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EXHIBIT 10.6
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of April 20,
1999 (the "Agreement"), by and among SPECTRASITE HOLDINGS, INC., a Delaware
corporation (the "Company"), the WELSH, CARSON, XXXXXXXX & XXXXX PURCHASERS
named in Schedule I hereto (the "WCAS Purchasers"), TOWER PARENT CORP., a
Delaware corporation and a wholly-owned direct subsidiary of NEXTEL
COMMUNICATIONS, INC., a Delaware corporation ("TPC"), CIBC WG ARGOSY MERCHANT
FUND 2, L.L.C., a Delaware limited liability company ("CIBC II"), CO-INVESTMENT
MERCHANT FUND 3, LLC, a Delaware limited liability company ("CIBC III"),
CARAVELLE INVESTMENT FUND, L.L.C., a Delaware limited liability company
("Caravelle" and together with CIBC II and CIBC III, the "CIBC Purchasers"),
WHITNEY EQUITY PARTNERS, L.P., a Delaware limited partnership ("JHW II"), X. X.
XXXXXXX III, L.P., a Delaware limited partnership ("JHW III"), WHITNEY STRATEGIC
PARTNERS III, L.P., a Delaware limited partnership ("JHW Strategic III"),
WHITNEY MEZZANINE MANAGEMENT COMPANY, L.L.C., a Delaware limited liability
company ("JHW Mezzanine" and together with JHW II, JHW III and JHW Strategic
III, the "Whitney Purchasers"), XXXXXX-XXXXXX MEDIA PARTNERS, L.P., a Delaware
limited partnership ("Xxxxxx"), KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III, a
Delaware limited partnership ("Kitty Hawk III"), KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, IV, a Delaware limited partnership ("Xxxxx Xxxx XX"), EAGLE CREEK
CAPITAL, LLC, a Washington limited liability company ("Eagle Creek"), XXXXXXX X.
XXXXX ("Xxxxx"), XXXXX X. XXXXXX ("Xxxxxx"), XXXXXX FAMILY LIMITED PARTNERSHIP,
an Arkansas limited partnership ("Xxxxxx XX"), THE NORTH CAROLINA ENTERPRISE
FUND, L.P., a North Carolina limited partnership ("NCEF"), XXXXXX X. XXXXXXXXX
("Lutkewich"), XXXX X. XXXXXXX ("Xxxxxxx"), XXXXX X. XXXXXX ("Xxxxxx"), XXXXXXX
X. XXXXXX ("Xxxxxx"), THE PRICE FAMILY LIMITED PARTNERSHIP ("Price LP"), XXXXXX
XX ("Xxxxxx") and XXXXXXX XXXXX ("Xxxxx"). The WCAS Purchasers, TPC, the CIBC
Purchasers, the Whitney Purchasers, Xxxxxx, Xxxxx Xxxx III, Xxxxx Xxxx XX, Eagle
Creek, Clark, Tomick, Xxxxxx XX, NCEF, Lutkewich, Jackman, Eckert, Gupton, Price
LP, Xxxxxx and Xxxxx are herein sometimes referred to collectively as the
"Stockholders" and each individually as a "Stockholder."
WHEREAS, pursuant to the terms of that certain Preferred Stock Purchase
Agreement, dated as of February 10, 1999 (as amended, the "Purchase Agreement"),
by and among the Company, the WCAS Purchasers, certain of the Whitney
Purchasers, the CIBC Purchasers and the other parties signatory thereto, the
WCAS Purchasers acquired an aggregate of 31,000,000 shares of Series C Preferred
Stock, par value $0.001 per share (the "Series C Preferred Stock"), of the
Company, JHW III acquired an aggregate of 3,905,882 shares
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of Series C Preferred Stock, JHW Strategic III acquired an aggregate of 94,118
shares of Series C Preferred Stock, the CIBC Purchasers acquired an aggregate of
10,000,000 shares of Series C Preferred Stock and certain other purchasers
acquired an aggregate of 1,286,795 shares of Series C Preferred Stock;
WHEREAS, pursuant to the credit agreement and related agreements and
instruments as contemplated by the commitment letter and related term sheet,
dated as of January 15, 1999, as amended, providing for a credit facility (the
"Credit Facility") of up to $710 million in favor of the Company and its
Affiliates, certain WCAS Purchasers, Whitney Purchasers and CIBC Purchasers
acquired an aggregate of 2,000,000 shares of Common Stock, par value $0.001 per
share (the "Common Stock") of the Company;
WHEREAS, in connection therewith, pursuant to the terms of that certain
Agreement and Plan of Merger, dated as of February 10, 1999 (as amended, the
"Merger Agreement"), among Nextel Communications, Inc., TPC, Tower Merger
Vehicle, Inc., Tower Asset Sub, Inc., SpectraSite Holdings, Inc., SpectraSite
Communications, Inc., SHI Merger Sub, Inc., and the other parties signatory
thereto, TPC acquired 14,000,000 shares of Series C Preferred Stock of the
Company;
WHEREAS, the Company and each of the Stockholders other than the WCAS
Purchasers, TPC and the CIBC Purchasers executed and delivered that certain
Second Amended and Restated Stockholders' Agreement dated as of March 23, 1998,
as amended by that certain First Amendment to Second Amended and Restated
Stockholders' Agreement dated as of May 29, 1998, the "Second Amended
Stockholders Agreement") setting forth certain arrangements among themselves
with respect to the governance of the Company and the other matters set forth
herein; and
WHEREAS, pursuant to Section 15 of the Second Amended Stockholders'
Agreement, the Company and the Stockholders desire to amend and restate such
Second Amended Stockholders' Agreement in its entirety, as more particularly set
forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
SECTION 1. Voting Agreement.
(a) From and after the Closing Date (as defined in the Purchase
Agreement), at each annual or special stockholders meeting called for the
election of directors, and whenever the stockholders of the Company act by
written consent with respect to the election of directors, each Stockholder
agrees to vote or otherwise give such Stockholder's consent in respect of all
shares of the capital stock of the Company (whether now or hereafter acquired)
owned by such Stockholder, and take all other appropriate action, and the
Company shall take all necessary and desirable actions within its control, in
order to cause:
(i) an amendment to the Bylaws of the Company to provide that the
authorized number of directors on the Board of Directors of the Company
(the "Board")
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to be established at nine persons, or at the request of the holders of a
majority of the Series C Preferred Stock then held by the WCAS Purchasers,
to increase the size of the Board, up to a maximum of 15 persons;
(ii) the election to the Board of:
a) such number of directors as shall constitute a majority of the
Board designated by a majority of the Series C Preferred Stock then held
by the WCAS Purchasers (the "WCAS Designees"); provided, however, that
upon the earlier to occur of (1) the date on which the WCAS Purchasers
shall hold less than 30% of the outstanding Capital Stock of the Company
and (2) the second anniversary of an IPO, such number of directors shall
decrease to the greater of (A) three and (B) the WCAS Purchasers'
proportional share of the total number of directors based on the
aggregate number of shares owned by the WCAS Purchasers on any such date;
b) two directors designated by TPC (the "TPC Designees");
c) two directors designated by the holders of a majority of the
shares of the Preferred Stock then held by the Whitney Purchasers (the
"Whitney Designees");
d) one director designated by the holders of a majority of the
shares of Series C Preferred Stock then held by the CIBC Purchasers (the
"CIBC Designee"); provided, that, if the CIBC Purchasers determine that
applicable banking laws prohibit them from designating a representative
to the Board, a representative of the CIBC Purchasers shall be entitled
to attend as an observer all meetings of the Board and any committee
thereof and to receive all notices, information and other materials
distributed to members of the Board or any such committee at the same
time and in the same manner as so distributed; and
e) the Chief Executive Officer of the Company (initially Xxxxxxx
X. Xxxxx);
all of which persons shall hold office, subject to their earlier removal
in accordance with clause (iii) below, the By-laws of the Company and
applicable corporate law, until their respective successors shall have
been elected and shall have qualified;
(iii) the removal from the Board (with or without cause) of any director
elected in accordance with subpart a), b), c) or d) of clause (ii) above
upon the written request of the Stockholders that designated such director;
and
(iv) upon any vacancy in the Board as a result of any individual
designated as provided in clause (ii) above ceasing to be a member of the
Board, whether by resignation or otherwise, the election to the Board as
promptly as possible of an individual designated by the Stockholders that
designated such individual (or, in the case of a director specified
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in subpart e) of clause (ii) above, an individual meeting such
qualifications).
(b) Each Stockholder agrees to use its best efforts to cause its
designees to the Board to vote or otherwise give such Director's consent to:
(i) the creation and maintenance of a Compensation Committee of the
Board consisting of three directors, two of whom shall be WCAS Designees
and one of whom shall be a Whitney Designee, which Compensation Committee
shall approve all grants of stock options to employees of the Company, all
increases in compensation and all annual bonuses granted to officers of the
Company and all other employee benefits (including, without limitation,
vacation policy, benefit plans, company automobiles and insurance) granted
to officers of the Company, and shall have such other duties and
responsibilities as the Board of Directors may from time to time determine;
(ii) the creation and maintenance of an Audit Committee of the Board of
Directors, consisting of three directors, at least one of whom shall be a
WCAS Designee and one of whom shall be a Whitney Designee, which Audit
Committee shall review and approve the financial statements of the Company
as audited by the Company's independent certified public accountants, and
shall have such other duties and responsibilities as the Board of Directors
may from time to time determine;
(iii) the creation and maintenance of such other committees as the Board
shall from time to time deem appropriate, consisting of at least two
directors, at least one of whom shall be a WCAS Designee and one of whom
shall be a Whitney Designee, which committees shall have such duties and
responsibilities as the Board may from time to time determine; and
(iv) the election of Xxxxxxxx X. Xxxxxx (or such other person as may be
designated by the WCAS Purchasers) as Chairman of the Board of Directors.
(c) For as long as TPC shall be entitled to designate directors
pursuant to this Section 1, a representative of TPC shall be entitled to attend
as an observer all meetings of committees of the Board of Directors and to
receive all notices, information or other materials distributed to the members
of any such committee at the same time and in the same manner as so distributed.
(d) No Stockholder shall grant any proxy or enter into or agree to be
bound by any voting trust with respect to shares of Capital Stock held by it,
nor shall any Stockholder enter into any stockholder agreement or arrangement of
any kind with respect to shares of Capital Stock held by it, which conflicts or
is inconsistent in any manner with the provisions of this Agreement.
(e) No limitation on the voting or consent rights of Regulated Entities
(as defined in the Amended and Restated Certificate of Incorporation) shall
affect the voting or
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consent rights of any party under this Agreement.
SECTION 2. Restrictions on Transfers. In addition to the other
restrictions set forth herein, each Stockholder (other than the WCAS Purchasers)
hereby agrees that such Stockholder shall not sell or in any other way, directly
or indirectly, transfer, assign, distribute or otherwise dispose of any shares
of Capital Stock or any securities exercisable for or convertible into shares of
Capital Stock (whether now owned or hereafter acquired) then held by such
Stockholder except:
(i) any transfer made with the prior written consent of (A) the holders
of a majority in interest of the shares of Series C Preferred Stock then
held by the WCAS Purchasers or (B) the holders of at least 60% of the
aggregate shares of Capital Stock held by the Whitney Purchasers, the CIBC
Purchasers and TPC, so long as in each such case such consent applies to
all Stockholders on a pro rata basis or involves securities having a value
less than $2,000,000 as to any single transfer and $5,000,000 in the
aggregate for all transfers made by any Stockholder and its Affiliates on a
cumulative basis;
(ii) any transfer by any individual Stockholder to the spouse or lineal
descendants of such Stockholder, including without limitation any transfer
by bequest or devise, or to a trust or trusts for the benefit of such
Stockholder or any of the foregoing;
(iii) any transfer of shares of Capital Stock pursuant to Section 3 or 4
hereof;
(iv) any transfer by any institutional Stockholder to an Affiliate of
such Stockholder or any partner or retired partner, the estate and family
members of any such partner or retired partner and of his or her spouse,
and any trusts for the benefit of any of the foregoing persons; or
(v) any transfer by TPC to any Affiliate of such Stockholder or a
pledge by TPC of its shares to secure its obligations under a secured
credit facility;
provided, in the case of a transfer pursuant to clause (i), (ii), (iv) or (v)
above, that any such transferee that is not already a party to this Agreement
shall agree in writing to be bound by, and to comply with, all provisions of
this Agreement as though such transferee were a Stockholder. The restrictions
set forth in this Section 2 shall terminate upon the earlier to occur of (x) the
sale, transfer or other disposition (including a distribution by a partnership
or limited liability company to its partners or members) by the WCAS Purchasers
of at least 50% of the shares of Capital Stock held by the WCAS Purchasers on
the date hereof and (y) two years from the date hereof, unless the Company
completes an IPO within two years of the date hereof, in which case the
restrictions above shall terminate on the earlier to occur of (1) 18 months
after the closing date of the IPO and (2) three years from the date hereof. If
the Company completes an IPO following the second anniversary of the date
hereof, the Stockholders agree that the above transfer restrictions shall be
reinstated upon the closing date of such IPO and thereafter shall remain in
effect for a period of 180 days following the closing date of the IPO. In either
case, following the termination of such transfer restrictions 18 months or 180
days after the IPO, as the case may be, the transfers of any shares held by any
Stockholders who hold at least 5% of the
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outstanding Capital Stock of the Company shall continue to be subject to the
coordinated distribution requirements contained in Section 3 of the Second
Amended and Restated Registration Rights Agreement dated as of the date hereof,
as such agreement may be amended from time to time (the "Registration Rights
Agreement"). Anything herein to the contrary notwithstanding, if the
underwriters of an IPO shall require a longer lock-up period than otherwise
provided in this Section 2, each Stockholder shall enter into a lock-up
agreement for such period with the underwriters, provided that (i) the lock-up
agreement shall be binding on the executive officers of the Company and all
holders of more than 5% of the Company's outstanding Capital Stock and (ii) any
exceptions made by the underwriters to the provisions of the lock-up agreement
shall apply equally to all Stockholders. For purposes of this Agreement, the
term "IPO" shall mean the consummation of one or more firm commitment public
offerings by the Company of its Common Stock underwritten by a major bracket
underwriter having an average offering price of at least $8.00 per share
(subject to appropriate adjustments in the event of a stock split, stock
dividend, combination or other reclassification) and aggregate net proceeds to
the Company of at least $150 million.
SECTION 3. Tag-Along Rights.
(a) If a WCAS Purchaser or group of WCAS Purchasers (for purposes of
this Section 3, a "Selling Stockholder") wishes to directly or indirectly sell,
transfer or otherwise dispose of all or any portion of the shares of Capital
Stock held by him, her or it at any time (including by any distribution or
transfer by any WCAS Purchaser that is a limited partnership or a limited
liability company to its limited partners or members), then such Selling
Stockholder shall promptly deliver a notice (an "Offering Notice") to the
Company in writing of the proposed transfer, specifying the number of such
shares of Capital Stock to be transferred by such Selling Stockholder (such
specified shares, the "Offered Shares"), the name of the proposed purchaser or
purchasers, the proposed purchase price per share, the proposed date of
transfer, the payment terms and all other material terms and conditions thereof.
In the event that the terms and/or conditions set forth in the Offering Notice
are thereafter amended in any respect, the Selling Stockholder shall also give
written notice (an "Amended Notice") of the amended terms and conditions of the
proposed transaction to the Company. Upon its receipt of any Offering Notice or
Amended Notice, the Company shall promptly, but in all events within three
business days of its receipt thereof, forward copies thereof to each of the
other Stockholders (collectively, the "Other Stockholders"). The Selling
Stockholder shall provide such additional information with respect to the
proposed transfer as may be reasonably requested by the Company or the Other
Stockholders.
(b) Each Other Stockholder shall have the right and option, exercisable
upon written notice to the Company and the Selling Stockholder within 15
business days after receipt by such Other Stockholder of the Offering Notice,
or, if later, within 10 business days after receipt by such Other Stockholder of
the most recent Amended Notice, to participate in the proposed transfer of
shares by the Selling Stockholder to the proposed purchaser on the same terms
and conditions as the Selling Stockholder (such participation right being
hereinafter referred to as a "tag-along" right); provided that no Other
Stockholder shall be required to make any representations or warranties or
covenants, or bear any liability, with respect to any Other Stockholder or with
respect to the Company or the Company's business other than such Other
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Stockholder's pro rata share (based on the number of shares of Capital Stock to
be transferred) of any indemnity obligations for representations and warranties
regarding the Company or its business (to the extent the WCAS Purchaser or group
of WCAS Purchasers is or are subject to substantively identical indemnification
obligations). Each Other Stockholder may participate in such transfer with
respect to all or any part of that number of shares of Capital Stock which is
equal to the product obtained by multiplying (i) the number of Offered Shares by
(ii) a fraction, the numerator of which is the number of shares of Capital Stock
at the time owned by such Other Stockholder and the denominator of which is the
aggregate number of shares of Capital Stock then owned by the Stockholders;
except that in the event the proposed transfer to a third party is a
distribution by a WCAS Purchaser to its partners, each Other Stockholder is not
entitled to participate in such transfer, but may without restriction pursuant
to either this Agreement (including, without limitation, Sections 2 and 6
hereof) or the Registration Rights Agreement (including, without limitation,
Section 3 thereof), sell, distribute or otherwise transfer all or any part of
that number of shares of Capital Stock which is equal to the product obtained by
multiplying the number of shares held by such Other Stockholder by a fraction,
the numerator of which is the number of shares of Capital Stock proposed to be
distributed by such WCAS Purchaser and the denominator of which is the total
number of shares of Capital Stock owned by all WCAS Purchasers; provided,
however, that such Stockholders who have elected to tag-along (the "Tag-Along
Stockholders") shall have the right to sell to the proposed purchaser all or any
part of the shares (the "Unsold Shares") not sold by Stockholders not electing
to tag-along which is equal to the product obtained by multiplying (i) the
number of Unsold Shares by (ii) a fraction, the numerator of which is the number
of shares of Capital Stock then owned by such Stockholder and the denominator of
which is the aggregate number of shares owned by the Tag-Along Stockholders and
the WCAS Purchasers. Any Other Stockholder that has not notified the Selling
Stockholder and the Company of its intent to exercise its tag-along rights
within, as applicable, 15 business days after receipt by such Other
Stockholder(s) of the Offering Notice or 10 business days after receipt by such
Other Stockholder(s) of the most recent Amended Notice shall be deemed to have
elected not to exercise such rights with respect to the transaction contemplated
by such Offering Notice or Amended Notice, as the case may be (regardless of
their election pursuant to the Offering Notice or any prior Amended Notice
relating to such transaction), but only if, as applicable, such Offering Notice
or such Amended Notice sets forth the provisions of this sentence.
(c) Any Other Stockholder participating in the proposed disposition
shall deliver to the Company, as agent for such Other Stockholder, for transfer
to the proposed acquiror one or more certificates, properly endorsed for
transfer and with all stock transfer taxes paid and stamps affixed, which
represent the number of shares of Capital Stock that such Other Stockholder
elects to dispose of pursuant to paragraph (b) above. The consummation of such
proposed disposition shall be subject to the sole discretion of the Selling
Stockholder, who shall have no liability or obligation whatsoever to any Other
Stockholder participating therein other than to obtain for such Other
Stockholder the same terms and conditions as those set forth in the Offering
Notice (or most recent Amended Notice, as the case may be). Upon the
consummation of any such sale, the Company (i) shall transfer to the acquiror a
stock certificate or certificates representing the number of shares of Capital
Stock to be disposed of by any Other Stockholders and (ii) shall promptly
thereafter remit to each such Other Stockholder (a) that portion of the proceeds
of the disposition to which such Other Stockholder is entitled by reason of such
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participation and (b) a stock certificate representing any balance of shares of
Capital Stock that were not so disposed of (or all shares of Capital Stock, in
the event the proposed disposition is not consummated).
SECTION 4. Drag-Along Rights. In the event that any of the WCAS
Purchasers or the Company receives a bona fide offer from a third party not
affiliated with any WCAS Purchaser to purchase at least 80% of the outstanding
shares of Capital Stock of the Company and a majority in interest of the WCAS
Purchasers desires to accept such offer, such WCAS Purchasers shall have the
right to require all (but not less than all) of the Stockholders to sell all (or
such lesser percentage as may be necessary to achieve recapitalization
accounting treatment, but in no event less than 80%) of the shares of Capital
Stock (together with any options or warrants to acquire Capital Stock) then held
by them (including all or the same percentage of all shares, options and
warrants held by such WCAS Purchasers) on the following terms:
(i) such sale shall only be a sale for cash or marketable securities
and all expenses of the transaction, including, without limitation, legal,
accounting and investment banking fees and expenses, shall be borne by the
Company (for purposes of this paragraph, "marketable securities" shall mean
equity securities that are actively traded on a national securities
exchange located in the United States or on the Nasdaq Stock Market that
are part of an issue with a pre-transaction public capitalization in excess
of $1.0 billion and that may be freely traded without any restriction under
contract, law or otherwise, including, without limitation, any restriction
as to volume on such exchange or the Nasdaq Stock Market immediately
following receipt thereof or at any time thereafter by each Stockholder);
(ii) the proceeds from such sale (and, in the case of a sale of less
than all of the outstanding shares of Capital Stock of the Company, the
number of shares to be sold by each Stockholder) shall be allocated among
the Stockholders on a pro rata basis, based on the number of shares of
Capital Stock (treating all "in the money" options and warrants as the
number of shares of Capital Stock issuable upon the exercise thereof, less
such number of shares of Capital Stock the aggregate fair market value of
which (based on the value attributed in such sale) would be required to pay
the aggregate exercise price therefor, and treating any shares of
convertible Preferred Stock or debt of the Company on an "as-converted"
basis) then held by each Stockholder;
(iii) not less than 20 days prior to the closing date of such sale, such
WCAS Purchasers shall notify each of the other Stockholders in writing of
such sale, the terms thereof and the closing date thereof, and shall
provide additional written notification promptly upon any amendment or
modification to any thereof, all of which terms shall apply equally to all
Stockholders except that no Other Stockholder shall be required to make any
representations, warranties or covenants, or bear any liability, with
respect to the Company or the Company's business or with respect to any
other Stockholder;
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(iv) at the closing of such sale, each of the Stockholders shall deliver
certificates evidencing the Capital Stock, options and warrants then held
by it and to be sold in such sale, duly endorsed for transfer or
accompanied by stock powers executed in blank, against payment of the
purchase price therefor by wire transfer to the account or accounts
specified by such Stockholder; and
(v) the Other Stockholders shall not be obligated to participate in
such sale if all of the WCAS Purchasers shall not have concurrently sold
all or the same percentage of their shares of Capital Stock, options and/or
warrants to be sold by them in connection with such sale.
SECTION 5. Preemptive Rights.
(a) The Company hereby grants to each of the WCAS Purchasers, the
Whitney Purchasers, the CIBC Purchasers and TPC the right to purchase such
Stockholder's Proportionate Percentage (as hereinafter defined) of any future
Eligible Offering (as hereinafter defined). For the purposes of this Section 5,
the following terms shall have the meanings set forth below:
"Proportionate Percentage" means, with respect to any Stockholder as of
any date, the result (expressed as a percentage) obtained by dividing (i)
the number of shares of Common Stock owned by such Stockholder as of such
date by (ii) the total number of shares of Common Stock outstanding as of
such date, in each case assuming all shares of Capital Stock convertible
into Common Stock have been so converted.
"Eligible Offering" means an offer by the Company to sell to any person
or persons (including any of the Stockholders) for cash, any equity
securities of the Company, or any security convertible into or exchangeable
for, or carrying rights or options to purchase, equity securities of the
Company, other than an offering by the Company:
(i) of shares of Common Stock of the Company ("Common Stock") or
options to purchase shares of Common Stock in connection with or pursuant
to any stock option or stock purchase plan approved by the Board of
Directors of the Company to full-time employees, officers, directors,
consultants and/or advisors to the Company or its subsidiaries; or
(ii) of shares of Common Stock in an underwritten public offering
(a "Public Offering") registered under the Securities Act or pursuant to
a Rule 144A offering under the Securities Act; or
(iii) of shares of Series C Preferred Stock issued to TPC pursuant
to the Merger Agreement, shares of Series C Preferred Stock issued to the
Purchasers under the Purchase Agreement, up to an aggregate of 6,000,000
shares of Common Stock issued in connection with the funding of the
Tranche C Credit Facility and up to an aggregate of 100,000 shares of
Common Stock or options to purchase Common Stock to Xxxxxxx X. Xxxxx.
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(b) The Company shall, before issuing any securities pursuant to an
Eligible Offering, give written notice thereof to each Stockholder that is
entitled to preemptive rights hereunder. Such notice shall specify the security
or securities the Company proposes to issue, the proposed date of issuance, the
consideration that the Company intends to receive therefor and all other
material terms and conditions of such proposed issuance. For a period of 15 days
following the date of such notice, each such Stockholder shall be entitled, by
written notice to the Company, to elect to purchase all or any part of such
Stockholder's Proportionate Percentage of the securities being sold in the
Eligible Offering; provided, however, that if two or more securities shall be
proposed to be sold as a "unit" in an Eligible Offering, any such election must
relate to such unit of securities. To the extent that elections pursuant to this
Section 5(b) shall not be made with respect to any securities included in an
Eligible Offering within such 15-day period, then the Company shall first
re-offer to Stockholders who have elected to purchase such Stockholders'
Proportionate Percentage the right to purchase any part of the securities not
purchased by other Stockholders (the "Remaining Shares") pursuant to this
Section 5 which is equal to the product obtained by multiplying (i) the number
of Remaining Shares by (ii) a fraction, the numerator of which is the number of
shares of Capital Stock then owned by such Stockholder and the denominator of
which is the aggregate number of shares owned by the Stockholders who have
elected to purchase their full Proportionate Percentage of the securities of the
type included in such Eligible Offering pursuant to this Section 5 for an
additional 10-day period and to the extent that there are securities that have
not been purchased pursuant to this Section 5, then the Company may issue such
securities, but only for consideration not less than, and otherwise on no less
favorable terms to the Company than, those set forth in the Company's notice and
only within 60 days after the end of such additional 10-day period. In the event
that any such offer is accepted by any such Stockholder or Stockholders, the
Company shall sell to such Stockholder or Stockholders, and such Stockholder or
Stockholders shall purchase from the Company, for the consideration and on the
terms set forth in the notice as aforesaid, the securities that such Stockholder
or Stockholders shall have elected to purchase.
SECTION 6. Right of First Offer.
(a) If any Stockholder (other than a WCAS Purchaser) (for purposes of
this Section 6, a "Seller") desires to sell, exchange or in any other manner
dispose of (other than transfers made pursuant to Section 3 or Section 4 hereof)
any shares of Capital Stock held by it (or any options or warrants to acquire
such Capital Stock or any securities convertible into or exchangeable for shares
of Capital Stock of the Company), then such Seller shall give to the Company a
written notice (a "Notice of Desire to Sell") which shall set forth in
reasonable detail the class and number of shares of Capital Stock or other
securities which it desires to sell, the per share price and may set forth, if
the Seller so chooses to specify, any other terms and conditions of the desired
disposition. The Company shall deliver such Notice of Desire to Sell to each of
the other Stockholders promptly upon receipt thereof. A Seller may deliver a
Notice of Desire to Sell whether or not such Seller has received an offer from a
third party to purchase such shares of Capital Stock.
(b) The Company shall have the first right and option to elect to
purchase at the price specified in the Notice of Desire to Sell, and otherwise
on the terms and conditions specified in the Notice of Desire to Sell to the
extent so specified (collectively, the "Offer Terms") all or
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part of the subject securities. In the event the Company shall elect to purchase
all or part of the subject securities, the Company shall so notify the Seller
within 10 business days after the date of receipt of the Notice of Desire to
Sell. Any such election shall be made by written notice (an "Offer Notice") to
the Seller.
(c) In the event that the Company elects not to purchase all of the
subject securities, the other Stockholders (other than the WCAS Purchasers)
shall then have the right to purchase on the Offer Terms the number of shares of
Capital Stock which is equal to the product obtained by multiplying (A) the
aggregate number of shares of Capital Stock covered by such Notice of Desire to
Sell that the Company has not agreed to purchase by (B) a fraction, the
numerator of which is the number of shares of Capital Stock at the time owned by
the Stockholder and the denominator of which is the number of shares of Capital
Stock at the time held by all other Stockholders (other than the WCAS
Purchasers). Any Stockholder electing to purchase all or a portion of its pro
rata share of the offered securities (each, a "Purchasing Stockholder") shall so
notify the Company and the Seller by delivering an Offer Notice within 10
business days after the date of receipt of the Notice of Desire to Sell.
(d) In the event the Company elects not to purchase all of the subject
securities and the other Stockholders have not elected to purchase their full
pro rata shares of the offered securities, the WCAS Purchasers shall have the
right, exercisable upon delivery by the WCAS Purchasers of an Offer Notice to
the Seller within 15 business days after receipt of any Notice of Desire to
Sell, to offer to purchase on the Offer Terms any or all remaining shares of
Capital Stock proposed to be sold by the Seller at a purchase price equal to the
proposed purchase price specified in the Notice of Desire to Sell. In the event
that more than one WCAS Purchaser exercises its right to offer to purchase
pursuant to this paragraph (d), the allocation among such WCAS Purchasers of any
shares actually sold pursuant to this paragraph (d) shall be as agreed by such
WCAS Purchasers.
(e) Each Offer Notice shall state the number of shares to be purchased
by the purchasers delivering such Offer Notice and that the purchaser will
purchase such shares within 45 days thereafter (or such longer period as is
necessary to obtain any necessary consents or approvals or to otherwise comply
with applicable law but in any event no longer than 90 days).
(f) If the Company or any Stockholder delivers, within the periods
specified above, an Offer Notice with respect to Capital Stock that is the
subject of the Notice of Desire to Sell, the Seller shall be entitled to sell
such Capital Stock to the Company and/or such Purchasing Stockholders, as the
case may be, on the Offer Terms within the 45-day period specified above (or
such longer period as is necessary to obtain any necessary consents or approvals
or to otherwise comply with applicable law but in any event no longer than 90
days). Following the periods specified in above, the Seller may (subject to any
other applicable restrictions hereunder) transfer such Capital Stock to any
third party; provided that, if an Offer Notice with respect to all of such
shares of Capital Stock was delivered within the periods specified above, the
Seller may not sell such shares to such third party on material terms which are
more favorable, in the aggregate, to such third party than the material terms
set forth in the Company Notice of Election or the Offer Terms. Any such sale
with respect to which definitive documentation is not entered into within 60
days after the expiration of the period specified in paragraph (b) above, or
which is not
12
consummated within 60 days of the execution of such definitive documentation (or
such longer period as is necessary to obtain any necessary consents or approvals
or to otherwise comply with applicable law but in any event no longer than 90
days) shall again be subject to the requirements of this Section 6.
(g) Anything herein to the contrary notwithstanding, and subject to any
other applicable restrictions hereunder, no right of first offer hereunder shall
apply with respect to (i) a transfer by a Stockholder pursuant to clause (ii),
(iv) or (v) of Section 2; provided, however, that any such transferee that is
not already a party to this Agreement shall agree in writing to be bound by, and
to comply with, all provisions of this Agreement as though such transferee were
a Stockholder, (ii) any distribution or transfer by a Stockholder that is a
partnership to its partners or a limited liability company to its members;
provided, however, that any such transferee that is not already a party to this
Agreement shall agree in writing to be bound by, and to comply with, all
provisions of this Agreement as though such transferee were a Stockholder, (iii)
any transfer by a Stockholder to the public pursuant to an offering registered
under the Securities Act or sold in compliance with Rule 144 under the
Securities Act and (iv) any transfer by a Stockholder pursuant to Section 3 or
Section 4.
SECTION 7. Restrictions.
(a) While this Agreement is in effect, in addition to any other vote of
stockholders that may be required by law or by the Amended and Restated
Certificate of Incorporation of the Company, the Company shall not:
(i) without the consent of the holders of at least 57% of the Series C
Preferred Stock (without consideration of the grant of proxies provided for
in Section 8 hereof), amend, alter or repeal its Amended and Restated
Certificate of Incorporation or its By-laws in any manner that adversely
affects the respective rights, preferences or voting power of the Common
Stock or the Series C Preferred Stock, or the rights of such Stockholders
hereunder;
(ii) without the consent of a majority of the disinterested members of
the Company's Board of Directors, enter into, or permit any of its
subsidiaries to enter into, any transaction with (w) any of its or any
subsidiary's officers, directors or employees; (x) any person related by
blood or marriage to any such person; (y) any entity in which any such
person owns any beneficial interest; or (z) any stockholder of the Company
that owns, either individually or collectively with all stockholders
Affiliated with such stockholder, at least 25% of the outstanding Capital
Stock of the Company (or any Affiliate of any such stockholder); provided,
however, that this clause (ii) shall not apply to (A) normal employment
arrangements, benefit programs and employee incentive option programs on
reasonable terms, (B) any transaction with a director of the Company (or an
Affiliate of such director) that is approved by the Board of Directors of
the Company in accordance with the provisions of Section 144(a)(1) of the
Delaware General Corporation
13
Law, (C) customer transactions in the ordinary course of business for fair
market value on terms comparable to those offered to third parties, (D) the
transactions contemplated by the Registration Rights Agreement, (E)
repurchases of Capital Stock of the Company from employees of the Company
not to exceed $500,000 in any twelve-month period, (F) the transactions
contemplated by the Nextel Master Site Lease Agreement, the Partner Master
Site Lease Agreement and the Master Site Commitment Agreement, each entered
into by the Company and certain Affiliates of Nextel Communications, Inc.,
(G) the transactions contemplated by the Purchase Agreement as in effect on
February 10, 1999 or (H) subject to clause (iii) below, the transactions
contemplated by the Credit Facility or any amendment or modification
thereto; or
(iii) without the consent of a majority of the disinterested members of
the Company's Board of Directors, at any time prior to the second
anniversary of the date hereof (x) permit or cause the borrower under the
Credit Facility to prepay or refinance the Tranche C portion of such
facility with the proceeds of any debt financing on terms that are, on an
overall basis, more burdensome to such borrower (as determined by such
majority of the disinterested members of the Board in their reasonable
judgment exercised in good faith) than the terms of the Tranche C (other
than in connection with the prepayment or refinancing of the entire Credit
Facility or a Change of Control transaction (as defined herein)) or (y)
enter into, or permit any of its subsidiaries to enter into, any agreement
with any Stockholder or Affiliate thereof to provide debt financing to the
Company or any of its subsidiaries (other than as contemplated by the
Credit Facilities) unless the opportunity to provide such financing is
offered to all other Stockholders holding more than 5% of the Company's
outstanding Capital Stock on a pro rata basis based on their ownership of
Capital Stock (without consideration of the grant of proxies provided for
in Section 8 hereof); provided, however, that the provisions of this clause
(iii) shall terminate if at any time TPC or any of its Affiliates shall
hold any portion of the Tranche C portion of the Credit Facility.
(b) For a period of one year from the date hereof, in addition to any
other vote of stockholders that may be required by law or by the Amended and
Restated Certificate of Incorporation of the Company, the Company shall not,
without the consent of TPC, enter into any agreement for the sale or transfer of
all or substantially all of the assets of the Company or any merger,
consolidation or other transaction that would result in the transfer, directly
or indirectly, of more than 50% of the then outstanding Capital Stock of the
Company to holders who are not Stockholders (a "Change of Control Transaction").
(c) Until the earliest to occur of (i) the completion of an IPO, (ii)
the occurrence of the End Date (as such term is defined in the Master Site
Commitment Agreement contemplated by the Merger Agreement) and (iii) the third
anniversary of the date hereof, in addition to any other vote of stockholders
that may be required by law or by the Amended and Restated Certificate of
Incorporation of the Company, the Company shall not, without the consent of TPC:
(i) acquire the assets or outstanding capital stock of any
corporation or other entity, whether in a single transaction or
series of related transactions,
14
for an aggregate consideration in excess of $100 million or enter
into any build to suit tower commitment program for any party other
than TPC involving in excess of 250 towers, unless, in either such
case, the Company has, in the reasonable judgment of its Board of
Directors, obtained financing commitments sufficient to accomplish
such transaction or program without materially impairing the
Company's ability to fulfill its obligations under the Master Site
Commitment Agreement; or
(ii) enter into any agreement which would result in a Change of
Control Transaction with a provider of wireless communications
services having in excess of 2 million subscribers, or a
controlling or controlled Affiliate of such provider.
(d) Without the consent of at least 80% of each outstanding class or
series of Preferred Stock of the Company, the Company shall not redeem (i) any
shares of any class or series of Preferred Stock unless such redemption is
conducted pro rata among all outstanding classes or series of Preferred Stock,
or (ii) any shares of Common Stock (except for repurchases of Common Stock from
employees of the Company not to exceed $500,000 in any twelve-month period).
SECTION 8. Proxies. With respect to any and all matters submitted to a
vote or consent of the Company's stockholders, TPC, the Whitney Purchasers and
the CIBC Purchasers hereby severally grant to Welsh, Carson, Xxxxxxxx & Xxxxx
VIII, L.P. ("WCAS VIII") or its designee a proxy to vote or consent with respect
to an aggregate number of shares of Series C Preferred Stock then held by such
Stockholders (the "Proxy Shares") such that, when added to the shares of Capital
Stock then held by the WCAS Purchasers, the WCAS Purchasers shall have the right
to vote or consent with respect to 51% of the outstanding voting Capital Stock.
The proxy of each of TPC, the Whitney Purchasers and the CIBC Purchasers shall
cover such Stockholders' proportionate share of the total Proxy Shares based on
the relative number of shares of Series C Preferred Stock then held by such
Stockholders and each of such Stockholders agrees not to transfer shares of
Series C Preferred Stock that are Proxy Shares, pursuant to Sections 2, 3, 4 or
6 (A) except to any other person required to become a party hereto in connection
with such transfer (in which case such Proxy Shares shall remain subject to this
Section 8) or (B) unless such Stockholder (or group of Stockholders) then owns
no shares of Series C Preferred Stock other than Proxy Shares. The proxies
granted hereby shall be subject to the voting agreements contained in Section 1,
shall be irrevocable and shall be deemed coupled with an interest, provided that
such proxies shall expire and the obligation of TPC, the Whitney Purchasers and
the CIBC Purchasers to grant such proxies hereunder shall terminate upon the
earliest to occur of (i) the consummation of an IPO, (ii) the date on which the
WCAS Purchasers shall hold less then 30% of the outstanding Capital Stock of the
Company and (iii) with respect to any Stockholder or group of Stockholders, the
transfer by such Stockholder or group of Stockholders of the Proxy Shares then
held by it (other than to any person required to become a party hereto) as
contemplated by Section 2, 3, 4 or 6, but, in the case of this clause (iii),
only with respect to the Proxy Shares so transferred. If requested by WCAS VIII
or its designee at any time, each of TPC, the Whitney Purchasers and the CIBC
Purchasers shall execute and deliver a separate instrument to evidence the
proxies granted hereby.
15
SECTION 9. Legend on Stock Certificates. Each certificate representing
shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock owned by any Stockholder shall conspicuously bear the
following legend until such time as the shares represented thereby are no longer
subject to the provisions hereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A STOCKHOLDERS' AGREEMENT, DATED AS OF APRIL __, 1999,
AS THE SAME MAY BE AMENDED, AMONG THE COMPANY AND THE OTHER PARTIES
THERETO. COPIES MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE COMPANY."
The Company covenants that it shall keep a copy of this Agreement on file
at the address listed in Section 17 for the purpose of furnishing copies to the
holders of record of shares of Common Stock and Preferred Stock.
SECTION 10. Duration of Agreement. (a) This Agreement (other than the
provisions of Sections 1, 2, 3, 5, 6 and 8) shall terminate upon the earlier to
occur of (i) the tenth anniversary of the date hereof and (ii) the consummation
of (x) an IPO or (y) the sale, transfer or other disposition (including a
distribution by a partnership to its partners) by the WCAS Purchasers of at
least 50% of the shares of Capital Stock held by the WCAS Purchasers on the date
hereof.
(b) The respective rights granted to the WCAS Purchasers, the Whitney
Purchasers, the CIBC Purchasers and TPC pursuant to Section 1 shall terminate as
to any such group of Purchasers on the earlier to occur of (i) the sale,
transfer or other disposition (including a distribution by a partnership to its
partners or a limited liability company to its members) by such Purchasers of at
least 50% of the shares of Capital Stock held by such Purchasers on the date
hereof and (ii) the ownership of Capital Stock held by such Purchasers shall
fall below 8% of the outstanding Capital Stock of the Company.
(c) Unless terminated earlier as to any Stockholders as provided above,
the provisions of Section 1 shall terminate on the earlier to occur of (i) the
tenth anniversary of the date hereof and (ii) the fifth anniversary of an IPO.
(d) The provisions of Section 3 shall terminate upon the termination of
Section 2, and the provisions of Section 2 shall terminate as provided therein.
(e) The provisions of Section 5 shall terminate upon consummation of an
IPO.
(f) The provisions of Section 6 shall terminate on the earlier to occur
of (i) the consummation of an IPO and (ii) the third anniversary of the date
hereof.
16
(g) The provisions of Section 8 shall terminate as provided therein.
SECTION 11. Representations and Warranties by the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to the Company
and the other Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by such
Stockholder will not violate any provision of applicable law, any order of any
court or other agency of government, or any provision of any indenture,
agreement or other instrument to which such Stockholder or any of his, her or
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
(b) This Agreement has been duly executed and delivered by such
Stockholder, and when executed by the other parties hereto will constitute the
legal, valid and binding obligation of such Stockholder, enforceable in
accordance with its terms.
(c) The shares of Capital Stock listed opposite the name of such
Stockholder on Schedule I hereof constitute all the shares of Capital Stock of
the Company owned by such Stockholder as of the date hereof (after giving effect
to the consummation of the transactions contemplated by the Preferred Stock
Purchase Agreement).
SECTION 12. Representations and Warranties by the Company. The Company
hereby represents and warrants to the Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by the
Company will not violate any provision of applicable law, any order of any court
or other agency of government, or any provision of any indenture, agreement or
other instrument to which the Company or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument.
(b) This Agreement has been duly executed and delivered by the Company,
and when executed by the other parties hereto will constitute the legal, valid
and binding obligation of the Company, enforceable in accordance with its terms.
SECTION 13. Headings. Headings of articles, sections and paragraphs of
this Agreement are inserted for convenience of reference only and shall not
affect the interpretation or be deemed to constitute a part hereof.
SECTION 14. Severability. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein shall, for any reason, be held to be invalid, illegal or unenforceable,
such illegality, invalidity or unenforceability shall not affect any other
provisions of this Agreement.
SECTION 15. Benefits of Agreement. Nothing expressed by or mentioned in
this
17
Agreement is intended or shall be construed to give any person other than the
parties hereto and their respective successors and permitted assigns any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and permitted assigns.
Notwithstanding anything in this Section 15 to the contrary, subject to
compliance with the terms of this Agreement, each Stockholder shall have the
right to assign its interests hereunder in whole or in part to any transferee of
the Capital Stock of the Company held by such Stockholder in compliance with
this Agreement; provided, however, that such transferee shall agree in writing
with the parties hereto to be bound by, and to comply with, all applicable
provisions of this Agreement and to be deemed to be a Stockholder for purposes
of this Agreement (it being understood that for purposes of this Agreement any
Affiliate of any WCAS Purchaser, Whitney Purchaser or CIBC Purchaser shall be
deemed to be such a Purchaser); provided, further, however, that whether or not
such transferee is assigned any interest hereunder, any transferee of a
Stockholder shall agree in writing with the parties hereto to be bound by, and
to comply with, all applicable provisions of this Agreement and to be deemed to
be a Stockholder for purposes of this Agreement in the manner provided above so
long as such transferee is, with respect to the transferring Stockholder, a
transferee of the type specified in clause (i), (ii), (iv) or (v) of Section 2.
Any Stockholder may assign to any of its Affiliates which are also Stockholders
all or any part of its tag-along rights with respect to a particular proposed
sale pursuant to Section 3 or its rights to purchase securities pursuant to
Section 5; provided the aggregate number of shares of Capital Stock to which
such rights apply with respect to all such affiliated Stockholders, taken as a
whole, shall not be increased thereby. Except as expressly permitted hereby,
each party's rights and obligations under this Agreement shall not be subject to
assignment or delegation by any party hereto, and any attempted assignment or
delegation in violation hereof shall be null and void ab initio.
SECTION 16. Notice of Transfer. To the extent that any Stockholder shall
transfer any shares of Capital Stock, notice of which transfer is not otherwise
required to be delivered to the Stockholders hereunder, such Stockholder shall,
within three days following consummation of such transfer, deliver notice
thereof to the Company and the other Stockholders; provided, however, that no
such notice shall be required to be delivered to the other Stockholders unless
the aggregate number of shares of Capital Stock transferred by such Stockholder
and its Affiliates since the date of the last notice delivered by such
Stockholder pursuant to this Section 16 exceeds 1% of the outstanding Capital
Stock of the Company.
SECTION 17. Notices. Any notice or other communications required or
permitted hereunder shall be deemed to be sufficient and received if contained
in a written instrument delivered in person or by courier or duly sent by first
class certified or registered mail, postage prepaid, or by facsimile addressed
to such party at the address or facsimile number set forth below:
(1) if to the Company, to it at:
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
18
Telecopy Number: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx.
(2) if to any Stockholder, to the address of such Stockholder appearing
in Schedule I hereto;
or, in any case, at such other address or facsimile number as shall have been
furnished in writing by such party to the other parties hereto. All such
notices, requests, consents and other communications shall be deemed to have
been received (a) in the case of personal or courier delivery, on the date of
such delivery, (b) in the case of mailing, on the fifth business day following
the date of such mailing and (c) in the case of facsimile, when received.
SECTION 18. Entire Agreement; Modification. This Agreement (including the
Schedules hereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof (without limiting the foregoing, the Second Amended
Stockholders' Agreement is hereby superseded in its entirety) and may not be
amended or modified except by an instrument in writing signed by the Company and
holders of at least 60% of the voting power of the Capital Stock held by
Stockholders (excluding for this purpose any limitations on voting power
affecting entities regulated by the Bank Holding Company Act of 1956, as
amended); provided, however, that, without the consent of a majority in interest
of the Whitney Purchasers, the CIBC Purchasers or TPC, to the extent any such
Stockholders shall be adversely affected thereby, no such amendment or
modification shall (i) limit or restrict the right of any such Stockholders to
designate members of the Board pursuant to Section 1, (ii) make more restrictive
the transfer limitations contained in Section 2, or (iii) limit or restrict any
rights of such Stockholders under Section 3 or Section 5 and provided, further
that any modification or amendment that adversely affects the rights or
privileges of any Stockholder and does not affect the other Stockholders in a
substantially similar manner shall require the prior consent of such adversely
affected holder. Any waiver of any provision of this Agreement must be in a
writing signed by the party against whom enforcement of such waiver is sought.
For purposes of this Agreement, holders of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock shall be entitled to such number of
votes as shall be equal to the largest number of whole shares of Common Stock
into which all of such holder's shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock are convertible at the time of any
such vote (without regard to any voting restrictions under the Bank Holding
Company Act of 1956, as amended).
SECTION 19. Covenants Bind Successors and Assigns. All the covenants,
stipulations, promises and agreements contained in this Agreement by or on
behalf of any party
19
shall bind its successors and permitted assigns, whether so expressed or not.
SECTION 20. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 21. Changes in Capital Stock. If, and as often as, there are any
changes in the Capital Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof as may be required so that the rights and privileges
granted hereby shall continue with respect to the Common Stock and Preferred
Stock as so changed.
SECTION 22. Specific Performance. Each party hereto agrees that a remedy
at law for any breach or threatened breach by such party of this Agreement would
be inadequate and therefore agrees that any other party hereto shall be entitled
to specific performance of this Agreement in addition to any other available
rights and remedies in case of any such breach or threatened breach.
SECTION 23. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
ENFORCEABLE UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
SECTION 24. Cooperation. Each Stockholder agrees to take all necessary
action (to the extent not adverse to the interests of such Stockholder) to amend
this Agreement, the Company's Amended and Restated Certificate of Incorporation
and related documents (i) if such amendment is necessary to permit the CIBC
Purchasers to comply with applicable banking laws and regulations or (ii) if all
or part of any provision of any such agreement that was required to permit the
CIBC Purchasers to comply with applicable banking laws and regulations is no
longer required because of a change in applicable banking laws or regulations or
an interpretation, ruling or other action by the applicable bank regulatory
authority.
SECTION 25. Certain Definitions. For purposes of this Agreement, the
following terms shall be defined as provided below:
"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person.
"Capital Stock" means, with respect to the Company, any and all shares,
interests, participations, rights in or other equivalents (however
designated) of the Company's capital stock, and any rights (other than debt
securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock. The percentage of
Capital Stock held by a Stockholder for purposes of this Agreement shall be
20
determined based on the percentage of Common Stock that would be held by
such Stockholder upon conversion of all shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock.
SECTION 26. Covenants Regarding Senior Management Shares. The Company
covenants and agrees that, until the termination of this Agreement, all shares
of Capital Stock of the Company held by the Company's President, Chief Financial
Officer and Executive Vice President (who on the date hereof are Xxxxxxx X.
Xxxxx, Xxxxx X. Xxxxxx and Xxxxxxx Xxxxx, respectively, shall be subject to all
applicable provisions of this Agreement and that, in connection with the
appointment of any successor to any such person in such position, the Company
shall require such successor person to become a party to this Agreement.
21
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as a sealed instrument, all as of the day and year first above
written.
SPECTRASITE HOLDINGS, INC.
By /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By WCAS VIII Associates, L.L.C.,
General Partner
By /s/ XXXXX XXX XXXXX
---------------------------------
Managing Member
WCAS CAPITAL PARTNERS III, L.P.
By WCAS CP III Associates, L.L.C.,
General Partner
By /s/ XXXXX XXX XXXXX
---------------------------------
Managing Member
WCAS INFORMATION PARTNERS, L.P.
By /s/ XXXXX XXX XXXXX
---------------------------------
General Partner
Attorney-in-Fact
22
/s/ XXXXXXX XXXXXX
-------------------------------
XXXXXXX XXXXXX
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxx XxxXxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
By /s/ XXXXX X. XXXXXXXX
---------------------------------
Xxxxx X. XxxXxxxx
Individually and
as Attorney-in-fact
TRUST U/A DATED 11/26/84
FBO XXXX XXXXX
By /s/ XXXXX XXX XXXXX
---------------------------------
Xxxxx Xxx Xxxxx
Trustee
TRUST U/A DATED 11/26/84
FBO XXXXXXX XXXXX
By /s/ XXXXX XXX XXXXX
---------------------------------
Xxxxx Xxx Xxxxx
Trustee
TRUST U/A DATED 11/26/84
FBO XXXXXXXX XXXXX
23
By /s/ XXXXX XXX XXXXX
---------------------------------
Xxxxx Xxx Xxxxx
Trustee
TOWER PARENT CORP.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name:
Title:
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
CO-INVESTMENT MERCHANT FUND 3, LLC
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C.,
As its Investment Manager and
Attorney-in-Fact
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
WHITNEY EQUITY PARTNERS, L.P.
By: Whitney Equity Partners, LLC
24
Its General Partner
By: /s/ XXXXXXX XXXXX
--------------------------------
Name: Xxxxxxx Xxxxx
Title: A Managing Member
X. X. XXXXXXX III, L.P.
By: X. X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By /s/ XXXXXX X. X'XXXXX
---------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: A Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X. X. Xxxxxxx Equity
Partners III L.L.C.,
Its General Partner
By /s/ XXXXXX X. X'XXXXX
---------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: A Managing Member
WHITNEY MEZZANINE MANAGEMENT COMPANY,
L.L.C.
By: Whitney Holdings, LLC,
Member
By /s/ XXXXXX X. X'XXXXX
---------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Managing Member
XXXXXX XXXXXX MEDIA PARTNERS, L.P.
By: Xxxxxx Xxxxxx Media Partners, LLC
25
Its General Partner
By /s/ XXXXXX X. XXXXXXXXX, XX.
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, III
By: Kitty Hawk Partners Limited
Partnership, III
Its General Partner
By: /s/ W. XXXXX XXXXXX
--------------------------------
Name: W. Xxxxx Xxxxxx
Title: General Partner
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV
By: Kitty Hawk Partners LLC, IV
Its General Partner
By: /s/ W. XXXXX XXXXXX
--------------------------------
Name: W. Xxxxx Xxxxxx
Title: Managing Member
EAGLE CREEK CAPITAL, LLC
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Partner, Eagle Creek
Capital
/s/ XXXXXXX X. XXXXX
---------------------------------
XXXXXXX X. XXXXX
26
/s/ XXXXX X. XXXXXX
---------------------------------
XXXXX X. XXXXXX
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXX X. XXX XXXXXX
--------------------------------
Name: Xxx X. Xxx Xxxxxx
Title: Managing General Partner
THE NORTH CAROLINA ENTERPRISE FUND, L.P.
By: The North Carolina Enterprise
Corporation,
Its General Partner
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
/s/ XXXXXX X. XXXXXXXXX
---------------------------------
XXXXXX X. XXXXXXXXX
/s/ XXXX X. XXXXXXX
---------------------------------
XXXX X. XXXXXXX
/s/ XXXXX X. XXXXXX
---------------------------------
XXXXX X. XXXXXX
27
/s/ XXXXXXX X. XXXXXX
---------------------------------
XXXXXXX X. XXXXXX
THE PRICE FAMILY LIMITED PARTNERSHIP
By /s/ XXXXXXX X. XXXXX
-------------------------------
Xxxxxxx X. Xxxxx
General Partner
XXXXXX XX
By: /s/ XXXX XXXXXXXX
------------------------------
Xxxx Xxxxxxxx
General Partner
/s/ XXXXXXX XXXXX
---------------------------------
XXXXXXX XXXXX
