EXHIBIT 10.3
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FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of May
15, 2002 (the "AGREEMENT"), by and among SPECTRASITE HOLDINGS, INC., a Delaware
corporation (the "COMPANY"), SPECTRASITE INTERMEDIATE HOLDINGS, LLC, a Delaware
limited liability company ("INTERMEDIATE HOLDCO" and, together with the Company,
the "CO-ISSUERS" and each, a "CO-ISSUER") the Persons named in Schedule I hereto
(collectively with their Permitted Transferees, the "WCAS Purchasers"), the
Persons named in Schedule II hereto (collectively with their Permitted
Transferees, the "TRIMARAN PURCHASERS"), the Persons named in Schedule III
hereto (collectively with their Permitted Transferees, the "CIBC PURCHASERS"),
TOWER PARENT CORP., a Delaware corporation and a wholly-owned direct subsidiary
of NEXTEL COMMUNICATIONS, INC., a Delaware corporation ("TPC"), SBC TOWER
HOLDINGS LLC, a Delaware limited liability company ("SBCT"), STEPHEN H. CLARK
("CLARK"), DAVID P. TOMICK ("TOMICK") and RICHARD BYRNE ("BYRNE"). The WCAS
Purchasers, the Trimaran Purchasers, the CIBC Purchasers, TPC, SBCT, Clark,
Tomick and Byrne are herein sometimes referred to collectively as the
"STOCKHOLDERS" and each individually as a "STOCKHOLDER."
WHEREAS, the Company and certain of the Stockholders are parties to
that certain Third Amended and Restated Stockholders' Agreement dated as of
April 20, 1999, as amended by that certain First Amendment to the Third Amended
and Restated Stockholders' Agreement dated as of November 20, 2000, that certain
Second Amendment to the Third Amended and Restated Stockholders' Agreement dated
as of December 14, 2000 and that certain Third Amendment to the Third Amended
and Restated Stockholders' Agreement dated as of March 31, 2001 (as so amended,
the "THIRD AMENDED STOCKHOLDERS' AGREEMENT") setting forth certain arrangements
among themselves with respect to the governance of the Company and the other
matters set forth therein;
WHEREAS, pursuant to the terms of that certain Funding Agreement, dated
as of the date hereof by and among the Co-Issuers and the purchasers listed
therein (the "FUNDING AGREEMENT"), the Co-Issuers sold 12.875% Convertible Term
Notes due 2008 (the "NOTES", which term shall include any replacement Notes that
may be issued from time to time pursuant to the terms thereof, including any
Notes that may be issued under the Indenture (as defined in the Notes)) to such
purchasers as more fully described in such Funding Agreement;
WHEREAS, the Notes are convertible into Common Stock, par value $0.001
per share, of the Company (the "COMMON STOCK") on the terms and conditions more
fully described therein; and
WHEREAS, pursuant to Section 15 of the Third Amended Stockholders'
Agreement, the Company and the Stockholders party thereto desire to amend and
restate such Third Amended Stockholders' Agreement in its entirety, to add
certain Stockholders as parties hereto and to terminate the obligations of
certain other parties thereto, in each case as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. VOTING AGREEMENT.
(a) Subject to Section 1(g), from and after the Closing Date, 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 Voting Securities
(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) the authorized number of directors of the board of
directors of the Company (the "Board") to be established at nine, to be
designated as follows:
(A) at least two directors who would qualify as
independent within the meaning given to such term under the
rules of the Nasdaq National Market ("NASDAQ") or the
principal exchange or quotation system on which the Common
Stock is listed or traded (each, together with any director
referred to in the provisos to Section 1(a)(i)(E), 1(a)(i)(F)
and 1(a)(i)(G), an "INDEPENDENT DIRECTOR"); PROVIDED that each
Independent Director shall be reasonably acceptable to the
Required Purchasers (as defined in the Funding Agreement);
(B) Welsh, Carson, Anderson & Stowe VIII, L.P.
("WCAS VIII") shall designate two directors and Welsh, Carson,
Anderson & Stowe IX, L.P. ("WCAS IX") shall designate one
director, in each case for so long as the WCAS Purchasers
beneficially own at least 20% of the shares of Common Stock
beneficially owned by them immediately following the Closing;
(C) WCAS VIII shall designate one director and
WCAS IX shall designate one director, in each case for so long
as the WCAS Purchasers beneficially own at least 10% but less
than 20% of the shares of Common Stock beneficially owned by
them immediately following the Closing;
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(D) WCAS VIII or WCAS IX shall designate one
director (which designation right shall be allocated between
them as they shall mutually agree) for so long as the WCAS
Purchasers beneficially own at least 5% but less than 10% of
the shares of Common Stock beneficially owned by them
immediately following the Closing;
(E) TPC shall designate one director until such
time as (i) TPC has Transferred at least 50% of the shares of
Common Stock beneficially owned by TPC on the Closing Date or
(ii) TPC ceases to beneficially own at least 1% of the
outstanding Common Stock of the Company (calculated on a
Fully-Diluted Basis); PROVIDED that, if TPC loses the right to
designate a director pursuant to this Section 1(a)(i)(E), any
director replacing the director formerly designated by TPC
shall meet the qualifications set forth in Section 1(a)(i)(A)
for an Independent Director (including being reasonably
acceptable to the Required Purchasers) and shall thereafter be
deemed to be an Independent Director for all purposes of this
Agreement;
(F) SBCT shall designate one director until such
time as (i) SBCT has Transferred (including any Transfer to
its members) at least 50% of the shares of Common Stock
beneficially owned by SBCT on the Closing Date or (ii) SBCT
ceases to beneficially own at least 2% of the outstanding
Common Stock of the Company (calculated on a Fully-Diluted
Basis); PROVIDED that, if SBCT loses the right to designate a
director pursuant to this Section 1(a)(i)(F), any director
replacing the director formerly designated by SBCT shall meet
the qualifications set forth in Section 1(a)(i)(A) for an
Independent Director (including being reasonably acceptable to
the Required Purchasers) and shall thereafter be deemed to be
an Independent Director for all purposes of this Agreement;
(G) Steven Shindler; PROVIDED that upon the
resignation or removal of Mr. Shindler, any director replacing
Mr. Shindler shall meet the qualifications set forth in
Section 1(a)(i)(A) for an Independent Director (including
being reasonably acceptable to the Required Purchasers) and
shall thereafter be deemed to be an Independent Director for
all purposes of this Agreement; and
(H) the Chief Executive Officer of the Company
(initially Stephen H. Clark);
all of which persons shall hold office, subject to their
earlier removal in accordance with clause (ii) below, the
By-laws of the
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Company and applicable corporate law, until their respective
successors shall have been elected and shall have qualified;
(ii) the removal from the Board (with or without cause) of
any director elected in accordance with subpart (A) through (F) of
clause (i) above upon the written request of the Stockholders that
designated such director; and
(iii) upon any vacancy in the Board as a result of any
individual designated as provided in clause (i) 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
Stockholder that designated such individual (or, in the case of a
director specified in subpart (H) of clause (i) above, an individual
meeting such qualifications).
(b) Subject to Section 1(g), from and after the Closing Date, each
Stockholder agrees to use its best efforts to cause its designees to the Board
to vote or otherwise give such designee's consent to:
(i) the creation and maintenance of a Compensation
Committee of the Board consisting of three directors, one of whom shall
be a director designated by a WCAS Purchaser pursuant to Section 1(a)
above (a "WCAS 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 may from time to time determine;
(ii) the creation and maintenance of an Audit Committee of
the Board, consisting of three directors, 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 may from time
to time determine; PROVIDED that one WCAS Designee shall be appointed
to the Audit Committee for so long as such WCAS Designee is
"independent" within the meaning of the rules and regulations of NASDAQ
or, if such WCAS Designee is not so "independent", for so long as such
WCAS Designee may be appointed to such Committee pursuant to NASDAQ
Rule 4350(d)(2)(B), as amended from time to time;
(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,
which committees shall have such duties and responsibilities as the
Board may from time to time determine; and
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(iv) the election of Lawrence B. Sorrel (or such other
person as may be designated by the WCAS Purchasers) as Chairman of the
Board and Chairman of the Executive Committee of the Board, if any.
(c) For as long as either SBCT or TPC shall be entitled to
designate a director pursuant to this Section 1, such party shall be entitled to
have a representative attend as an observer all meetings of committees of the
Board and 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 Voting Securities held by it, nor
shall any Stockholder enter into any stockholder agreement or arrangement of any
kind with respect to Voting Securities 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 Third Amended and Restated Certificate of
Incorporation as such certificate is defined in the Funding Agreement) shall
affect the voting or consent rights of any party under this Agreement.
(f) Until such time as the ownership of Common Stock held by the
Trimaran Purchasers and the CIBC Purchasers, in the aggregate, shall fall below
2% of the outstanding Common Stock of the Company (calculated on a Fully-Diluted
Basis), and subject to Section 1(g), the CIBC Purchasers shall have the right to
designate a representative to attend as an observer all meetings of the Board
and to receive all notices distributed to members of the Board at the same time
and in the same manner as so distributed. The Company shall provide such
observer with such information as the observer shall reasonably request.
(g) Unless earlier terminated as to any Stockholder as provided
above, the provisions of this Section 1 shall terminate on February 1, 2008.
Section 2. RESTRICTIONS ON TRANSFERS.
(a) From and after the Closing Date, no Designated Stockholder may
sell, assign, transfer, encumber or otherwise dispose of ("TRANSFER") any
Conversion Shares, except (i) to one or more Permitted Transferees of such
Designated Stockholder, (ii) pursuant to an effective registration statement
under the Securities Act or in a non-registered offering pursuant to an
applicable exemption from registration thereunder to the extent that, after
giving effect to such Transfer, such Designated Stockholder does not know that
any of the transferees (together with any members of a group of which any such
transferee is a part) in such Transfer would beneficially own more than 7% of
the Voting Securities, (iii) in reliance on Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or pursuant to any similar rule
or regulation hereafter adopted by the Commission, (iv) otherwise in a private
Transfer to any
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Person or group to the extent that, after giving effect to such Transfer, such
Designated Stockholder does not know, or have reason to believe, that such
Person or group would beneficially own more than 7% of the Voting Securities,
(v) pursuant to a tender offer or exchange offer for the Common Stock if the
majority of the Disinterested Directors has recommended such offer or (vi) in
connection with a Sale of the Company (other than a Sale described in clause (v)
above) if the majority of the Disinterested Directors has approved such Sale and
if each holder of Common Stock is entitled in connection with such Sale to
receive the same consideration per share of Common Stock. From and after the
Closing Date, the Designated Stockholders agree not to Transfer any Conversion
Shares pursuant to Section 2(a)(iv) in contemplation of one or more related
Transfers to the same Person or group, except to the extent that such
contemplated Transfers, taken together with such Transfer pursuant to Section
2(a)(iv), would be permitted pursuant to the terms hereof. As used herein,
"DISINTERESTED DIRECTORS" means, with respect to any Designated Stockholder,
members of the Board who are not designated by such Designated Stockholder or
one of its Affiliates.
(b) From and after the Closing Date, no Designated Stockholder may
Transfer any Notes, except (i) to one or more Permitted Transferees of such
Designated Stockholder, (ii) pursuant to an effective registration statement
under the Securities Act or in a non-registered offering pursuant to an
applicable exemption from registration thereunder to the extent that, after
giving effect to such Transfer, such Designated Stockholder does not know that
any of the transferees (together with any members of a group of which any such
transferee is a part) in such Transfer would beneficially own more than 7% of
the Voting Securities, (iii) in reliance on Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or pursuant to any similar rule
or regulation hereafter adopted by the Commission, (iv) otherwise in a private
Transfer to any Person or group to the extent that, after giving effect to such
Transfer, such Designated Stockholder does not know, or have reason to believe,
that such Person or group would beneficially own more than 7% of the outstanding
Voting Securities, (v) pursuant to a tender offer or exchange offer for the
Notes if the majority of the Disinterested Directors has recommended such offer
or (vi) in connection with a Sale of the Company if the majority of the
Disinterested Directors has approved such Sale. From and after the Closing Date,
the Designated Stockholders agree not to Transfer any Notes pursuant to Section
2(b)(iv) in contemplation of one or more related Transfers to the same Person or
group, except to the extent that such contemplated Transfers, taken together
with such Transfer pursuant to Section 2(b)(iv), would be permitted pursuant to
the terms hereof.
(c) From and after the Closing Date, no Designated Stockholder may
Transfer any After-Acquired Shares to any Person or group (except to a Permitted
Transferee of such Designated Stockholder) if, after giving effect to such
Transfer, such Designated Stockholder knows, or has reason to believe, that such
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Person or group would beneficially own more than 7% of the outstanding Voting
Securities. From and after the Closing Date, the Designated Stockholders agree
not to Transfer any After-Acquired Shares pursuant to this Section 2(c) in
contemplation of one or more related Transfers to the same Person or group,
except to the extent that such contemplated Transfers, taken together with such
Transfer pursuant to this Section 2(c), would be permitted pursuant to the terms
hereof.
(d) From and after the Closing Date, no Transfer by a Designated
Stockholder to a Permitted Transferee of such Designated Stockholder otherwise
permitted pursuant to this Section 2 shall be effective unless (x) the
certificates representing such shares of Common Stock or Notes delivered to such
transferee shall bear the legend set forth in Section 3, if required by such
Section, and (y) prior to such Transfer, (a) such transferee (if not already a
party to this Agreement) shall have executed and delivered to the Company an
instrument or instruments substantially in the form of Exhibit A hereto
confirming that such transferee has agreed to be bound as a "Stockholder" and a
"Designated Stockholder" by the terms of this Agreement, a copy of which
instrument shall be maintained on file with the secretary of the Company and
shall include the address of such transferee to which notices hereunder shall be
sent and (b) if so requested by the Company, the transferor shall have delivered
to the Company an opinion of counsel (which shall be reasonably acceptable to
the Company) to the effect that such shares of Common Stock or Notes, as the
case may be, may be Transferred without registration under the Securities Act;
PROVIDED that the provisions of clause (y) above shall not be applied to any
Transfer by a Stockholder that is a partnership or limited liability company of
any of its shares of Common Stock or Notes to the partners or members of such
Stockholder pursuant to a distribution that is made pro rata to such partners or
members in accordance with the respective partnership or limited liability
company agreement of such Stockholder without payment of additional
consideration therefor by such partners or members (each such distribution, a
"DISTRIBUTION IN KIND") and such partners or members shall not be bound by the
provisions of this Agreement.
(e) Until the provisions of Section 6 have terminated pursuant to
Section 6(d), each Noteholder agrees that, from and after the Closing Date,
concurrently with any Transfer by such Noteholder of all or any portion of the
Notes held by it (to the extent such Transfer is permitted pursuant to the terms
of the Notes and this Agreement), such Noteholder shall assign to such
transferee its rights under Section 6, to the extent of the portion of such
Notes so transferred, and such transferee shall assume, to the extent of such
portion of the Notes so transferred, the obligations of such Noteholder under
Section 6 and agree to be bound by all of the provisions thereof.
(f) Except as otherwise provided in Section 2(e), the restrictions
set forth in this Section 2 shall terminate as to any Designated Stockholder
upon the fifth anniversary of the Closing Date.
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Section 3. LEGEND ON STOCK CERTIFICATES AND NOTES. From and
after the Closing Date, each certificate representing shares of Common Stock or
Notes owned by any Stockholder shall conspicuously bear the following legend
until such time as the shares or Notes 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 FOURTH AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT, DATED AS OF MAY 15, 2002, AS THE SAME
MAY BE AMENDED, AMONG SPECTRASITE HOLDINGS, INC. 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
SPECTRASITE HOLDINGS, INC."
The Company covenants that it shall keep a copy of this Agreement on
file at the address listed in Section 12 for the purpose of furnishing copies to
the holders of record of shares of Common Stock and Notes.
Section 4. VOTING RESTRICTIONS. Each Designated Stockholder
hereby irrevocably agrees, and agrees to cause each of its Designated Permitted
Transferees to hereby irrevocably agree, that, from and after the Closing Date,
to the extent the Designated Securities owned by such Designated Stockholder and
Designated Permitted Transferees at the time any action is to be taken by the
Company's stockholders (at a stockholders meeting or by written consent in lieu
thereof or otherwise), when taken together with all other Voting Securities
owned at such time by such Designated Stockholder and Designated Permitted
Transferees, represent a percentage of the total Voting Securities outstanding
at such time that is in excess of its Applicable Voting Percentage (such excess,
the "EXCESS SECURITIES" with respect to such action), then such Designated
Stockholder and Designated Permitted Transferees will vote or abstain, as the
case may be, such Excess Securities in connection with such action in proportion
to the votes or abstentions by the other holders of Voting Securities in
connection with such action (excluding for these purposes all Designated
Securities and other Voting Securities owned of record by each Designated
Stockholder and its Designated Permitted Transferees). As used herein,
"DESIGNATED PERMITTED TRANSFEREE" of a Designated Stockholder means a Permitted
Transferee of such Designated Stockholder other than, in the case of a
Designated Stockholder that is a partnership or limited liability company,
partners or members of such Designated Stockholder who have received Designated
Securities as a result of a Distribution in Kind of Common Stock or Notes. As
used herein, "DESIGNATED SECURITIES" means Notes, Conversion Shares and
After-Acquired Shares. As used herein, "VOTING SECURITIES" means any securities
of the Company entitled in the ordinary course to vote for election of directors
of the Company, including the Notes and Common Stock. As used herein,
"APPLICABLE VOTING PERCENTAGE" of a Designated Stockholder and its Designated
Permitted Transferees means the
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product of (i) 32% and (ii) the Pro Rata Percentage of such Designated
Stockholder and Designated Permitted Transferees. As used herein, "PRO RATA
PERCENTAGE" of a Designated Stockholder and its Designated Permitted Transferees
at a given time means a fraction (expressed as a percentage), the numerator of
which shall be the number of Voting Securities owned of record by such
Designated Stockholder and its Designated Permitted Transferees at such time and
the denominator of which shall be the number of Voting Securities owned of
record by all Designated Stockholders and their Designated Permitted Transferees
at such time.
Section 5. CERTAIN ACTIONS.
(a) During the period commencing on the Closing Date and ending on
the fifth anniversary of the Closing Date, and subject to Section 5(b), the
Designated Shareholders will not, and will cause each of their Designated
Permitted Transferees not to, without the approval of a majority of the
Disinterested Directors:
(i) publicly solicit, initiate or encourage, any offer or
proposal for, or any indication of interest in, a merger or other
business combination involving the Company or any subsidiary of the
Company or the acquisition of securities representing at least 30% of
the voting power of the Company, or a substantial portion of the assets
of the Company or any subsidiary of the Company (an "ACQUISITION
PROPOSAL");
(ii) except as otherwise provided in Section 1, "solicit",
or become a "participant" in any "solicitation" of, any "proxy" (as
such terms are defined in Regulation 14A under the Exchange Act) from
any holder of Voting Securities in connection with any vote on any
matter, or agree or announce their intention to vote with any Person
undertaking a "solicitation";
(iii) form, join or in any way participate in a group with
respect to any Voting Securities; PROVIDED that this clause 5(a)(iii)
shall not prohibit any such arrangement solely among the WCAS
Purchasers; or
(iv) advise or assist any other Person in connection with
any of the foregoing or publicly disclose any intention, plan or
arrangement inconsistent with any of the foregoing.
(b) In the event that a Hostile Approach (as defined below) is
made by any Person (a "HOSTILE PERSON"), the restrictions set forth in Section
5(a) shall be suspended upon the earliest of (i) the fifth business day
following such Hostile Approach, unless the Board shall have publicly announced
their opposition to such Hostile Approach, including, where applicable, by
recommending that stockholders of the Company vote against, and do not furnish
any proxy, consent or authorization requested by such Hostile Person in
connection with, such
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Hostile Approach, (ii) the commencement of discussions or negotiations by the
Company or any of its representatives or advisors with such Hostile Person or
its representatives or advisors and (iii) the waiver by the Company of any
material rights available to defend against such Hostile Approach, including the
waiver or amendment of any standstill or similar provision or the waiver or
amendment of any provision of any "poison pill" or similar rights' plan (unless
such waiver or amendment would adversely affect the ability of such Hostile
Person to effect a Hostile Approach). In the event that such Hostile Approach is
terminated without consummation thereof and such Hostile Person publicly
indicates that it no longer intends to effect a Hostile Approach, the
restrictions set forth in Section 5(a) shall be reinstated (but shall not apply
to any actions taken by the Designated Stockholders or their Designated
Permitted Transferees during the period of suspension of such restrictions);
PROVIDED that the reinstatement of such restrictions shall not be deemed to
require the Designated Stockholders or their Designated Permitted Transferees to
dispose of any Voting Securities. For purposes of this Agreement, "HOSTILE
APPROACH" means (i) any public unsolicited offer or proposal for, or public
announcement of an interest in, or intention to seek to effect, an Acquisition
Proposal, (ii) the acquisition by any Person, directly or indirectly, of greater
than 15% of the Voting Securities of the Company (whether by tender offer or
otherwise) or (iii) the acquisition, directly or indirectly, of assets of the
Company and its subsidiaries which, for the last full fiscal year, contributed
more than 30% of the consolidated revenues of the Company and its subsidiaries.
(c) Notwithstanding anything herein to the contrary, the
provisions of Section 5(a) shall be inoperative and of no force or effect if the
Company enters into a definitive agreement with respect to an Acquisition
Proposal.
(d) In addition, notwithstanding anything herein to the contrary,
(i) no Designated Stockholder shall be deemed to have breached any of the
provisions of Section 5 solely by virtue of complying with the other provisions
of this Agreement or any of the other Ancillary Agreements (as defined in the
Funding Agreement), (ii) Section 5(a) shall not prohibit the Designated
Stockholders and their respective director designees, employees and Affiliates,
from engaging in ordinary course business activities with the Company and its
subsidiaries and (iii) Section 5(a) shall not apply to any action taken by a
WCAS Designee in his capacity as director.
Section 6. AMENDMENT OF NOTES. (a) The Co-Issuers and each
Noteholder agree that the Notes may be amended without any notice to any
Noteholder but with the written consent of Noteholders holding at least a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange for Notes). However,
without the consent of each Noteholder holding an outstanding Note affected, an
amendment may not:
(i) reduce the amount of Notes whose holders must consent
to an amendment;
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(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal of or extend the maturity date
of any Note;
(iv) change the time at which any Note may be redeemed;
(v) make any Note payable in money other than that stated
in the Note;
(vi) impair the right of any holder to receive payment of
principal of and interest on such holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such holder's Notes;
(vii) impair the right to convert any Note pursuant to the
terms set forth therein; or
(viii) make any change in this second sentence of Section 6.
(b) After an amendment under this Section 6 becomes effective, the
Co-Issuers shall mail to the Noteholders a notice briefly describing such
amendment. The failure to give such notice to all Noteholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 6.
(c) None of the Co-Issuers nor any of their Affiliates shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of Notes for, or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Notes unless such consideration is offered to be paid to all holders of
Notes that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
(d) Notwithstanding anything in this Section 6 to the contrary,
the provisions of this Section 6 shall terminate immediately following the date
on which the Indenture (as defined in the Notes) has been executed and delivered
and, to the extent required by the Trust Indenture Act of 1939, as amended, duly
qualified thereunder.
Section 7. REPRESENTATIONS AND WARRANTIES BY THE STOCKHOLDERS.
Each Stockholder, severally and not jointly, represents and warrants to the
Co-Issuers 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
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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.
Section 8. REPRESENTATIONS AND WARRANTIES BY THE CO-ISSUERS. The
Co-Issuers, jointly and severally, hereby represent and warrant to the
Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by
each Co-Issuer 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 Co-Issuer 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 each
Co-Issuer, and when executed by the other parties hereto will constitute the
legal, valid and binding obligation of such Co-Issuer, enforceable in accordance
with its terms.
Section 9. 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 10. 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 11. SUCCESSORS; ASSIGNS; BENEFITS OF AGREEMENT. (a) The
provisions of this Agreement shall be binding upon and accrue to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns. Notwithstanding the foregoing, (i) no party
hereto may assign to any other party any of its rights under Section 1(a)(i)(B)
through 1(a)(i)(F), 1(c) or 1(f) and (ii) in connection with a Transfer by a
Stockholder or Noteholder of Common Stock or Notes, such Stockholder or
Noteholder, as the case may be, must assign its obligations hereunder to such
transferee to the extent required by Section 2(d) or 2(e).
12
(b) Nothing expressed by or mentioned in this 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.
Section 12. 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 any Co-Issuer, to it at:
c/o SpectraSite Holdings, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: Chief Executive Officer
Fax: (919) 468-0112
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Bruce Gutenplan, Esq.
Fax: (212) 757-3990
(2) if to any Stockholder, to the address of such Stockholder
appearing in Schedule I, II, III or IV 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 13. ENTIRE AGREEMENT; MODIFICATION. This Agreement
(including the Exhibits and Schedules hereto) constitutes the entire agreement
of the parties with respect to the subject matter hereof (without limiting the
foregoing, the Third Amended Stockholders' Agreement is hereby superseded in its
entirety and all parties thereto are relieved of their obligations thereunder)
and may not be amended or modified except to the extent such amendment or
13
modification is approved by a majority of the Disinterested Directors and such
amendment or modification is contained in an instrument in writing signed by the
Company and holders of at least a majority of the shares of the Common Stock
beneficially owned by all Stockholders; PROVIDED, that (i) 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 affected holder, and (ii) any modification or
amendment of the first sentence of Section 6 shall require the written consent
of the holders of a majority in principal amount of the Notes then outstanding
and any modification or amendment of the second sentence of Section 6 shall
require the written consent of each Noteholder. 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.
Section 14. 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 15. CHANGES IN SECURITIES. If, and as often as, there are
any changes in the securities of any Co-Issuer 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
securities as so changed.
Section 16. 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 17. 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 18. 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 Third Amended and Restated
Certificate of Incorporation (as defined in the Funding Agreement) 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.
14
Section 19. CERTAIN DEFINITIONS. For purposes of this Agreement,
the following terms shall be defined as provided below:
"ACQUISITION PROPOSAL" shall have the meaning set forth in Section 5.
"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.
"AFTER-ACQUIRED SHARES" means any shares of Common Stock acquired by a
Designated Stockholder after the date on which such Designated
Stockholder became a party to this Agreement (other than any Conversion
Shares, any shares of Common Stock received as a dividend or
distribution with respect thereto and any shares of Common Stock
received as a dividend or distribution with respect to shares of Common
Stock acquired prior to the date on which such Designated Stockholder
became a party to this Agreement).
"AGREEMENT" shall have the meaning set forth in the preamble.
"APPLICABLE VOTING PERCENTAGE" shall have the meaning set forth in
Section 4.
"BENEFICIAL OWNERSHIP" and "BENEFICIALLY OWN" shall be determined in
accordance with Rules 13d-3 and 13d-5 under the Exchange Act; PROVIDED
that for purposes of this definition, the Notes shall be deemed to be
convertible into shares of Common Stock commencing on the Closing Date.
"BOARD" shall have the meaning set forth in Section 1.
"BYRNE" shall have the meaning set forth in the preamble.
"CIBC PURCHASERS" shall have the meaning set forth in the preamble.
"CLARK" shall have the meaning set forth in the preamble.
"CLOSING" shall have the meaning set forth in the Funding Agreement.
"CLOSING DATE" shall have the meaning set forth in the Funding
Agreement.
"CO-ISSUERS" shall have the meaning set forth in the preamble.
"COMMISSION" means the Securities and Exchange Commission or any
successor commission or agency having similar powers.
"COMMON STOCK" shall have the meaning set forth in the recitals.
15
"COMPANY" shall have the meaning set forth in the preamble.
"CONVERSION SHARES" means any shares of Common Stock issued to a
Designated Stockholder upon conversion of the Notes (including any such
shares received in respect of accrued interest thereon) and any shares
of Common Stock received as a dividend or distribution with respect
thereto.
"DESIGNATED PERMITTED TRANSFEREE" shall have the meaning set forth in
Section 4.
"DESIGNATED SECURITIES" shall have the meaning set forth in Section 4.
"DESIGNATED STOCKHOLDER" means each of the WCAS Purchasers.
"DISINTERESTED DIRECTORS" shall have the meaning set forth in Section
2.
"DISTRIBUTION IN KIND" shall have the meaning set forth in Section 2.
"EXCESS SECURITIES" shall have the meaning set forth in Section 4.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"FULLY-DILUTED BASIS" means to take into account all outstanding shares
of Common Stock and all shares issuable in respect of options, warrants
and other rights to purchase or subscribe for shares of Common Stock or
securities convertible into or exchangeable for shares of Common Stock,
including debt securities convertible into Common Stock.
"FUNDING AGREEMENT" shall have the meaning set forth in the recitals.
"GROUP" shall have the meaning set forth in Section 13(d)(3) of the
Exchange Act.
"HOSTILE APPROACH" shall have the meaning set forth in Section 5(b).
"HOSTILE PERSON" shall have the meaning set forth in Section 5(b).
"INDEPENDENT DIRECTOR" shall have the meaning set forth in Section 1.
"INTERMEDIATE HOLDCO" shall have the meaning set forth in the preamble.
"NASDAQ" shall have the meaning set forth in Section 1.
"NOTEHOLDER" means each Stockholder that holds a Note.
"NOTES" shall have the meaning set forth in the recitals.
"PERMITTED TRANSFEREE" means:
16
(i) with respect to any Trimaran Purchaser, (v) any
Affiliate of any Trimaran Purchaser, (w) Caravelle Investment Fund,
L.L.C., (x) Caravelle Investment Fund II, L.L.C., (y) any investment
fund controlled by at least two of Messrs. Jay Bloom, Andrew Heyer or
Dean Kehler, (z) any person (a) managed by CIBC World Markets Corp.
("CIBC World Markets") or Trimaran Fund II, L.L.C. (including any
Affiliates thereof) or at least two of Messrs. Bloom, Heyer or Kehler
and (b) substantially all the equity interests which are owned,
directly or indirectly, by (1) members in Trimaran Fund II, L.L.C., (2)
employees of CIBC World Markets or any Affiliate thereof, (3) any
investor in the Trimaran investment program that has co-investment
rights or (4) any combination of the persons named in the immediately
preceding clauses (1), (2) or (3) or any successor to any Trimaran
Purchaser or any of the foregoing persons;
(ii) with respect to any Stockholder, (u) any Affiliate of
such Stockholder, (v) any general partner, limited partner or member of
such Stockholder (including any such Person that has received or will
receive a distribution of Securities pursuant to a Distribution in
Kind), (w) any funds managed by such Stockholder, (x) any officer,
general partner, director or limited partner of such Stockholder or
partner (collectively, "ASSOCIATES"), (y) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any
associate and (z) a trust, corporation, partnership or other entity
substantially all the economic interests of which are held by or for
the benefit of such Stockholder or any of its Affiliates, partners,
members, associates, and any of their spouses or children (whether by
birth or adoption); and
(iii) with respect to any Stockholder that is an
individual, (x) the spouse, children (whether by birth or adoption),
grandparents, grandchildren, aunts, uncles, nieces and nephews of such
Stockholder, (y) a person to whom shares are transferred by such
Stockholder by will or the laws of descent and distribution and (z) a
trust established for the exclusive benefit of such Stockholder or any
of the persons referred to in clause (x).
"PERSON" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
"PRO RATA PERCENTAGE" shall have the meaning set forth in Section 4.
"SALE" means any merger, consolidation or similar business combination
involving the Company and a Person that is not a party to this
Agreement or an Affiliate of such party.
"SBCT" shall have the meaning set forth in the preamble.
17
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"STOCKHOLDER" and "STOCKHOLDERS" shall each have the meaning set forth
in the preamble.
"THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT" shall have the
meaning set forth in the recitals.
"TOMICK" shall have the meaning set forth in the preamble.
"TPC" shall have the meaning set forth in the preamble.
"TRANSFER" shall have the meaning set forth in Section 2.
"TRIMARAN PURCHASERS" shall have the meaning set forth in the preamble.
"VOTING SECURITIES" shall have the meaning set forth in Section 4.
"WCAS VIII" shall have the meaning set forth in Section 1.
"WCAS IX" shall have the meaning set forth in Section 1.
"WCAS DESIGNEE" shall have the meaning set forth in Section 1.
"WCAS PURCHASERS" shall have the meaning set forth in the preamble.
Section 20. EFFECTIVE DATE. This Agreement has been executed as
of the date first above written, to automatically and without further action of
the parties become effective on the Closing Date; PROVIDED that if the Funding
Agreement is terminated, then this Agreement shall automatically and without
further action of the parties terminate and be of no force and effect.
18
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, all as of the day and year first above written.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-------------------------------------------
Name: Stephen H. Clark
Title: President and CEO
SPECTRASITE INTERMEDIATE HOLDINGS, LLC
By: SpectraSite Holdings, Inc.
By: /s/ Stephen H. Clark
-------------------------------------------
Name: Stephen H. Clark
Title: President and CEO
WELSH, CARSON, ANDERSON & STOWE VIII, L.P.
By WCAS VIII Associates, L.L.C., General Partner
By: /s/ Jonathan Rather
-------------------------------------------
Name: Jonathan Rather
Title: Managing Member
WCAS CAPITAL PARTNERS III, L.P.
By WCAS CP III Associates, L.L.C.,
General Partner
By: /s/ Jonathan Rather
-------------------------------------------
Name: Jonathan Rather
Title: Managing Member
WCAS INFORMATION PARTNERS, L.P.
By: /s/ Jonathan Rather
-------------------------------------------
Name: Jonathan Rather
Title: General Partner
Attorney-in-Fact
WELSH, CARSON, ANDERSON & STOWE IX, L.P.
By WCAS IX Associates, L.L.C., Its General
Partner
By: /s/ Jonathan Rather
-------------------------------------------
Name: Jonathan Rather
Title:
/s/ Kenneth Melkus
-----------------------------------------------
KENNETH MELKUS
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Thomas E. McInerney
Robert A. Minicucci
Lawrence B. Sorrel
Anthony J. de Nicola
Paul B. Queally
IRA FBO Jonathan M. Rather
D. Scott Mackesy
Sanjay Swani
IRA FBO John D. Clark
IRA FBO James R. Matthews
Sean Traynor
John Almeida
Eric J. Lee
Andrew M. Paul
Laura VanBuren
Priscilla A. Newman
By: /s/ Jonathan Rather
-------------------------------------------
Name: Jonathan Rather
Individually and
as Attorney-in-Fact
TRUST U/A DATED 11/26/84
FBO ERIC WELSH
By: /s/ Carol Ann Welsh
-------------------------------------------
Name: Carol Ann Welsh
Title: Trustee
TRUST U/A DATED 11/26/84
FBO RANDALL WELSH
By: /s/ Carol Ann Welsh
-------------------------------------------
Name: Carol Ann Welsh
Title: Trustee
TRUST U/A DATED 11/26/84
FBO JENNIFER WELSH
By: /s/ Carol Ann Welsh
-------------------------------------------
Name: Carol Ann Welsh
Title: Trustee
TOWER PARENT CORP.
By: /s/ Timothy Donahue
-------------------------------------------
Name: Timothy M. Donahue
Title: President
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Managing Director
CO-INVESTMENT MERCHANT FUND 3, L.L.C.
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact
CARAVELLE INVESTMENT FUND, L.L.C.
By: Caravelle Advisors, L.L.C.,
As its Investment Manager and
Attorney-in-Fact
By: /s/ David Millise
-------------------------------------------
Name: David M. Millise
Title:
SBC TOWER HOLDINGS LLC
By: New Southwestern Bell Mobile
Systems, Inc.
Its Managing Member
By: /s/ Gregory Gibson
-------------------------------------------
Name: Gregory L.Gibson
Title:
/s/ Stephen H. Clark
-----------------------------------------------
STEPHEN H. CLARK
/s/ David P. Tomick
-----------------------------------------------
DAVID P. TOMICK
/s/ Richard Byrne
-----------------------------------------------
RICHARD BYRNE
TRIMARAN FUND II, L.L.C.
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact
TRIMARAN CAPITAL, L.L.C.
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact
TRIMARAN PARALLEL FUND II, L.P.
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact
CIBC EMPLOYEE PRIVATE EQUITY FUND
(TRIMARAN) PARTNERS
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact
CIBC WORLD MARKETS IRELAND LIMITED
By: /s/ Steven A. Flyer
-------------------------------------------
Name: Steven A. Flyer
Title: Attorney-in-fact