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Exhibit 4.4
AMENDMENT NO. 3 TO THE THIRD AMENDED
AND RESTATED STOCKHOLDERS' AGREEMENT
Amendment No. 3, dated as of March 31, 2001, to the Third Amended and
Restated Stockholders' Agreement, dated as of April 20, 1999, as amended by
Amendment No. 1, dated as of November 20, 2000, and Amendment No. 2, dated as of
December 14, 2000 (collectively, the "Stockholders' Agreement"), by and among
the Company, the WCAS Purchasers, SBCT, TPC, CIBC II, CIBC III, Caravelle, JHW
II, JHW III, JHW Strategic III, JHW Mezzanine, Clark, Tomick, Bryne, Waller,
Kitty Hawk III, Kitty Hawk IV, Eagle Creek, Finley LP, NCEF, Lutkewich, Jackman,
Eckert, Gupton, Price LP and Benake. Unless otherwise defined herein,
capitalized terms shall have such meanings ascribed to them in the Stockholders'
Agreement.
WHEREAS, at the Company's annual meeting of stockholders for 2001,
stockholders of the Company will, among other things, vote to elect members of
the Company's Board of Directors (the "Board") to serve until the next annual
meeting; and
WHEREAS, pursuant to Section 1 of the Stockholders' Agreement, the WCAS
Purchasers, the Whitney Purchasers, TPC and SBCT are entitled to designate
nominees for the Board; and
WHEREAS, such Stockholders have designated the following nominees to the
Board: the WCAS Purchasers have designated Thomas E. McInerney, Lawrence B.
Sorrel and James R. Matthews; the Whitney Purchasers have designated Michael R.
Stone; TPC has designated Timothy M. Donahue and Steven M. Shindler; and SBCT
has designated Edgar L. Reynolds; and
WHEREAS, such nominees, together with Stephen H. Clark, Calvin J. Payne and
Michael J. Price as current directors who will also be nominees to the Board,
provide for a ten (10) person slate of directors for the Board; and
WHEREAS, Amendment No. 2 to the Stockholders' Agreement amended Section
1(a)(i) of the Stockholders' Agreement to provide, in pertinent part, that "the
authorized number of directors of the [Board] shall be established at twelve
(12) persons...."; and
WHEREAS, pursuant to Section 18 of the Stockholders' Agreement, the Company
and the Stockholders desire to amend the Stockholders' Agreement to further
amend Section 1(a)(i) to allow more flexibility in setting the size of the
Board, as more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Amendment of Section 1(a)(i).
Section 1(a)(i) of the Stockholders' Agreement is hereby amended in its
entirety and replaced with the following:
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"(i) the authorized number of directors of the board of directors
of the Company (the "Board") to be established at such number of
directors as will accommodate all persons designated pursuant to
clause (ii) below, or, at the request of the holders of a majority of
the Common Stock then held by the WCAS Purchasers, an increase in the
size of the Board, up to a maximum of fifteen (15) persons;"
2. Continuing Effect of Stockholders' Agreement. This Amendment shall not
constitute an amendment or modification of any other provision of the
Stockholders' Agreement not expressly referred to herein. Except as expressly
amended or modified herein, the provisions of the Stockholders' Agreement are
and shall remain in full force and effect.
3. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument. Each party hereto confirms
that any facsimile copy of such party's executed counterpart of this Amendment
(or its signature page thereof) shall be deemed to be an executed original
thereof.
4. Governing Law. This Amendment shall be governed by, and interpreted and
construed in accordance with, the internal laws of the State of Delaware,
without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
agreement, as of the day and year first above written.
WELSH, CARSON, ANDERSON & STOWE VIII, L.P.
By: WCAS VIII Associates, L.L.C.,
its General Partner
By: /s/Lawrence B. Sorrel
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Name:Lawrence B. Sorrel
Title:Managing Member
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates, L.L.C.,
its General Partner
By: /s/Lawrence B. Sorrel
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Name:Lawrence B. Sorrel
Title:Managing Member
WCAS INFORMATION PARTNERS, L.P.
By: /s/Lawrence B. Sorrel
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Name:Lawrence B. Sorrel
Title:Managing Member
TOWER PARENT CORP.
By: /s/Steven Shindler
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Name:Steven Shindler
Title:Chief Executive Officer, Nextel International
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CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/Andrew R. Heyer
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Name:Andrew R. Heyer
Title:Managing Member
CO-INVESTMENT MERCHANT FUND 3, LLC
By: /s/Andrew R. Heyer
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Name:Andrew R. Heyer
Title:Managing Member
CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C., as its Investment Manager
and Attorney-in-Fact
By: /s/Andrew R. Heyer
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Name:Andrew R. Heyer
Title:Managing Member
WHITNEY EQUITY PARTNERS, L.P.
By: Whitney Equity Partners, LLC, its General Partner
By: /s/Michael R. Stone
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Name:Michael R. Stone
Title:Managing Member
J.H. WHITNEY III, L.P.
By: J.H. Whitney Equity Partners III, LLC, its General
Partner
By: /s/Michael R. Stone
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Name:Michael R. Stone
Title:Managing Member
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WHITNEY STRATEGIC PARTNERS III, L.P.
By: J.H. Whitney Equity Partners III L.L.C., its General
Partner
By: /s/Michael R. Stone
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Name:Michael R. Stone
Title:Managing Member
WHITNEY MEZZANINE FUND, L.P.
By: Whitney GP, LLC,
Its General Partner
By: /s/Michael R. Stone
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Name:Michael R. Stone
Title:Managing Memeber
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Stephen H. Clark
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David P. Tomick
SBC TOWER HOLDINGS LLC
By: New Southwestern Bell Mobile Systems, Inc., its
Managing Member
By: /s/Gregory L. Gibson
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Name:Gregory L. Gibson
Title:Vice President