EXHIBIT 10.19
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "AGREEMENT") is made as of February 14,
2002, by and between TSI Telecommunication Holdings, LLC, a Delaware limited
liability company (the "COMPANY"), and Snowlake Investment Pte Ltd
("PURCHASER").
The Company and Purchaser desire to enter into an agreement pursuant
to which Purchaser will purchase, and the Company will sell 29,690.29 Class B
Preferred Units of the Company (the "CLASS B PREFERRED") and 9,300,476.95 Common
Units of the Company (the "COMMON UNITS"). All Class B Preferred and Common
Units acquired by Purchaser pursuant to this Agreement are referred to herein as
"CO-INVEST UNITS". Except as otherwise indicated herein, capitalized terms used
herein are defined in SECTION 6 of this Agreement.
Concurrently with the execution and delivery of this Agreement by the
Company and Purchaser, 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"), GTCR Co-Invest, L.P., a Delaware limited partnership ("GTCR
CO-INVEST", and together with GTCR Fund VII, GTCR Fund VII/A and any other
investment fund managed by GTCR Xxxxxx Xxxxxx, L.L.C., each an "INVESTOR" and
collectively, the "INVESTORS") will enter into a unit purchase agreement with
the Company (the "INVESTOR PURCHASE AGREEMENT") pursuant to which the Investors
will purchase Class B Preferred and Common Units in accordance with the terms
thereof. Certain provisions of this Agreement are intended for the benefit of,
and will be enforceable by, the Investors.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
Section 1. PURCHASE AND CLOSING.
Section 1A. PURCHASE AND SALE OF THE CO-INVEST UNITS. Subject to the
terms and conditions set forth herein, at the Closing (as defined in SECTION 1B
below) the Company shall sell to Purchaser, and Purchaser shall purchase from
the Company, 9,300,476.95 Common Units at a price of $0.0333 per unit, and
29,690.29 units of Class B Preferred at a price of $1,000 per unit.
Section 1B. THE CLOSING. The closing of the purchase and sale of the
Co-Invest Units to be purchased pursuant to SECTION 1A (the "CLOSING") shall
take place at the offices of Xxxxxxxx & Xxxxx, Citigroup Center, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on February 14, 2002, or at such
other place or on such other date as may be mutually agreeable to the Company
and Purchaser. At the Closing, (i) the Company shall deliver to Purchaser
certificates evidencing the Co-Invest Units to be purchased by Purchaser,
registered in Purchaser's name, upon payment of the purchase price thereof by a
cashier's or certified check, or by wire transfer of immediately available funds
to such account as designated by the Company and (ii) the Purchaser
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will execute and deliver, this Agreement, the Securityholders Agreement, the
Registration Agreement and the LLC Agreement and each of the other agreements
contemplated hereby (the "TRANSACTION DOCUMENTS") and make the investment in the
Company described in SECTION 1A above.
Section 1C. SUBSEQUENT INVESTMENTS. Pursuant to and in accordance with
SECTION 1B(ii) of the Investor Purchase Agreement, the Investors may provide
additional equity financing to the Company from time to time after the Initial
Closing (as defined in the Investor Purchase Agreement) 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 Investors or their
Affiliates may determine. Purchaser acknowledges that the Investors may, at
their option, provide such additional equity financing to the Company, in whole
or in part, by purchasing Common Units at a per unit price, equal to the lower
of Original Cost or Fair Market Value (as defined in the LLC Agreement). Any
such investment made by the Investors shall be subject to rights of Purchaser
under SECTION 5 ("Pre-Emptive Rights") of the Securityholders Agreement.
Section 2. CONDITIONS OF PURCHASER'S OBLIGATIONS AT THE CLOSING. The
obligation of Purchaser to purchase and pay for the Co-Invest Units to be
purchased by it at the Closing is subject to the satisfaction as of the Closing
of the following conditions:
Section 2A. REPRESENTATIONS AND WARRANTIES; COVENANTS. The
representations and warranties of the Company contained in SECTION 5 hereof
shall be true and correct at and as of the Closing except to the extent of
changes caused by the transactions expressly contemplated herein (or in any
related Transaction Documents (defined in SECTION 2H(b) hereof)), and the
Company shall have performed in all material respects all of the covenants
required to be performed by it hereunder prior to the Closing.
Section 2B. INVESTOR PURCHASE AGREEMENT. The Investors and the Company
shall have entered into the Investor Purchase Agreement, the Investor Purchase
Agreement shall not have been amended or modified and shall be in full force and
effect as of the Closing, and the Investors shall have purchased the Company's
Class B Preferred Units and Common Units proposed to be purchased by the
Investors thereunder.
Section 2C. CERTIFICATE OF FORMATION. The Company's certificate of
formation (the "CERTIFICATE OF FORMATION") in the form attached hereto as
EXHIBIT A shall be in full force and effect under the laws of Delaware as of the
Closing.
Section 2D. LIMITED LIABILITY 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
Closing.
Section 2E. SECURITYHOLDERS AGREEMENT. The Company, the Investors and
Purchaser shall have entered into a securityholders agreement in form and
substance substantially similar to EXHIBIT C attached hereto (the
"SECURITYHOLDERS AGREEMENT"). The Securityholders Agreement shall be in full
force and effect as of the Closing, and the parties to the Securityholders
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Agreement shall not be in breach of any of the terms thereof.
Section 2F. REGISTRATION RIGHTS AGREEMENT. The Company, the Investors
and Purchaser shall have entered into a registration rights agreement in form
and substance substantially similar to EXHIBIT D attached hereto (the
"REGISTRATION AGREEMENT"). The Registration Agreement shall be in full force and
effect as of the Closing, and the parties to the Registration Agreement shall
not be in breach of any of the terms thereof.
Section 2G. PROFESSIONAL SERVICES AGREEMENT. The Company or a
Subsidiary and GTCR Xxxxxx Xxxxxx, L.L.C. shall have entered into a professional
services agreement in form and substance substantially similar to EXHIBIT E
attached hereto (the "PROFESSIONAL SERVICES AGREEMENT"). The Professional
Services Agreement shall be in full force and effect as of the Closing, and the
parties to the Professional Services Agreement shall not be in breach of any of
the terms thereof.
Section 2H. ACQUISITION AGREEMENT. The Acquisition Agreement shall be
in full force and effect as of the Closing, and the parties to the Acquisition
Agreement shall not be in breach of any of the terms thereof.
Section 2I. CLOSING DOCUMENTS. The Company shall have delivered to
Purchaser all of the following documents:
(a) an Officer's Certificate, dated the date of the Closing, stating
that the conditions specified in SECTION 1 and SECTIONS 2A through 2G,
inclusive, have been fully satisfied;
(b) certified copies of the resolutions duly adopted by the Company's
Board of Managers (the "BOARD") authorizing the execution, delivery and
performance of this Agreement, the Stockholders Agreement, the Registration
Agreement, the Investor Purchase Agreement and each of the other agreements
contemplated hereby (the "TRANSACTION DOCUMENTS"), the issuance and sale of the
Co-Invest Units and the consummation of all other transactions contemplated by
this Agreement; and
(c) certified copies of the Certificate of Formation and LLC Agreement
as in effect at the Closing.
Section 2J. FEES AND EXPENSES. The Company shall have reimbursed
Purchaser for its fees and expenses as provided in SECTION 3E hereof.
Section 2K. COMPLIANCE WITH APPLICABLE LAWS. The purchase of Co-Invest
Units by Purchaser hereunder shall not be prohibited by any applicable law or
governmental regulation, shall not subject Purchaser to any penalty, liability
or, in 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 Purchaser is subject.
Section 2L. WAIVER. Any condition specified in this SECTION 2 may be
waived only if such waiver is set forth in a writing executed by Purchaser.
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Section 3. COVENANTS OF THE COMPANY.
Section 3A. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall deliver to Purchaser (so long as it holds any Co-Invest Units):
(a) as soon as available but in any event within 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 and audit adjustments;
(b) accompanying the financial statements referred to in SUBSECTION
(i) above, an Officer's Certificate, to the extent such Officer's Certificate is
provided to the Investors, 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;
(c) within 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,
all prepared in accordance with generally accepted accounting principles,
consistently applied, and accompanied by (i) with respect to the consolidated
portions of such statements, an opinion of a independent accounting firm of
recognized national standing reasonably acceptable to Purchaser and (ii) a copy
of such firm's annual management letter to the Board;
(d) 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;
(e) 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);
(f) 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
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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, to the extent such Officer's Certificate is provided to
the Investors, 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; and
(g) 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.
The obligations of the Company under this SECTION 3A shall terminate upon the
consummation of a Public Offering.
Section 3B. 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.
Section 3C. PUBLIC DISCLOSURES. The Company shall not, nor shall it
permit any Subsidiary to, disclose Purchaser's or any of its Affiliates' names
or identities 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 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 use reasonable efforts to give written notice to Purchaser
describing in reasonable detail the proposed content of such disclosure and
permit Purchaser to review and comment upon the form and substance of such
disclosure.
Section 3D. EFFECTIVELY CONNECTED INCOME. The Company will use
reasonable best efforts not to engage in, or invest in any entity that is
treated as a flow-through entity for U.S. federal income tax purposes that
engages in, (a) any "commercial activity" as defined in Section 892(a)(2)(i) of
the IRC or (b) transactions which will cause the Company to incur income that is
effectively connected with a "trade or business within the United States" as
defined in Section 864(b) of the IRC.
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Section 3E. EXPENSES. The Company agrees to pay or cause a Subsidiary
to pay (i) the reasonable fees and expenses of Purchaser's counsel arising in
connection with the negotiation and execution of this Agreement and the
consummation of the transactions contemplated by this Agreement, (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, (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 Co-Invest Units
purchased hereunder and (iv) such reasonable travel expenses, and other
out-of-pocket fees and expenses as have been or may be incurred by Purchaser and
its Affiliates' directors, officers and employees in connection with or incurred
in attending board of managers or other Company-related meetings).
Section 3F. RESTRICTIONS. Prior to the consummation of a Public
Offering, the Company shall not, without the prior consent of the Purchaser and
the Majority Holders (as defined in the Investor Purchase Agreement) permit any
Subsidiary to authorize, issue, sell or enter into any agreement with the
Investors or their Affiliates 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 (A)
the issuance of equity securities by a Subsidiary to the Company or to another
Subsidiary, (B) the issuance of options and common stock pursuant to an employee
stock option plan as approved and adopted by the Board from time to time; (C)
the issuance of equity securities by a Subsidiary in connection with a Public
Offering,, (D) the issuance of equity securities by a Subsidiary in connection
with a Public Sale or (E) the issuance of equity securities by a Subsidiary to
any Person (other than any Unitholder (as defined in the LLC Agreement) on the
date hereof and its Affiliates)) in connection with an equity investment in such
Subsidiary by such Person.
Section 4. TRANSFER OF RESTRICTED SECURITIES.
(a) Except for transfers to Permitted Transferees, Restricted
Securities are transferable only pursuant to (i) Public Sales and (ii) 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 SECTION 4(a)(i) above), the holder thereof
shall deliver written notice to the Company describing in reasonable detail the
transfer or proposed transfer, and, if requested by the Company, shall be
accompanied by an opinion of 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 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 new certificates for such Restricted Securities which do not
bear the Securities Act legend set forth in SECTION 7B. Notwithstanding the
foregoing, after a Public Offering, the cost of obtaining the opinion of counsel
pursuant to this SECTION 4(b) shall be borne by the Company.
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(c) Any transfer or attempted transfer of any Restricted Securities in
violation of any provision of this Agreement is void, and the Company shall not
record such transfer on its books or treat any purported transferee of such
Restricted Securities as the owner of such Restricted Securities for any
purpose.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a
material inducement to Purchaser to enter into this Agreement and purchase the
Co-Invest Units, the Company hereby represents and warrants to Purchaser that:
Section 5A. ORGANIZATION AND CORPORATE 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 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 LLC Agreement which have been furnished to
Purchaser reflect all amendments made thereto at any time prior to the date of
this Agreement and are correct and complete.
Section 5B. EQUITY SECURITIES AND RELATED MATTERS.
(a) As of the 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 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 Investor Purchase Agreement, the LLC
Agreement and the Senior Management Agreements. As of the 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 Investor Purchase Agreement, the LLC Agreement, the Senior
Management Agreements and the Company's Certificate of Formation. As of the
Closing, all of the Company's outstanding equity securities shall be validly
issued, fully paid and nonassessable.
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(b) When issued in compliance with the provisions of this Agreement,
the Co-Invest Units will be free of any security interests, claims, liens,
pledges, options, encumbrances, charges, agreements, voting trusts, proxies and
other arrangements or restrictions whatsoever ("ENCUMBRANCES"), other than under
federal and state securities laws and other than Encumbrances arising under any
other agreement or instrument to which Purchaser is a party.
(c) There are no statutory or contractual securityholders preemptive
rights or rights of refusal with respect to the issuance of the Co-Invest Units
hereunder, except as expressly contemplated in the Securityholders Agreement or
as provided in the Investor Purchase Agreement. Based in part on the investment
representations of Purchaser in SECTION 7B of this Agreement, the offer, sale or
issuance of any of the Company's equity securities, and the offer, sale and
issuance of the Co-Invest Units pursuant to SECTION 1B hereof do not and will
not require registration under the Securities Act or any applicable state
securities laws.
Section 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.
Section 5D. AUTHORIZATION; NO BREACH. The execution, delivery and
performance of this Agreement and the other Transaction Documents to which the
Company is a party have been duly authorized by the Company. This Agreement and
all other Transaction Documents 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 and all other agreements contemplated
hereby to which the Company is a party, the offering, sale and issuance of the
Co-Invest Units hereunder 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 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, 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.
Section 5E. LITIGATION, ETC. There are no actions, suits, proceedings,
orders, investigations or claims pending or threatened against or, to the best
of the Company's knowledge, affecting the Company (or to the best of the
Company's knowledge, pending or threatened against or
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affecting any of the officers, directors or employees of the Company 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.
Section 5F. CONDUCT OF BUSINESS; LIABILITIES. Other than in connection
with (x) the negotiation, execution and delivery of this Agreement, the
Securityholders Agreement, the Registration Agreement, the Professional Services
Agreement, the Acquisition Agreement and the transactions contemplated in
connection therewith, including any financing transactions, 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.
Section 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
Senior Management Agreement of G. Xxxxxx Xxxxx 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 Purchaser
harmless against, any liability, loss or expense (including, without limitation,
attorneys' fees and out-of-pocket expenses) arising in connection with any such
claim.
Section 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 Transaction Documents.
Section 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 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.
Section 5J. 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 Purchaser shall be true
and correct in all material respects on the date of the Closing as though then
made, except as affected by the transactions contemplated by this Agreement and
the other Transaction Documents.
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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, as amended, 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.
"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.
"LLC AGREEMENT" means the Limited Liability Company Agreement of the
Company, as the same may be amended or modified in accordance with its terms.
"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 reasonably necessary in order to permit him 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).
"PERMITTED TRANSFEREES" means a Person's Affiliates.
"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 and a governmental entity or any
department, agency or political subdivision thereof.
"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.
"PUBLIC SALE" means any sale of securities to the public pursuant to
an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act (other than Rule 144(k) prior to a Public Offering.
"RESTRICTED SECURITIES" means (i) the Co-Invest Units issued hereunder
and (ii) any securities issued with respect to the securities referred to in
clause (i) above by way of a stock
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dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Restricted Securities, such securities shall cease to be Restricted
Securities when they have been (a) sold in a Public Sale, (b) repurchased by the
Company or any Subsidiary thereof, or (c) sold to the public through a broker,
dealer or market maker in compliance with Rule 144 (or any similar rule then in
force) under the Securities Act. 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 7B.
"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.
"SENIOR MANAGEMENT AGREEMENT" means, that certain Senior Management
Agreement entered into on the date hereof by and between the Company, TSI Merger
Sub, Inc. and G. Xxxxxx Xxxxx, or any other agreement for the sale of equity
securities between the Company and any employee of the Company or its
Subsidiaries, as approved by the Board.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or other business entity of
which (i) if a corporation, a majority of the total voting power of equity
securities 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, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any 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 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 the managing general partner of such limited liability
company, partnership, association, or other business entity. Reference to any
"Subsidiary" shall be given effect only at such times as the Person or Persons
has one or more Subsidiaries.
Section 7. Miscellaneous.
Section 7A. REMEDIES. Each holder of Co-Invest Units shall have all
rights and remedies set forth in this Agreement, the Certificate of Formation,
and the LLC Agreement and all rights and remedies which such holders have been
granted at any time under any other Transaction Document. Any Person having any
rights under any provision of this Agreement shall be entitled to
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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.
Section 7B. PURCHASER'S INVESTMENT REPRESENTATIONS. Purchaser hereby
represents (i) that it is acquiring the Co-Invest Units 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 each of them,
enforceable in accordance with its terms and (iv) that the execution, delivery
and performance of this Agreement and such other agreements by them does not and
will not conflict with, violate or cause a breach of any agreement, contract or
instrument to which it is subject. Notwithstanding the foregoing, nothing
contained herein shall prevent Purchaser and subsequent holders of Co-Invest
Units from transferring such securities in compliance with the provisions of
SECTION 4 hereof. Each certificate for Co-Invest Units shall be imprinted with a
legend in substantially the following form:
"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 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."
Section 7C. 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 holders holding a majority of the Co-Invest Units purchased by
Purchaser hereunder at the Closing and the Majority Holders (as defined in the
Investor Purchase Agreement). No other course of dealing between the Company and
the holder of any Co-Invest Units or any delay in exercising any rights
hereunder or under the LLC Agreement shall operate as a waiver of any rights of
any such holders.
Section 7D. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
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representations, warranties and covenants 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 Purchaser or on its behalf.
Section 7E. 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 Purchaser's benefit as a
purchaser or holder of Co-Invest Units are also for the benefit of, and
enforceable by, any subsequent holder of such Co-Invest Units.
Section 7F. 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 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.
Section 7G. 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 prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 7H. 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.
Section 7I. 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.
Section 7J. GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (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.
Section 7K. NOTICES. All notices, demands or other communications to
be given or
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delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to Purchaser and to the Company at the addresses
indicated below:
IF TO THE COMPANY:
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 THE INVESTORS, WHICH WILL NOT CONSTITUTE NOTICE TO THE COMPANY,
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
AND:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
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Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO PURCHASER:
Snowlake Investment Pte Ltd
c/o GIC Special Investment Pte Ltd
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Snowlake Investment Pte Ltd
c/o GIC Special Investment Pte Ltd
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AND:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
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.
Section 7L. 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 Agreement on
the date first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Its: Chief Executive Officer
PURCHASER
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Its: Director
SIGNATURE PAGE 1 OF 2 TO TSI / SINGAPORE PURCHASE AGREEMENT
Agreed and Accepted:
GTCR FUND VII, 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
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
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 2 OF 2 TO TSI / SINGAPORE PURCHASE AGREEMENT
