AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT
TELCOM VENTURES, L.L.C.,
LCC, INCORPORATED,
TC GROUP, L.L.C.
LCC, L.L.C.
MCI TELECOMMUNICATIONS CORPORATION
DATED AS OF JULY 25, 1996 THIS AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT (this "Agreement") is made and entered into as of July 25, 1996, by and among Telcom Ventures, L.L.C., a
Delaware limited liability company ("Telcom"), LCC, Incorporated, a Kansas corporation ("LCC"), TC Group, L.L.C., a Delaware limited liability company ("TC Group"), LCC, L.L.C., a Delaware limited liability company (the "Company"), and MCI Telecommunications Corporation, a Delaware corporation ("Investor").
WHEREAS, Telcom, LCC and TC Group own a 99%, .75% and .25% Membership Interest, respectively, in the Company;
WHEREAS, pursuant to the terms of a Note Purchase Agreement dated as of June 27, 1994 among the Company, Telcom and Investor, Investor purchased from the Company that certain Subordinated Note Due 2000 of the Company in the principal amount of $20,000,000 (the "LCC Note") and Investor purchased from Telcom that certain Subordinated Note Due 2000 of Telcom in the principal amount of $30,000,000 (the "Telcom Note" and, collectively with the LCC Note, the "Notes") and concurrently therewith entered into a Securityholders Agreement (the "June 27, 1994 Securityholders Agreement");
WHEREAS, the LCC Note may be exchanged on the terms and conditions set forth therein for an 8% Membership Interest in the Company (subject to adjustment as provided therein) and the Telcom Note may be exchanged on the terms and conditions set forth therein for that portion of the Membership Interest in the Company held by Telcom which, together with the 8% Membership Interest issuable upon exchange of the LCC Note, would aggregate a 20% (subject to adjustment as provided therein) Membership Interest (as defined below) in the Company; and
WHEREAS, the Members Committee (as defined below) has determined to commence an Initial Public Offering (as defined below) and, in connection therewith, to effect an incorporation transaction in the form of a merger of the Company into LCC International, Inc., a newly-formed Delaware corporation and wholly-owned subsidiary of the Company ("LCC International"), with LCC International as the surviving entity (the "Merger");
WHEREAS, the parties hereto have deemed that it is desirable for the Company to proceed with an Initial Public Offering and the Merger;
WHEREAS, in connection with the Initial Public Offering and the Merger, the parties hereto wish to amend and restate the June 27, 1994 Securityholders Agreement in its entirety to set forth their agreement as to, among other things, certain matters in connection with the exchange of the Notes, including the shares of stock of LCC International to be received upon exchange of the Notes; NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I
SECTION 1.1 DEFINITIONS. As used herein, the following terms have the following respective meanings set forth below or set forth in the provision following such term:
AFFILIATE - (a) with respect to any Person who is a natural person, (i) each Entity that such Person controls and (ii) each member of such Person's immediate family and (b)with respect to any Entity, (i) each Entity that such Entity controls, (ii) each Person that controls such Entity and (iii) each Entity that is under common control with such Entity. For the purposes of the preceding sentence, the term "control" shall mean the possession, directly or indirectly, through one or more intermediaries in the case of any Person, of the power or authority, through ownership of voting securities, by Contract or otherwise, to control the management, activities or policies of the Entity.
AGREEMENT - This Amended and Restated Securityholders Agreement.
AGREEMENT OF MERGER - the Agreement of Merger to be entered into between the Company and LCC International substantially in the form of Exhibit A hereto.
BUSINESS DAY - any day other than a Saturday, Sunday or a holiday on which national banking associations in New York City are required or permitted by law to be closed.
CLASS A COMMON STOCK - means Class A Common Stock, par value $.01 per share of LCC International.
COMPANY - LCC, L.L.C., a Delaware limited liability company.
CONTRACT - any contract, agreement, lease, license, easement, servitude, right-of-way, mortgage, bond, note or other instrument.
ENTITY - any corporation, limited liability company, partnership, limited partnership, venture, trust, estate, governmental entity or other entity.
GUARANTY - the Guaranty made and entered into by the Company as of June 27, 1994 to and for the benefit of MCI with respect to the Telcom Note.
HSR ACT - Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
INITIAL PUBLIC OFFERING - the initial underwritten public offering of the Class A Common Stock of LCC International pursuant to the Registration Statement.
INVESTOR - MCI Telecommunications Corporation, a Delaware corporation.
JUNE 24, 1994 SECURITYHOLDERS AGREEMENT - the Securityholders Agreement dated June 24, 1994, by and among the parties hereto.
LCC - LCC Incorporated, a Kansas corporation.
LCC INTERNATIONAL - LCC International, Inc., a Delaware corporation.
LCC NOTE - the Subordinated Note Due 2000 of the Company in the principal amount of $20,000,000 issued by the Company to Investor pursuant to the Note Purchase Agreement.
MCI - MCI Communications Corporation, a Delaware corporation.
MEMBERS COMMITTEE - the Members Committee of the Company established pursuant to the Limited Liability Company Agreement of the Company.
MEMBERSHIP INTEREST - a limited liability interest in the Company, including rights to distributions, liquidating or otherwise), allocations, information and to consent or approve.
MERGER - An incorporation transaction of the Company into LCC International, Inc., a newly-formed Delaware corporation and wholly-owned subsidiary of the Company, with LCC International as the surviving entity.
NOTE PURCHASE AGREEMENT - the Note Purchase Agreement dated as of June 27, 1994 among Telcom, the Company and Investor.
NOTES - the LCC Note and the Telcom Note.
NOTE AMENDMENT AGREEMENT - An agreement, dated the date hereof, between each of MCI and Telcom and MCI and the Company with respect to an amendment of the Telcom Note or the LCC Note, respectively.
notices - All notices or other communications provided for or permitted to be given under this Agreement.
PERSON - any natural person or Entity.
REGISTRATION RIGHTS AGREEMENT- the Registration Rights Agreement, dated the date hereof, by and among LCC International, MCI and RF Investors, L.L.C.
REGISTRATION STATEMENT - Registration Statement No. 333-6067 filed by LCC International with the Securities and Exchange Commission on June 14, 1996, as amended.
RF INVESTORS - RF Investors, L.L.C., a Delaware limited liability company.
TC GROUP - TC Group, L.L.C., a Delaware limited liability company.
TELCOM - Telcom Ventures, L.L.C., a Delaware limited liability company.
TELCOM NOTE - the Subordinated Note Due 2000 of Telcom in the principal amount of $30,000,000 issued by Telcom to Investor pursuant to the Note Purchase Agreement.
TELCOM PARTIES - Telcom, LCC and TC Group.
ARTICLE II
EFFECTIVE DATE
2.1 EFFECTIVE DATE. This Agreement shall become effective on the effectiveness of the filing of a Certificate of Merger with respect to the Merger with the Secretary of State of the State of Delaware, provided, however, that at any time following the effectiveness of the Registration Statement and in connection with the Merger, Telcom and LCC International may exercise their rights under Section 4.1. It is further understood that if Telcom and LCC International exercise such rights in accordance with the foregoing sentence, no amounts will be payable to or by MCI under Section 3.2 of the June 24, 1994 Securityholders Agreement in connection therewith and provided further that the provisions of Section 5.5 shall be effective as of the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF TELCOM, LCC, TC GROUP AND THE COMPANY. Each of the Telcom Parties and the Company hereby represents and warrants to Investor as follows (provided that each such entity makes the following representations and warranties with respect to itself only):
(a) Organization. Such entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation or incorporation, as the case may be, and has all requisite limited liability company or corporate power and authority, as the case may be, to own, lease and operate its assets and to carry on its business as currently being conducted.
(b) Authority; Enforceability. Such entity has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder. The execution and delivery by such entity of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company or corporate action by such entity, as the case may be, and no other proceeding on the part of such entity is necessary to authorize the execution and delivery of this Agreement or the transactions contemplated hereby. This Agreement, when executed and delivered by each of the parties hereto, will be a legal, valid and binding obligation of such entity, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, moratorium, insolvency and other laws of general application relating to creditors' rights or general principles of equity.
(c) No Consent. Except for consents and filings that if not obtained or made would not in the aggregate have a material adverse effect on the business, operations or financial condition of such entity, no consent of or by, or filing with, any Person is required with respect to the execution, delivery, validity and enforceability of this Agreement by such entity or the consummation by such entity of the transactions provided for hereby, other than consents which have been obtained or will be obtained prior to the Merger.
(d) No Breach. The execution, delivery and performance by such entity of this Agreement and the consummation of the transactions contemplated hereby will not: (i) violate any provision of the Certificate of Formation, Limited Liability Company Agreement,
Articles of Incorporationor other organizational document of such entity; (ii) subject to the receipt of the consents referred to in Section 2.1(c) above, violate, conflict with or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute a default, or an event of default (by way of substitution, novation or otherwise) or an event that with notice, lapse of time or both, would constitute a default or event of default under the terms of, any Contract to which such entity is a party, except for such occurrences that would not in the aggregate have a material adverse effect on the business, operations or financial condition of such entity; (iii) result in the creation of any lien upon any of the assets of such entity, except such liens which would not result in a material adverse effect on the business, operations or financial condition of such entity; or (iv) except for violations that would not have a material adverse effect on the business, operations or financial condition of such entity, constitute a violation by such entity of any legal requirement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor hereby represents and warrants to each of the Telcom Parties and the Company as follows:
(a) Organization. Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its assets and to carry on its business as currently being conducted.
(b) Authority; Enforceability. Investor has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder. The execution and delivery by Investor of this Agreement and the consummation of the transactions provided for hereby have been duly authorized by all necessary corporate action by Investor and no other proceeding on the part of Investor is necessary to authorize the execution and delivery of this Agreement or the transactions provided for hereby. This Agreement, when executed and delivered by each of the parties hereto, will be a legal, valid and binding obligation of Investor, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, moratorium, insolvency and other laws of general application relating to creditors' rights or general principles of equity.
(c) No Consent. No consent of or by, or filing with, any Person is required with respect to the execution, delivery, validity and enforceability of this Agreement by Investor or the consummation by Investor of the transactions provided for hereby.
(d) No Breach. The execution, delivery and performance by Investor of this Agreement and the consummation of the transactions contemplated hereby will not: (i) violate any provision of the Certificate of Incorporation or other organizational document of Investor; (ii) violate, conflict with or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute a default, or an event of default (by way of substitution, novation or otherwise) or an event that with notice, lapse of time or both, would constitute a default or event of default under the terms of, any Contract to which Investor is a party, except for such occurrences that would not in the aggregate have a material adverse effect on the business, operations or financial condition of Investor; (iii) result in the creation of any lien upon any of the assets of Investor; or (iv) constitute a violation by Investor of any legal requirement, except for violations that would not have a material adverse effect on the business or financial condition of Investor.
ARTICLE IV
CERTAIN MATTERS RELATING TO EXCHANGE OF NOTE
SECTION 4.1 ASSIGNMENT OF TELCOM NOTE. At the option of Telcom and LCC International, by written notice given to MCI at any time prior to the effective date of an exchange of the Notes, Telcom may assign the Telcom Note to LCC International. Upon any such assignment, LCC International shall assume the Telcom Note, and Telcom shall be forever released and discharged from all obligations under the Telcom Note. If requested by Telcom or LCC International in
writing, an amendment to the Telcom Note reflecting such assignment and assumption shall be entered into and consented to in writing by the parties hereto.
SECTION 4.2 EXCHANGE OF NOTE. Investor hereby agrees that upon the occurrence of any of the events specified in Section 3(a) of the Notes providing for the mandatory exchange of the Notes for Class A Common Stock, or on the effective date of any optional exchange of the Notes pursuant to Sections 3(b) or (c) of the Notes, and subject to all conditions set forth in the Notes for the exchange thereof, Investor shall promptly surrender the Notes to the Company. Notwithstanding anything to the contrary contained in this Agreement, the Notes shall not be exchanged unless all required consents, approvals, orders or authorizations of, or registrations, declarations or filings with, any court, administrative agency or commission or other governmental au ...