EXHIBIT 10.2
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VOTING AGREEMENT
AGREEMENT, dated as of May 15, 2002 by and among each of the
Stockholders listed on the signature pages hereof (each, a "STOCKHOLDER" and,
collectively, the "STOCKHOLDERS").
WHEREAS, certain of the Stockholders (the "INVESTORS"), SpectraSite
Holdings, Inc. (the "COMPANY"), and SpectraSite Intermediate Holdings, LLC
("INTERMEDIATE HOLDCO") are proposing to enter into a Funding Agreement of even
date herewith (the "FUNDING AGREEMENT") pursuant to which the Investors will
purchase 12.875% Convertible Term Notes due 2008 of the Company and Intermediate
Holdco (the "PURCHASER NOTES"), which Purchaser Notes are convertible into
shares of Common Stock, par value of $0.001 per share, of the Company (the
"COMMON STOCK");
WHEREAS, the Company is proposing to make an offer to certain holders
of the Company's High Yield Debt (as defined in the Funding Agreement) to
exchange certain of the High Yield Debt for newly issued 12.875% Convertible
Notes due 2008 of the Company and Intermediate Holdco (collectively, the "JUNIOR
EXCHANGE NOTES" and together with the Purchaser Notes, the "NOTES");
WHEREAS, the Amended and Restated Certificate of Incorporation of the
Company must be amended to effect a reverse stock split, to increase the amount
of the Company's authorized Common Stock so that a sufficient number of shares
will be available for issuance upon conversion of the Notes and so that the
Purchaser Notes will have the right to vote pursuant to the terms thereof (the
"CHARTER AMENDMENT");
WHEREAS, the rules and regulations of the Nasdaq National Market
("NASDAQ") will limit or prohibit (i) the voting rights of the Purchaser Notes
and (ii) the issuance of shares of Common Stock upon conversion of the Notes
unless and until the stockholders of the Company have voted to approve such
voting and issuance as required by NASDAQ (together with the stockholder vote to
approve the Charter Amendment, the "STOCKHOLDER VOTE"); and
WHEREAS, in order to induce the Investors to enter into the Funding
Agreement, the Investors have requested that the other Stockholders, and such
Stockholders have agreed to, enter into this Agreement with respect to all of
the shares of Common Stock that such Stockholders beneficially own.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.01 . VOTING AGREEMENT. Each Stockholder hereby agrees that
during the time this Agreement is in effect to vote all shares of Common Stock
that such Stockholder is entitled to vote to approve the Charter Amendment, the
issuance of shares of Common Stock upon conversion of the Notes and any other
matters relating to the transactions contemplated by the Funding Agreement
requiring a Stockholder Vote, at any meeting of the stockholders of the Company,
and at any adjournment thereof, and on any other occasion in respect of which
the consent of such Stockholder with respect to its shares of Common Stock may
be given or may be requested or solicited by the Company or the Investors,
whether at a meeting or pursuant to the execution of a written consent or
otherwise, for all purposes in connection with any of the foregoing matters.
Each Stockholder hereby agrees that during the time this Agreement is in effect
it will not vote any shares of Common Stock in favor of the approval of any
corporate action the consummation of which would frustrate the purposes, or
prevent or delay the consummation, of the transactions contemplated by the
Funding Agreement, including the issuance of the Notes.
SECTION 1.02 . IRREVOCABLE PROXY. Each Stockholder hereby revokes any
and all previous proxies granted with respect to its shares of Common Stock. By
entering into this Agreement, each Stockholder hereby grants a proxy appointing
each of James Matthews and Lawrence Sorrel (each, an "ATTORNEY-IN-FACT") as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power solely in the manner contemplated by
Section 1.01 above as either Attorney-in-Fact or its proxy or substitute shall,
in such Attorney-in-Fact's sole discretion, deem proper with respect to such
Stockholder's shares of Common Stock. The proxy granted by each Stockholder
pursuant to this Article 1 is coupled with an interest, is irrevocable and is
granted in consideration of the Investors entering into this Agreement and the
Funding Agreement and incurring certain related fees and expenses. The proxy
granted by each Stockholder shall be automatically revoked upon termination of
this Agreement in accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants to
the Investors that:
SECTION 2.01 . AUTHORIZATION; CAPACITY. The execution, delivery and
performance by such Stockholder (if not an individual) of this Agreement and the
consummation by such Stockholder of the transactions contemplated hereby are
within the powers (corporate or otherwise) of such Stockholder and have been
duly authorized by all necessary action (corporate or otherwise) on the part of
such
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Stockholder. Such Stockholder (if an individual) has the legal capacity to enter
into this Agreement. This Agreement constitutes a valid and binding Agreement of
such Stockholder.
SECTION 2.02 . NON-CONTRAVENTION. The execution, delivery and
performance by such Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate the constituent
documents, if any, of such Stockholder, (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree or (iii) require any consent
or other action by any person under, constitute a default under, or give rise to
any right of termination, cancellation or acceleration or to a loss of any
benefit to which such Stockholder is entitled under any provision of any
agreement or other instrument binding on such Stockholder.
SECTION 2.03 . OWNERSHIP OF SHARES. Such Stockholder is, as of the date
hereof, the record and beneficial owner of the shares of Common Stock set forth
opposite the name of such Stockholder on the signature pages hereof, free and
clear of any lien and any other limitation or restriction (including any
restriction on the right to vote or otherwise dispose of the such shares). None
of such shares or warrants or options is subject to any voting trust or other
agreement or arrangement with respect to the voting of such shares other than
the terms and provisions of the Third Amended and Restated Stockholders'
Agreement, dated as of April 20, 1999, as amended, among the Company, such
Stockholder and certain other parties listed therein (the "STOCKHOLDERS'
AGREEMENT"). Except for the shares of Common Stock and warrants and options to
purchase Common Stock set forth opposite the name of such Stockholder on the
signature pages hereof, as of the date hereof, such Stockholder does not
beneficially own any (i) shares of capital stock or voting securities of the
Company, (ii) securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company or (iii) options or
other rights to acquire from the Company any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company.
SECTION 2.04 . FINDER'S FEES. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from any person other than
such Stockholder in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Stockholder.
ARTICLE 3
COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
SECTION 3.01 . NO PROXIES FOR OR ENCUMBRANCES ON SHARES. Except
pursuant to the terms of this Agreement and the Stockholders' Agreement, during
the term of this Agreement, such Stockholder shall not directly or indirectly,
(i) grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the
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voting of any of its shares of Common Stock or (ii) sell, assign, transfer,
encumber or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect sale,
assignment, transfer, encumbrance or other disposition of, any of its shares of
Common Stock.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01 . FURTHER ASSURANCES. Each Stockholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, to consummate and make effective the
transactions contemplated by this Agreement.
SECTION 4.02 . AMENDMENTS; TERMINATION. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective. This Agreement shall terminate upon the earlier of the (i)
termination of the Funding Agreement in accordance with its terms and (ii) the
occurrence of the Stockholder Vote.
SECTION 4.03 . EXPENSES. Except as otherwise provided in the Funding
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
SECTION 4.04 . SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; PROVIDED that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto. No provision of this Agreement is intended to confer upon any person,
other than the parties hereto, the Company and the holders, from time to time,
of any Junior Exchange Notes, any rights or remedies hereunder.
SECTION 4.05 . GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York. Each of the
parties hereto hereby consents to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York, or any other New
York State court sitting in New York, New York (and of the appropriate appellate
courts therefrom) over any suit, action or proceeding arising out of or relating
to this Agreement. Each party hereto irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue in any such court or that any such proceeding which is brought in
accordance with this Section has been brought in an inconvenient forum. Subject
to applicable law,
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process in any such proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing and subject to applicable law, each party agrees that service of
process on such party as provided in Section 4.09 shall be deemed effective
service of process on such party. Nothing herein shall affect the right of any
party to serve legal process in any other manner permitted by law or at equity
or to enforce in any lawful manner a judgment obtained in one jurisdiction in
any other jurisdiction. WITH RESPECT TO A PROCEEDING IN ANY SUCH COURT, EACH OF
THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY
JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
SECTION 4.06 . COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 4.07 . SEVERABILITY. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 4.08 . SPECIFIC PERFORMANCE. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other
remedies which may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 4.09 . NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopier) and shall be
deemed to have been duly given or made if sent by telecopy (with confirmation in
writing), delivered personally or sent by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address or telecopier
number set forth on the signature pages hereof, or such other address or
telecopier number as such party may hereinafter specify for the purpose to the
party giving such notice. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient thereof if
received prior to 5 p.m. in the place of receipt and such day is a business day
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding business day
in the place of receipt.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Number of Shares Of Common Stock
32,033,102 WELSH, CARSON, ANDERSON & STOWE VIII, L.P.
By WCAS VIII Associates, L.L.C., General Partner
By: /s/ Jonathan M. Rather
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Managing Member
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
1,375,000 WCAS CAPITAL PARTNERS III, L.P.
By WCAS CP III Associates, L.L.C.,
General Partner
By: /s/ Jonathan M. Rather
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Managing Member
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
150,000 WCAS INFORMATION PARTNERS, L.P.
By: /s/ Jonathan M. Rather
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General Partner
Attorney-in-Fact
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
/s/ Kenneth Melkus
35,000 -------------------------------------------
KENNETH MELKUS
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
1,481,983 Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Laura VanBuren
Robert A. Minicucci
Anthony J. de Nicola
Paul B. Queally
Lawrence B. Sorrel
Priscilla A. Newman
D. Scott Mackesy
By: /s/ Jonathan M. Rather
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Jonathan M. Rather
Individually and
as Attorney-in-fact
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
20,000 TRUST U/A DATED 11/26/84
FBO ERIC WELSH
By: /s/ Carol Ann Welsh
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Carol Ann Welsh
Trustee
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
20,000 TRUST U/A DATED 11/26/84
FBO RANDALL WELSH
By: /s/ Carol Ann Welsh
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Carol Ann Welsh
Trustee
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
20,000 TRUST U/A DATED 11/26/84
FBO JENNIFER WELSH
By: /s/ Carol Ann Welsh
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Carol Ann Welsh
Trustee
Address: Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Attention: Lawrence B. Sorrel
Telecopier: (212) 893-9566
14,000,000 TOWER PARENT CORP.
By: /s/ Timothy Donahue
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Name: Timothy M. Donahue
Title: President
Address: Tower Parent Corp.
c/o Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Attention: General Counsel
Telecopier: (703) 433-4846
9,000,000 CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Managing Director
Address: c/o CIBC Oppenheimer Corp.
425 Lexington Avenue
New York, New York 10017
Attention: Jay Levine
Telecopier: (212) 885-4350
1,000,000 CO-INVESTMENT MERCHANT FUND 3, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in fact
Address: c/o CIBC Oppenheimer Corp.
425 Lexington Avenue
New York, New York 10017
Attention: Jay Levine
Telecopier: (212) 885-4350
312,500 CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C.
As its Investment Manager and
Attorney-in-Fact
By: /s/ David M. Millise
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Name: David M. Millise
Title:
Address: c/o CIBC Oppenheimer Corp.
425 Lexington Avenue
New York, New York 10017
Attention: Jay Levine
Telecopier: (212) 885-4350
1,402,960 TRIMARAN FUND II, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in-fact
Address: c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
Telecopier: (212) 885-4350
90,920 TRIMARAN CAPITAL, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in-fact
Address: c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
Telecopier: (212) 885-4350
591,440 TRIMARAN PARALLEL FUND II, L.P.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in-fact
Address: c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
Telecopier: (212) 885-4350
914,680 CIBC EMPLOYEE PRIVATE EQUITY FUND
(TRIMARAN) PARTNERS
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in-fact
Address: c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
Telecopier: (212) 885-4350
1,000,000 CIBC WORLD MARKETS IRELAND LIMITED
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: Attorney-in-fact
Address: c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
Telecopier: (212) 885-4350
4,923,524 WHITNEY EQUITY PARTNERS, L.P.
By: Whitney Equity Partners, LLC
Its General Partner
By: /s/ Daniel J. O'Brien
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Name: Daniel J. O'Brien
Title: Managing Member
Address: c/o J.H. Whitney & Co.
177 Broad Street
Stamford, CT 06901
Telecopier: (203) 973-1442
7,265,734 J.H. WHITNEY III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Daniel J. O'Brien
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Name: Daniel J. O'Brien
Title: Managing Member
Address: c/o J.H. Whitney & Co.
177 Broad Street
Stamford, CT 06901
Telecopier: (203) 973-1442
175,079 WHITNEY STRATEGIC PARTNERS, III, L.P.
By: J.H. Whitney Equity Partners III, L.L.C.
Its General Partner
By: /s/ Daniel J. O'Brien
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Name: Daniel J. O'Brien
Title: Managing Member
Address: c/o J.H. Whitney & Co.
177 Broad Street
Stamford, CT 06901
Telecopier: (203) 973-1442
312,500 J.H. WHITNEY MEZZANINE FUND, L.P.
By: Whitney GP, LLC
Its General Partner
By: /s/ Daniel J. O'Brien
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Name: Daniel J. O'Brien
Title: Managing Member
Address: c/o J.H. Whitney & Co.
177 Broad Street
Stamford, CT 06901
Telecopier: (203) 973-1442
9,877,127 SBC TOWER HOLDINGS LLC
By: New Southwestern Bell Mobile Systems, Inc.
Its Managing Member
By: /s/ Gregory Gibson
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Name: Gregory Gibson
Title: Vice President
Address: SBC Tower Holdings, LLC
c/o SBC Communications Inc.
175 E. Houston, 12th Floor
San Antonio, TX 78205
Attention: Senior Executive
Vice President - Corporate
Development
Telecopier: (210) 351-5034
1,765,685 /s/ Stephen H. Clark
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STEPHEN H. CLARK
Address: SpectraSite Communications, Inc.
8000 Regency Parkway
Suite 570
Cary, North Carolina 27511
Telecopier:
280,135 /s/ David P. Tomick
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DAVID P. TOMICK
Address: SpectraSite Communications, Inc.
8000 Regency Parkway
Suite 570
Cary, North Carolina 27511
Telecopier:
52,456 /s/ Richard Byrne
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RICHARD BYRNE
Address: SpectraSite Communications, Inc.
8000 Regency Parkway
Suite 570
Cary, North Carolina 27511
Telecopier:
1,914,074 /s/ Calvin J. Payne
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CALVIN J. PAYNE
Address:
Telecopier: