QuickLinks
 -- Click here to rapidly navigate through this document


Exhibit 4.4  


EXECUTION COPY  


STOCK PURCHASE AGREEMENT  


By and among  


 MetroPCS Communications, Inc.  


 and  


 The Investors named herein  


Dated as of August 30, 2005  








  



 
 

INDEX    
    



	 
	 	 
	 	Page

	Section 1.	 	Purchase and Sale of Shares	 	1
	1.1	 	Description of Securities	 	1
	1.2	 	Sale and Purchase	 	1
	1.3	 	Charter	 	2
	1.4	 	Closing	 	2
	1.5	 	Escrow	 	2
	1.6	 	Tender Offer	 	3
	1.7	 	Use of Proceeds	 	5
	1.8	 	Further Assurances	 	6
	
Section 2.	
 	
Representations and Warranties of the Company	
 	
6
	2.1	 	Organization and Corporate Power	 	6
	2.2	 	Authorization and Non-Contravention	 	6
	2.3	 	Corporate Records	 	7
	2.4	 	Capitalization	 	7
	2.5	 	Subsidiaries; Investments	 	8
	2.6	 	Financial Statements	 	8
	2.7	 	Absence of Undisclosed Liabilities	 	9
	2.8	 	Absence of Certain Developments	 	9
	2.9	 	Transactions with Affiliates	 	10
	2.10	 	Properties	 	11
	2.11	 	Tax Matters	 	11
	2.12	 	Certain Contracts and Arrangements	 	12
	2.13	 	Intellectual Property	 	13
	2.14	 	Litigation	 	13
	2.15	 	Labor Matters	 	14
	2.16	 	Permits; Compliance with Laws	 	14
	2.17	 	Employee Benefit Programs	 	14
	2.18	 	Insurance Coverage	 	15
	2.19	 	Investment Banking; Brokerage	 	15
	2.20	 	FCC Regulatory Matters	 	16
	2.21	 	Senior Secured Credit Facilities	 	17
	2.22	 	Waiver of Rights of First Refusal and Co-Sale	 	17
	2.23	 	Disclosure	 	17
	
Section 3.	
 	
Representations and Warranties of the Investors	
 	
17
	3.1	 	Investment Status	 	17
	3.2	 	Authority and Non-Contravention	 	18
	3.3	 	Investment Banking; Brokerage Fees	 	18
	3.4	 	Accredited Investors	 	18
	3.5	 	Restricted Securities	 	18
	3.6	 	Disclosure of Information	 	18
	3.7	 	Investment Experience	 	19
	3.8	 	Necessary Funds	 	19
	3.9	 	Accuracy of Information	 	19
	
Section 4.	
 	
Closing Covenants	
 	
19
	4.1	 	Pre-Closing Operations of the Company	 	19
	4.2	 	Closing Efforts	 	19
	 	 	 	 	 





i







 

	4.3	 	Fees and Expenses	 	20
	4.4	 	Notice of Curtain Events	 	20
	
Section 5.	
 	
Tender Offer Covenants	
 	
20
	5.1	 	Pre-Tender Operations of the Company	 	20
	5.2	 	Tender Offer Closing Efforts	 	20
	5.3	 	Access; Confidentiality	 	21
	5.4	 	Exclusivity	 	21
	5.5	 	Tender Offer Cooperation	 	22
	5.6	 	Investor Put Right	 	22
	5.7	 	Tender Offer Conditions	 	24
	5.8	 	Consents	 	25
	5.9	 	Investor Covenants	 	25
	
Section 6.	
 	
General Covenants	
 	
25
	6.1	 	Publicity	 	25
	6.2	 	Financial Information	 	25
	6.3	 	Properties, Business Insurance	 	26
	6.4	 	Directors and Officers' Insurance	 	26
	6.5	 	Compliance with Laws, Payment of Taxes	 	26
	6.6	 	Investment Banking; Brokerage Fees	 	26
	6.7	 	Enforcement of Rights	 	27
	6.8	 	Maintenance of Properties	 	27
	6.9	 	Reservation of Shares	 	27
	6.10	 	Tender Offer Cooperation	 	27
	6.11	 	Post-Closing Acquisition of Securities	 	27
	6.12	 	Expiration	 	27
	6.13	 	Foreign Ownership Requirements	 	28
	
Section 7.	
 	
Conditions Precedent to the Obligations of the Investors	
 	
28
	7.1	 	Representations and Warranties	 	28
	7.2	 	Performance of Obligations	 	28
	7.3	 	Officer's Certificate	 	28
	7.4	 	No Material Adverse Effect	 	28
	7.5	 	No Litigation	 	28
	7.6	 	Governmental Approvals	 	28
	7.7	 	Certificate of Correction	 	29
	7.8	 	Certificate of Incorporation	 	29
	7.9	 	Authorization	 	29
	7.10	 	Deliveries by the Company to the Investors	 	29
	7.11	 	Fees and Expenses	 	30
	
Section 8.	
 	
Conditions Precedent to the Obligations of the Company	
 	
30
	8.1	 	Representations and Warranties	 	30
	8.2	 	Performance of Obligations	 	30
	8.3	 	Officer's Certificate	 	30
	8.4	 	Approvals, Consents and Waivers	 	30
	8.5	 	No Litigation	 	30
	8.6	 	Governmental Approvals	 	30
	8.7	 	Deliveries by the Investors to the Company	 	31
	 	 	 	 	 



ii







 

	
Section 9.	
 	
Termination	
 	
31
	9.1	 	Termination	 	31
	9.2	 	Effect of Termination	 	32
	
Section 10.	
 	
Survival of Representations and Warranties; Transaction Related Indemnification	
 	
32
	10.1	 	Survival of Representations and Warranties	 	32
	10.2	 	Transaction Related Indemnification	 	33
	10.3	 	Notice; Payment of Losses; Defense of Claims	 	34
	
Section 11.	
 	
General	
 	
35
	11.1	 	Waivers and Consents; Amendments	 	35
	11.2	 	Legend on Securities	 	35
	11.3	 	Governing Law	 	35
	11.4	 	Section Headings; Construction	 	35
	11.5	 	Counterparts	 	36
	11.6	 	Notices and Demands	 	36
	11.7	 	Dispute Resolution	 	37
	11.8	 	Consent to Jurisdiction	 	37
	11.9	 	Remedies; Severability	 	38
	11.10	 	Integration.	 	38
	11.11	 	Assignability; Binding Agreement	 	38
	11.12	 	Certain Definitions	 	38
	11.13	 	List of Defined Terms	 	39




iii







 

EXHIBITS





Exhibit
A — Schedule of Investors

Exhibit B — Schedule of Stockholders

Exhibit C — Second Amended and Restated Certificate of Incorporation

Exhibit D — Form of Second Amended and Restated Stockholders Agreement

Exhibit E — Form of Escrow Agreement

Exhibit F — Form of Letter of Transmittal

Exhibit G — Form of Waiver

Exhibit H — Certificate of Correction

Exhibit I — Management Rights Letter

Exhibit J — Form of Opinion of Counsel

Exhibit K — Form of Director Indemnification Agreement

Exhibit L — Form of Joinder Agreement 





SCHEDULES





Schedule
1.6    Tender Offer Allocation Illustration 




iv








  



 
 

STOCK PURCHASE AGREEMENT    
    


        THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as of August 30, 2005, by and
among MetroPCS Communications, Inc., a Delaware corporation (the "Company"), and the investment partnerships and other investors named in  Exhibit A attached hereto (each, an "Investor," and, collectively, the
"Investors"). 


        WHEREAS,
all of the outstanding shares of the Company's capital stock on the date hereof are held of record by the stockholders of the Company (the
"Stockholders") as set forth in Exhibit B attached hereto; 


        WHEREAS,
the Investors desire to purchase from the Company, and the Company desires to issue and sell to the Investors, 500,000 shares of the Company's Series E Convertible
Preferred Stock, par value $0.0001 per share (the "Series E Preferred Stock"), which shares are initially convertible into approximately
1,851,852 shares of Common Stock of the Company, par value $0.0001 per share (the "Common Stock"), subject to certain adjustments as set forth in the
Certificate of Incorporation (as defined below), for an aggregate purchase price of $50,000,000, or $100.00 per share; 


        WHEREAS,
promptly following the Closing (as hereinafter defined), the Investors will commence a tender offer (the "Tender Offer") to
purchase (the "Tender Offer Purchase") shares of Common Stock and Series D Convertible Preferred Stock, par value $0.0001 per share (the
"Series D Preferred Stock"), from the holders of Common Stock and Series D Convertible Preferred Stock who elect to participate in such
Tender Offer (the "Participating Holders"); and 


        WHEREAS,
in connection with and as a condition precedent to the consummation of the transactions contemplated hereby, among other things (i) on or before the Closing Date, the
Company shall amend and restate its certificate of incorporation in the form attached hereto as Exhibit C (the
"Certificate of Incorporation"), and (ii) the Company, certain Stockholders and the Investors
will enter into a Second Amended and Restated Stockholders Agreement in substantially the form attached hereto as Exhibit D (the
"Stockholders Agreement"). 


        NOW
THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto, intending to be legally bound, hereby agree as
follows: 


Section 1. Purchase and Sale of Shares  



        1.1    Description of Securities.    The Company's authorized capital stock consists of Common Stock, Class A
Common Stock, par value $0.0001 per share (the "Class A Common Stock"), Series D Preferred Stock and, upon consummation of transactions
contemplated by this Agreement, Series E Preferred Stock. The Common Stock, Class A Common Stock, Series D Preferred Stock and Series E Preferred Stock will, upon
consummation of the transactions contemplated by this Agreement, have the rights, preferences and other terms set forth in the Delaware General Corporation Law (the
"DGCL"), the Certificate of incorporation in the form attached hereto as Exhibit C and the
Stockholders Agreement. For purposes of this Agreement, the shares of Series E Preferred Stock to be acquired by the Investors from the Company hereunder are sometimes referred to as the
"Series E Preferred Shares," the shares of Common Stock issuable upon conversion of the Series E Preferred Shares are referred to as the
"Common Conversion Shares," and the Series E Preferred Shares and the Common Conversion Shares are sometimes referred to herein as the
"Securities." 


        1.2    Sale and Purchase.    Upon the terms and subject to the conditions herein, and in reliance on the
representations and warranties made by the Company herein, the Investors, jointly (and not separately), hereby agree to purchase from the Company, and the Company hereby agrees to issue and sell to
each of the Investors, the number of Series E Preferred Shares set forth opposite the name of each such Investor on Exhibit A hereto, free
and clear of any and all Claims (as defined herein), for a total aggregate purchase price of $50,000,000 (the "Purchase Price"), and the Company hereby
agrees 


1







 



to
grant the Investors the rights set forth herein, in the Stockholders Agreement and in the Certificate of Incorporation. 


        1.3    Charter.    Immediately prior to or contemporaneously with the Closing, the Company shall have filed with the
Secretary of State of Delaware the Certificate of Incorporation, and the same shall have become effective in accordance with Delaware law. 


        1.4    Closing.    The closing of the purchase and sale of the Series E Preferred Shares (the
"Closing") shall take place at a mutually agreeable location as soon as reasonably practicable, and in any event within two (2) business days,
following the satisfaction or waiver of the closing conditions set forth in Section 7 and  Section 8 (the "Closing
Date"). At the Closing, the Company shall deliver or cause to be
delivered
to JPMorgan Chase Bank, N.A. (the "Escrow Agent") on behalf of each of the Investors stock certificates representing the Series E Preferred
Shares issued in the name of each such Investor, free and clear of any and all liens, claims, options, charges, pledges, security interests, deeds of trust, voting agreements, voting trusts,
encumbrances, rights or restrictions of any nature, other than (i) as provided herein, (ii) as set forth in the Certificate of Incorporation, (iii) pursuant to the Stockholders
Agreement and the Escrow Agreement (as defined below), or (iv) arising under the DGCL or applicable state or federal securities laws ("Claims"),
against payment of the Purchase Price in cash by the Investors to the Escrow Agent. All cash payments hereunder shall be made by wire transfer of same day available funds to an account specified in
writing in advance by the Escrow Agent. 


        1.5    Escrow.    



        (a)   Pursuant
to the terms and conditions of the Escrow Agreement by and among the Company, the Investors and the Escrow Agent, in the form attached hereto as  Exhibit E (the "Escrow
Agreement"), the Purchase Price and the Series E Preferred Shares
shall be held by the Escrow Agent until released as provided in the Escrow Agreement. Notwithstanding the delivery of the Series E Preferred Shares and the Purchase Price to the Escrow Agent to
be held pursuant to the Escrow Agreement, the Investors shall be the beneficial and record owners of the Series E Preferred Shares for all purposes and as such shall be entitled to all of the
rights of holders of Series E Preferred Shares, including, without limitation, dividend rights and all other rights, privileges and preferences set forth in the Certificate of Incorporation,
and the preemptive rights, rights of first refusal and co-sale options set forth in the Stockholders Agreement; provided,  however, that in the event of
redemption of the Series E Preferred Stock as provided in  Section 5.6 hereof, no dividends, accrued or otherwise, or interest (other than the Escrow Interest (as defined below)) shall be
payable in
connection with such redemption. No Escrow Interest shall be paid to the Company or the Investors until the Purchase Price and the Series E Preferred Shares are delivered by the Escrow Agent in
accordance with Section 1.5(b) and the Escrow Agreement. 


        (b)   The
Escrow Agent shall hold the Purchase Price pursuant to the terms of the Escrow Agreement for the purpose of securing funds to satisfy the Company's obligations to
repurchase the Series E Preferred Shares pursuant to Section 5.6. The Escrow Agent shall hold the Series E Preferred Shares, the
Purchase Price and the Escrow Interest until (i) the Put Right has expired, in which case the Escrow Agent shall promptly deliver the Series E Preferred Shares to the Investors and the
Purchase Price, together with the Escrow Interest, to the Company, or (ii) the Put Right is exercised in accordance with Section 5.6, in
which case the Escrow Agent shall promptly deliver the Series E Preferred Shares to the Company and the Purchase Price, together with the Escrow Interest, to the Investors. Each party hereto
shall give a written instruction to the Escrow Agent promptly after the occurrence of any event set forth in clauses (i) or  (ii) above to effect any such
release. The Purchase Price shall be held by the Escrow Agent as a trust fund and shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed or paid in accordance with the terms of this Agreement and the Escrow Agreement.
The fees and expenses of the Escrow Agent shall be paid 50% by the Company and 50% by the Investors. 


2







 



        (c)   The
Escrow Agent shall invest the Purchase Price and any interest, dividends, income or other proceeds earned on the Purchase Price (the "Escrow
Interest") in interest-bearing (i) government securities, (ii) AAA rated money market funds, and/or (iii) AI/PI or better rated commercial paper, as
directed by the Company. 


        1.6    Tender Offer.    Subject to the Tender Offer Conditions (as defined herein), the Investors jointly (and not
separately) agree to complete the Tender Offer and consummate the purchase of the Tendered Securities (as defined herein) in the following manner: 



        (a)   The
Investors will offer: 



          (i)  for
each share of Series D Preferred Stock, $23.59 per share of Common Stock issuable upon conversion of each share of Series D Preferred Stock and
issuable upon conversion of the accumulated but unpaid dividends thereon through (and including) the Tender Offer Closing Date; 


         (ii)  for
each share of Common Stock (including shares of Common Stock issuable upon the exercise of Options (as defined below)), $21.46 (collectively, the prices for the
Series D Preferred Stock and Common Stock, the "Tender Prices"). 




        (b)   Promptly
following the Closing (but in no event later than September 2, 2005 (provided, that, if the Investors are
unable to launch the Tender Offer by such date due to the failure of the Company to provide to the Investors any information reasonably requested by the Investors for inclusion in the Offer Materials,
such date will be extended until the date the Company provides such information, but in no event later than September 7, 2005), the Investors shall commence the Tender Offer by mailing the
appropriate tender offer materials, as legally required and otherwise deemed necessary and appropriate by the Investors, including a Letter of Transmittal substantially in the form attached hereto as  Exhibit F (the "Offer Materials"), to all of the holders of (i) Common Stock,
(ii) vested options to purchase Common Stock (the "Options"), (iii) warrants to purchase Common Stock
("Warrants"), and (iv) Series D Preferred Stock (collectively, such holders, the "Eligible
Holders"). 


        (c)   The
Investors will provide the Eligible Holders with a period of at least twenty (20) business days from the date of the mailing of the Offer Materials (or such
additional period as is required by law in the event of any amendments to the Tender Offer or related materials) (the end of such twenty (20) business day or later period, the
"Expiration Date") to tender shares of Common Stock (including Common Stock issuable upon the exercise of Options and Warrants) or Series D
Preferred Stock (collectively, the "Tendered Securities") to the Investors in exchange for a cash payment of the applicable Tender Price. 


        (d)   The
Investors may only purchase Tendered Securities to the extent that the shares of capital stock of the Company beneficially held by the Investors and their
co-investors pursuant to Section 1.6(i) after giving effect to such purchase, together with the Series E Preferred Stock and
any Options, Warrants or rights to acquire capital stock of the Company held by the Investors and their co-investors, would not equal or exceed 331/3% of the shares of
Common Stock, Series D Preferred Stock and Series E Preferred Stock, taken as a whole (calculated assuming conversion of all shares of Class A Common Stock, Series D
Preferred Stock and Series E Preferred Stock to Company Stock at the then applicable conversion ratio), that are outstanding as of the Tender Offer Closing Date. Each Purchaser shall purchase
an equal amount of the Tendered Securities as the other Purchaser until each such Purchaser has purchased Tendered Securities with an aggregate Tender Price equal to $175,000,000, and no
co-investor pursuant to Section 1.6(i) may purchase Tendered Securities until the Purchasers have purchased, in the aggregate,
Tendered Securities with an aggregate Tender Price equal to at least $450,000,000. 



3









  



        (e)   To
the extent that a sufficient amount of Tendered Securities are tendered, the Investors will purchase shares of Series D Preferred Stock with a minimum
aggregate Tender Price of $201,000,000 (the "Series D Preferred Stock Minimum Amount") and shares of Common Stock (including Common Stock
issuable upon the exercise of Options, but excluding shares of Common Stock purchased from employees of the Company, for whom the limits set forth in  Section 1.6(g) are waived, in excess of such
twenty-five percent (25%) limits) with a minimum aggregate Tender Price of $249,000,000
(the "Common Stock Minimum Amount"); provided that: 



          (i)  if
the number of Tendered Securities is not sufficient to reach such minimum amounts for either or both classes of such securities, the Investors shall purchase
(A) all of the Tendered Securities of the undersubscribed class or classes and (B) subject to Section 1.6(d), sufficient Tendered
Securities of any oversubscribed class so that the aggregate Tender Prices for the Tendered Securities purchased equals at least the lesser of the aggregate Tender Prices for all Tendered Securities
or $400,000,000; 


         (ii)  subject
to Section 1.6(d), the Investors may elect, in their sole discretion, to purchase additional Tendered
Securities of either class in excess of such minimum amounts, provided that, the Purchasers will accept shares of Common Stock (including Common Stock issuable upon the exercise of Options, but
excluding shares of Common Stock purchased from employees of the Company, for whom the limits set forth in Section 1.6(g) are waived, in excess
of such twenty-five percent (25%) limits) and Series D Preferred Stock in the same ratio as the Common Stock Minimum Amount and the Series D Preferred Stock Minimum Amount
bear to each other, provided, further, however that after the Purchasers have elected to purchase shares
of both classes based on such ratio such that all of the shares of one of the oversubscribed classes are to be purchased, then the Purchasers may, in their sole discretion, elect to purchase any
amount of the excess Tendered Securities of the other oversubscribed class. 




        Subject
to Section 1.6(g), if Tendered Securities in excess of the minimum required purchase amounts for either the Series D
Preferred Stock or Common Stock (including Common Stock issuable upon the exercise of Options) are tendered and the Investors do not elect to purchase all such additional Tendered Securities in such
class, the shares of such class that the Investors elect to purchase shall be allocated, among the Eligible Holders of such class such that each Eligible Holder, together with its Affiliates, shall be
entitled to sell to the Investors a number of shares of such class equal to the lesser of (x) the total number of Tendered Securities of such class tendered by such Eligible Holder and its
Affiliates, and (y) except as may be waived by the Investors for employees of the Company who enter into a tender and support agreement with the Investors, the Maximum Percentage for such class
multiplied by all shares of such class held by such Eligible Holder and its Affiliates (with the number of shares of Common Stock held by such Eligible Holder and its Affiliates calculated including
Common Stock issuable upon the exercise of Options held by such Eligible Holder and its Affiliates, and the number of shares of Series D Preferred Stock calculated on an
as-converted basis). Shares to be purchased from any Eligible Holder and its Affiliates may be allocated among such
Eligible Holder and its Affiliates as they may direct. As used herein, the "Maximum Percentage" of a class of Tendered Securities shall equal the
highest percentage of such class that any Eligible Holder and its Affiliates are allowed to sell in the Tender Offer based on the maximum number of shares of such class that the Investors elect to
purchase in accordance with the terms hereof and the Tender Offer Material (with the number of shares of Common Stock held by such Eligible Holder and its Affiliates calculated including Common Stock
issuable upon the exercise of Options and Warrants held by such Eligible Holder and its Affiliates, and the number of shares of Series D Preferred Stock calculated on an
as-converted basis). Attached hereto as Schedule 1.6 is an example illustrating how the calculations required by the foregoing
sentence will be made. 



4







 

        (f)    Subject
to Section 1.6(g), the terms of the Tender Offer shall provide, among other things set forth herein, that: 



          (i)  each
Eligible Holder holding Common Stock may specify (A) which shares of Common Stock (including which shares of Common Stock issuable upon the exercise of
Options and Warrants) held by such Eligible Holder are tendered, and (B) of such tendered shares, which shares of such Common Stock tendered by such Eligible Holder shall be purchased first by
the Investors if less than all of such shares of Common Stock are purchased by the Investors (i.e., the order of priority for sale of such Eligible Holder's tendered Common Stock); 



         (ii)  if
the Investors are to purchase from any Eligible Holder less than all of the Series D Preferred Stock held by such Eligible Holder and such Eligible Holder
holds shares of Series D Preferred Stock that were issued, or deemed issued (for the purpose of calculating the dividends accrued on such shares), on more than one date, then the shares
purchased from such Eligible Holder shall be allocated among the shares issued, or deemed issued, on more than one date, pro rata based upon the total number of shares of Series D Preferred
Stock held by such Eligible Holder and issued, or deemed issued, on each such date; and 


        (iii)  each
Eligible Holder of an Option may tender all or any whole number of the shares of Common Stock issuable upon exercise of such Option (whereby at such Eligible
Holder's discretion the Eligible Holder may obtain the applicable exercise price consideration through a third-party) and may exercise such Option, or portion thereof, at such Eligible Holder's option
contingent on the purchase of the underlying shares in the Tender Offer. 




        (g)   Notwithstanding
anything to the contrary above, except as may otherwise be waived by the Investors, no Eligible Holder who is an employee (together with his or her
Affiliates) of the Company or its Subsidiaries shall be entitled to sell in the Tender Offer Tendered Securities which in the aggregate exceed more than twenty-five percent (25%) of the
aggregate amount of capital stock of
the Company held by such employee and his or her Affiliates on a fully diluted basis. For purposes of this Section 1.6, all shares of Common
Stock, and all shares of Common Stock subject to Warrants and vested and unvested Options, shall be included when determining the total amount of capital stock held by an Eligible Holder who is an
employee of the Company. 


        (h)   Promptly
following the Expiration Date, on a date determined in accordance with the Tender Offer and in any event on or prior to November 1, 2005 (the
"Tender Offer Closing Date"),and upon the terms and subject to the conditions of the Tender Offer, the
Investors shall purchase from the Participating Holders, at the Tender Prices and in accordance with this Section 1.6, the Tendered Securities
free and clear of all Claims. 


        (i)    Subject
to Section 1.6(d), the Purchasers may designate one or more co-investors, subject to each
co-investor being reasonably acceptable to the Company before the Expiration Date, who shall be permitted to purchase Tendered Securities in the Tender Offer after the Investors have
purchased, in the aggregate, Tendered Securities with an aggregate Tender Price equal to at least $450,000,000; provided, that each such
co-investor shall execute a joinder agreement substantially in the form attached hereto as Exhibit L prior to any such purchase. 



        (j)    Notwithstanding
anything in this Agreement to the contrary, in no event shall the Investors or any co-investors be obligated to purchase any shares of Common
Stock that are subject to vesting. 




        1.7    Use of Proceeds.    The proceeds from the sale of the Series E Preferred Shares shall initially be held
in escrow pursuant to the Escrow Agreement. If released to the Company, the Company shall apply the proceeds from the sale of the Series E Preferred Shares for general corporate purposes;  provided that such proceeds shall not be used to repay any indebtedness of the Company and its Affiliates for borrowed money. 


5







 

        1.8    Further Assurances.    The Company and the Investors from time to time after the Closing, at the request of any
other party hereto and without further consideration, shall execute and deliver further instruments of transfer and assignment in a form reasonably acceptable to the parties thereto and take such
other action as a party may reasonably require to more effectively transfer and assign to, and vest in, the Investors, the Securities and all rights thereto, and to fully implement the provisions of
this Agreement. 


Section 2. Representations and Warranties of the Company  


        In order to induce the Investors to enter into this Agreement and consummate the purchase of the Series E Preferred Stock, the Company hereby makes to the
Investors the representations and warranties contained in this Section 2. Such representations and warranties are subject to the qualifications
and exceptions set forth in the disclosure schedule delivered to the Investors pursuant to this Agreement (the "Disclosure Schedule") and, unless
otherwise stated, are made as of the date hereof and the Closing Date. For purposes hereof unless otherwise indicated or the context otherwise requires, all references to the Company shall include all
Subsidiaries (as defined herein) of the Company. References to the knowledge or awareness of the Company are deemed to mean the actual knowledge of the Chief Executive Officer, Executive Vice
President, Senior Vice President, and Chief Financial Officer, Vice President, General Counsel and Secretary, and Vice Presidents-General Managers for the Company's regional offices in their capacity
as officers and not individually. 


        2.1    Organization and Corporate Power.    The Company is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and is duly qualified or registered to do business as a foreign corporation (a) in each jurisdiction listed in Section 2.1 of
the Disclosure Schedule and (b) in each jurisdiction in which the failure to be so duly qualified or registered has had, or would reasonably be expected to have, a
Material Adverse Effect. "Material Adverse Effect" shall mean any event, change, violation, inaccuracy, circumstance or effect that is materially
adverse to the assets, liabilities, condition (financial or other), business, consolidated results of operations or prospects of the Company and its Subsidiaries, taken as a whole, but shall exclude
any event, change, violation, inaccuracy, circumstance or effect disclosed to or known to either Investor as of the date hereof or which affects the wireless industry generally. The Company has all
required corporate power and authority to carry on its business as presently conducted, to enter into and perform this Agreement and the agreements contemplated hereby to which it is a party and to
carry out the transactions contemplated hereby and thereby, including the issuance of the Securities. The copies of the Certificate of Incorporation, as amended as of the Closing Date and certified by
the Secretary of State of Delaware, and the bylaws of the Company (the "Bylaws"), certified by the
Secretary of the Company, furnished to the Investors by the Company on the Closing Date, will be correct and complete as of the date thereof, and the Company is not in violation of any term of the
Certificate of Incorporation or Bylaws. 


        2.2    Authorization and Non-Contravention.    This Agreement constitutes, and all agreements, documents
and instruments executed and delivered by the Company pursuant hereto when executed and delivered shall constitute, valid and binding obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditor's rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law. The execution, delivery and performance of this Agreement and all agreements, documents and instruments executed and delivered by the Company
pursuant hereto, the issuance and delivery of the Series E Preferred Shares, and, upon conversion of the Series E Preferred Shares, the issuance and delivery of the Common Conversion
Shares, have been, or shall be, prior to the Closing, duly authorized by all necessary corporate action of the Company. The Company's execution and delivery of this Agreement and all agreements,
documents and instruments executed and delivered by the Company pursuant hereto, the Company's issuance and delivery of the Series E Preferred Shares, and, upon conversion of the
Series E Preferred Shares, the Company's 


6







 



issuance
and delivery of the Common Conversion Shares and the Company's performance of the transactions contemplated by this Agreement relating to the sale and issuance of the Series E
Preferred Stock and such other agreements, documents and instruments contemplated hereby, do not and will not: (i) violate, conflict with or constitute or result in a violation of or default
(whether after the giving of notice, lapse of time or both) or loss of benefit under any contract or obligation to which the Company is a party or by which its assets are bound other than any such
violations, conflicts or defaults that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (ii) violate, conflict with or constitute or
result in a violation of or default under any provision of the Certificate of Incorporation or Bylaws, or cause the creation of any Claim upon any of the assets of the Company; (iii) materially
violate, conflict with or result in a material violation of or a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order
of, or any restriction imposed by, any court or governmental agency applicable to the Company; or (iv) require from the Company any notice to, declaration or filing with, or consent or approval
of any governmental authority or other third party, except for the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1974 or any
successor statute, as amended and in effect from time to time the "HSR Act"), and such qualifications or filings under applicable securities or
regulatory laws as may be required in connection with the transactions contemplated thereby. 


        2.3    Corporate Records.    To the knowledge of the Company, the corporate record books of the Company accurately
reflect in all material respects the corporate action taken by its stockholders and board of directors and committees. The copies of the corporate records of the Company, as furnished to the
Investors, are in all material respects true and complete copies of the originals of such documents. 



        2.4    Capitalization.    Immediately prior to the Closing, the authorized capital stock of the Company will consist
of (i) 300,000,000 shares of Common Stock, (ii) three hundred (300) shares of Class A Common Stock, and (iii) 25,000,000 shares of Preferred Stock,
(a) 4,000,000 shares of which are designated as Series D Preferred Stock, and (b) 500,000 shares of which are designated as Series E Preferred Stock. As of
August 31, 2005, each Stockholder's shares of Series D Preferred Stock will be convertible into that number of shares of Common Stock as set forth on  Exhibit B. The relative rights,
preferences and other provisions relating to the Common Stock, Class A Common Stock, Series D
Preferred Stock and Series E Preferred Stock will be, as of the Closing Date, as set forth in the Certificate of Incorporation and the
Stockholders Agreement, All of the issued and outstanding shares of capital stock of the Company as of the date hereof are held of record by the Stockholders in the amounts as set forth on  Exhibit B attached hereto. Exhibit B also sets forth for each Stockholder holding
Series D Preferred Stock (1) the date of issuance of each Converted Share (as defined in the Certificate of Incorporation) that was exchanged for shares of Series D Preferred
Stock now held by such Stockholder; (2) the accrued dividends on each share of Series D Preferred Stock as of August 31, 2005; and (3) the number of shares that each share
of Series D Preferred Stock, will be convertible into as of August 31, 2005 (assuming no payment of cash dividends were made). 


        (a)   As
of the date hereof, the Company has reserved 12,321,500 shares of Common Stock for issuance under the Company's Second Amended and Restated 1995 Stock Option Plan
("1995 Stock Option Plan"), of which options to purchase 11,186,910 shares of Common Stock are outstanding as of the date of this Agreement, and
4,700,000 shares of Common Stock for issuance under the Company's 2004 Equity Incentive Compensation Plan ("2004 Equity Plan" and together with the 1995
Stock Option Plan, the "Employee Option Plans"), of which options to purchase 589,806 shares of Common
Stock are outstanding as of the date of this Agreement. Section 2.4(a) of the Disclosure Schedule sets forth the name of each holder of options
under the Employee Option Plans as of the date hereof, together with the number of shares for which such options are exercisable with respect to each holder, the applicable vesting schedule, if any,
and the applicable exercise price, in each case as of the date hereof. 


7









   
        (b)   As of the date hereof, the Company has reserved 1,073,640 shares of Common Stock for issuance pursuant to the exercise of warrants to acquire or receive shares of Common
Stock. Section 2.4(b) of the Disclosure Schedule sets forth as of the date hereof the name of each holder of warrants for Common Stock, together
with the total number of shares for which such warrants are exercisable with respect to each holder, the applicable vesting schedule, if any, and the applicable exercise price, in each case as of the
date hereof. 


        (c)   Except
as disclosed in Section 2.4 of the Disclosure Schedule, or as set forth in the Stockholders Agreement, the
Company's certificate of incorporation, or the Employee Option Plans, as of the date hereof, there are no outstanding subscriptions, options, warrants, commitments, preemptive rights, agreements,
arrangements or commitments of any kind relating to the issuance or sale of, or outstanding securities convertible into or exercisable or exchangeable for, any shares of capital stock of any class or
other equity interests of the Company. Except as set forth in the Employee Option Plans or as disclosed in Section 2.4 of the Disclosure
Schedule, as of the date hereof, none of the options, warrants, subscriptions, commitments, agreements, arrangements or rights disclosed in  Section 2.4 of the Disclosure Schedule is subject to accelerated vesting by reason of the transactions contemplated hereby. Except as disclosed
in Section 2.4 of the Disclosure Schedule or as contained in the Company's certificate of incorporation or the Stockholders Agreement, as of the
date hereof, the Company has no obligation to purchase, redeem, or otherwise acquire any of its capital stock or any interests therein, and has not redeemed any shares of its capital stock in the past
three (3) years. Except as set forth in Section 2.4 of the Disclosure Schedule, as of the Closing, and after giving effect to the
transactions contemplated hereby, all of the outstanding shares of capital stock of the Company will have been duly and validly authorized and issued, fully paid and non-assessable and
will have been offered, issued, sold and delivered in compliance with federal securities laws. As of the Closing, and after giving effect to the transactions contemplated hereby, other than rights set
forth herein or in Section 2.4 of the Disclosure Schedule, in the Certificate of Incorporation, in the Stockholders Agreement, in this Agreement
or in the Employee Option Plans and except as provided herein, the Company is not a party to any (i) preemptive rights, rights of first refusal, rights of first offer, rights of recission, put
or call rights or obligations or anti-dilution rights with respect to the issuance, sale or redemption of the Company's capital stock or any interests therein, (ii) rights to have
the Company's capital stock registered for sale to the public in connection with the laws of any jurisdiction and (iii) documents, instruments or agreements relating to the voting of the
Company's voting securities or restrictions on the transfer of the Company's capital stock. The Company will, upon consummation of the transactions contemplated by this Agreement, have authorized and
reserved a sufficient number of shares of Common Stock necessary to satisfy the rights of conversion of the holders of Series E Preferred Stock and Series D Preferred Stock as set forth
in Exhibit C hereto as of the Closing Date. 



        2.5    Subsidiaries; Investments.    The Company does not own or control, directly or indirectly, any interest in any
other corporation, partnership, limited liability company, association or other business entity, except as set forth in Section 2.5 of the Disclosure
Schedule. Each of the Subsidiaries is wholly-owned, directly or indirectly, by the Company or its other Subsidiaries and there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights, agreements, arrangements or commitments of any
kind relating to the issuance or sale of, or outstanding securities convertible into or exercisable or exchangeable for, any shares of capital stock of any class or other equity interests of any such
Subsidiary. Except as set forth on Section 2.5 of the Disclosure Schedule, the Company has not made any investment and does not hold any interest
in any person, including, without limitation, any officer, director or stockholder of the Company. 


        2.6    Financial Statements.    The Company has previously furnished to the Investors and attached hereto on  Section 2.6 of the Disclosure
Schedule copies of the following financial statements: (i) the Company's unaudited balance sheets for the
fiscal years ended December 31, 2003, and December 31, 2002 and the related unaudited statements of income, statements of stockholders equity and cash flows 


8







 



for
the fiscal years then ended, and (ii) the Company's unaudited balance sheet as of December 31, 2004 and the related unaudited statement of income for the twelve-month period then
ended and the Company's unaudited balance sheet as of June 30, 2005 and the related unaudited statement of income, statements of stockholders equity and cash flows for the six-month
period then ended; provided, however, that the Investors acknowledge and agree that all such financial information is subject to restatement, and such
restatements may be material. The Company's unaudited balance sheet as of June 30, 2005 is referred to herein as the "Base Balance Sheet." The
Base Balance Sheet is consistent in all material respects with the books and records of the Company and fairly present the financial position of the Company as of the date thereof, subject to normal
and recurring year end adjustments in the case of any such financial statements that are unaudited; provided, however, that any such normal and
recurring year end adjustments, individually or in the aggregate, will not have a Material Adverse Effect; and provided, further, that such financial
statements, including the Base Balance Sheet, may not be presented in accordance with generally accepted accounting principles of the United States
("GAAP") and are unaudited and subject to restatement and such restatement may be material. 


        2.7    Absence of Undisclosed Liabilities.    As of the date hereof, the Company does not have any material
liabilities, contingent or otherwise, except liabilities or obligations (i) stated or adequately reserved against in the Base Balance Sheet, (ii) incurred as a result of or arising out
of the transactions contemplated under this Agreement, (iii) incurred in the ordinary course of business since the date of the Base Balance Sheet, (iv) incurred in the ordinary course of
business and not required under GAAP to be reflected in the Base Balance Sheet, (v) as set forth in Section 2.7 of the Disclosure
Schedule, (vi) under the Lucent Contract, (vii) purchase orders for handsets or other goods or services entered into in the ordinary course of business,
(viii) litigation reserves, or (ix) which, individually or in the aggregate, would not be reasonably expected to result in a Material Adverse Effect. 


        2.8    Absence of Certain Developments.    Other than the transactions contemplated hereby or related hereto, since
the date of the Base Balance Sheet, the Company has conducted its business in all material respects only in the ordinary course consistent with past practice and, except as set forth in  Section 2.8 of the Disclosure
Schedule, there has not been: 



        (a)   a
Material Adverse Effect; 


        (b)   any
material mortgage, lien or other encumbrance placed on any of the properties of the Company, other than (i) in the ordinary course of business,
(ii) purchase money liens and liens for taxes not yet due and payable and (iii) the Senior Secured Credit Facility; 



        (c)   any
purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by the Company
involving the payment or receipt of more than $5,000,000 or which were not entered into in the ordinary course of business; 


        (d)   any
declaration, setting aside or payment of any dividend by the Company, or the making of any other distribution in respect of the capital stock of the Company, or any
direct or indirect redemption, purchase or other acquisition by the Company of its own capital stock; 



        (e)   any
labor trouble or claim of unfair labor practices involving the Company which would reasonably be likely to result in a Material Adverse Effect, any change in the
compensation payable or to become payable by the Company to any of its officers or employees other than normal merit increases to officers in accordance with its usual practices, or any bonus payment
or arrangement made to or with any of such officers other than in the ordinary course of business, or any establishment or creation of any employment, deferred compensation or severance arrangement or
employee benefit plan with respect to such persons or the amendment of any of the foregoing; 



9









  



        (f)    any
resignation, termination or removal of any executive officer of the Company or material loss of key personnel of the Company or material change in the terms and
conditions of the employment of the Company's executive officers or key personnel, in each case which occurred on or prior to the date of this Agreement; 



        (g)   any
payment or discharge of a material lien or liability of the Company which was not reflected on the Base Balance Sheet or incurred in the ordinary course of business; 


        (h)   any
contingent liability incurred by the Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim
owing to, or waiver of any material right of, the Company, including any write-off or compromise of any accounts receivable other than (i) in the ordinary course of business
consistent with past practice, (ii) under the Lucent Contract, (iii) purchase orders for handsets and other goods and services entered into in the ordinary course of business,
(iv) litigation reserves, or (v) such contingent liabilities or waivers which, individually or in the aggregate, would not reasonably be likely to result in a Material Adverse Effect; 


        (i)    any
obligation or liability incurred by the Company to any of its executive officers, directors, stockholders holding ten percent (10%) or greater of the fully diluted
equity of the Company ("10% or Greater Stockholder"), or any loans or advances made by the Company to any of its executive officers, directors or 10% or
Greater Stockholders, except normal compensation and expense allowances payable to the executive officers, directors or 10% or Greater Stockholders in the ordinary course of business; 



        (j)    any
change in accounting methods or practices, collection policies, pricing policies or payment policies of the Company that is, individually or in the aggregate,
reasonably likely to result in a Material Adverse Effect; 


        (k)   any
amendment or termination of any Material Contract (as defined below); 


        (l)    any
other transaction entered into by the Company for which the fair market value of the consideration exceeds $5,000,000 other than transactions in the ordinary course
of business or which, individually or in the aggregate, would not be reasonably likely to result in a Material Adverse Effect; 



        (m)  except
as provided in or contemplated by this Agreement, any amendment to the Company's certificate of incorporation or Bylaws; 


        (n)   any
agreement or understanding whether in writing or otherwise, for the Company to take any of the actions specified in paragraphs
(a) through (m) above. 




        2.9    Transactions with Affiliates.    Except for (i) the Stockholders Agreement, (ii) the Employee
Option Plans, (iii) such other employment and compensation arrangements, or (iv) as disclosed in Section 2.9 of the Disclosure
Schedule, there are no loans, leases or other agreements or transactions between the Company or any present 10% or Greater Stockholder, director, executive officer or key
employee of the Company, or to the knowledge of the Company, any member of such executive officer's, director's, key employee's or 10% or Greater Stockholder's immediate family, or to the knowledge of
the Company any person controlled by such executive officer, director, or 10% or Greater Stockholder or his or her immediate family where the Company is obligated to pay in excess of $250,000. Except
as set forth in Section 2.9 of the Disclosure Schedule, no 10% or Greater Stockholder, director or executive officer of the Company, or to the
knowledge of the Company, any of their respective spouses or family members, owns directly or indirectly, on an individual or joint basis, a 10% or greater interest in, or serves as a key officer or
director or in another similar capacity of, any competitor or material supplier of the Company, or any organization which has a material contract or arrangement with the Company. For purposes of this  Section 2.9, a "competitor" of the Company shall 


10







 

mean
a broadband personal communications service ("PCS") provider serving a market area with a substantial overlap with any market served by the
Company. 


        2.10    Properties.    Except as disclosed in Section 2.10 of the Disclosure
Schedule, or which arise under the Lucent Contract or any purchase money security interest arising in the ordinary course of business, the Company has good and valid title to
all of its assets and, as of the date of the Base Balance Sheet, to those assets reflected on the Base Balance Sheet or acquired by it after the date thereof (except for properties disposed of since
that date in the ordinary course of business), free and clear of Claims, except as set forth on Schedule 2.10 of the Disclosure Schedule or for
Permitted Liens or liens for Taxes (as hereinafter defined) not yet due and payable, and liens and encumbrances that, individually or in the aggregate, do not, and would not reasonably be expected to,
result in a Material Adverse Effect. Except for such acts or failures to act that in the aggregate have not resulted in, and would not reasonably be expected to result in, a Material Adverse Effect,
all equipment included in such properties which is necessary to the business of the Company is in good condition and repair (ordinary wear and tear excepted) and all leases of real or personal
property to which the Company is a party are fully effective and afford the Company peaceful and undisturbed possession of the subject matter to the lease (other than those the failure of which,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect). The property and assets of the Company, including the Licenses (as defined herein), are
sufficient for the conduct of its business as presently conducted (except to the extent that the unavailability of such property and assets, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect). Except as set forth in Section 2.10 of the Disclosure Schedule, the Company does not own any real
property or interests in real property other than its leasehold interests. 


        2.11    Tax Matters.    Except as set forth in Section 2.11 of the Disclosure Schedule: 



        (a)   The
Company has timely and properly filed all material federal, state, local and foreign tax returns required to be filed by it through the date hereof, and all such tax
returns filed by the Company are true, correct and complete in all material respects. The Company has paid or caused to be paid all federal, state, local, foreign and other taxes, including without
limitation, income taxes, alternative minimum taxes, excise taxes, sales taxes, franchise taxes, employment and payroll related taxes, withholding taxes, transfer taxes, and all deficiencies, or other
additions to tax, interest, fines and penalties owed by it (collectively, "Taxes"), required to be paid by it through the date hereof whether disputed
or not, except Taxes which have not yet accrued or otherwise become due and Taxes which are being contested in good faith through appropriate proceedings or to the extent that the failure to make any
such payments, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. All Taxes and other assessments and levies which the Company was or is
required to withhold or collect have been withheld and collected and have been paid over to the proper governmental authorities, except for Taxes that are being contested in good faith by appropriate
proceedings or to the extent that the failure to do withhold, collect or make such payments, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Except as set forth in Schedule 2.11 of the Disclosure Schedule: (i) the Company has not waived any statute of limitations in respect of
Taxes or agreed to any extension of time with respect to any Tax payment, assessment, deficiency or collection; (ii) the Company has not received written notice of any audit or of any proposed
deficiencies from the Internal Revenue Service (the "IRS"); and (iii) neither the IRS nor any other taxing authority is now asserting or, to the
knowledge of the Company, threatening to assert against the Company any material deficiency or material claim for additional Taxes or interest thereon or penalties in connection therewith. Except as
set forth in Schedule 2.11 of the Disclosure Schedule, the Company has never been a member of an affiliated group of corporations filing a
combined federal income tax return (other than a group of entities of which the Company is the common parent) nor does the Company have any liability for Taxes of any other Person (other than the
Company and its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar 



11







 

provision
of foreign, state or local law) or otherwise. The Company has not filed a consent under Section 341(f) of the Internal Revenue Code of 1986, as amended (the
"Code"), concerning collapsible corporations. The Company has never been a United States real property holding corporation within the meaning of
Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company is not a party to any Tax allocation or sharing
arrangement. The Company is not a "Foreign Person" within the meaning of Section 1445 of the Code and Treasury Regulations
Section 1.1445-2. 


        (b)   The
taxable year of the Company for federal and state income tax purposes is the fiscal year ended December 31st. 


        (c)   The
Company has never been (i) a passive foreign investment company, (ii) a foreign personal holding company, (iii) a foreign sales corporation,
(iv) a foreign investment company or (v) a person other than a United States person, each within the meaning of the Code. 


        (d)   Neither
the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable
period (or portion thereof) ending after the Closing Date which required inclusions and exclusions, individually or in the aggregate, would reasonably be expected to result in a Material Adverse
Effect as a result of any: 



        (i)    change
in method of accounting for a taxable period ending on or prior to the Closing Date; 


        (ii)   "closing
agreement" as described in Code §7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to
the Closing Date; 


        (iii)  installment
sale or open transaction disposition made on or prior to the Closing Date; or 


        (iv)  prepaid
amount received on or prior to the Closing Date. 




        (e)   Section 2.11 of the Disclosure Schedule sets forth the amount of any net operating loss, net capital loss, unused
investment or other credit, unused foreign tax credit, or excess charitable contribution allocable to the Company and each of its Subsidiaries. 


        (f)    Neither
the Company nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was
purported or intended to be governed in whole or in part by Code §355 or Code §361, except where the liability to the Company resulting from such distributions, individually or
in the aggregate, has not had a Material Adverse Effect. 




        2.12    Certain Contracts and Arrangements.    Except as set forth in Section 2.12 of
the Disclosure Schedule (with the Investors having been given the opportunity to review true and correct copies of each agreement referred to therein), the Company is not a
party or subject to or bound by: 



        (a)   any
contract, lease or agreement (other than under the (i) Lucent Contract, (ii) purchase orders for handsets and other goods and services entered into in
the ordinary course of business, and (iii) litigation reserves) involving a unperformed commitment or payment by the Company in excess of $5,000,000 which is not cancelable by the Company
without penalty on not less than ninety (90) days notice; 


        (b)   any
material indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for borrowing, except for the Senior Secured Credit
Facility; 


        (c)   as
of the date immediately preceding the Closing Date, except for the Stockholders Agreement, the Certificate of Incorporation and the Employee Option Plans (and the
agreements entered into thereunder), any stock redemption or purchase agreements or relating to the capital stock of the Company, including, without limitation, any agreement with any stockholder of
the 



12







 




Company
which includes anti-dilution rights, registration rights, voting rights, operating covenants or similar provisions; 



        (d)   except
for the Employee Option Plans and Employment Benefit Programs, any pension, profit sharing, retirement or stock option plans; 


        (e)   any
joint venture, partnership, manufacturer, development or supply agreement or other agreement which involves a sharing of revenues, profits or losses by the Company
with any other Person, except where such payments by the Company, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; 


        (f)    any
material acquisition, merger or similar agreement in excess of $5,000,000 (except where the only performance outstanding is for indemnity); 



        (g)   any
collective bargaining agreement or other agreement with any labor union or other employee representative of a group of employees; 


        (h)   any
material contract with any governmental entity; or 


        (i)    any
material contract not executed in the ordinary course of business. 




        Except
as provided on Section 2.12 of the Disclosure Schedule, all such contracts, agreements, leases and instruments
(collectively, the "Material Contracts") are valid and are in full force and effect and constitute legal, valid and binding obligations of the Company
and, to the knowledge of the Company,
of the other parties thereto, and are enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditor's
rights generally and subject to general principles of equity, regardless of whether considered in a proceeding or equity or law, and except where any defaults or unenforceability, individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Company has no knowledge of any written notice or overt threat to terminate any such Material Contracts.
Neither the Company nor, to the knowledge of the Company, any other party is in default in complying with any provisions of any Material Contracts, except for such defaults which, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect, and the Company has no knowledge of any condition or event or fact which, with notice, lapse of time or both, would
constitute a default thereunder on the part of the Company, except for any such default, condition, event or fact that, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. 


        2.13    Intellectual Property.    The Company owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other Intellectual Property material to its business, and, to the extent the Company holds title to such Intellectual Property, the use thereof by the Company does not infringe upon the
rights of any other Person, except for any such failure to own, be licensed or infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect. 


        2.14    Litigation.    Except as set forth in Section 2.14 of the Disclosure
Schedule, there is no litigation or governmental or administrative proceeding (except for proceedings affecting the wireless industry generally) or, to the knowledge of the
Company, investigation pending or threatened in writing against the Company or affecting the properties or assets of the Company, or, as to matters related to the Company, to the knowledge of the
Company, against any executive officer, director or key employee of the Company in their respective capacities in such positions that if determined adversely, would reasonably be expected to result in
a Material Adverse Effect. Section 2.14 of the Disclosure Schedule includes a description of all litigation, claims, proceedings or, to the
Company's knowledge, investigations involving the Company or, to the Company's knowledge, any of its officers, directors, stockholders or key employees in connection with the business of the Company
occurring, arising or existing during the past twelve (12) months. 


13









   
        2.15    Labor Matters.    The Company is and heretofore has been in compliance with all applicable laws and
regulations respecting labor, employment, fair employment practices, terms and conditions of employment, occupational safety and health, and wages and hours, except where any failure to so comply,
either individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect. Except as set forth in Section 2.15 of the Disclosure
Schedule, there are no charges of employment discrimination or unfair labor practices or strikes, slowdowns, stoppages of work, or any other concerted interference with normal
operations existing, pending or, to the knowledge of the Company, threatened in writing against or involving the Company which if determined adversely, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. The Company is, and at all times the Company has been, in compliance in all respects with the requirements of the Immigration Reform Control
Act of 1986, except in the foregoing cases where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Except as set forth in  Section 2.15 of the
Disclosure Schedule, there are no changes pending or, to the knowledge of the Company, threatened with respect to (including,
without limitation, the resignation of), the senior management or key employees of the Company nor has the Company received any notice or information concerning any prospective change with respect to
such senior management or key employees which if determined adversely, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Within the last
180 days, the Company has not implemented any plant closing or mass layoff of employees as those terms are defined in the Worker Adjustment Retraining and Notification Act of 1988, amended, or
any similar state or local law or regulation, and no layoffs that could implicate such laws or regulations are currently contemplated. 


        2.16    Permits; Compliance with Laws.    Except as set forth in Section 2.16 of the
Disclosure Schedule, the Company has all franchises, authorizations, approvals, orders, consents, licenses, certificates, permits, registrations, qualifications or other rights
and privileges (collectively "Permits") necessary to permit it to own its property and to conduct its business as it is presently conducted and all such
Permits are valid and in full force and effect, except in the foregoing cases where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect. Except as set forth in Section 2.16 of the Disclosure Schedule, the Company is now in compliance with all applicable statutes,
ordinances, orders, rules and regulations promulgated by any U.S. federal, state, municipal, non-U.S. or other governmental authority, which apply to the conduct of its business, except
where, individually or in the aggregate, the failure to so comply would not reasonably be expected to have a Material Adverse Effect. The Company has not been in the past year, and is not currently,
subject to any material judgment or any material consent decree, compliance order or administrative order with respect to any aspect of the business, affairs, properties or assets of the Company. 


        2.17    Employee Benefit Programs.    


        (a)   The
Company does not maintain or contribute to and for the past five (5) years has not maintained or contributed to, any employee benefit plan within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), any fringe benefit, stock option, equity-based
compensation, phantom stock, bonus or incentive plan, severance pay policy or agreement, retirement, pension, profit sharing or deferred compensation plan or agreement, or any similar plan or
agreement or any plan or arrangement providing compensation to employees or non-employee directors (an "Employee Benefit Program") other
than the Employee Benefit Programs identified and described in Section 2.17(a) of the Disclosure Schedule attached hereto. The terms and
operation of each such Employee Benefit Program comply and have heretofore complied in all respects with all applicable laws and regulations relating to each such Employee Benefit Program except for
any failures to comply which would, individually or in the aggregate, not reasonably be expected to result in a Material Adverse Effect. There are no unfunded obligations of the Company under any
Employee 


14







 



Benefit
Program. The Company is not required to make any payments or contributions to any Employee Benefit Program pursuant to any collective bargaining agreement or, to the knowledge of the Company,
any applicable labor relations law, and all Employee Benefit Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. Except as
described in Section 2.17(a) of the Disclosure Schedule or in connection with a severance or settlement agreement relating to individual
employees, the Company has never maintained or contributed to any Employee Benefit Program providing or promising any health or other nonpension benefits to employees after their employment terminates
other than as required by part 6 of subtitle B of Title I of ERISA. With respect to any Employee Benefit Program, to the knowledge of the Company, there has occurred no "prohibited
transaction," as defined in Section 406 of ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law which could result, directly or indirectly, in any
Taxes, penalties or other liability to the Company, except those that would reasonably be expected to result in a Material Adverse Effect. No litigation, arbitration or governmental administrative
proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of the Company, threatened in writing with respect to any
such Employee Benefit Program, except those that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. 


        (b)   Each
Employee Benefit Program which has ever been maintained by the Company and which has been intended to qualify under Section 401 (a) or 501 (c)(9) of
the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section or the time period for submitting a determination letter request and
adopting retroactive amendments under Code Section 401 (b) and the corresponding regulations is open as of the Closing Date and each such Employee Benefit Plan has, in fact, been
qualified under the applicable section of the Code from the effective date of such Employee Benefit Program through and including the Closing Date (or, if earlier, the date that all of such Employee
Benefit Program's assets were distributed). No event or omission has occurred which would reasonably be expected to cause any such Employee Benefit Program to lose its qualification under the
applicable Code section. Except as set forth in Section 2.17(b) of the Disclosure Schedule, the Company has never maintained any Employee Benefit
Program which has been subject to Title IV of ERISA or Code Section 412, including, but not limited to, any "multiemployer plan" (as defined in Section 3(37) or Section 4001(a)(3)
of ERISA). Each reference to "Company" in this Section 2.17 also refers to any other entity which would have ever been considered a single
employer with the Company under ERISA Section 4001(b) or part of the same "Controlled Group" as the Company for purposes of ERISA Section 302(d)(8)(C). 


        2.18    Insurance Coverage.    The Company maintains, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks which in the reasonable business judgment of the Company are appropriate for companies engaged in the same or similar businesses operating in the same
or similar locations. Except as set forth in Section 2.18 of the Disclosure Schedule and as may occur in the ordinary course of business, there
are currently no claims in excess of $5,000,000 pending against the Company under any insurance policies currently in effect and covering the property, business or employees of the Company, and all
premiums due and payable with respect to the policies maintained by the Company have been paid to date. To the Company's knowledge, there is no threatened termination of any such policies or
arrangements. 


        2.19    Investment Banking; Brokerage.    Except as set forth on Section 2.19 of the
Disclosure Schedule, the Company has not incurred or become liable for any investment banking fees, brokerage commissions, broker's or finder's fees or similar compensation
(exclusive of professional fees to lawyers and accountants) in connection with the transactions contemplated by this Agreement. 


15







 



        2.20    FCC Regulatory Matters.    


        (a)   The
Company holds, directly or indirectly, all the licenses, consents, permits, approvals and authorizations (the
"Licenses") issued by the Federal Communications Commission (the "FCC") which are required in connection
with the ownership and operation of the Company's assets and business as presently conducted by the Company, except for such licenses, consents, permits, approvals and authorizations for which the
failure to so hold would not have a Material Adverse Effect. 


        (b)   The
companies listed on Section 2.20(b) of the Disclosure Schedule (the
"Licensees") are all direct or indirect Subsidiaries of the Company. The Licensees hold the Licenses set forth on  Section 2.20(b) of the Disclosure
Schedule. The Licenses are in full force and effect. The Licenses are not subject to any conditions outside of
the ordinary course that do not appear on the Licenses themselves other than those imposed by applicable law on FCC licenses of a similar class. The Licenses are not subject to any FCC debt. 



        (c)   Except
for proceedings affecting the wireless industry generally or as set forth on Section 2.20(c) of the Disclosure
Schedule, to the knowledge of the Company there is not pending or threatened in writing against the Company, the Licensees or the Licenses any action, formal complaint, claim,
investigation, suit, notice of violation, petition, objection or other pleading or proceeding which seeks the revocation, cancellation, forfeiture, non-renewal or suspension of any of the
Licenses, or which seeks the imposition of any material adverse modification or amendment thereof. 


        (d)   Except
as set forth on Section 2.20(d) of the Disclosure Statement, all documents, notices, reports, payments or
other filings required to be filed or made prior to the date of this Agreement by the Company or the Licensees with the FCC pursuant to applicable law with respect to the Licenses have been timely
filed or made or the time period for such filing or payment has not lapsed, except where the failure to timely file, pay or to make such filing or payment would not have a Material Adverse Effect. To
the knowledge of the Company, all such filings were complete and correct in all material respects when filed. 


        (e)   To
the knowledge of the Company, the Company and the Licensees are in compliance with all Communication Laws applicable to the Licenses, and have complied with the terms
and conditions of the Licenses, except where non-compliance would not have a Material Adverse Effect. 


        (f)    To
the knowledge of the Company, the Company and the Licensees are qualified to hold FCC licenses generally. 


        (g)   To
the knowledge of the Company, the Company has made all required filings with an FCC approved microwave cost sharing clearinghouse and, except as set forth in  Section 2.20(g) of the Disclosure Schedule, has satisfied all cost-sharing obligations due to third parties under the FCC's rules. 



        (h)   Neither
the Company nor the Licensees are in material breach, or otherwise in violation in any material respect, of any FCC buildout or coverage requirements pertaining
to the Licenses. To the extent that construction deadlines have passed, the buildout and coverage requirements in respect of the Licenses have been satisfied, and certification of such buildout and
coverage has been made on a timely basis to the FCC. 


        (i)    The
execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated herein in accordance with the terms of
this Agreement do not violate the Communications Laws, except where such violation would not be reasonably likely to result in a Material Adverse Effect. Except with respect to the consummation of any
portion of the transaction, or the exercise of any Investor remedy, that would result in an assignment or transfer of control of any of the Licenses, neither the Company nor the Licensees are required
to obtain any authorization, consent, approval or waiver from the FCC, or to make any filing with the FCC, in connection with this Agreement. 


16









   
        2.21    Senior Secured Credit Facilities.    The execution and delivery by the Company of First Lien Credit
Agreement
and the Second Lien Credit Agreement, each dated as of May 31, 2005, and the Company's performance of the transactions contemplated by such agreements and such other agreements, documents and
instruments contemplated thereby, did not and will not (i) violate, conflict with or constitute or result in a violation of or default (whether after the giving of notice, lapse of time or
both) or loss of benefit under any contract or obligation to which the Company is a party or by which its assets are bound (except such violations, conflicts or defaults that, individually or in the
aggregate, would not be reasonably expected to result in a Material Adverse Effect), or any provision of the Company's certificate of incorporation or Bylaws, or cause the creation of any Claim (other
than Permitted Liens) upon any of the assets of the Company (except such Claims that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect);
(ii) violate, conflict with or result in a violation of, or constitute a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule,
or any order of, or any restriction imposed by, any court or governmental agency applicable to the Company, except such violations, conflicts or defaults, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect. 


        2.22    Waiver of Rights of First Refusal and Co-Sale.    The Company has obtained an executed waiver, in
the form attached hereto as Exhibit G (the "Waiver"), from a duly authorized representative of
the Company, the holders of 662/3% of the Preferred Stock (as defined in the Amended and Restated Stockholders Agreement dated as of July 17, 2000, as amended (the
"Existing Stockholders Agreement")), the holders of 662/3% of the Series D Preferred Stock and a majority in interest of its
Stockholders pursuant to Section 7.1 of the Existing Stockholders Agreement, and have delivered a copy of the Waiver to the Investors. 


        2.23    Disclosure.    The representations and warranties made or contained in this Agreement, the Disclosure Schedule
and exhibits hereto (subject to the qualifications, limitations, exceptions and assumptions set forth herein and therein), when taken together, do not contain any untrue statement of a material fact
and do not omit to state a material fact required to be stated herein or therein necessary in order to make such representations, warranties or other material not misleading in the light of the
circumstances in which they were made or delivered; provided, however, that all financial information is
subject to restatement and such restatement may be material; provided, further, that with respect to
projected financial information and other forward looking statements, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at
the time they were prepared. 



Section 3. Representations and Warranties of the Investors  


        In order to induce the Company to enter into this Agreement, each Investor severally but not jointly represents and warrants to the Company the following: 


        3.1    Investment Status.    Each Investor is purchasing the Series E Preferred Shares and Tendered Securities
for its own account, for investment only and not with a view to, or any present intention of, effecting a distribution of such securities or any part thereof except pursuant to a registration or an
available exemption under applicable law. Each such Investor acknowledges that its respective Series E Preferred Shares and Tendered Securities have not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), or the securities laws of any state or other jurisdiction and are being offered and sold pursuant to an
exemption from registration contained in the Securities Act based in part upon the representations of the Investors contained in this Agreement and cannot be disposed of unless they are subsequently
registered under the Securities Act and any applicable state laws or an exemption from such registration is available. 


17







 



        3.2    Authority and Non-Contravention.    Each Investor has full right, authority and power under its
charter, bylaws or governing partnership agreement, as applicable, to enter into this Agreement and all agreements, documents and instruments executed by such Investor pursuant hereto and to carry out
the transactions contemplated hereby and thereby. This Agreement and all agreements, documents and instruments executed by each Investor pursuant hereto are valid and binding obligations of each of
the Investors enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditor's rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The execution, delivery and performance of this Agreement and all agreements, documents
and instruments executed by each such Investor pursuant hereto have been, or shall be prior to the Closing, duly authorized by all necessary action under each such Investor's charter, bylaws or
governing partnership agreement, as applicable. The execution, delivery and performance by each Investor of this Agreement and all agreements, documents and instruments to be executed and delivered by
each such Investor pursuant hereto do not and will not: (a) violate, conflict with or constitute or result in a violation or default (whether after the giving of notice, lapse of time or both)
or loss of benefit under, accelerate any obligation under, or give rise to a right of termination of, any material contract, agreement, obligation, permit, license or authorization to which each such
Investor is a party or by which such Investor or its assets is bound, or any provision of each such Investor's organizational documents; (b) violate, conflict with, or result in a violation of,
or constitute a default (whether after the giving of notice, lapse of time or both) under, any provision of any law, regulation or rule, or any order of, or any restriction imposed by, any court or
governmental agency applicable to each such Investor; or (c) require from each such Investor any notice to, declaration or filing with, or consent or approval of, any governmental authority or
other third party (that has not already been obtained). 


        3.3    Investment Banking; Brokerage Fees.    No Investor has incurred or become liable for any investment banking
fees, brokerage commissions, broker's or finder's fees or similar compensation (exclusive of professional fees to lawyers and accountants) in connection with the transactions contemplated by this
Agreement. 


        3.4    Accredited Investors.    Each Investor is an "accredited investor" (as defined in Rule 501 under the
Securities Act). 


        3.5    Restricted Securities.    The Investor understands that the Securities and the Tendered Securities are
characterized as "restricted securities" under the Securities Act inasmuch as they are being acquired from the Company and the Eligible Holders in a transaction not involving a public offering and
that under the Securities Act and applicable regulations under the Securities Act such securities may be resold without registration under the Securities Act only in certain limited circumstances. In
this connection, the Investor represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed by SEC Rule 144 and by the
Securities Act. The Investor understands that the Company is under no obligation to register any of the securities sold under this Agreement or in the Tender Offer except as provided in the
Stockholder's Agreement. The Investor understands that no market now exists for any of the Securities or the Tendered Securities and that it is uncertain whether a market, public or otherwise, shall
ever exist for the Securities or the Tendered Securities. 


        3.6    Disclosure of Information.    Each Investor believes that it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Series E Preferred Shares and the Tendered Securities. Each Investor has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the Series E Preferred Shares and the Tender Offer, and the business, properties, prospects, and financial condition of
the Company and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information
furnished to such Investor or to which such Investor had access. 


18







 



        3.7    Investment Experience.    Each Investor has experience as an investor in securities of companies similar to the
Company and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in the Series E Preferred Shares and Tendered Securities to be purchased by it or the
Conversion Shares issuable upon conversion of the Series E Preferred Shares, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits
and risks of this investment in such securities. 


        3.8    Necessary Funds.    Each Investor has sufficient funds on hand or contractual commitments to obtain funds
necessary to enable such Investor to perform its obligations under this Agreement and to consummate the transactions contemplated herein. No Investor has any knowledge of any facts or circumstances
that are reasonably likely to result such funds not being available on a timely basis in order to consummate the transactions contemplated by this Agreement. 



        3.9    Accuracy of Information.    The information provided to the Company on August 29, 2005 by the Investors
in response to the Questionnaire for Executive Officers, Directors, Persons Nominated or Selected to Become an Executive Officer or Director and Principal Equityholders (subject to the qualification,
limitations, exceptions and assumptions set forth herein and therein), when taken together, does not contain any untrue statement of a material fact and does not omit to state a material fact required
to be stated in order to make such information not misleading in the light of the circumstances in which it was made or delivered. The information provided to the Company on August 29, 2005
with respect to the nature and extent of the foreign ownership of the Investors does not contain any untrue statement of a material fact and does not omit to state a material fact required to be
stated in order to make such information not misleading in the light of the circumstances in which it was made or delivered. 


Section 4. Closing Covenants  


        4.1    Pre-Closing Operations of the Company.    Except as may be consented to in writing by the
Investors, the Company hereby covenants to the Investors, that, after the date hereof and prior to the Closing Date: 



        (a)   The
Company shall use its commercially reasonable effort to not, and shall use its commercially reasonable efforts to cause any Person it Controls to use its
commercially reasonable efforts not to, take, or agree to or commit to take, any action that would result in any of the conditions to the Closing set forth in  Section 7 not being satisfied by, or
would make any representation or warranty contained herein inaccurate in any material respect at, the
Closing Date, or that would materially impair the ability of the Company to consummate the Closing or the other transactions contemplated by this Agreement in accordance with the terms hereof or
thereof or materially delay such consummation; and 


        (b)   The
Company shall not, and shall cause any Person it Controls not to, enter into any agreement, contract, commitment or arrangement to do any of the foregoing. 




        4.2    Closing Efforts.    Prior to the Closing, each party hereto shall use its commercially reasonable efforts to,
and shall use its commercially reasonable efforts to cause all Persons it Controls to use its commercially reasonable efforts to, take all actions and to do all things necessary, proper or advisable
to consummate the transactions contemplated by this Agreement, including, without limitation, using its reasonable efforts to ensure that (a) such party's representations and warranties remain
true and correct in all material respects through the Closing and (b) the conditions to the obligations of the other parties hereto to consummate the transactions contemplated by this Agreement
are satisfied. 


19









   
        4.3    Fees and Expenses.    The Company agrees to reimburse the Investors for all of the Investors' reasonable
out-of-pocket expenses, including reasonable attorneys' and reasonable consultants' fees, (i) related to the purchase of the Series E Preferred Stock, and
(ii) any fees associated with any HSR Act or other regulatory filings related to the purchase of the Series E Preferred Stock incurred on or prior to the Closing (it being understood
that the Company shall be obligated to pay the fees for the work performed by the law firm of each Purchaser on the transaction through July 1, 2005 and for the work of only one such firm (and
one regulatory firm) thereafter to the Closing); provided, however, that in no event shall the Company
be obligated to pay expenses and fees under this Section 4.3exceeding in the aggregate $250,000. 


        4.4    Notice of Certain Events.    Each party shall give prompt written notice to the other parties of (a) the
occurrence or nonoccurrence of any event causing or reasonably likely to cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect at or prior
to the Closing Date, and (b) any failure of any party to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder;  provided,
however, that the delivery of any notice pursuant to this  Section 4.4 shall not serve to cure such breach or non-compliance or limit or otherwise
affect the remedies available hereunder to
the party receiving such notice; provided, further, that if the parties nonetheless proceed to the
Closing, such Closing shall be deemed a waiver of such breach or non-compliance and of any other breach or non-compliance known to the Company, in the case of any breach or
non-compliance on the part of the Investors, or to any of the Investors, in the case of any breach or non-compliance on the part of the Company, as of the Closing Date. In
addition, each of the parties hereto shall give prompt written notice to the other parties hereto of the occurrence after the date hereof or the non-occurrence after the date hereof of any
event that would reasonably be expected to prevent the satisfaction of any of the conditions to their respective obligations set forth in  Section 7 and Section 8 of this Agreement. 



Section 5. Tender Offer Covenants  


        5.1    Pre-Tender Operations of the Company.    Except as may be consented to in writing by the Investors,
the Company hereby covenants to the Investors, that, after the date hereof and prior to the earlier to occur of (i) the Tender Offer Closing Date, (ii) the termination of the Tender
Offer in accordance with its terms, and (iii) November 1, 2005 (the "Interim Period"): 



        (a)   The
business of the Company and its Subsidiaries shall be conducted in all material respects in the ordinary course of business and the Company shall use commercially
reasonable efforts to preserve intact the Company's and its Subsidiaries' present business organization, keep available the services of their current executive officers and key employees and preserve
satisfactory relationships with their material customers, suppliers, distributors and others having business dealings with them, and will take no action which would materially and adversely affect the
ability of the Company to consummate the Closing, the Investors to consummate the Tender Offer and the Company to consummate the other transactions contemplated by this Agreement. 



        (b)   The
Company shall use its commercially reasonable efforts to not, and shall use its commercially reasonable efforts to cause any Person it Controls to use its
commercially reasonable efforts not to, enter into any agreement, contract, commitment or arrangement to do any of the foregoing which could constitute a breach hereof. 




        5.2    Tender Offer Closing Efforts.    Prior to the Tender Offer Closing Date, each Investor shall use its
commercially reasonable efforts, and shall cause all Persons it Controls to use their reasonable efforts, to take all actions and to do all things necessary, proper or advisable to consummate the
transactions contemplated by the Tender Offer, including, without limitation, using their commercially reasonable efforts to ensure that the conditions to the obligations of the other parties hereto
to consummate the transactions contemplated by the Tender Offer are satisfied in a timely manner. 


20







 

        5.3    Access; Confidentiality.    



        (a)   During
the Interim Period, the Company shall, and shall cause any Person it Controls to, (i) give the Investors and their authorized representatives reasonable
access to all books, records, personnel, offices and other facilities and properties of the Company and its Subsidiaries, (ii) permit the Investors to make such copies and inspections thereof
as they may reasonably request, (iii) furnish the Investors with such financial information as the Investors may reasonably request; and (iv) cause the officers of the Company and its
Subsidiaries to furnish the Investors with such financial and operating data and other information with respect to the businesses and properties of the Company and its Subsidiaries as the Investors
may from time to time reasonably request; provided that any such access shall be conducted at reasonable times during normal business hours, under the
supervision of the Company's personnel or representatives and in such a manner reasonably designed to maintain the confidentiality of this Agreement, the transactions contemplated hereby and not to
interfere with the normal operation of the business of the Company. No investigation pursuant to this Section 5.3 shall affect any representation
or warranty in this Agreement of any party hereto or any conditions to the obligations of the parties hereto; provided,  however, that any information
resulting from an investigation prior to the date hereof cannot form the basis for any breach of a representation or
warranty. 


        (b)   Subject
to the Investors' legal obligations to disclose material information to the Stockholders in connection with the Tender Offer, each Investor agrees that each
Investor and its officers, managers, directors, agents, and representatives will hold in strict confidence, and will not use, any confidential or proprietary data or information obtained from the
Company with respect to the Company's business or financial condition except for the purpose of evaluating, negotiating, and completing the transactions contemplated by this Agreement. Information
generally known in the Company's industry except through a breach by a party hereto or which has been disclosed to an Investor by third parties that have a right to do so without an obligation of
confidentiality shall not be deemed confidential or proprietary information for purposes of this Section 5.3. If the transactions contemplated by
this Agreement are not consummated, each Investor will return to the Company (or certify that it has destroyed) all copies of such data and information, including, but not limited to, financial
information, customer lists, contracts, business and corporate records, worksheets, test reports, tax returns, lists, memoranda, and other documents prepared by, containing, excerpting, or otherwise
or made available to such Investor in connection with the transactions contemplated by this Agreement. 


        5.4    Exclusivity.    Until the first to occur of (a) the date that is the thirtieth (30th) calendar day
following the earlier of (i) the date the Investors commence the Tender Offer and (ii) September 2, 2005 (provided, that, if the
Investors are unable to launch the Tender Offer by such date due to the failure of the Company to provide to the Investors any information reasonably requested by the Investors for inclusion in the
Offer Materials, such date will be extended until the date the Company provides such information, but in no event later than September 7, 2005) and (b) a valid termination of this
Agreement, none of the Company, its Subsidiaries or its directors (in their capacity as directors) will (and none of them will take any action to enable or encourage any shareholder, officer,
director, employee, Affiliate, representative or agent including, without limitation, any financial advisor or agent to): 



        (a)   except
as required by applicable law, directly or indirectly, continue, solicit, entertain, initiate, participate in or encourage discussions or negotiations with, or
the submission of bids, offers or proposals by any person or entity with respect to, whether directly or indirectly, an acquisition or equity financing of the Company, any acquisition of any equity
interest in the Company, or a substantially similar transaction involving the infusion of equity (including for any such transaction, soliciting waivers of the rights of first refusal and
co-sale options pursuant to the Existing Stockholders Agreement or, following the Closing, the Stockholders Agreement), or all or substantially all of the assets of the Company (a  "Secondary Purchase Competing
Transaction") or 



21







 

enter
into any agreement, arrangement or understanding regarding a Secondary Purchase Competing Transaction, in each case other than with the Investors; or 


        (b)   except
as required by applicable law, in connection with any Secondary Purchase Competing Transaction, disclose any information not customarily disclosed to any person
or entity (other than the Investors) concerning the Company, or afford to any other person or entity (other than the Investors) access to the properties, books or records relating to the Company. 




        5.5    Tender Offer Cooperation.    The Company covenants and agrees that: 



        (a)   upon
the Investors' reasonable request it will reasonably cooperate to provide, or assist the Investors in obtaining from the Company and its advisors, governmental
authorities, regulatory agencies or otherwise, all information necessary to enable the Investors to prepare for, initiate, conduct and complete the Tender Offer, including (i) the Investors'
preparation of an information statement and the other Offer Materials to be distributed to the Eligible Holders in connection with the Tender Offer, and (ii) a list of the Eligible Holders, the
securities they hold of record and their addresses of record for delivery of the Offer Materials; 


        (b)   it
will provide a statement to the Eligible Holders, pursuant to Rule 14(e)-2 under the Exchange Act; 


        (c)   in
response to any inquiries from Eligible Holders regarding the Tender Offer, it shall not make any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made by the Company, in light of the circumstances under which they were made, not misleading; and 



        (d)   on
the Tender Offer Closing Date, the Company will certify to the Investors the amount of dividends accrued as of the Tender Offer Closing Date on each share of
Series D Preferred Stock being purchased pursuant to the Tender Offer. 




        5.6    Investor Put Right.    


        (a)   "Purchaser" shall mean either (i) TA Associates, Inc. and its Affiliates, collectively, or
(ii) Madison Dearborn Capital Partners IV, L.P. and its Affiliates, collectively. 



        (b)   If
both Purchasers elect not to consummate the Tender Offer Purchase as a result of a Tender Offer Condition (as defined below) not being satisfied or waived, and no
Investor has exercised any conversion, liquidation or redemption rights pursuant to the Certificate of Incorporation, the Purchasers acting together shall have the right (the
"Put Right"), on one occasion, at any time within thirty (30) days after the Expiration Date but
on or prior to November 30, 2005, to require the Company to repurchase all (but not less than all) of the Series E Preferred Shares upon the following terms and conditions: 




        (i)    the
Put Right shall be exercised for all Series E Preferred Stock purchased by the Investors (the "Put
Exercise") pursuant to a written notice (the "Put
Notice") delivered to the Company and the Escrow
Agent, by each Purchaser stating that the Purchasers are exercising the Put Right on behalf of all Investors; 


        (ii)   subject
to the prior receipt of any required FCC approvals, the closing of the Put Exercise (the "Put
Closing") shall take place five (5) business days after delivery of the Put Notice to the Company or on such other date
as may be mutually agreed by the parties (the "Put Closing Date"); 


        (iii)  the
purchase price to be paid to the Investors by the Escrow Agent, on behalf of the Company, in exchange for the delivery to the Company by the Escrow Agent of the
Series E Preferred Shares upon any exercise of the Put Right, shall be $100.00 per share repurchased, plus a pro rata portion of the Escrow Interest, which shall be appropriately adjusted to
reflect 




22







 





any
stock split, reverse stock split, stock dividend, recapitalization or other similar transaction consummated after the Closing and prior to the Put Closing (the "Put
Price"); 



        (iv)  upon
the receipt of the Put Notice, the Company and the Investors shall take all steps necessary to have the Put Price paid by the Escrow Agent to such Investors on the
Put Closing Date; 


        (v)   the
consideration payable to each Investor hereunder shall be paid by wire transfer to one or more accounts as directed by each Investor in writing in immediately
available funds; 


        (vi)  as
a condition to the Put Closing, each Investor shall severally and not jointly represent and warrant to the Company as of the Put Closing Date, that: 



        (A)  such
Investor is the beneficial owner of the Series E Preferred Shares being sold to the Company pursuant to the Put Right, and will convey such Series E
Preferred Shares free and clear of any Claims as of the Put Closing; 


        (B)  no
party has any right to purchase or otherwise acquire such Investor's Series E Preferred Shares pursuant to any option agreement, purchase rights, or other
agreements, documents, or instruments executed or entered into by or on behalf of the Investor other than the Stockholders Agreement; 



        (C)  the
Investors' exercise of the Put Right does not conflict with, constitute a default under, or otherwise violate any such governing documents, or any applicable law,
regulation, order or decree, or
any other material agreement or instrument to which such Investor is subject or by which it or its properties are bound; and 


        (D)  the
Investor has full right, authority and power under its charter, bylaws or governing partnership agreement, as applicable, to exercise the Put Right and all
agreements, documents and instruments executed by such Investor pursuant thereto and to carry out the transactions contemplated thereby, 




        (vii) as
a condition to the Put Closing, the Company shall represent and warrant to each participating Investor as of the Put Closing Date, that: 



        (A)  the
Company's execution and delivery of this Agreement, and its performance of all of its obligations hereunder, have been duly authorized in accordance with the
Company's certificate of incorporation and bylaws; and 


        (B)  the
Company's performance of its obligations in connection with the Investors' exercise of the Put Right does not conflict with, constitute a default under, or otherwise
violate any such governing documents, or any applicable law, regulation, order or decree, or any other material agreement or instrument to which the Company is subject or by which it or its properties
are bound. 






        Notwithstanding
the foregoing, the Put Right shall terminate if at any time on or after the Expiration Date and prior to the delivery of the Put Notice in accordance with the terms
hereof all of the Tender Offer Conditions (as defined below) have been satisfied. 


        (c)   The
Company agrees not to take any actions or enter into any agreements that would impede or Interfere with the ability of the Purchasers to exercise the Put Right.
Until the earlier of the Put Closing or the expiration of the Put Right without valid exercise thereof, the Investors shall not transfer, pledge or otherwise dispose of any Securities. The Investors
agree that their rights pursuant to this Section 5.6 are not assignable. 


23









   
        5.7    Tender Offer Conditions.    The obligations of each Investor to purchase Tendered Securities at the Tender
Offer Closing shall be subject to the fulfillment, to such Investor's reasonable satisfaction or waiver on or before November 1, 2005 or the Tender Offer Closing Date, of the following closing
conditions (collectively, the "Tender Offer Conditions"): 



        (a)   The
Closing shall have occurred. 


        (b)   Each
representation and warranty of the Company set forth in this Agreement that is qualified as to "materiality" (or as to Material Adverse Effect) shall have been true
and correct in all respects and each representation and warranty of the Company set forth in this Agreement that is not so qualified shall have been true and correct in all material respects, in all
cases, as of the Closing Date as though made on and as of the Closing Date, except to the extent that such representations or warranties are specifically made as of a particular date, in which case
such representations and warranties shall be true and correct as of such date. 


        (c)   The
Company will have performed and complied in all material respects with all agreements required by this Agreement to be performed or complied with by it at or prior
to the Tender Offer Closing Date. 


        (d)   The
Tender Offer shall have resulted in the tender to the Investors in accordance with the terms of the Offer Materials of shares of Common Stock and Series D
Preferred Stock with an aggregate purchase price of not less than $75,000,000, as calculated based on the Tender Prices. 


        (e)   No
action or proceeding by or before any court, administrative body or governmental agency shall have been instituted or threatened which seeks to enjoin, restrain or
prohibit, or seeks damages in respect of, the Tender Offer Purchase, or otherwise imposes any restriction or limitation on the ability of the Investors to acquire, hold or exercise the full rights of
ownership of the Tendered Securities. No law or regulation shall be in effect and no court order, injunction, judgment or decree shall have been entered in any action or proceeding instituted by any
party which enjoins, restrains or prohibits the consummation of the Tender Offer Purchase or otherwise imposes any restriction or limitation on the ability of the Investors to acquire or hold the
Tendered Securities. 


        (f)    All
governmental entities and similar bodies, the consent, authorization or approval of which is necessary under any applicable law, rule, order or regulation (excluding
consents, authorizations and
approvals relating to use, occupancy, liens for Tax and similar matters) for the consummation of the Tender Offer Purchase, will have consented to, authorized, permitted or approved the Tender Offer
Purchase, and any waiting periods (and any extensions thereof) under the HSR Act or similar foreign laws applicable to the Tender Offer Purchase will have expired or been terminated, 



        (g)   The
Company shall have made all filings with and notifications of governmental authorities, regulatory agencies and other entities required to be made by it in
connection with the Tender Offer Purchase pursuant to its obligations under this Section 5, if any, and the Investors shall have received copies
of all required authorizations, waivers, Stockholder consents and approvals, and other consents and permits necessary to permit the consummation of the Tender Offer Purchase, including without
limitation the FCC (if necessary), in form and substance reasonably satisfactory to the Investors, from all third parties. 



        (h)   Since
the Closing Date, there shall not have occurred any Material Adverse Effect or a material adverse change in the financial or capital markets or any ruling by the
Federal Communications Commission or any state or public utility commission that materially adversely affects the Company's ability to implement its current business plan (except rulings of general
applicability to the wireless or PCS industry or licensees), but in each case excluding any such change or ruling disclosed to or known to the Investors as of the date hereof. 



24







 




        (i)    The
results of the foreign ownership surveys and the Company certificate referenced in Section 6.13 shall have
been provided to the Investors at least three business days prior to the Expiration Date and all actions mutually agreed upon by the Company and the Investors pursuant to  Section 6.13 to eliminate
any reasonably expected violation of the Foreign Ownership Requirements shall have been completed. 




        5.8    Consents.    



        (a)   During
the Interim Period, each of the Company and its Subsidiaries will use its commercially reasonable efforts to make all necessary filings with and notifications of
governmental authorities, regulatory agencies and other entities required to be made by such parties in connection with the execution and delivery of this Agreement and the performance of the
transactions contemplated hereby, including filings pursuant to the HSR Act and the Communications Act (if any), and obtain all authorizations, waivers, consents and permits, in form and substance
reasonably satisfactory to the Investors, including any and all notices, consents and waivers required from all third parties, including, without limitation, applicable governmental authorities,
regulatory agencies, lessors, lenders and contract parties, including without limitation the FCC (if necessary), required for the consummation of the Tender Offer Purchase (except where a failure to
have such consent or waiver would not reasonably be expected to have a Material Adverse Effect) and to avoid a breach, default, termination,
acceleration or modification of any contract for indebtedness for borrowed money or any other material agreement, contract, instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award as a result of, or in connection with, the execution and performance of this  Section 5 by the Company (except where such breach,
default, termination, acceleration or modification would not reasonably be expected to result
in a Material Adverse Effect). 


        (b)   During
the Interim Period, each of the Investors will use its reasonable efforts to make all filings with and notifications of governmental authorities, regulatory
agencies and other entities required to be made by such Investor in connection with its execution and delivery of this Agreement and its performance of the transactions contemplated hereby in
connection with the Closing and the Tender Offer Closing, including filings pursuant to the HSR Act. 




        5.9    Investor Covenants.    Each Investor covenants that the Tender Offer shall be conducted in material compliance
with all applicable laws, regulations, codes and rules, including but not limited to, the applicable securities laws. 


Section 6.    General Covenants  


        6.1    Publicity.    Except as contemplated by this Agreement or required by law, no press release or public
disclosure, either written or oral, of the transactions contemplated by this Agreement, including the Tender Offer, shall be made by the Investors or the Company without the prior knowledge and
written consent of the Investors and the Company, which consent may not be unreasonably withheld, delayed or conditioned. 


        6.2    Financial Information.    



        (a)   As
soon practicable after completion of the audit therefor, the Company shall furnish to each Investor a consolidated balance sheet of the Company and its Subsidiaries
as of December 31, 2004 and the related consolidated statements of income, stockholders' equity and cash flows for the Fiscal year then ended, prepared in accordance with GAAP and certified by
a firm of independent public accountants of recognized national standing selected by the Board of Directors of the Company, in each case with comparative statements for the prior fiscal year, and the
related consolidated statements of income, stockholders' equity and cash flows for the fiscal 



25







 

year
then ended, which are expected to be restated in connection with the audit of the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2004. 



        (b)   Within
one hundred five (105) days after the end of each fiscal year of the Company ending December 31, 2005 and thereafter, the Company shall furnish to
each Investor a consolidated balance sheet of the Company and its Subsidiaries, as of the end of such fiscal year and the related consolidated statements of income, stockholders' equity and cash flows
for the fiscal year then ended, prepared in accordance with GAAP and certified by a firm of independent public accountants of recognized national standing selected by the Board of Directors of the
Company, in each case with comparative statements for the prior fiscal year. 


        (c)   Within,
forty-five (45) days after the end of each of the first three (3) fiscal quarters in any fiscal year of the Company, the Company shall
furnish to each Investor an unaudited consolidated balance sheet of the Company and its Subsidiaries, and the related unaudited consolidated statements of income, stockholders' equity and cash flows,
such unaudited consolidated balance sheet to be as of the end of such quarter and such unaudited consolidated statements of income, stockholders' equity and cash flows to be for such quarter and for
the period from the beginning of the fiscal year to the end of such quarter, in each case with comparative statements for the prior fiscal year. 


        (d)   The
Company shall furnish to each member of the Board of Directors designated by any Investor consolidated month-end financial information of the Company,
and annual business plans and annual budgets for the Company, in each case to the extent provided to the other members of the Board of Directors generally on or about the date such information is
provided to the other members of the Board of Directors. 




        6.3    Properties, Business Insurance.    The Company shall maintain and cause each of its Subsidiaries to maintain as
to their respective insurable properties and business, with insurers that the Company reasonably believes to be financially sound and reputable, insurance against such casualties, contingencies and
other risks and hazards and of such types and in such amounts as is customary for companies similarly situated. 



        6.4    Directors and Officers' Insurance.    The Company shall maintain directors and officers' liability insurance
coverage to the extent and in the manner customary for companies engaged in the same or similar business, and providing coverage for the duration of such person's tenure as a director and for at least
three years following the date each such person ceases to serve as a director. 


        6.5    Compliance with Laws, Payment of Taxes.    The Company shall comply, and cause each Subsidiary to comply, with
all applicable laws, rules, regulations and orders, the noncompliance with which, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. The Company will pay
and discharge all lawful Taxes, assessments and governmental charges or levies imposed upon it or upon its income or property before the same shall become in default as well as all lawful claims for
labor, materials and supplies which, if not paid when due, might become a lien or charge upon its property or any part thereof; provided,  however, that the
Company shall not be required to pay and discharge any such Tax, assessment, charge, levy or claim (i) so long as the validity
thereof is being contested by the Company in good faith by appropriate proceedings and an adequate reserve therefor has been established on its books or (ii) which, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect. 


        6.6    Investment Banking; Brokerage Fees.    The Company agrees to pay, and to indemnify and hold harmless each
Investor from, any liability for any investment banking fees, brokerage commissions, broker's or finder's fees or similar compensation in connection with the transactions contemplated by this
Agreement payable by the Company or based on any arrangement or agreement made by or on behalf of the Company. 


26







 



        6.7    Enforcement of Rights.    The Company will not effect any transfer of any of the outstanding capital stock of
the Company on the stock record books of the Company unless such transfer is made in accordance with the terms of the Stockholders Agreement, to the extent applicable. 



        6.8    Maintenance of Properties.    The Company will maintain all properties used or useful in the conduct of its
business in good repair, working order and condition, ordinary wear and tear excepted, as reasonably necessary to permit such business to be properly conducted. 


        6.9    Reservation of Shares.    In accordance with its certificate of incorporation, the Company will at all times
reserve for issuance shares of Common Stock sufficient to permit full conversion of all outstanding shares of the Series E Preferred Stock and, from and after the Tender Offer Closing Date,
Series D Preferred Stock, in accordance with their respective terms. 


        6.10    Tender Offer Cooperation.    In response to any inquiries from Eligible Holders, each Investor covenants and
agrees not to make any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. 


        6.11    Post-Closing Acquisition of Securities.    Without limiting  Section 1.6(d) in any respect, for a period of three
(3) years after the Tender Offer Closing Date, without the consent (as evidenced by
written resolutions or a written consent) of the Board of Directors of the Company (excluding any directors designated by the Investors pursuant to the Stockholders Agreement), no Investor (including
its Affiliates) or "group" (as defined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder) of which any Investor
(including its Affiliates) is a member shall acquire, directly or indirectly, any shares of capital stock of the Company or warrants, options or other rights that are convertible into or exchangeable
or exercisable for capital stock of the Company if such acquisition would cause such Investor (including its Affiliates) or "group" to hold capital stock of the Company or warrants, options or other
rights convertible into or exercisable or exchangeable for capital stock of the Company equal to or exceeding either (a) 331/3% of the then outstanding shares of Series D
Preferred Stock and Series E Preferred Stock, taken as a whole (calculated assuming conversion of all shares of Class A Common Stock, Series D Preferred Stock and Series E
Preferred Stock to Common Stock at the then applicable conversion ratio) or (b) 331/3% of the then outstanding shares of Common Stock, Series D Preferred Stock and
Series E Preferred Stock, taken as a whole (calculated assuming conversion of all such shares of Series D Preferred Stock and Series E Preferred Stock to Common Stock at the then
applicable conversion ratio); provided that for the purpose of determining whether an Investor (including its Affiliates) is a member of a "group" under
this Section 6.11, no Investor (including its Affiliates) shall be deemed to be a member of a "group" by virtue of it being a party to, or
excising its rights under, or complying with its obligations under, this Agreement, or the Stockholders Agreement or being entitled to, and exercising, rights, or being subject to and complying with
obligations under, the Company's certificate of incorporation. 


        6.12    Expiration.    Section 6.2 through  Section 6.11 shall terminate on
the earlier of (i) with respect to any Investor, the date such Investor no longer holds at least 10% of
the equity securities of the Company purchased by such Investor pursuant to this Agreement and the Tender Offer, (ii) the consummation of the sale of the Company's securities pursuant to a
registration statement filed by the Company under the Securities Act in connection with the firm commitment underwritten offering of its securities to the general public or (iii) the conversion
of the Series E Preferred Stock pursuant to Article IV(B)(2)(b)(ii) of the Certificate of Incorporation. 


27









   
        6.13    Foreign Ownership Requirements.    The Company shall engage the services of a proxy solicitor experienced
in
conducting foreign ownership surveys using polling procedures recognized by the FCC as acceptable for ascertaining direct and indirect foreign ownership under Section 310(b) of the
Communications Act for companies with widely held stock. As soon as practicable after receiving the results of the survey, the Company shall provide the Investors a certification that, to the
knowledge of the Company, its direct foreign ownership (as so calculated) does not exceed a stated percentage and its indirect foreign ownership (as so calculated) does not exceed a stated percentage.
If such percentages could reasonably be expected to cause the Company to be in violation of the Foreign Ownership Requirements (as defined in the Certificate of Incorporation) upon completion by the
Investors of the Tender Offer, the Company shall reasonably cooperate with the Investors in eliminating such regulatory problem, including, but not limited to and not in any particular order of
priority, preparing, filing and prosecuting an appropriate waiver request with the FCC, developing alternative ownership structures, amending the Corporation's Certificate of Incorporation and/or
obtaining any necessary FCC approvals for such transactions. 


Section 7.    Conditions Precedent to the Obligations of the Investors  


        The obligations of each Investor to purchase and pay for its portion of the Series E Preferred Shares shall be subject to the fulfillment by the Company to
the Investors' reasonable satisfaction or waiver on or before the Closing of the following conditions: 


        7.1    Representations and Warranties.    Each representation and warranty of the Company set forth in this Agreement
that is qualified as to "materiality" (or as to Material Adverse Effect) shall be true and correct in all respects and each representation and warranty of the Company set forth in this Agreement that
is not so qualified shall be true and correct in all material respects, in all cases, as of the Closing Date, as though made on and as of the Closing Date, except to the extent such representations or
warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct in all respects or in all material respects, as applicable, as of
such date. 


        7.2    Performance of Obligations.    The Company will have performed and complied in all material respects with all
agreements required by this Agreement. 


        7.3    Officer's Certificate.    The Company will have delivered to the Investors a certificate to the effect that
each of the conditions specified in Sections 7.1 and 7.2 is satisfied in all respects. 


        7.4    No Material Adverse Effect.    Since the date of this Agreement, there shall not have occurred any Material
Adverse Effect or a material adverse change in the financial or capital markets or any ruling by the Federal Communications Commission or any state or public utility commission that materially
adversely affects the Company's ability to implement its current business plan (except rulings of general applicability to the wireless or PCS industry or licensees), but in each case excluding any
such change or ruling disclosed to or known to the Investors as of the date hereof. 


        7.5    No Litigation.    No action or proceeding by or before any court, administrative body or governmental agency
shall have been instituted or threatened which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, this Agreement or the consummation of the transactions contemplated by
this Agreement. No law or regulation shall be in effect and no court order shall have been entered in any action or proceeding instituted by any party which enjoins, restrains or prohibits this
Agreement or the consummation of the transactions contemplated by this Agreement. 


        7.6    Governmental Approvals.    All governmental entities and similar bodies, the consent, authorization or approval
of which is necessary under any applicable law, rule, order or regulation (excluding consents, authorizations and approvals relating to use, occupancy, liens for Tax and similar 


28







 



matters)
for the consummation of the Investors' purchase of the Series E Preferred Stock will have consented to, authorized, permitted or approved such transactions, and any waiting periods
(and any extensions thereof) under the HSR Act or similar foreign laws applicable to the Investors' purchase of the Series E Preferred Stock will have expired or been terminated, unless such
failure to secure such consent, authorization or approval would not reasonably be expected to result in a Material Adverse Effect. 


        7.7    Certificate of Correction.    The Company shall have adopted the Certificate of Correction in the form attached
hereto as Exhibit H and such Certificate of Correction shall have been filed and become effective under the laws of the State of Delaware. 


        7.8    Certificate of Incorporation.    The Company shall have adopted the Certificate of Incorporation, and such
Certificate of Incorporation shall have been filed and become effective under the laws of the State of Delaware. 


        7.9    Authorization.    The Board of Directors and Stockholders shall have duly adopted resolutions in the form
reasonably satisfactory to the Investors and shall have taken all action necessary for the purpose of authorizing the Company to consummate all of the transactions contemplated hereby (including,
without limitation, the issuance of the Series E Preferred Shares and, upon conversion thereof, the Common Conversion Shares. 


        7.10    Deliveries by the Company to the Investors.    At the Closing, the Company shall have delivered, or shall have
caused to be delivered, to the Investors, all in form and substance reasonably satisfactory to the Investors, the following: 



        (a)   The
Stockholders Agreement executed by the Company and the Stockholders necessary for the effectiveness thereof; 


        (b)   The
Escrow Agreement executed by the Company and the Escrow Agent; 


        (c)   A
Management Rights Letter in the form attached as Exhibit I; 


        (d)   Certificates
issued by (i) the Secretary of State of the State of Delaware certifying that the Company has legal existence and is in good standing; and
(ii) the Secretary of State (or similar authority) of each jurisdiction in which the Company has qualified to do business as a foreign corporation (or is required to be so qualified) as to such
foreign qualification; 


        (e)   A
certificate issued by the Secretary of State of the State of Delaware certifying that the Certificate of Incorporation has been filed and is effective; 


        (f)    A
certificate executed by the Secretary of the Company certifying (i) the names of the officers of the Company authorized to sign this Agreement and the other
agreements, documents and instruments executed by the Company pursuant hereto, together with the true signatures of such officers; (ii) copies of consent actions taken by the Board of Directors
and Stockholders authorizing the appropriate officers of the Company to execute and deliver this Agreement and all agreements, documents and instruments executed by the Company pursuant hereto, and to
consummate the transactions contemplated hereby and thereby, including, without limitation: (A) the adoption of the Certificate of Incorporation; (B) the issuance of the Series E
Preferred Shares; and (C) upon conversion of the Series E Preferred Shares, the issuance of the Common Conversion Shares; and (iii) the effectiveness, and setting forth a copy of,
the Certificate of Incorporation; 


        (g)   An
opinion of Vinson & Elkins LLP, counsel for the Company, dated as of the Closing Date, substantially in the form attached hereto as  Exhibit J; 



        (h)   Evidence
that stock certificates evidencing the Series E Preferred Shares acquired from the Company hereunder have been delivered to the Escrow Agent; 



29









  



        (i)    Director
Indemnification Agreements executed by the Company in favor of James N. Perry, Jr. and C. Kevin Landry substantially in the form attached hereto as  Exhibit K; provided that the Directors Indemnification Agreement in favor of James N. Perry, Jr.
shall only be effective at such time as the Investors are entitled to designate two (2) members of the Board of Directors pursuant to Section 2.2 of the Stockholders Agreement; and 


        (j)    Such
other supporting documents and certificates as the Investors may reasonably request or as may be required pursuant to this Agreement. 




        7.11    Fees and Expenses.    The Company shall have reimbursed the Investors for the Investors' expenses pursuant to  Section 4.3. 



Section 8.    Conditions Precedent to the Obligations of the Company  


        The obligations of the Company to issue, sell and deliver the Series E Preferred Shares shall be subject to the fulfillment by the Investors to the
Company's reasonable satisfaction or waiver on or before the Closing of the following conditions: 


        8.1    Representations and Warranties.    Each representation and warranty of the Investors set forth in this
Agreement shall be true and correct in all material respects, in all cases, as of the Closing Date as though made on and as of the Closing Date. 



        8.2    Performance of Obligations.    The Investors shall have performed in all material respects all obligations and
shall have complied in all material respects with all covenants to be performed or complied with by them on or prior to the Closing by them under this Agreement. 


        8.3    Officer's Certificate.    The Company shall have received from each Investor a certificate executed by a duly
authorized Person to the effect that the conditions set forth in Sections 8.1and 8.2 above are true and
correct. 


        8.4    Approvals, Consents and Waivers.    Each Investor shall have made all filings with and notifications of
governmental authorities, regulatory agencies and other entities required to be made by such Investor in connection with its execution and delivery of this Agreement and its performance of the
transactions contemplated hereby. 


        8.5    No Litigation.    No action or proceeding by or before any court, administrative body or governmental agency
shall have been instituted or threatened which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, this Agreement or the consummation of the transactions contemplated by
this Agreement. No law or regulation shall be in effect and no court order shall have been entered in any action or proceeding instituted by any party which enjoins, restrains or prohibits this
Agreement or the consummation of the transactions contemplated by this Agreement. 


        8.6    Governmental Approvals.    All governmental entities and similar bodies, the consent, authorization or approval
of which is necessary under any applicable law, rule, order or regulation (excluding consents, authorizations and approvals relating to use, occupancy, liens for Tax and similar matters) for the
consummation of the Investors' purchase of the Series E Preferred Stock will have consented to, authorized, permitted or approved such transactions, and any waiting periods (and any extensions
thereof) under the HSR Act or similar foreign laws applicable to the Investors' purchase of the Series E Preferred Stock will have expired or been terminated, unless such failure to secure such
consent, authorization or approval would not reasonably be expected to result in a Material Adverse Effect. 


30







 



        8.7    Deliveries by the Investors to the Company.    At the Closing, the Investors shall deliver, or shall have
caused to be delivered, to the Company, the following: 



        (a)   Evidence
of one or more wire transfers of immediately available funds by the Investors to the Escrow Agent in an aggregate amount equal to the Purchase Price; 


        (b)   The
Stockholders Agreement executed by each of the Investors; 


        (c)   The
Escrow Agreement executed by the Investors and the Escrow Agent; 


        (d)   Fully
completed director and officer questionnaires from each director to be appointed by the Investors in a form reasonably requested by the Company; and 



        (e)   Such
other supporting documents and certificates as the Company may reasonably request and as may be required pursuant to this Agreement. 




Section 9.    Termination  


        9.1    Termination.    Notwithstanding anything to the contrary set forth in this Agreement, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing Date: 



        (a)   By
the mutual written consent of the Company and the Investors; 


        (b)   By
the Company or the Investors if any governmental authority shall have issued an order, decree or ruling or taken any other action which permanently restrains, enjoins
or otherwise prohibits the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable; 


        (c)   By
the Company or the Investors if the Closing shall not have occurred on or prior to August 31, 2005 (subject to extension as provided herein),  provided that (i) the Company may not terminate
this Agreement pursuant to this  Section 9.1(c) if the failure of the Company to fulfill its obligations under this Agreement or to effect the satisfaction of any of the
conditions set forth in Section 7 shall have caused the Closing not to have occurred on or before such date and (ii) the Investors may not
terminate this Agreement pursuant to this Section 9.1(c) if the failure of any Investor to fulfill any of its obligations under this Agreement or
to effect the satisfaction of any of the conditions set forth in Section 8 shall have caused the Closing not to have occurred on or before such
date; 


        (d)   By
the Company if the Investors shall have breached in any material respect any of their respective representations, warranties, covenants or other agreements contained
in this Agreement which would give rise to the failure of a condition set forth in Section 8, which breach has not been cured within twenty
(20) days after the giving of written notice by the Company to the Investors specifying such breach; provided that the Company may terminate this
Agreement pursuant to this Section 9.1(d) only if the Company has not breached (or continues to breach) in any material respect any of its
representations, warranties, covenants and agreements hereunder prior to such notice to the Investors; or 


        (e)   By
the investors if the Company shall have breached in any material respect any of its respective representations, warranties, covenants or other agreements contained in
this Agreement which would give rise to the failure of a condition set forth in Section 7, which breach has not been cured within twenty
(20) days after the giving of written notice by the Investors to the Company specifying such breach; provided, the Investors may terminate this
Agreement pursuant to this Section 9.1(e) only if no Investor has breached (or continues to breach) in any material respect any of its
representations, warranties, covenants and agreements hereunder prior to such notice to the Company. 



31







 

        9.2    Effect of Termination.    In the event of the termination of this Agreement by any party hereto pursuant to the
terms of this Agreement, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination of this Agreement is made, and
this Agreement shall become void and of no further force and effect, except for the provisions of (a) Section 5.3 relating to certain
confidentiality obligations, (b) Section 11.6 relating to notices,
(c) Section 6.1 relating to publicity, and (f) this Section 9. Nothing in
this Section 9 shall be deemed to release any party from any liability for any material breach by such party of the terms and provisions of this
Agreement or to impair the right of any party to exercise any remedies that may be available, including, without limitation, specific performance by any other party of their respective obligations
under this Agreement; provided, however, that in the event the transactions are not consummated as a
result of the breach of any warranty or representation relating to the financial statements or the capitalization information contained herein, the Investor's sole remedy shall be the payment by the
Company of the Investor's expenses as set forth in Section 4.3 hereof. 



Section 10.    Survival of Representations and Warranties; Transaction Related Indemnification  


        10.1    Survival of Representations and Warranties.    



        (a)   All
representations, warranties, covenants, and agreements of the Company and the Investors made in this Agreement (i) shall be deemed to have been relied upon by
the party or parties to whom they are made, and shall survive the Closing to the extent set forth in Section 10.1(b) and (ii) shall bind
the parties' successors and assigns (including, without limitation, any successor to the Company by way of acquisition, merger or otherwise), whether so expressed or not, and, except as otherwise
provided in this Agreement, all such representations, warranties, covenants and agreements shall inure to the benefit of the parties (subject to  Section 11.2 below) and their respective successors
and assigns, but not to their transferees of Securities, whether so expressed or not. 


        (b)   The
representations and warranties contained in Section 2 and  Section 3 hereof shall expire and terminate and be of no further force and effect after
the second anniversary of the Closing, except that any
written claim for breach thereof made prior to such expiration date and delivered to the party against whom such indemnification is sought shall survive thereafter and, as to any such claim, such
applicable expiration will not effect the rights to indemnification of the party making such claim; provided,  however, that any such written claim by the
Investors with respect to a breach of the representations and warranties of the Company may (i) with
respect to a breach of the representations or warranties contained in Section 2.1,  Section 2.2 and Section 2.4 or with respect to fraud, intentional misrepresentation or a
deliberate or willful breach of any representations or warranties by the Company, be given at any time and (ii) with respect to a breach of the representations or warranties contained in  Section 2.11, Section 2.18, and  Section 2.20 be given at any time prior to the expiration of the applicable statute of limitations;  provided, further, that any such claim by the Company with respect to a breach of the representations or
warranties contained in Sections 3.1, 3.2, 3.4,  3.5,
3.6 and 3.7 or with respect to fraud, intentional
misrepresentation or a deliberate or willful breach of any representations or warranties by the Investors, be given at any time. 


        (c)   Notwithstanding
anything to the contrary set forth herein, from and after the Closing, the maximum aggregate liability of the Investors to the Company under this  Section 10 or otherwise for Losses shall be equal
to the Purchase Price paid by the Investors at the Closing. Subject to the foregoing, the
Company shall not be entitled to recover from the Investors for Losses in excess of actual compensatory damages. The Investors shall not have any liability to the Company for, and the Company waives
any right of the Company to recover, punitive, incidental, special, exemplary or consequential damages, lost profits or diminution in value, arising in connection with or with respect to this
Agreement. 



32









   
        10.2    Transaction Related Indemnification.    



        (a)   From
and after the Closing, subject to this Section 10, the Company agrees to defend, indemnify and hold the
Investors, their respective officers, directors, partners, investors and Affiliates and direct and indirect partners (including partners of partners and stockholders and members of partners), members,
stockholders, directors, officers, employees and agents and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
(collectively, the "Investor Indemnified Parties" and, individually, an "Investor Indemnified Party")
harmless from and against any and all damages, liabilities, losses, claims, obligations, liens, assessments, judgments, Taxes, fines, penalties, reasonable costs and expenses (including, without
limitation, reasonable fees of a single counsel representing the Investor Indemnified Parties), as the same are incurred, of any kind or nature whatsoever (whether or not arising out of third-party
claims and including all reasonable and out-of-pocket amounts paid in investigation, defense or settlement of the foregoing)
("Losses") which may be sustained or suffered by any such Investor Indemnified Party based upon, arising out of, or by reason of any breach of
(a) any representation or warranty made by the Company in Section 2 of this Agreement, and (b) any covenant or other agreement made
by the Company in Section 4, Section 5 or  Section 6, which exceed individually or in the
aggregate $500,000. 


        (b)   Notwithstanding
anything to the contrary set forth herein, from and after the Closing, the maximum aggregate liability of the Company under this  Section 10 or otherwise for Losses shall be equal to the Purchase
Price paid by the Investors at the Closing. Subject to the foregoing, no
Investor Indemnified Party shall be entitled to recover from the Company for Losses in excess of actual compensatory damages. The Company shall not have any liability for, and the Investor Indemnified
Parties waive any right to recover, punitive, incidental, special, exemplary or consequential damages, lost profits or diminution in value, arising in connection with or with respect to this
Agreement, except to the extent such damages are payable to an unrelated third party. 


        (c)   Each
Investor and Investor Indemnified Party acknowledges and agrees that, after the Closing, notwithstanding any other provision of this Agreement to the contrary, the
sole and exclusive remedies of the Investor Indemnified Parties with respect to claims for Losses or otherwise in connection with, arising out of or resulting from the subject matter of this Agreement
and the transactions contemplated hereby shall be limited solely to (i) indemnification under, and in accordance with, the provisions of this  Section 10 and (ii) the exercise of any
rights such Investor or Investor Indemnified Party has under Section (B)(6)(b) of
Article IV of the Certificate of Incorporation; provided, that such Investors' rights under Section (B)(6)(b) of Article IV of the
Certificate of Incorporation shall be considered as a factor when determining the amount of Losses hereunder. 


        (d)   Each
Investor Indemnified Party shall use commercially reasonable efforts to mitigate all Losses, including availing itself of any commercially reasonable defenses,
limitations, rights of contribution, claims against third Persons and other rights at law or equity. The Investor Indemnified Parties' commercially reasonable efforts shall include the reasonable
expenditure of money to mitigate or otherwise reduce or eliminate any loss or expenses for which indemnification would otherwise be due. 


        (e)   Any
Loss shall be net of (i) the dollar amount of any insurance or other proceeds actually received by any Investor Indemnified Party or any of their Affiliates
with respect to the Loss, (ii) the amount of recoveries from any third party actually received by any Investor Indemnified Party, and (iii) the amount of any Tax benefit available to
reduce Taxes by any Investor Indemnified Party arising from the incurrence or payment of any such Losses. Any party seeking indemnity hereunder shall use commercially reasonable efforts to seek
coverage (including both 



33







 




costs
of defense and indemnity) under applicable insurance policies with respect to any such Loss; provided that no party is required hereby to maintain any insurance therefor. 



        (f)    The
Company shall, upon payment of such indemnity, be subrogated in full to all rights of the Investor Indemnified Party with respect to the Loss to which such
indemnification relates. 




        10.3    Notice; Payment of Losses; Defense of Claims.    



        (a)   An
Investor Indemnified Party shall give written notice of a claim for indemnification to the Company promptly after receipt of any written claim by any third party and
in any event not later than twenty (20) business days after receipt of any such written claim (or not later than ten (10) business days after the receipt of any such written claim in the
event such written claim is in the form of a formal complaint filed with a court of competent jurisdiction and served on the Investor Indemnified Party), specifying in reasonable detail the amount,
nature and source of the claim, and including therewith copies of any notices or other documents received from third parties with respect to such claim;  provided, however, that failure to give such notice shall not limit the right of an Investor Indemnified
Party to recover indemnity or reimbursement except to the extent that the Company suffers any material prejudice or material harm with respect to such claim as a result of such failure. The Investor
Indemnified Party shall also provide the Company with such further information concerning any such claims as the Company may reasonably request by written notice. 


        (b)   In
the case of any third party claim, if within thirty (30) business days after receiving the notice described in the preceding  paragraph (a), the Company gives written notice to the Investor
Indemnified Party stating that the Company would be liable under the provisions
hereof for indemnity in the amount of such claim if such claim were valid and that the Company disputes and intends to defend against such claim, liability or expense at the Company's own cost and
expense, then counsel for the defense shall be selected by the Company (and such Company shall not be required to make any payment to the Investor Indemnified Party with respect to such claim,
liability or expense; provided, however, that the assumption of defense of any such matters by the
Company shall relate solely to the claim, liability or expense that is subject or potentially subject to indemnification. If the Company assumes such defense in accordance with the preceding sentence,
it shall have the right to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled provided the Company's obligation to indemnify such Investor
Indemnified Party therefor will be fully satisfied only by payment of money by the Company pursuant to a settlement which includes a complete release of such Investor Indemnified Party. The Company
shall keep such Investor Indemnified Party apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, shall furnish such Investor Indemnified
Party with all documents and information that such Investor Indemnified Party shall reasonably request. Notwithstanding anything herein stated, such Investor Indemnified Party shall at all times have
the right to fully participate in such defense at its own expense directly or through counsel; provided,  however, if the named parties to the action or
proceeding include both the Company and the Investor Indemnified Party and representation of both parties
by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Investor Indemnified Party shall be paid by the
Company provided that such Company shall be obligated to pay for only one counsel for all Investor Indemnified Parties (plus one local counsel in any jurisdiction). If no such notice of intent to
dispute and defend is given by the Company, or if such diligent good faith defense is not being or ceases to be conducted, such Investor Indemnified Party may undertake the defense of (with counsel
selected by such Investor Indemnified Party), and shall have the right to compromise or settle, such claim, liability or expense (exercising reasonable business judgment) with the consent of the
Company, which consent shall not be unreasonably withheld. If such claim, liability or expense is one that by its nature cannot be defended solely by the Company, then such Investor 



34







 




Indemnified
Party shall make available all information and assistance that the Company may reasonably request and shall cooperate with the Company in such defense. 




Section 11.    General  


        11.1    Waivers and Consents; Amendments.    



        (a)   For
the purposes of this Agreement and all agreements, documents and instruments executed pursuant hereto, no course of dealing between or among any of the parties
hereto and no delay on the part of any party hereto in exercising any rights hereunder or thereunder shall operate as a waiver of the rights hereof and thereof. No covenant or provision hereof may be
waived otherwise than by a written instrument signed by the party or parties so waiving such covenant or other provision as contemplated herein. 


        (b)   No
amendment to, or waiver of any provision of, this Agreement may be made without the written consent of the Company and the Investors holding a majority of the
Series E Preferred Stock or, if made prior to the Closing, the Investors obligated to purchase a majority of the Series E Preferred Stock on the Closing Date (a
"Majority Interest"). 


        (c)   Any
actions required to be taken with respect to consents, approvals or waivers required or contemplated to be given by the Investors hereunder shall require a vote of
Investors holding a Majority Interest, and any such action by such Majority Interest shall bind all of the Investors. 




        11.2    Legend on Securities.    The Company and the Investors acknowledge and agree that the following legend shall
be typed on each certificate evidencing any of the securities issued hereunder held at any time by the Investors: 


        THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), OR ANY STATE SECURITIES OR BLUE
SKY LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND
BLUE SKY LAWS. 


        11.3    Governing Law.    This agreement shall be governed by, construed in accordance with, and enforced under, the
law of the State of New York applicable to agreements or instruments entered into and performed entirely within such state. 


        11.4    Section Headings; Construction.    The descriptive headings in this Agreement have been inserted for
convenience only and shall not be deemed to limit or otherwise affect the construction of any provision thereof or hereof. The use in this Agreement of the masculine pronoun in reference to a party
hereto shall be deemed to include the feminine or neuter, and vice versa, as the context may require. The parties have participated jointly in the negotiation and drafting of this Agreement and the
other agreements, documents and instruments executed and delivered in connection herewith with counsel sophisticated in investment transactions. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the agreements, documents and instruments executed and delivered in connection herewith shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement and the agreements, documents and instruments executed and
delivered in connection herewith. 


35









   
        11.5    Counterparts.    This Agreement may be executed simultaneously in any number of counterparts, each of which
when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute but one and the same document. 



        11.6    Notices and Demands.    Any notice or demand which is required or provided to be given under this Agreement
shall be deemed to have been sufficiently given and received for all purposes when delivered in writing by hand, telecopy, telex or other method of facsimile or electronic communication, or five
(5) days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, or two (2) days after being sent by overnight delivery providing receipt
of delivery, to the following addresses: 



if
to the Company: 



MetroPCS
Communications, Inc.

8144 Walnut Hill Lane

Suite 800

Dallas, Texas 75231

Attention: Legal Department

Telephone: (214) 265-2550

Telecopy: (866) 685-9618 




with
a copy (which shall not constitute notice) to: 



Vinson &
Elkins L.L.P.

Trammell Crow Center

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201-2975

Attention: Jeffrey A. Chapman

Telephone: (214) 220-7797

Telecopy: (214) 999-7797 





or
at any other address designated by the Company, to the Investors and the other parties hereto in writing; 



if
to the Investors: 



TA
Associates, Inc.

High Street Tower, Suite 2500

125 High Street

Boston, MA 02110

Attention: C. Kevin Landry

Telephone: (617) 574-6700

Telecopy: (617) 574-6728 




and 



Madison
Dearborn Partners, LLC

Three First National Plaza

Suite 3800

Chicago, IL 60602

Attention: James N. Perry, Jr.

Telephone: (312) 895-1000

Telecopy: (312) 895-1001 




36







 




with
a copy (which shall not constitute notice) to: 



Goodwin
Procter, LLP

Exchange Place

Boston, MA 02109

Attention: Jeffrey C. Hadden and Kevin M. Dennis

Telephone: (617) 570-1000

Telecopy: (617) 523-1231 





or
at any other address designated by the Investors to the Company in writing. 


        11.7    Dispute Resolution.    


        (a)   All
disputes, claims, or controversies arising out of or relating to this Agreement, the Escrow Agreement or any other agreement executed and delivered pursuant to this
Agreement (other than the Stockholders Agreement) or the negotiation, breach, validity or performance hereof and thereof or the transactions contemplated hereby and thereby, that are not resolved by
mutual agreement shall be resolved solely and exclusively by binding arbitration to be conducted before J.A.M.S./Endispute, Inc. in New York, New York before a single arbitrator (the
"Arbitrator"). The parties understand and agree that this arbitration shall apply equally to claims of fraud or fraud in the inducement. 


        (b)   The
parties covenant and agree that the arbitration shall commence within one hundred and eighty (180) days of the date on which a written demand for arbitration
is filed by any party hereto (the "Filing Date"). In connection with the arbitration proceeding, the Arbitrator shall have the power to order the
production of documents by each party and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the Arbitrator may in his or her discretion allow
additional depositions upon good cause shown by the moving party. However, the Arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission.
In connection with any arbitration, each party shall provide to the other, no later than seven (7) business days before the date of the arbitration, the identity of all persons that may testify
at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party's witnesses or experts. The Arbitrator's decision and award shall be made and
delivered within two hundred and forty (240) days of the Filing Date. The Arbitrator's decision shall set forth a reasoned basis for any award of damages or finding of liability. The Arbitrator
shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages or any other damages that are specifically excluded under
this Agreement, and each party hereby irrevocably waives any claim to such damages. 


        (c)   The
parties covenant and agree that they will participate in the arbitration in good faith and that they will, except as provided in  Section 10.2 of this Agreement, (i) bear their own attorneys'
fees, costs and expenses in connection with the arbitration, and
(ii) share equally in the fees and expenses charged by the Arbitrator. Any party unsuccessfully refusing to comply with an order of the Arbitrators shall be liable for costs and expenses,
including reasonable out-of-pocket attorneys' fees, incurred by the other party in enforcing the award. This Section 11.7
applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without
prior arbitration for the purpose of avoiding immediate and irreparable harm or to enforce its rights under any non-competition covenants. 


        11.8    Consent to Jurisdiction.    Except as provided in  Section 11.7(c) and 11.10, each of the parties hereto irrevocably and unconditionally consents to
the jurisdiction of J.A.M.S./Endispute, Inc. to resolve all disputes, claims or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant
to this Agreement (other than the Stockholders Agreement) or the negotiation, breach, validity or performance hereof and thereof or the transactions contemplated hereby and thereby, and further
consents to the sole and exclusive jurisdiction of the courts situated in 


37







 



the
State of New York, County of New York (including without limitation the United States District Court for the Southern District of New York) for the purposes of enforcing the arbitration provisions
of Section 11.8 of this Agreement. Each party further irrevocably waives any objection to proceeding before the Arbitrator based upon lack of
personal jurisdiction or to the laying of venue and further irrevocably and unconditionally waives and agrees not to make a claim in any court that arbitration before the Arbitrator has been brought
in an inconvenient forum. Each of the parties hereto hereby consents to service of process by registered mail at the address to which notices are to be given. Each of the parties hereto agrees that
its or his submission to jurisdiction and its or his consent to service of process by mail is made for the express benefit of the other parties hereto. 


        11.9    Remedies; Severability.    Notwithstanding  Sections 11.7 and 11.8 above,
it is specifically understood and agreed that any breach of the
provisions of this Agreement, the Stockholders Agreement, the Escrow Agreement or any other agreement executed and delivered pursuant to this Agreement (other than the Stockholders Agreement), by any
person subject hereto will result in irreparable injury to the other parties hereto, that the remedy at law alone will be an inadequate remedy for such breach, and that, in addition to any other
remedies which they may have, such other parties may enforce their respective rights by actions for specific performance (to the extent permitted by law). Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be deemed prohibited or invalid under such applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, and such prohibition or invalidity shall not invalidate the remainder of such provision or the other
provisions of this Agreement. 


        11.10    Integration.    This Agreement, including the exhibits, documents and instruments referred to herein or
therein constitute the entire agreement, and supersede all other prior and contemporaneous agreements and understandings, both written and oral, among the parties with respect to the subject matter
hereof and thereof, including, without limitation, the provisions of the letter of intent between the parties hereto in respect of the transactions contemplated herein, which provisions of the letter
of intent shall be completely superseded by the representations, warranties, covenants and agreements of the Company contained herein. 



        11.11    Assignability; Binding Agreement.    Each Investor may assign any or all of its rights hereunder to any
transferee of its shares in a Transfer permitted under the Stockholders Agreement and otherwise complying with applicable law; provided,  however, that the
Investor may not assign its rights under Section 1.2,  Section 1.5, Section 1.6,  Section 5.4, Section 5.5,  Section 5.6 or Section 10
hereof. This Agreement may not otherwise be assigned by any
party hereto without the prior written consent of each other
party hereto. Any assignment in violation of the foregoing shall be null and void ab initio. This Agreement (including, without limitation, the
provisions of Section 10) shall be binding upon and enforceable by, and shall inure to the benefit of, the parties hereto and their respective
successors, heirs, executors, administrators and permitted assigns, and no others. Notwithstanding the foregoing nothing in this Agreement is intended to give any Person not named herein the benefit
of any legal or equitable right, remedy or claim under this Agreement, except as expressly provided herein. 



        11.12    Certain Definitions.    For purposes of this Agreement, the term: 


        (a)   "Affiliate" means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person; provided, that for purposes of  Section 1.6, the term "Affiliate" shall not include the family members of any employee if such family members are also employees of the Company
or live within the same household; and, for the avoidance of doubt, Royal Street Communications LLC is not an Affiliate of the Company. 


38









   
        (b)   "Communications Laws" means the Communications Act of 1934, as amended, codified at 47 USC Section 151  et seq., and the rules, regulations, published policies, published decisions, and published orders of the FCC promulgated thereunder. 



        (c)   "Control" (including the terms "controlled by" and "under common control with") means the possession, directly or
indirectly, or as trustee or executor, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of stock, as trustee or executor, by contract
or credit arrangement or otherwise; 


        (d)   "Permitted Liens" shall mean any Claims arising under the Senior Secured Credit Facility or any other Claims that
constitute "Permitted Liens" as defined in the Senior Secured Credit Facility; 



        (e)   "Person" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof; 


        (f)    "Senior Secured Credit Facility" means that certain $500,000,000 First Lien Credit Agreement, dated as of May 31,
2005, among MetroPCS, Inc., MetroPCS Wireless, Inc. as Borrower, the Several Lenders for Time to Time Parties Hereto, Bear Stearns Corporate Lending Inc., as Administrative Agent
and Syndication Agent, Bear, Stearns & Co. Inc., as Sole Lead Arranger and Sole Bookrunner and Merrill Lynch, Pierce, Fenner & Smith Incorporated as Documentation Agent, as
amended and supplemented from time to time (including any Incremental Commitments, as defined therein), and that certain $250,000,000 Second Lien Credit Agreement, dated as of May 31, 2005,
among MetroPCS, Inc., MetroPCS Wireless, Inc., as Borrower, the Several Lenders from Time to Time Parties Hereto, Merrill Lynch Capital Corporation, as Administrative Agent, Bear Stearns
Corporate Lending Inc., as Syndication Agent, and Bear, Stearns & Co. Inc., as Sole Lead Arranger and Sole Bookrunner, as amended and supplemented from time to time (including any
Incremental Commitments, as defined therein); and 


        (g)   "Subsidiary" of a Person means any corporation, partnership, limited liability company, association, joint venture or
other business entity of which more than fifty percent (50%) of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to
vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management
and policies 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; provided, in determining the percentage of ownership interests of any Person
controlled by another Person, no ownership interest in the nature of a "qualifying share" of the former Person shall be deemed to be outstanding. 



        11.13    List of Defined Terms.    



	10% or Greater Stockholder	 	Section 2.8(i)
	

1995 Stock Option Plan	
 	

Section 2.4(a)
	

2004 Equity Plan	
 	

Section 2.4(a)
	

Act	
 	

Section 11.2
	

Agreement	
 	

Introduction
	

Arbitrator	
 	

Section 11.7(a)
	

Base Balance Sheet	
 	

Section 2.6
	

Bylaws	
 	

Section 2.1
	

Certificate of Incorporation	
 	

Introduction
	 	 	 






39







 

	

Claims	
 	

Section 1.4
	

Class A Common Stock	
 	

Section 1.1
	

Closing	
 	

Section 1.4
	

Closing Date	
 	

Section 1.4
	

Code	
 	

Section 2.11(a)
	

Common Conversion Shares	
 	

Section 1.1
	

Common Stock	
 	

Introduction
	

Common Stock Minimum Amount	
 	

Section 1.6(e)
	

Communications Act	
 	

Section 2.20
	

Company	
 	

Introduction
	

DGCL	
 	

Section 1.1
	

Disclosure Schedule	
 	

Section 2
	

Eligible Holders	
 	

Section 1.6(b)
	

Employee Benefit Program	
 	

Section 2.17(a)
	

Employee Option Plans	
 	

Section 2.4(a)
	

ERISA	
 	

Section 2.17(a)
	

Escrow Agent	
 	

Section 1.4
	

Escrow Agreement	
 	

Section 1.5(a)
	

Escrow Interest	
 	

Section l.5(c)
	

Existing Stockholders Agreement	
 	

Section 2.22
	

Expiration Date	
 	

Section 1.6(c)
	

FCC	
 	

Section 2.20(a)
	

Filing Date	
 	

Section 11.7(b)
	

Foreign Person	
 	

Section 2.11(a)
	

GAAP	
 	

Section 2.6
	

HSR Act	
 	

Section 2.2
	

Interim Period	
 	

Section 5.1
	

Investor(s)	
 	

Introduction
	

Investor Indemnified Party(ies)	
 	

Section 10.2
	

IRS	
 	

Section 2.11(a)
	

Licensees	
 	

Section 2.20(b)
	

Licenses	
 	

Section 2.20(a)
	

Losses	
 	

Section 10.2
	

Majority Interest	
 	

Section 11.1(b)
	 	 	 




40







 

	

Material Adverse Effect	
 	

Section 2.1
	

Maximum Percentage	
 	

Section 1.6(e)
	

Offer Materials	
 	

Section 1.6(b)
	

Options	
 	

Section 1.6(b)
	

Participating Holders	
 	

Introduction
	

PCS	
 	

Section 2.9
	

Permits	
 	

Section 2.16
	

Purchase Price	
 	

Section 1.2
	

Purchaser	
 	

Section 5.6(a)
	

Put Closing	
 	

Section 5.6(b)(ii)
	

Put Closing Date	
 	

Section 5.6(b)(ii)
	

Put Exercise	
 	

Section 5.6(b)(i)
	

Put Notice	
 	

Section 5.6(b)(i)
	

Put Price	
 	

Section 5.6(b)(iii)
	

Put Right	
 	

Section 5.6(b)
	

Secondary Purchase Competing Transaction	
 	

Section 5.4(a)
	

Securities	
 	

Section 1.1
	

Securities Act	
 	

Section 3.1
	

Series D Preferred Stock	
 	

Introduction
	

Series D Preferred Stock Minimum Amount	
 	

Section 1.6(e)
	

Series E Preferred Shares	
 	

Section 1.1
	

Series E Preferred Stock	
 	

Introduction
	

Stockholders	
 	

Introduction
	

Stockholders Agreement	
 	

Introduction
	

Taxes	
 	

Section 2.11(a)
	

Tender Offer	
 	

Introduction
	

Tender Offer Closing Date	
 	

Section 1.6(h)
	

Tender Offer Conditions	
 	

Section 5.7
	

Tender Offer Purchase	
 	

Introduction
	

Tender Prices	
 	

Section 1.6(a)(ii)
	

Tendered Securities	
 	

Section 1.6(c)
	

Waiver	
 	

Section 2.22
	

Warrants	
 	

Section 1.6(b)





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]  


41










        IN WITNESS WHEREOF, the parties have executed this Agreement or have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day
and year first above written. 



	 	 	THE COMPANY:
	

 	
 	

METROPCS COMMUNICATIONS, INC.
	

 	
 	

By:	

/s/  ROGER D. LINQUIST      
 Roger D. Linquist
 Chairman, President and Chief Executive Officer
	

 	
 	

INVESTORS:
	

 	
 	

MADISON DEARBORN CAPITAL PARTNERS IV, L.P.
	

 	
 	

By:	

Madison Dearborn Partners IV, L.P., its General Partner
	

 	
 	

By:	

Madison Dearborn Partners, L.L.C., its General Partner
	

 	
 	

By:	

/s/  MARK B. TAESNOWSHI      

	 	 	Name:	Mark B. Taesnowshi
	 	 	Its:	Managing Director
	

 	
 	

TA IX L.P.
	

 	
 	

By:	

TA Associates IX LLC, its General Partner
	

 	
 	

By:	

TA Associates, Inc., its Manager
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 




SIGNATURE PAGE TO

STOCK PURCHASE AGREEMENT  









	 	 	TA/ATLANTIC AND PACIFIC IV L.P.
	

 	
 	

By:	

TA Associates AP IV L.P., its General Partner
	

 	
 	

By:	

TA Associates, Inc., its General Partner
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 
	

 	
 	

TA ATLANTIC AND PACIFIC V L.P.
	

 	
 	

By:	

TA Associates AP V L.P., its General Partner
	

 	
 	

By:	

TA Associates, Inc., its General Partner
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 
	

 	
 	

TA STRATEGIC PARTNERS FUND A L.P.
	

 	
 	

By:	

TA Associates SPF L.P., its General Partner
	

 	
 	

By:	

TA Associates, Inc., its General Partner
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 




SIGNATURE PAGE TO

STOCK PURCHASE AGREEMENT  









	 	 	TA STRATEGIC PARTNERS FUND B L.P.
	

 	
 	

By:	

TA Associates SPF L.P., its General Partner
	

 	
 	

By:	

TA Associates, Inc., its General Partner
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 
	

 	
 	

TA INVESTORS II, L.P.
	

 	
 	

By:	

TA Associates, Inc., its General Partner
	

 	
 	

By:	

/s/  KENNETH T. SCHICIANO      

	 	 	Name:	 
	 	 	Its:	 




SIGNATURE PAGE TO

STOCK PURCHASE AGREEMENT  









 
 

EXHIBIT A    
    
    SCHEDULE OF INVESTORS    
    



	Investor
 
	 	Series E Preferred Shares

	Madison Dearborn Capital Partners IV, L.P.	 	250,000
	TA IX L.P.	 	160,994
	TA Atlantic and Pacific V L.P.	 	64,398
	TA/Atlantic and Pacific IV L.P.	 	17,500
	TA Strategic Partners Fund A L.P.	 	3,296
	TA Strategic Partners Fund B L.P.	 	592
	TA Investors II L.P.	 	3,220
	 	 	

	 	Total:	 	500,000
	 	 	












 
 

EXHIBIT B    
    
    SCHEDULE OF STOCKHOLDERS    
    


[TO COME]









 
 

EXHIBIT C    
    
    SECOND AMENDED AND
  RESTATED CERTIFICATE OF INCORPORATION    
    


[See
Attached] 









 
 

EXHIBIT D    
    
    FORM OF SECOND AMENDED AND
  RESTATED STOCKHOLDERS AGREEMENT    
    


[See
Attached] 









 
 

EXHIBIT E    
    
    FORM OF ESCROW AGREEMENT    
    


[See
Attached] 









 
 

EXHIBIT F    
    
    FORM OF LETTER OF TRANSMITTAL    
    


[See
Attached] 









 
 

EXHIBIT G    
    
    FORM OF WAIVER    
    


[See
Attached] 









 
 

EXHIBIT H    
    
    CERTIFICATE OF CORRECTION    
    


[See
Attached] 









 
 

EXHIBIT I    
    
    MANAGEMENT RIGHTS LETTER    
    


[See
Attached] 









 
 

EXHIBIT J    
    
    FORM OF OPINION OF COUNSEL    
    


[See
Attached] 









 
 

EXHIBIT K    
    
    FORM OF DIRECTOR INDEMNIFICATION AGREEMENT    
    


[See
Attached] 









 
 

EXHIBIT L    
    
    FORM OF JOINDER AGREEMENT    
    


[See
Attached] 











QuickLinks


INDEX


STOCK PURCHASE AGREEMENT


EXHIBIT A SCHEDULE OF INVESTORS


EXHIBIT B SCHEDULE OF STOCKHOLDERS


EXHIBIT C SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION


EXHIBIT D FORM OF SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


EXHIBIT E FORM OF ESCROW AGREEMENT



EXHIBIT F FORM OF LETTER OF TRANSMITTAL


EXHIBIT G FORM OF WAIVER


EXHIBIT H CERTIFICATE OF CORRECTION



EXHIBIT I MANAGEMENT RIGHTS LETTER



EXHIBIT J FORM OF OPINION OF COUNSEL



EXHIBIT K FORM OF DIRECTOR INDEMNIFICATION AGREEMENT


EXHIBIT L FORM OF JOINDER AGREEMENT