute
and deliver, and to perform his or its obligations under, this Agreement. This
Agreement has been duly and validly executed and delivered by such Shareholder
and constitutes a valid and binding agreement of such Shareholder enforceable
against such Shareholder in accordance with its terms, subject to (i)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors rights generally
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and (ii) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
(d) Conflicting Instruments
The execution and delivery of this Agreement and the performance by
such Shareholder of his or its agreements and obligations hereunder will not
result in any breach or violation of or be in conflict with or constitute a
default under any term of any agreement, judgment, injunction, order, decree,
law, regulation or arrangement to which such Shareholder is a party or by which
such Shareholder (or any of his or its assets) is bound, except for any such
breach, violation, conflict or default which, individually or in the aggregate,
would not impair or adversely affect such Shareholder's ability to perform its
obligations under this Agreement.
2. Restrictions on Transfer
------------------------
(a) Restrictions
Subject to Section 2(b), prior to the Effective Time, each Shareholder
agrees not to (i) Transfer (or to agree to Transfer) any Shares owned of record
or beneficially by such Shareholder or (ii) effect, directly or indirectly, or
through any arrangement with a third party pursuant to which such third party
may effect, directly or indirectly, any short sales of any AWS Common Stock
received in connection with the Merger. Each Shareholder agrees that nothing
herein or in the Stockholders Agreement Amendment shall (or shall be construed
to) relieve such Shareholder of its obligations under Article 4 of the
Stockholders Agreement, and that the provisions of said Article 4 shall remain
in full force and effect in accordance with their terms.
(b) Exceptions
Notwithstanding the restrictions set forth in Section 2(a), the
following Transfers shall be permitted under this Agreement:
(i) From and after the date hereof, the Transfer of an
Applicable Number of Shares held by each Shareholder.
(ii) Commencing on the earlier of the date of the Titan
Stockholders' Meeting and March 31, 2002, the Transfer of an additional
Applicable Number of Shares held by each Shareholder.
(iii) Commencing on the earlier of the Effective Time and June
30, 2002, the Transfer of an additional Applicable Number of Shares
held by each Shareholder.
(iv) Transfers to any Affiliated Successor (as defined in the
Stockholders Agreement) and Transfers by operation of law, provided,
that any such Affiliated Successor or successor by operation of law, as
the case may be, agrees in writing to become bound by the terms of this
Agreement.
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(c) Aggregation
(i) The number of Shares that a Shareholder may Transfer
pursuant to Section 2(b)(i) may be increased, in accordance with clause
(iv) below, by the number (if any) of Shares that one or more Other
Shareholders were entitled to Transfer, but did not Transfer, pursuant
to Section 2(b)(i).
(ii) The number of Shares that a Shareholder may Transfer
pursuant to Section 2(b)(ii) may be increased, in accordance with
clause (iv) below, by the number (if any) of Shares that one or more
Other Shareholders were entitled to Transfer, but did not Transfer,
pursuant to Section 2(b)(ii).
(iii) The number of Shares that a Shareholder may Transfer
pursuant to Section 2(b)(iii) may be increased, in accordance with
clause (iv) below, by the number (if any) of Shares that one or more
Other Shareholders were entitled to Transfer, but did not Transfer,
pursuant to Section 2(b)(iii).
(iv) A Shareholder may assign its right in whole or in part to
Transfer a number of Shares pursuant to Section 2(b)(i), 2(b)(ii) or
2(b)(iii) to one or more Other Shareholders only pursuant to a written
instrument of assignment, a copy of which must be delivered to AWS
promptly upon execution.
(d) Definitions
"Applicable Number of Shares" means, with respect to a Shareholder,
one-third (1/3) of the number of shares of Class A Voting Common Stock owned of
record or beneficially by such Shareholder as of the date hereof.
"Transfer" means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, pledge, hypothecation, or the grant,
creation or sufferage of a lien or encumbrance in or upon, or the gift,
placement in trust, or the constructive sale or other disposition of such
security (including transfers by testamentary or intestate succession) or any
right, title or interest therein (including but not limited to any right or
power to vote to which the holder thereof may be entitled, whether such right or
power is granted by proxy or otherwise), or the record or beneficial ownership
thereof, the offer to make such a sale, transfer, constructive sale or other
disposition, and each agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing. The term "constructive sale" means a
short sale with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security or entering
into any other hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership.
3. Agreement to Vote
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Each Shareholder hereby irrevocably and unconditionally agrees to vote
or to cause to be voted all of the Shares, to the extent the Shares carry the
right to vote thereon and have not been Transferred in accordance herewith, at
the Titan Stockholders Meeting
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and at any other annual or special meeting of shareholders of TeleCorp where any
such proposal is submitted, and in connection with any written consent of
stockholders, (a) in favor of the Titan Proposals and (b) against (i) approval
of any proposal made in opposition to or in competition with the transactions
contemplated by the Merger Agreement, (ii) any merger, consolidation, sale of
assets, business combination, share exchange, reorganization or recapitalization
of TeleCorp or any of its subsidiaries, with or involving any party other than
as contemplated by the Merger Agreement, (iii) any liquidation or winding up of
TeleCorp, (iv) any extraordinary dividend by TeleCorp, (v) any change in the
capital structure of TeleCorp (other than pursuant to the Merger Agreement) and
(vi) any other action that may reasonably be expected to impede, interfere with,
delay, postpone or attempt to discourage the consummation of the transactions
contemplated by the Merger Agreement or result in a breach of any of the
covenants, representations, warranties or other obligations or agreements of
TeleCorp under the Merger Agreement, which would materially and adversely affect
TeleCorp or AWS or their respective abilities to consummate the transactions
contemplated by the Merger Agreement.
4. Additional Agreements
---------------------
Each Shareholder and AWS hereby irrevocably and unconditionally agrees
to vote or to cause to be voted all of the Shares, to the extent the Shares
carry the right to vote thereon and have not been Transferred in accordance
herewith, at any annual or special meeting of shareholders of TeleCorp where
such proposal is submitted, and in connection with any written consent of
stockholders, against authorizing TeleCorp to seek the consent of the FCC to
permit the Class A Voting Common Stock and Voting Preference Common Stock to
vote and act as a single class as contemplated by Section 4.12(c)(iv) of the
Amended and Restated Certificate of Incorporation of TeleCorp.
5. Granting of Proxy
-----------------
In furtherance of the terms and provisions of this Agreement, each
Shareholder hereby grants an irrevocable proxy (subject to Section 11(b)),
coupled with an interest, to each of the President and the Secretary of AWS to
vote all of the Shares beneficially owned by such Shareholder in favor of the
Titan Proposals and in accordance with the provisions of Sections 3 and 4. Each
Shareholder hereby ratifies and approves of each and every action taken by the
President or the Secretary of AWS pursuant to the foregoing proxy.
Notwithstanding the foregoing, if requested by AWS, each Shareholder will
execute and deliver applicable proxy material in furtherance of the provisions
of Sections 3 and 4 and this Section 5.
6. Action in Shareholder Capacity Only
-----------------------------------
Each Shareholder who is an officer or director of TeleCorp makes no
agreement or understanding herein as director or officer of TeleCorp. Each
Shareholder signs solely in his capacity as a record holder and beneficial owner
of Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of TeleCorp.
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7. Invalid Provisions
------------------
If any provision of this Agreement shall be invalid or unenforceable
under applicable law, such provision shall be ineffective to the extent of such
invalidity or unenforceability only, without it affecting the remaining
provisions of this Agreement.
8. Executed in Counterparts
------------------------
This Agreement may be executed in counterparts each of which shall be
an original with the same effect as if the signatures hereto and thereto were
upon the same instrument.
9. Specific Performance
--------------------
The parties hereto agree that the failure for any reason of a
Shareholder to perform any of his or its agreements or obligations under this
Agreement would cause irreparable harm or injury to TeleCorp and AWS with
respect to which money damages would not be an adequate remedy. Accordingly,
each Shareholder agrees that, in seeking to enforce this Agreement against such
Shareholder, each of AWS and TeleCorp shall be entitled to specific performance
and injunctive and other equitable relief in addition to any other remedy
available at law, equity or otherwise.
10. GOVERNING LAW; SUBMISSION TO JURISDICTION
-----------------------------------------
THE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. EACH OF THE
PARTIES HERETO IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT HEREOF BROUGHT BY ANY OTHER PARTY HERETO OR ITS SUCCESSORS OR ASSIGNS
MAY BE BROUGHT AND DETERMINED IN THE STATE AND FEDERAL COURTS OF THE STATE OF
DELAWARE, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD
TO ANY SUCH ACTION OR PROCEEDING FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, TO THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY CLAIM (A) THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE AFORESAID COURTS FOR ANY REASON,
(B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM
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JURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH
COURTS (WHETHER THROUGH SERVICE OF JUDGMENT, EXECUTION OF JUDGMENT, OR
OTHERWISE), AND (C) TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, THAT
(I) THE SUIT, ACTION OR PROCEEDING IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT
FORUM, (II) THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER AND (III)
THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
11. Amendments; Termination
-----------------------
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by all parties hereto.
(b) Except for provisions of this Agreement that by their terms survive
the termination hereof, the provisions of this Agreement shall terminate upon
the earliest to occur of (i) the consummation of the Merger, (ii) December 31,
2002, (iii) the date of effectiveness of any amendment to the Merger Agreement
that changes the type or amount of merger consideration in a way that is
materially adverse to any of the Shareholder(s) party to this Agreement and (iv)
the termination of the Merger Agreement in accordance with its terms.
12. Additional Shares
-----------------
If, after the date hereof, any Shareholder acquires beneficial or
record ownership of any additional shares of capital stock of TeleCorp (any such
shares, "Additional Shares"), including, without limitation, upon exercise of
any option, warrant or right to acquire shares of capital stock of TeleCorp or
through any stock dividend or stock split, the provisions of this Agreement
applicable to the Shares shall thereafter be applicable to such Additional
Shares as if such Additional Shares had been Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by any Shareholder of beneficial ownership of such Additional
Shares.
13. Successors and Assigns
----------------------
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal successors (including,
in the case of any individual Shareholder or any other individual, any
executors, administrators, estates, legal representatives and heirs of such
Shareholder or such individual) and permitted assigns (other than transferees of
any Shares Transferred pursuant to Section 2(b)); provided, however, that,
except as otherwise provided in this Agreement, no party may assign, delegate or
otherwise transfer any of its rights or obligations, under this Agreement,
without the consent of AWS, in the case of any Shareholder, the consent of the
Shareholder(s) and TeleCorp, in the case of AWS, and the consent of AWS, in the
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case of TeleCorp. Without limiting the scope or effect of the restrictions on
Transfer set forth in Section 2, each Shareholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, other than any Shares
Transferred pursuant to Section 2(b).
14. Expenses
Promptly (but not later than three days) after the date hereof,
TeleCorp shall pay all fees and expenses incurred by the Shareholder(s) and the
Other Shareholders (other than management shareholders of TeleCorp) in
connection with the negotiation, execution and delivery of this Agreement and
the Other Agreements, not to exceed $25,000 in the aggregate for all such Other
Shareholders.
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[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELECORP PCS, INC.
By
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Name:
Title:
AT&T WIRELESS PCS, LLC
By AT&T WIRELESS SERVICES, INC.
Its Manager
By
---------------------------------------------------
Name:
Title:
XXXX COMMUNICATIONS PARTNERS, L.P.
By: HCP Investments, L.P., its general partner
By: Xxxx Partners, LLC, its general partner
By:______________________________
Name:
Title:
HCP CAPITAL FUND, L.P.
By: Xxxxx X. Xxxx & Co., its general partner
By:______________________________
Name:
Title:
X.X. XXXXXX PARTNERS (23A SBIC),
LLC (f/k/a CB Capital Investors, L.P.)
By: X.X. Xxxxxx Partners (23A SBIC
Manager), Inc., its Managing Member
By:______________________________
Name:
Title:
