EXHIBIT 10.9
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of March 5,
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1998, is made by and among American Cellular Corporation, a Delaware corporation
(the "Company"), and the parties listed on Exhibit A to this Agreement (the
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"Purchasers").
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RECITALS
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A. Each Purchaser desires to invest in the Company the aggregate sum
set forth opposite each Purchaser's name on Exhibit A through the purchase of
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shares of the Company's Class A Common Stock, par value $0.01 per share (the
"Class A Common Stock"), and shares of the Company's Series A Preferred Stock,
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par value $0.01 per share (the "Series A Preferred Stock"). Subject to the
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terms of this Agreement, the Purchasers shall initially purchase an aggregate of
250,000 shares of Class A Common Stock (the "Initial Shares") and shall, at the
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request of the Company, purchase an aggregate of 325,000 shares of Series A
Preferred Stock (the "Committed Shares" and, collectively with the Initial
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Shares, the "Shares"), in each case in the respective amounts set forth opposite
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each Purchaser's name on Exhibit A. The Series A Preferred Stock shall have the
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rights set forth in the form of the Certificate of Designations of the Series A
Preferred Stock of American Cellular Corporation, attached hereto as Exhibit B
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(the "Certificate").
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B. Simultaneously with the execution of this Agreement, the
Purchasers and the Company will enter into (a) the Stockholders Agreement (the
"Stockholders Agreement") in the form attached hereto as Exhibit C, and (b) the
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Registration Rights Agreement (the "Registration Rights Agreement") in the form
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attached hereto as Exhibit D.
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C. This Agreement, the Stockholders Agreement and the Registration
Rights Agreement are being entered into in contemplation of the merger (the
"Merger") of the Company with and into PriCellular Corporation, a Delaware
corporation ("PCC"), pursuant to an Agreement and Plan of Merger to be executed
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by the Company and PCC (the "Merger Agreement"), which provides for, among other
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things, a merger price of $14.00 per share of common stock of PCC.
D. The proceeds from the Purchasers' purchase of the Initial Shares
and the Committed Shares shall be used solely to consummate the Merger, and the
transactions relating thereto, and to pay any Transaction Costs (as defined in
Section 4.2).
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I.
ISSUANCE OF SHARES
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Each Purchaser, severally and not jointly, hereby agrees as follows:
1.1. Purchase and Sale of Initial Shares. At the Initial Closing (as
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defined below), the Company shall sell to each Purchaser, and such Purchaser
shall purchase from the Company, the Initial Shares, at a purchase price of $100
per share in the respective amount set forth in Exhibit A. The purchase and
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sale of all the Initial Shares by the Purchasers is referred to herein as the
"Initial Purchase."
1.2. Initial Closing. The closing for the Initial Purchase (the "Initial
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Closing") shall take place upon the 15th day after delivery to each of the
Purchasers of an Initial Funding Notice, executed by an officer of the Company,
which certifies that on the date of such notice, the Company and PCC have
entered into the Merger Agreement. If such 15th day is not a Business Day, the
Initial Closing shall occur on the next succeeding Business Day. As used in
this Agreement, the defined term "Initial Closing" shall refer to both the event
as well as the date of such closing.
1.3. Deliveries at the Initial Closing. At the Initial Closing each
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Purchaser shall deliver to the Company the purchase price for the respective
Initial Shares to be acquired by such Purchaser by wire transfer of immediately
available funds, and the Company shall deliver to such Purchaser one or more
certificates representing its respective Initial Shares, which certificates
shall be duly registered in such name as the Purchaser shall have specified to
the Company prior to the Initial Closing.
1.4. Subsequent Purchase of Committed Shares. Upon receipt by each
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Purchaser of written notice from the Company (the "Drawdown Notice"), stating
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that the Company anticipates that the Merger is reasonably expected to be
consummated within 20 days, such Purchaser shall, within 15 days after its
receipt of the Drawdown Notice, purchase at a purchase price of $1,000 per
share, all of the Committed Shares to be acquired by such Purchaser, as set
forth on Exhibit A. The purchase of all the Committed Shares by all the
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Purchasers is referred to herein as the "Subsequent Purchase," and the
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consummation of the Subsequent Purchase is referred to herein as the "Subsequent
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Closing."
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1.5. Certificate of Designations; HSR Filing. On or prior to the
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Subsequent Closing, (a) the Company shall have duly adopted and filed with the
Secretary of State of the State of Delaware the Certificate, and (b) any waiting
period, if applicable, under the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), shall have terminated or expired.
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1.6. Deliveries at Subsequent Closing. At the Subsequent Closing:
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1.6.1. The Company shall deliver to each Purchaser one or more
certificates representing its respective Committed Shares;
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1.6.2. The Company shall deliver to each Purchaser a certificate,
executed by the Secretary of the Company, dated the date of the Subsequent
Closing, which certifies the resolutions adopted by the directors of the Company
duly authorizing all transactions contemplated at the Subsequent Closing; and
1.6.3. Each Purchaser shall deliver to the Company the purchase price
for such Purchaser's respective Committed Shares by wire transfer of immediately
available funds.
For purposes of this Agreement, the Initial Closing and Subsequent
Closing are sometimes referred to herein individually as a "Closing" and
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collectively as the "Closings."
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ARTICLE II.
CERTAIN REPRESENTATIONS, WARRANTIES
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AND AGREEMENTS OF THE PURCHASERS
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Each Purchaser, severally and not jointly, hereby represents, warrants and
agrees as follows:
2.1. Transfer Restrictions and Stock Legend.
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2.1.1. Acknowledgment. Such Purchaser understands that (a) a
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transfer of any of the Shares to be purchased by it hereunder will not be valid
unless a Registration Statement under the Securities Act of 1933, as amended
(together with the rules and regulations promulgated thereunder, the "Act") is
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in effect as to such transfer or in the opinion of counsel for the Company such
registration is unnecessary in order for such transfer to comply with the Act;
and (b) such Shares shall bear the legends set forth in the Stockholders
Agreement.
2.1.2. Removal. The Company will remove the restrictive legends
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referenced above upon request of such Purchaser provided that the restrictions
described in such legends are no longer applicable and such Purchaser has
provided the Company with evidence satisfactory to the Company that the
conditions to the termination of such restrictions have been met.
2.2. Securities Unregistered. Such Purchaser acknowledges that it has
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been advised that (a) the Shares to be acquired by it have not been registered
under the Act, (b) such Shares must be held indefinitely, and such Purchaser
must continue to bear the economic risk of the investment in such Shares, unless
such Shares are registered under the Act or an exemption from such registration
is available, (c) when and if such Shares may be disposed of without
registration in reliance on Rule 144 under the Act, such disposition can be made
only in limited amounts in accordance with the terms and conditions of said
Rule 144, and (d) a notation shall be made in the appropriate records of the
Company indicating that such Shares are subject to restrictions on transfer and,
subject to applicable provisions of this Agreement and the Stockholders
Agreement, if the Company engages the services of a stock transfer agent for the
Shares, appropriate stop transfer restrictions will be issued to such transfer
agent with respect to the Shares.
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2.3. Investment Representations. Such Purchaser (a) is acquiring the
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Shares for investment for its own account and not with a view to, or for resale
in connection with, the distribution or other disposition thereof, except in
compliance with applicable laws regulating securities; (b) was not organized for
the purpose of acquiring the Shares; (c) does not have any contract,
undertaking, agreement or arrangement with any Person (as defined below) to
sell, transfer or grant participations to such Person or to any third Person,
with respect to the Shares; (d) is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D under the Act, (e) has been given the
opportunity to obtain any information or documents relating to, and to ask
questions and receive answers about, the Company and the business and prospects
of the Company which it deems necessary to evaluate the risks and merits related
to its investment in the Shares, and (f) has a financial condition such that it
can afford to bear the economic risk of holding the unregistered Shares for an
indefinite period of time and has adequate means for providing for its current
needs and contingencies. For purposes of this Agreement, "Person" shall mean
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any individual, partnership, limited liability company, corporation, joint
venture, trust, unincorporated organization, or any other entity, or a
government or any department, agency or political subdivision thereof.
2.4. Authority; Authorization; No Conflicts. (i) Such Purchaser has full
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organizational power and authority to enter into this Agreement, the
Stockholders Agreement and the Registration Rights Agreement, that such
agreements have been duly authorized, executed and delivered by it, that all
organizational action on the part of such Purchaser or its shareholders,
partners or members necessary for the authorization, execution, delivery and
performance of such agreements and the consummation of the transactions
contemplated hereby and thereby have been taken, and that such agreements are
the legal valid and binding obligations of such Purchaser, enforceable in
accordance with their respective terms; and (ii) the execution, delivery and
performance by such Purchaser of this Agreement, the Stockholders Agreement and
the Registration Rights Agreement will not result in any violation of and will
not conflict with, or result in a breach of any of the terms of or constitute a
default under, any provision of federal or state law to which such Purchaser is
subject, such Purchaser's governing documents or any mortgage, indenture,
agreement, instrument, judgment, decree, order, rule or regulation or other
restriction to which such Purchaser is a party or by which it is bound or result
in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
its properties or its other assets.
2.5. Brokers, Intermediaries and Finder's Fees. No finder, broker, agent,
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financial adviser or other intermediary has acted on behalf of such Purchaser in
connection with the purchase of the Shares to be acquired by it pursuant to this
Agreement or the negotiation or consummation of this Agreement.
2.6. Survival of Purchaser' Representations and Warranties. The
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representations and warranties set forth in this Article 2 shall survive the
Closings.
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ARTICLE III.
CERTAIN REPRESENTATIONS, WARRANTIES
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AND AGREEMENTS OF THE COMPANY
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The Company represents and warrants to the Purchasers as follows:
3.1. Organization, Standing, etc. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to own
and operate its properties and its other assets and to carry on its business as
currently conducted, and to enter into this Agreement, the Registration Rights
Agreement and the Stockholders Agreement. Attached hereto as Schedule 3.1A is a
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complete and correct copy of the Certificate of Incorporation of the Company,
and all amendments thereto, as the Certificate of Incorporation will be in
effect at the Initial Closing, and attached hereto as Schedule 3.1B is a
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complete and correct copy of the By-laws of the Company as they will be in
effect at the Initial Closing. Except for the Certificate, as of the Initial
Closing, no further amendment or modification of the Certificate of
Incorporation or By-laws of the Company not set forth in Schedule 3.1A or
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Schedule 3.1B has been authorized by the stockholders or Board of Directors of
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the Company or is otherwise contemplated by the Company. As of the Initial
Closing, the Company holds no equity interest in any Person. Since the date of
its incorporation, the Company has not engaged in any activities other than in
connection with negotiating the terms of the Merger Agreement and the
transactions contemplated thereby and in connection with arranging the financing
required to consummate the Merger and the other transactions contemplated by the
Merger Agreement.
3.2. Qualification. The Company is duly qualified or licensed and in good
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standing as a foreign corporation authorized to transact business in each
jurisdiction where the conduct of its business or the ownership of its
properties or other assets requires such qualification and the failure to be so
qualified or licensed would have a material adverse effect on the assets,
condition or business of the Company.
3.3. Authorization; No Conflicts. All corporate action on the part of the
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Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance by the Company of this Agreement, the
Stockholders Agreement and the Registration Rights Agreement and for the
authorization, offer, issuance and delivery of the Initial Shares has been taken
and with respect to the Committed Shares, will be taken on or prior to the
Subsequent Closing. Prior to the Subsequent Closing, the Company shall duly
adopt and file the Certificate with the Secretary of State of Delaware. Each of
this Agreement, the Stockholders Agreement and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company and each such
agreement is the valid and binding obligation of the Company, enforceable in
accordance with its terms. The execution, delivery and performance by the
Company of this Agreement, the Stockholders Agreement and the Registration
Rights Agreement, and the offer, issuance and delivery of the Shares will not
result in any violation of, and will not conflict with or result in a breach of,
any of the terms of, or constitute a default under, any provision of federal or
state law to which the Company or any of its properties or its other assets is
subject, the Company's Certificate of Incorporation (upon filing of the
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Certificate), the Company's By-laws or any mortgage, indenture, instrument or
material agreement, or judgment, decree, order, rule or regulation or other
restriction to which the Company is a party or by which it is bound or result in
the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
its properties or its other assets.
3.4. Capitalization. The authorized capital stock of the Company consists
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of 500,000 shares of common stock and 1,000,000 shares of preferred stock. Two
classes of Common Stock have been authorized, being 475,000 shares of Class A
Common Stock and 25,000 shares of Class B Common Stock. At the Initial Closing,
no option, warrant or other right for the purchase of any shares of capital
stock, or any security convertible or exchangeable therefor, of the Company is
outstanding, except as contemplated by this Agreement and the Stockholders
Agreement. All of the issued and outstanding shares of capital stock of the
Company have been offered, issued and sold in compliance with the Act and all
applicable state securities laws.
3.5. Authority and Validity of Issuance of Shares. The Shares, when
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issued and delivered in accordance with the terms hereof, will be duly
authorized and validly issued, fully paid and nonassessable and free of
preemptive rights.
3.6. The Offering. Neither the Company nor anyone acting on behalf of the
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Company has directly or indirectly offered the Shares to be delivered to the
Purchasers, any part thereof, or any similar security of the Company for
delivery to, or solicited any offer from, anyone other than the Purchasers and
other investors to whom such offers can be made without requiring the
registration of the Shares under the Act or state securities laws.
3.7. Consents. No consent, approval, order or authorization of, or
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registration, qualification, designation, declaration or filing with, any Person
is required in connection with the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, other than filings
pursuant to state and federal securities laws and the HSR Act and the filing of
the Certificate with the Secretary of State of the State of Delaware.
3.8. Brokers, Intermediaries and Finder's Fees. No finder, broker, agent,
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financial adviser or other intermediary has acted on behalf of the Company in
connection with the offering of the Shares pursuant to this Agreement or the
negotiation or consummation of this Agreement. The Company hereby agrees to
indemnify and to hold the Purchasers harmless of any claim, demand, liability or
action for any commission or compensation in the nature of a finder's, broker's,
advisory or placement fee payable to any Person for which the Company or any of
its respective officers, directors, employees, partners, stockholders, agents or
representatives are responsible and for the costs and expenses of defending
against such liability or asserted liability.
3.9. Registration Rights. Other than pursuant to the Stockholders
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Agreement and the Registration Rights Agreement, the Company is not, as of the
Initial Closing, under any obligation to register under the Act or state
securities laws any of its then outstanding securities or any of its securities
that may subsequently be issued pursuant to any then existing convertible or
exercisable securities.
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3.10. Stockholders Agreements. Other than pursuant to this Agreement, the
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Stockholders Agreement and agreements with employees or prospective employees of
the Company, as of the Initial Closing, there are no agreements among the
Company and any of the Company's stockholders, in their capacities as such, or,
to the knowledge of the Company, among any of the Company's stockholders.
3.11. Other Equity Securities. The Company has not issued or agreed to
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issue any equity securities to any Person except (i) to the Purchasers as
contemplated by this Agreement and (ii) issuances of equity securities
(including rights to purchase equity securities) to employees or prospective
employees of the Company on terms and conditions set forth on Schedule 3.11 (as
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such terms and conditions as may be amended from time to time in accordance with
the Stockholders Agreement) or otherwise in accordance with the Stockholders
Agreement.
ARTICLE IV.
COVENANTS OF THE COMPANY AND THE PURCHASERS
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4.1. Other Purchases; Most Favored Nation. Prior to the Merger, the
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Company will not issue any equity securities to any Person, except for (i)
issuances of Class A Common Stock and Series A Preferred Stock on the same terms
and at the same price or a greater price as the Initial Shares are being issued,
or the Committed Shares will be issued, pursuant to this Agreement, (ii)
issuances of equity securities (including rights to purchase equity securities)
to employees or prospective employees of the Company on terms set forth on
Schedule 3.11 (as such terms may be amended from time to time in accordance with
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the Stockholders Agreement) or (iii) issuances in accordance with the
Stockholders Agreement; provided that the Company may issue Class A Common Stock
and Series A Preferred Stock at a lesser price than the Class A Common Stock and
Series A Preferred Stock, as the case may be, if the Company pays the Purchasers
the difference between the price paid pursuant to this Agreement and such lower
price multiplied by the number of Initial Shares or Committed Shares, as the
case may be, purchased by them.
4.2. Fees and Expenses; Break-Up Fees. The Purchasers agree that the
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Company may pay all fees and expenses incurred by or on behalf of the Company in
connection with this Agreement, the Merger Agreement or the transactions
contemplated hereby or thereby, including, without limitation, the fees and
expenses of counsel, accountants, consultants, financial advisors, any costs
relating to the settlement or litigation of any disputes and other
administrative costs ("Transaction Costs"). Each Purchaser shall be entitled to
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receive from the Company its pro rata, based on such Purchaser's dollar
investments in the Company at the Initial Closing, share of the net amount of
any break-up fee or damages received by the Company as a result of a breach or
termination of the Merger Agreement.
4.3. Publicity. Except as required by applicable law, the Company shall
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at no time use the name of any Purchaser or of any of its respective Affiliates
in any press release or public statement without obtaining the prior written
consent of such Purchaser. If such disclosure is required by applicable law,
then the Company shall inform such Purchaser prior to such disclosure.
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ARTICLE V.
MISCELLANEOUS
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5.1. Termination. This Agreement may be terminated and the transactions
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contemplated hereby may be abandoned at any time:
5.1.1. by either the Company or any Purchaser (as to itself but not
other Purchasers), if by March 9, 1998, Persons agreeing hereunder to purchase
an aggregate of at least $25 million in Series A Common Stock and $325 million
in Series A Preferred Stock have not then yet executed this Agreement;
5.1.2. by either the Company or any Purchaser (as to itself but not
other Purchasers) if the Merger Agreement shall not have been entered into by
March 9, 1998; or
5.1.3. by either the Company or any Purchaser (as to itself but not
other Purchasers) if the Merger Agreement shall have been terminated.
5.2. Effect of Termination. In the event of the termination of this
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Agreement pursuant to Section 5.1, the Purchasers shall have no obligation to
purchase the Committed Shares and this Agreement shall otherwise forthwith
become void, and except for this Section 5.2, there shall be no liability on the
part of any party. Upon the termination of this Agreement, the Company shall be
dissolved and liquidated in accordance with Section 7.3 of the Stockholders
Agreement.
5.3. No Assignment; Effect of Merger. No party may assign any of its
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rights or obligations under this Agreement without the prior written consent of
the other parties hereto, except as permitted under the Stockholders Agreement.
Nothing expressed or referred to in this Agreement will be construed to give any
Person other than the parties to this Agreement any legal or equitable right,
remedy or claims under or with respect to this Agreement or any provision of
this Agreement (other than a Person which has incurred Transaction Costs).
Following consummation of the Merger, the term "Company" shall refer to the
surviving corporation of the Merger.
5.4. Survival. The representations and warranties made by the parties
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shall survive the Closings. Except as otherwise expressly provided herein, the
respective covenants of the parties hereto shall survive until the later of such
time as all of the Shares cease to be outstanding or the termination of the
Stockholders Agreement in accordance with its terms. All statements as to
factual matters contained in any certificate or exhibit delivered by or on
behalf of the Company pursuant hereto shall be deemed to be the representations
and warranties of the Company hereunder as of such date of such certificate or
exhibit.
5.5. Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to a party, upon any breach or default of the other
party under this Agreement, shall impair any such right, power or remedy of the
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of
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any other breach or default theretofore or thereafter occurring. All remedies,
either under this Agreement, or by law or otherwise afforded to any holder,
shall be cumulative and not alternative.
5.6. Notices. Any notice required or permitted hereunder shall be given
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in writing and shall be conclusively deemed effectively given (a) upon personal
delivery to the person to be notified, (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient; if not, then on the next
business day, (c) five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt addressed as follows:
(a) If to the Company, to:
American Cellular Corporation
c/o Spectrum Equity Investors II, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Phone: 650/000-0000
Fax: 650/000-0000
Attn: Xxxxx Xxxxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Phone: 415/000-0000
Fax: 415/000-0000
Attn: Xxxxx X. Xxxxx, Esq.
or at such other addresses as the Company shall have specified by
notice in writing to Purchasers; and
(b) If to a Purchaser, delivered to the addresses set forth on the
signature page hereto or at such other addresses as such Purchaser
shall have specified by notice in writing to the Company.
5.7. Entire Agreement; Amendment. This Agreement and the documents
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referred to herein constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof and no party
shall be liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
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5.8. Specific Performance. Each Purchaser and the Company acknowledges
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that any violation of this Agreement will result in irreparable injury to the
non-breaching party, the exact amount of which will be difficult to ascertain,
and that the remedies at law for any such violation would not be reasonable or
adequate compensation to the non-breaching party for such a violation.
Accordingly, each Purchaser and the Company agrees that if any of the Purchasers
and/or the Company violates any provision of this Agreement, in addition to any
other remedy which may be available at law or in equity, the non-breaching party
shall be entitled to specific performance and injunctive relief, without posting
bond or other security, and without the necessity of proving actual damages.
5.9. Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without such provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this agreement to any party.
5.10. Cross-References; Titles and Subtitles. Unless expressly indicated
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to the contrary, all references in this Agreement to enumerated Articles,
Sections, Schedules and Exhibits are to the respective Articles and Sections of,
and Schedules and Exhibits to, this Agreement. All such Schedules and Exhibits
are integral parts of this Agreement. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.11. Non-Business Days. If the last day for performance of any act or
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the exercising of any right, as provided in this Agreement, shall not be a
Business Day, such act may be performed or right exercised on the next
succeeding Business Day, with the same force and effect as if done on the
nominal day provided in this Agreement. For purposes of this Agreement,
"Business Day" means a day other than a Saturday, Sunday or legal holiday or a
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day on which banking institutions in New York City are required or authorized by
law to close.
5.12. Applicable Law. The laws of the State of Delaware shall govern the
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interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law.
5.13. Attorneys' Fees. If any legal action or any arbitration or other
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proceeding is brought for the enforcement of this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action or proceeding, in addition to any other
relief to which it may be entitled.
5.14. Counterparts; Effectiveness. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument. This
Agreement shall become a legally binding and effective obligation of each
Purchaser upon such Purchaser's execution and delivery of this Agreement and the
execution and delivery of the Merger Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE COMPANY:
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By: /s/Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
THE STOCKHOLDERS:
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P., its Managing General Partner
Name: /s/Xxxxx Xxxxxxxxx
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Title: Managing General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: PROVIDENCE EQUITY PARTNERS, L.L.C.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: ________________
Title: _______________
Address: 00 Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxx Xxxxxx
TANDEM WIRELESS INVESTMENTS, L.P.,
a Delaware limited partnership
By: LIVE CYCLES HOLDINGS CO.
Its General Partner
By: /s/ Xxxx XxXxxxxx
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Xxxx XxXxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Title: President
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
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Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention:
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
TRIUMPH PARTNERS III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TRIUMPH III INVESTORS, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TORONTO DOMINION INVESTMENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
--------------------
Name: X.X. Xxxxxxx III
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
HARBOURVEST PARTNERS V - Direct Fund L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates LLC
its General Partner
By: HARBOURVEST PARTNERS, LLC
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Address: Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES-II, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
IA-II AFFILIATES FUND, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
TRIDENT CAPITAL MANAGEMENT-II, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
WESTPOOL INVESTMENT TRUST,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Elan Xxxxxxx
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXX FAMILY TRUST dated 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
LION INVESTMENTS LIMITED,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARTNERS
By: ___________________________
Name: _____________________
Title: ______________________
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
--------------
Name: XXXX X. XXXXX
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx XxXxxxxx
------------------
Name: XXXXX XxXXXXXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
SCHEDULE 3.1A
-------------
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF ANY PART OF THE CAPITAL
OF
LIVEWIRE ACQUISITION CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Livewire Acquisition Corporation.
2. The Corporation has not received any payment for any of its stock.
3. The Certificate of Incorporation of the Corporation is hereby amended
by striking out Article I thereof and by substituting in lieu of said Article
the following new Article I:
"ARTICLE I
---------
The name of the corporation (the "Corporation") is:
American Cellular Corporation"
4. The amendment of the Certificate of Incorporation of the Corporation
herein certified was duly adopted, pursuant to the provisions of Section 241 of
the General Corporation Law of the State of Delaware, by the sole incorporator,
no directors having been named in the Certificate of Incorporation and no
directors having been elected.
Signed on March 2, 1998.
/s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx,
Sole Incorporator
CERTIFICATE OF INCORPORATION
OF
LIVEWIRE ACQUISITION CORPORATION
ARTICLE I
---------
The name of the corporation (the "Corporation") is:
Livewire Acquisition Corporation
ARTICLE II
----------
The address of its registered office in the State of Delaware is 1013
Centre Road, in the City of Xxxxxxxxxx, Xxxxxx xx Xxx Xxxxxx, 00000. The name
of its registered agent at such address is Corporation Service Company.
ARTICLE III
-----------
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
----------
The total number of shares of stock which the Corporation shall have
authority to issue is one million (1,000,000), of which five hundred thousand
(500,000) shall be Common Stock, $.01 par value, and five hundred thousand
(500,000) shall be Preferred Stock, $.01 par value. Four hundred seventy-five
(475,000) shares of Common Stock shall be designated voting Class A Common
Stock, and twenty-five thousand (25,000) shares of Common Stock shall be
designated non-voting Class B Common Stock.
All shares of Class A Common Stock and Class B Common Stock shall be
identical in every respect, except that the non-voting Class B Common Stock
shall carry no right to vote for the election of directors, and no right to vote
on any matter presented to the stockholders for their vote or approval, except
only as the laws of the State of Delaware shall require that voting rights be
granted to such non-voting shares.
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article IV, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
(c) Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
2
(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(h) Any other relative rights, preferences and limitations of that series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the common shares with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
ARTICLE V
---------
The name and mailing address of the incorporator is:
Xxxxxx X. Xxxxx
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
3
ARTICLE VI
----------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, amend or repeal the By-
laws of the Corporation.
ARTICLE VII
-----------
Election of directors need not be by written ballot unless the By-laws of
the Corporation shall so provide.
ARTICLE VIII
------------
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 26th day of February, 1998.
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
Incorporator
4
SCHEDULE 3.1B
-------------
BYLAWS
OF
AMERICAN CELLULAR CORPORATION
BYLAWS
OF
AMERICAN CELLULAR CORPORATION
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I. OFFICES.................................................... 1
-------
Section 1. REGISTERED OFFICES..................................... 1
Section 2. OTHER OFFICES.......................................... 1
ARTICLE II. MEETINGS OF STOCKHOLDERS.................................. 1
------------------------
Section 1. PLACE OF MEETINGS...................................... 1
Section 2. ANNUAL MEETING OF STOCKHOLDERS......................... 1
Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF.......... 1
Section 4. VOTING................................................. 2
Section 5. PROXIES................................................ 2
Section 6. SPECIAL MEETINGS....................................... 2
Section 7. NOTICE OF STOCKHOLDERS' MEETINGS....................... 2
Section 8. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST......... 2
Section 9. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING................................................ 3
ARTICLE III. DIRECTORS................................................ 3
---------
Section 1. THE NUMBER OF DIRECTORS................................ 3
Section 2. VACANCIES.............................................. 3
Section 3. POWERS................................................. 4
Section 4. PLACE OF DIRECTORS' MEETINGS........................... 4
Section 5. REGULAR MEETINGS....................................... 4
Section 6. SPECIAL MEETINGS....................................... 4
Section 7. QUORUM................................................. 4
Section 8. SUPERMAJORITY VOTING................................... 4
Section 9. ACTION WITHOUT MEETING................................. 6
Section 10. TELEPHONIC MEETINGS................................... 6
Section 11. COMMITTEES OF DIRECTORS............................... 6
Section 12. MINUTES OF COMMITTEE MEETINGS......................... 6
Section 13. COMPENSATION OF DIRECTORS............................. 6
ARTICLE IV. OFFICERS.................................................. 7
--------
Section 1. OFFICERS............................................... 7
Section 2. ELECTION OF OFFICERS................................... 7
Section 3. SUBORDINATE OFFICERS................................... 7
Section 4. COMPENSATION OF OFFICERS............................... 7
Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES.................. 7
Section 6. CHAIRMAN OF THE BOARD.................................. 7
Section 7. PRESIDENT.............................................. 7
Section 8. VICE PRESIDENTS........................................ 8
Section 9. SECRETARY.............................................. 8
i
Section 10. ASSISTANT SECRETARY....................................8
Section 11. TREASURER..............................................8
Section 12. ASSISTANT TREASURER....................................8
ARTICLE V. INDEMNIFICATION OF DIRECTORS AND OFFICERS...................9
-----------------------------------------
ARTICLE VI. INDEMNIFICATION OF EMPLOYEES AND AGENTS...................11
---------------------------------------
ARTICLE VII. CERTIFICATES OF STOCK....................................11
---------------------
Section 1. CERTIFICATES...........................................11
Section 2. SIGNATURES ON CERTIFICATES.............................11
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES.....11
Section 4. LOST CERTIFICATES......................................12
Section 5. TRANSFERS OF STOCK.....................................12
Section 6. FIXED RECORD DATE......................................12
Section 7. REGISTERED STOCKHOLDERS................................12
ARTICLE VIII. GENERAL PROVISIONS......................................13
------------------
Section 1. DIVIDENDS..............................................13
Section 2. PAYMENT OF DIVIDENDS; DIRECTORS' DUTIES................13
Section 3. CHECKS.................................................13
Section 4. FISCAL YEAR............................................13
Section 5. CORPORATE SEAL.........................................13
Section 6. MANNER OF GIVING NOTICE................................13
Section 7. WAIVER OF NOTICE.......................................13
Section 8. ANNUAL STATEMENT.......................................14
ARTICLE IX. AMENDMENTS................................................14
----------
Section 1. AMENDMENT BY DIRECTORS OR STOCKHOLDERS.................14
ii
BY-LAWS
OF
AMERICAN CELLULAR CORPORATION
ARTICLE I.
OFFICES
-------
Section 1. REGISTERED OFFICES. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
------------------------
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the corporation.
Section 2. ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat.
Section 4. VOTING. When a quorum is present at any meeting, in all matters
other than the election of directors, the vote of the holders of a majority of
the stock having voting power present in person or represented by proxy shall
decide any question brought before such meeting, unless the question is one upon
which by express provision of the statutes, or the Certificate of Incorporation,
or these Bylaws, a different vote is required in which case such express
provision shall govern and control
1
the decision of such question. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors.
Section 5. PROXIES. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the corporation on the record date set by the Board of Directors as
provided in Article VII, Section 6 hereof.
Section 6. SPECIAL MEETINGS. Special meetings of the stockholders, for any
purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request in writing of a majority of the
Board of Directors. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. NOTICE OF STOCKHOLDERS' MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
Section 8. MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The officer who
has charge of the stock ledger of the corporation shall prepare and make, at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action required to
be taken at any annual or special meeting of stockholders of the corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the corporation by delivery to its registered office in
Delaware, its principal place of business, or to an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty days of the earliest dated consent delivered in the manner required by
this Section 9 to the corporation, written consents signed by a sufficient
number of holders to take action are delivered to the corporation by delivery to
its registered
2
office in Delaware, its principal place of business or to an officer or agent of
the corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III.
DIRECTORS
---------
Section 1. THE NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board shall be not less than three (3) nor more than
fifteen (15), the number thereof to be determined from time to time by
resolution of the Board of Directors. The directors need not be stockholders.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified; provided, however, that
unless otherwise restricted by the Certificate of Incorporation or by law, any
director or the entire Board of Directors may be removed, either with or without
cause, from the Board of Directors at any meeting of stockholders by a majority
of the stock represented and entitled to vote thereat.
Section 2. VACANCIES. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. POWERS. The property and business of the corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these Bylaws expressly conferred upon them, the Board
may exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Section 4. PLACE OF DIRECTORS' MEETINGS. The directors may hold their
meetings and have one or more offices, and keep the books of the corporation
outside of the State of Delaware.
Section 5. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by the Board.
Section 6. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors unless the Board consists of only one director; in
which
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case special meetings shall be called by the President or Secretary in like
manner or on like notice on the written request of the sole director. Notice of
a meeting need not be given to any director who signs a waiver of notice,
whether before or after the meeting. The attendance by any director at a
meeting, without protesting either prior thereto or at its commencement the lack
of notice of such meeting, shall constitute a waiver of notice by him. Any
notice or waiver of notice of a meeting of the board of directors need not
specify the purpose of the meeting.
Section 7. QUORUM. At all meetings of the Board of Directors a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. If only one
director is authorized, such sole director shall constitute a quorum.
Section 8. SUPERMAJORITY VOTING. In addition to the act of the majority of
the directors present at a meeting at which a quorum is present, from and after
the date of execution of that certain Stock Purchase Agreement to be entered
into between the corporation and the investors named therein with respect to,
among other things, the initial capitalization of the corporation (the "Stock
Purchase Agreement"), the following shall require the affirmative vote of at
least five (5) directors designated pursuant to Section 5.1 of the Stockholders
Agreement (as defined in Article VIII, Section 9 below) by the Stockholders (as
defined therein):
(i) the disposition of assets (in a single transaction or a series of
related transactions) in an amount in excess of $5,000,000;
(ii) the entry into any transaction which would result in a Change of
Control of the corporation, where "Change of Control" means (i) any sale,
transfer or other conveyance, whether direct or indirect, of a majority of the
fair market value of the assets of the corporation, in one transaction or a
series of related transactions, to any "person" or "group" (as such terms are
used for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, whether or not applicable), (ii) any "person" or "group" (as such terms
are used for purposes of such Section 13(d)) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total equity in the
aggregate of all classes of capital stock of the corporation then outstanding
normally entitled to vote in elections of directors, or (iii) during any period
of 12 consecutive months after an initial public offering, individuals who at
the beginning of any such 12-month period constituted the Board of Directors
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the corporation was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office;
(iii) the approval of a voluntary dissolution or liquidation of the
corporation;
(iv) the declaration or payment of any dividends on, or the
incurrence of any obligation to make any other distribution in respect of,
outstanding equity interests of the corporation;
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(v) the incurring of, entry into or commitment to any indebtedness,
in an aggregate principal amount in excess of $5,000,000 (except for incurrence
of indebtedness to finance a merger) in a single transaction or series of
related transactions;
(vi) any acquisition of assets (in a single transaction or a series
of related transaction) in an amount in excess of $5,000,000;
(vii) any amendment to the Certificate of Incorporation or these
Bylaws;
(viii) the repurchase or redemption of the corporation's capital stock
from a stockholder in an amount not equal to such stockholder's pro rata
ownership of such capital stock;
(ix) any change in the number of directors;
(x) the removal or appointment of any senior executives, including
the Chief Executive Officer, Chief Operating Officer and Chief Financial
Officer;
(xi) any issuance of additional shares of capital stock of the
corporation or any rights, options, warrants or other instruments convertible or
exchangeable therefor, other than the issuance of shares of capital stock
contemplated by the Stock Purchase Agreement;
(xii) any transaction with an affiliate with a value in excess of
$250,000; and
(xiii) sentering into any other contract or arrangement material to
the Company.
Section 9. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 10. TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 11. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one or more of the directors of
the corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which
5
may require it; but the acts of any such committee shall be subject to the
provisions of Section 8 of this Article, and no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
Bylaws of the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
Section 12. MINUTES OF COMMITTEE MEETINGS. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 13. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
ARTICLE IV.
OFFICERS
--------
Section 1. OFFICERS. The officers of this corporation shall be chosen by
the Board of Directors and shall include a Chairman of the Board of Directors or
a President, or both, and a Secretary. The corporation may also have at the
discretion of the Board of Directors such other officers as are desired,
including a Vice-Chairman of the Board of Directors, a Chief Executive Officer,
a Treasurer, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article. In the event there are two or
more Vice Presidents, then one or more may be designated as Executive Vice
President, Senior Vice President, or other similar or dissimilar title. At the
time of the election of officers, the directors may by resolution determine the
order of their rank. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these Bylaws otherwise provide.
Section 2. ELECTION OF OFFICERS. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the corporation.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
Section 4. COMPENSATION OF OFFICERS. The salaries of all officers and
agents of the corporation shall be fixed by the Board of Directors.
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Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES. The officers of the
corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by these
Bylaws. If there is no President, the Chairman of the Board shall in addition be
the Chief Executive Officer of the corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of the President,
the Vice Presidents in order of their rank as fixed by the Board of Directors,
or if not ranked, the Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of and be subject to all the restrictions upon the President. The Vice
Presidents shall have such other duties as from time to time may be prescribed
for them, respectively, by the Board of Directors.
Section 9. SECRETARY. The Secretary shall attend all sessions of the Board
of Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for the standing committees when required by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these Bylaws. He shall keep in
safe custody the seal of the corporation, and when authorized by the Board,
affix the same to any instrument requiring it, and when so affixed it shall be
attested by his signature or by the signature of an Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature.
Section 10. ASSISTANT SECRETARY. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors, or if there be no such determination, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 11. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys, and other valuable effects in the name and to
7
the credit of the corporation, in such depositories as may be designated by the
Board of Directors. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the corporation. If
required by the Board of Directors, he shall give the corporation a bond, in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors, for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 12. ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors, or if there be no such determination, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE V.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
(a) The corporation shall indemnify to the maximum extent permitted by law
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify to the maximum extent permitted by law
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery of
8
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director or officer of the corporation shall be
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b), or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in paragraphs (a) and (b). Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) by a committee of
such directors designated by a majority vote of such directors, even though less
than a quorum, or (3) if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (4) by the stockholders. The corporation, acting through
its Board of Directors or otherwise, shall cause such determination to be made
if so requested by any person who is indemnifiable under this Article V.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article V.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Article V shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article V.
(h) For the purposes of this Article V, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors or
9
officers so that any person who is or was a director or officer of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the
provisions of this Article V with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include service
as a director or officer of the corporation which imposes duties on, or involves
services by, such director or officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The corporation shall be required to indemnify a person in connection
with an action, suit or proceeding (or part thereof) initiated by such person
only if the action, suit or proceeding (or part thereof) was authorized by the
Board of Directors of the corporation.
ARTICLE VI.
INDEMNIFICATION OF EMPLOYEES AND AGENTS
---------------------------------------
The corporation may indemnify every person who was or is a party or is or
was threatened to be made a party to any action, suit, or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was an employee or agent of the corporation or, while an employee or agent
of the corporation, is or was serving at the request of the corporation as an
employee or agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
to the extent permitted by applicable law.
ARTICLE VII.
CERTIFICATES OF STOCK
---------------------
Section 1. CERTIFICATES. Every holder of stock of the corporation shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer of the corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the corporation.
10
Section 2. SIGNATURES ON CERTIFICATES. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 3. STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 4. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5. TRANSFERS OF STOCK. Upon surrender to the corporation, or the
transfer agent of the corporation, of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6. FIXED RECORD DATE. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting. In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date which shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors.
Section 7. REGISTERED STOCKHOLDERS. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim or interest in such share on the part of any
11
other person, whether or not it shall have express or other notice thereof, save
as expressly provided by the laws of the State of Delaware.
ARTICLE VIII.
GENERAL PROVISIONS
------------------
Section 1. DIVIDENDS. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation.
Section 2. PAYMENT OF DIVIDENDS; DIRECTORS' DUTIES. Before payment of any
dividend there may be set aside out of any funds of the corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interests of the corporation, and the directors may abolish any such
reserve.
Section 3. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
Section 5. CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6. MANNER OF GIVING NOTICE. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 7. WAIVER OF NOTICE. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
Section 8. ANNUAL STATEMENT. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 9. STOCKHOLDERS AGREEMENT.
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If any conflict shall exist between the provisions of these Bylaws and the
provisions of that certain Stockholders Agreement to be entered into among the
corporation and the initial equity investors of the corporation, as amended from
time to time (the "Stockholders Agreement"), the provisions of the Stockholders
Agreement shall control. In the event the Stockholders Agreement and the Stock
Purchase Agreement are not executed and delivered the provisions of Article III,
Section 8 and any references thereto herein shall be null and void.
ARTICLE IX.
AMENDMENTS
----------
Section 1. AMENDMENT BY DIRECTORS OR STOCKHOLDERS. Subject to Article III,
Section 8 hereof, these Bylaws may be altered, amended or repealed or new Bylaws
may be adopted by the stockholders or by the Board of Directors, when such power
is conferred upon the Board of Directors by the Certificate of Incorporation at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal Bylaws is
conferred upon the Board of Directors by the Certificate of Incorporation, it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal Bylaws. Notwithstanding the foregoing, Article VIII, Section 9 may not be
amended or repealed while the Stockholders Agreement is in effect.
13
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of American Cellular
Corporation, a Delaware corporation; and
(2) That the foregoing bylaws constitute the bylaws of said corporation as
duly adopted by the written consent of the Incorporator of said corporation as
of March 2, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 2nd day of
March, 1998.
/s/ Xxxxxxxx Xxxxxx
_______________________________
Xxxxxxxx Xxxxxx,
Secretary
14
Schedule 3.11
-------------
. 13,587 shares of Class B Common Stock issued to Fujii and XxXxxxxx at the
closing of the Merger (represents 5% of fully diluted common stock); non-
voting common stock
. Nominal Price per Share ($10 per share)
. Same rights and privileges as Class A Common Stock (other than Class B is
non-voting)
. 4 years linear "negative vesting" (i.e., forfeiture of shares if leave
before fourth anniversary)
. acceleration of vesting upon change of control
. Fujii and XxXxxxxx on board (2 of 8 members)
. $375,000 compensation; no management fee
. Fujii and XxXxxxxx obligated to invest $3,500,000 in Common Stock and
Preferred Stock (of which $1,000,000 each will not be invested until Acme
Paging L.P. is liquidated).
Stock Options for Other Key Employees
-------------------------------------
. pool of 8,152 shares of Class B Common Stock (represents 3% of the fully
diluted common stock) issued after the Merger to key employees other than
Xxxx X. Xxxxx and Xxxxx XxXxxxxx.
American Cellular Corporation Exhibit A
List of Stockholders
Class A Common Stock Class A Preferred Stock
-------------------------- -----------------------
Interim Closing
Total $ ----------------------
Investment $ Investment Shares $ Investment Shares
---------- ------------ ------ ------------ ------
Spectrum Equity Investors II, L.P. $50,000,000 $3,571,400 35,714 $1,428,500 14,285
Providence Equity Partners L.P. 50,000,000 3,571,400 35,714 1,428,500 14,285
Sandler Capital Partners IV, L.P. 21,264,200 1,518,800 15,188 607,600 6,076
Sandler Capital Partners IV, FTE, L.P. 8,736,000 624,000 6,240 249,600 2,496
21st Century Communications Partners, L.P. 10,170,700 726,500 7,265 290,600 2,906
21st Century Communications T-E, L.P. 3,460,300 247,200 2,472 98,900 989
21st Century Communications Foreign Partners, L.P. 1,368,800 97,800 978 39,100 391
Tandem Wireless Investments, L.P. 40,000,000 2,857,100 28,571 1,142,900 11,429
Triumph Partners III, L.P. 29,647,800 2,125,000 21,250 846,800 8,468
Triumph III Investors, L.P. 352,200 17,900 179 10,300 103
First Union Capital Partners, Inc. 25,000,000 1,785,700 17,857 714,300 7,143
HarbourVest Partners V 20,000,000 1,428,600 14,286 571,400 5,714
Information Associates, L.P. 2,918,700 208,600 2,086 83,400 834
Information Associates, C.V. 81,300 5,700 57 2,300 23
Information Associates-II, L.P. 12,000,000 857,200 8,572 342,900 3,429
IA-II Affiliates Fund, L.L.C. 700,000 50,000 500 20,000 200
Trident Capital Management-II, L.L.C. 4,300,000 307,100 3,071 122,900 1,229
SG Capital Partners, LLC 16,500,000 1,178,600 11,786 471,400 4,714
Xxxxxxx Xxxxx KECALP L.P. 1997 7,700,000 549,800 5,498 240,000 2,400
KECALP, Inc. 4,500,000 321,300 3,213 188,600 1,886
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,300,000 164,200 1,642 0 0
ML IBK Positions, Inc. 500,000 35,700 357 0 0
Toronto Dominion Investments, Inc. 15,000,000 1,071,400 10,714 428,600 4,286
Westpool Investment Trust 8,499,900 606,900 6,069 242,900 2,429
Lion Investments Limited 1,477,500 105,500 1,055 42,200 422
Xxxxx Family Trust dated 1/6/89 22,600 1,600 16 600 6
Generation Capital Partners L.P. 9,653,891 690,291 6,903 275,800 2,758
State Board Administration of Florida 342,162 24,462 245 9,800 98
Generation Parallel Management Partners L.P. 3,947 247 2 100 1
Xxxx Xxxxx 1,750,000 125,000 1,250 50,000 500
Xxxxx XxXxxxxx 1,750,000 125,000 1,250 50,000 500
----------------------------------------------------------------
$350,000,000 $25,000,000 250,000 $10,000,000 100,000
================================================================
Date of Funding: March 20, 1998 April 22, 1998
Class A Preferred Stock
-----------------------------------------------
Final Closing
----------------------- Total Total
$ Investment Shares $ Investment Shares
------------- ------ ------------ ------
Spectrum Equity Investors II, L.P. 45,000,100 450,001 $46,428,600 464,286
Providence Equity Partners L.P. 45,000,100 450,001 46,428,600 464,286
Sandler Capital Partners IV, L.P. 19,137,800 191,378 19,745,400 197,454
Sandler Capital Partners IV, FTE, L.P. 7,862,400 78,624 8,112,000 81,120
21st Century Communications Partners, L.P. 9,153,600 91,536 9,444,200 94,442
21st Century Communications T-E, L.P. 3,114,200 31,142 3,213,100 32,131
21st Century Communications Foreign Partners, L.P. 1,231,900 12,319 1,271,000 12,710
Tandem Wireless Investments, L.P. 36,000,000 360,000 37,142,900 371,429
Triumph Partners III, L.P. 26,676,000 266,760 27,522,800 275,228
Triumph III Investors, L.P. 324,000 3,240 334,300 3,343
First Union Capital Partners, Inc. 22,500,000 225,000 23,214,300 232,143
HarbourVest Partners V 18,000,000 180,000 18,571,400 185,714
Information Associates, L.P. 2,626,700 26,267 2,710,100 27,101
Information Associates, C.V. 73,300 733 75,600 756
Information Associates-II, L.P. 10,799,900 107,999 11,142,800 111,428
IA-II Affiliates Fund, L.L.C. 630,000 6,300 650,000 6,500
Trident Capital Management-II, L.L.C. 3,870,000 38,700 3,992,900 39,929
SG Capital Partners, LLC 14,850,000 148,500 15,321,400 153,214
Xxxxxxx Xxxxx KECALP L.P. 1997 6,910,200 69,102 7,150,200 71,502
KECALP, Inc. 3,990,100 39,901 4,178,700 41,787
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,135,800 21,358 2,135,800 21,358
ML IBK Positions, Inc. 464,300 4,643 464,300 4,643
Toronto Dominion Investments, Inc. 13,500,000 135,000 13,928,600 139,286
Westpool Investment Trust 7,650,100 76,501 7,893,000 78,930
Lion Investments Limited 1,329,800 13,298 1,372,000 13,720
Xxxxx Family Trust dated 1/6/89 20,400 204 21,000 210
Generation Capital Partners L.P. 8,687,800 86,878 8,963,600 89,636
State Board Administration of Florida 307,900 3,079 317,700 3,177
Generation Parallel Management Partners L.P. 3,600 36 3,700 37
Xxxx Xxxxx 1,575,000 15,750 1,625,000 16,250
Xxxxx XxXxxxxx 1,575,000 15,750 1,625,000 16,250
-----------------------------------------------
$315,000,000 3,150,000 $325,000,000 3,250,000
===============================================
Date of Funding: June 22, 1998
-------------
EXHIBIT B
CERTIFICATE OF DESIGNATION
of
SERIES A PREFERRED STOCK
OF
AMERICAN CELLULAR CORPORATION
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
American Cellular Corporation, a Delaware corporation (the
"Corporation"), certifies that pursuant to the authority contained in its
Certificate of Incorporation, and in accordance with the provisions of Section
151 of the General Corporation Law of the State of Delaware, its Board of
Directors (the "Board of Directors") has adopted the following resolution
creating a series of its Preferred Stock, par value $.01 per share, designated
as Series A Preferred Stock.
RESOLVED, that a series of the class of authorized Preferred Stock,
par value $.01 per share, of the Corporation be hereby created, and that the
designation and amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. Designation and Amount.
----------------------
The shares of such series shall be designated as the "Series A
Preferred Stock" (the "Series A Preferred Stock") and the number of shares
initially constituting such series shall be 3,250,000, which number may be
decreased (but not increased) by the Board of Directors without a vote of
stockholders; provided, however, that such number may not be decreased below the
-------- -------
number of then currently outstanding shares of Series A Preferred Stock. The
"Stated Value" per share of the Series A Preferred Stock shall be equal to $100.
Section 2. Dividends and Distributions.
---------------------------
(a) The holders of shares of Series A Preferred Stock, in preference to
and in priority over the holders of shares of any stock of the Corporation
ranking junior to the Series A Preferred Stock with respect to the payment of
dividends or the distribution of assets, whether upon liquidation, dissolution,
winding up or otherwise ("Junior Stock"), shall be entitled to receive, when and
as declared by the Board of Directors, out of funds legally available for the
payment of dividends, dividends on the Series A Preferred Stock, which shall
accrue on a daily basis (computed on the basis of a 360-day year of twelve 30-
day months) at the rate per annum of twelve percent (12.0%), compounded
quarterly, on the Stated Value (plus all accrued or accumulated but unpaid
dividends) of each share of Series A Preferred Stock from the date of original
issuance thereof until the redemption of the Series A Preferred Stock pursuant
to Section 3 hereof.
(b) Dividends shall accrue and be cumulative whether or not they have
been declared and whether or not there are profits, surplus or other funds of
the Corporation legally available for the payment of dividends. Dividends shall
be payable quarterly, in arrears, on the last day of each December, March, June
and September (each, a "Dividend Payment Date"). The amount of dividends
payable on each Dividend Payment Date shall be determined by applying the rate
specified in Section 2(a) from but excluding the immediately preceding Dividend
Payment Date (or from but excluding the date of issuance of shares of Series A
Preferred Stock with respect to the first dividend period) to and including the
Dividend Payment Date. Dividends shall be paid in cash. If the payment date
does not occur on a regular Dividend Payment Date, dividends shall be calculated
on the basis of the actual number of days elapsed from but excluding the
immediately preceding Dividend Payment Date to and including the redemption date
or such final distribution date.
(c) To the extent dividends are not paid on a Dividend Payment Date,
all dividends which shall have accrued on each share of Series A Preferred Stock
outstanding as of such Dividend Payment Date shall be accumulated dividends.
(d) Dividends payable on each Dividend Payment Date shall be paid to
the record holders of the shares of Series A Preferred Stock as they appear on
the books of the Corporation at the close of business on the 10th Business Day
immediately preceding the respective Dividend Payment Date or on such other
record date as may be fixed by the Board of Directors of the Corporation in
advance of a Dividend Payment Date, provided that no such record date shall be
less than ten (10) nor more than sixty (60) calendar days preceding such
Dividend Payment Date. For purposes hereof, "Business Day" means any day other
than a Saturday, Sunday, or a day on which commercial banks in the City of New
York are authorized or obligated by law or executive order to close.
(e) Each fractional share of Series A Preferred Stock outstanding
shall be entitled to a ratably proportionate amount of all dividends accruing
with respect to each outstanding share of Series A Preferred Stock, and all such
dividends with respect to such outstanding fractional shares shall be fully
cumulative and shall accrue, whether or not declared, and shall be payable in
the same manner and at such times as provided herein with respect to dividends
on each outstanding share of Series A Preferred Stock.
(f) All dividends paid with respect to shares of Series A Preferred
Stock pursuant to Section 2(a) shall be paid pro rata to the holders entitled
thereto.
(g) So long as any shares of Series A Preferred Stock are outstanding:
(i) No dividend or other distribution shall be declared or paid,
or set apart for payment on or in respect of, any Junior Stock, either directly
or indirectly, whether in cash, obligations, shares of the Corporation or other
property (other than dividends or distributions payable in shares of Junior
Stock or in rights to purchase Junior Stock), nor shall any Junior Stock, or any
warrants, rights, calls or options exercisable for or convertible into any
Junior Stock, be redeemed, purchased, retired or otherwise acquired for any
consideration (or any money be paid to a sinking fund or otherwise set apart for
the purchase or redemption of any such Junior Stock or any warrants, rights,
calls or options exercisable for or convertible into any
2
Junior Stock), unless as of such date the Corporation has paid all dividends
accrued and payable to date on the Series A Preferred Stock in full and paid all
amounts due in respect of its redemption obligations under Section 3; provided
that notwithstanding the foregoing, the Company may effect purchases or
redemptions pursuant to employee stock subscription agreements with officers and
key employees of the Corporation and its subsidiaries.
(ii) No shares of Series A Preferred Stock shall be
redeemed, purchased or otherwise acquired for any consideration (or any money be
paid to a sinking fund or otherwise set apart for the purchase or redemption of
any such Series A Preferred Stock) by the Corporation unless (A) the full
cumulative dividends on all outstanding shares of Series A Preferred Stock shall
have been or contemporaneously are declared and paid for all dividend periods
terminating on or prior to the date on which such redemption, purchase or other
payment is to occur, or (B) all shares of Series A Preferred Stock are
simultaneously redeemed as provided in Section 3 hereof.
Section 3. Redemption.
----------
(a) The Corporation shall have the right, at its sole option
and election, to redeem outstanding shares of Series A Preferred Stock, in whole
or in part (pro-rata among the outstanding shares of Series A Preferred Stock)
at any time; provided, however, that the Corporation shall not optionally redeem
-------- -------
less than $5,000,000 in the aggregate of the stated amount of shares of Series A
Preferred Stock at any one time.
(b) On September 30, 2008, the Corporation shall redeem one-
third of the shares of Series A Preferred Stock then outstanding. On September
30, 2009, the Corporation shall redeem one-half of the shares of Series A
Preferred Stock then outstanding. On September 30, 2010, the Corporation shall
redeem all remaining shares of Series A Preferred Stock then outstanding.
(c) The redemption price per share for Series A Preferred
Stock redeemed on any optional or mandatory redemption date (the "Redemption
Price") shall be equal to the Stated Value per share of the shares to be
redeemed plus an amount equal to the aggregate dollar amount of all accrued or
accumulated and unpaid dividends through the redemption date. The Redemption
Price shall be paid in cash from any source of funds legally available therefor.
(d) Not less than thirty (30) nor more than sixty (60) days
prior the redemption date, a notice specifying the time and place of such
redemption shall be given by first class mail, postage prepaid, to the holders
of record of the shares of Series A Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the books of the Corporation
(but no failure to mail such notice or any defect therein shall affect the
validity of the proceedings for redemption except as to the holder to whom the
Corporation has failed to mail such notice or except as to the holder whose
notice was defective), calling upon each such holder of record to surrender to
the Corporation on the redemption date at the place designated in such notice
such holder's certificate or certificates representing the then outstanding
shares of Series A Preferred held by such holder called for redemption. On or
after the redemption date, each holder of shares of Series A Preferred Stock
called for redemption shall surrender his certificate or certificates for such
shares to the Corporation at the place designated in the
3
redemption notice and shall thereupon be entitled to receive payment of the
Redemption Price in the manner set forth in Section 3(c) above. If the
redemption is delayed for any reason, dividends shall continue to accrue on the
shares of Series A Preferred Stock, and shall be added to and become a part of
the Redemption Price of such shares, until the Redemption Price, as so adjusted,
for such shares is paid in full.
Section 4. Reacquired Shares. Any shares of Series A Preferred Stock
-----------------
converted, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition
thereof, and, if necessary to provide for the lawful redemption or purchase of
such shares, the capital represented by such shares shall be reduced in
accordance with the General Corporation Law of the State of Delaware. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock, par value $.01 per share, of the Corporation and may be
reissued as part of another series of Preferred Stock, par value $.01 per share,
of the Corporation.
Section 5. Liquidation, Dissolution or Winding Up.
--------------------------------------
(a) If the Corporation shall adopt a plan of liquidation or of
dissolution, or commence a voluntary case under the Federal bankruptcy laws or
any other applicable state of Federal bankruptcy, insolvency or similar law, or
consent to the entry of an order for relief in any involuntary case under any
such law or to the appointment of a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official of the Corporation) or of any
substantial part of its property, or make an assignment for the benefit of its
creditors, or admit in writing its inability to pay its debts generally as they
become due, or if a decree or order for relief in respect of the Corporation
shall be entered by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws or any other applicable
Federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and any such decree or
order shall be unstayed and in effect for a period of 90 consecutive days and on
account of such event the Corporation shall liquidate, dissolve or wind up, or
upon any other liquidation, dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of Junior Stock, unless
prior thereto, the holders of shares of Series A Preferred Stock shall have
received in cash the Stated Value per share in respect of all outstanding shares
plus all accrued or accumulated but unpaid dividends thereon to and including
the date fixed for such liquidation.
(b) No payment on account of any such liquidation, dissolution
or winding-up of the Corporation shall be paid to any holder of shares of Series
A Preferred Stock unless there shall be paid at the same time to all holders of
shares of Series A Preferred Stock proportionate amounts determined ratably in
proportion to the full amounts to which the holders of all outstanding shares of
Series A Preferred Stock are respectively entitled with respect to such
distribution.
(c) After payment of the full amount of the liquidation
preference to which the holders of shares of Series A Preferred Stock are
entitled under Section 5(a), such
4
holders will not be entitled to any further participation in any distribution of
assets of the Corporation.
(d) Written notice of any liquidation, dissolution or winding-
up of the Corporation, stating the payment date or dates when and the place or
places where the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage prepaid, not less than fifteen (15)
days prior to any payment date stated therein, to the holders of record of the
shares of Series A Preferred Stock at their respective addresses as the same
shall appear in the records of the Corporation.
(e) Any voluntary sale, conveyance, exchange or transfer of
all or substantially all of the property or assets of the Corporation or the
consolidation or merger of the Corporation with or into one or more other
corporations in which the holders of capital stock of the Corporation entitled
to vote in the election of directors prior to the consummation of such event own
less than 50% of the capital stock of the surviving corporation entitled to vote
in the election of directors shall be deemed to be a liquidation, winding-up or
dissolution of the Corporation, and the only amounts payable to the holders of
the Series A Preferred Stock upon any such consolidation, merger or sale of the
Corporation shall be the liquidation preference set forth in Section 5(a).
Section 6. Information Rights.
------------------
The Corporation will furnish to each person who, together with its
affiliates, holds shares of Series A Preferred Stock having an aggregate Stated
Value of at least $5,000,000 the following reports:
(a) As soon as practicable after the end of each fiscal year,
and in any event within ninety (90) days thereafter, audited consolidated
balance sheets of the Corporation as of the end of such fiscal year, and
consolidated statements of income and cash flows of the Corporation for such
year, prepared in accordance with generally accepted accounting principles and
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and certified by independent public
accountants of national standing selected by the Corporation.
(b) As soon as practicable, but in any event within forty-five
(45) days after the end of each of the first three (3) quarters of each fiscal
year of the Corporation, unaudited balance sheets of the Corporation as of the
end of each such quarter, and consolidated statements of income and cash flows
of the Corporation for each such quarter, all prepared in accordance with
generally accepted accounting principles.
(c) As soon as practicable, but in any event within thirty
(30) days after the end of each of the first two months of each quarter of the
Corporation, unaudited balance sheets of the Corporation as of the end of each
such month, and consolidated statements of income and cash flows of the
Corporation for each such month, all prepared in accordance with generally
accepted accounting principles.
(d) At least ten (10) days prior to submission thereof to the
Corporation's Board of Directors for approval, the Company's budget and
operating plan
5
(including projected balance sheets and profit and loss and cash flow
statements) for each fiscal year.
Section 7. Voting.
------
Except as otherwise required by law, holders of shares of Series A
Preferred Stock shall have no voting rights; provided, however, that so long as
-------- -------
any of the Series A Preferred Stock is outstanding, the Corporation will not
authorize, create or issue, or increase the authorized or issued amount of, any
class or series of stock (or any security convertible or exchangeable therefor)
ranking senior to or pari passu with the Series A Preferred Stock with respect
to dividends or liquidation preference or reclassify or modify any Junior Stock
such that it ranks senior to or pari passu with the Series A Preferred Stock
with respect to dividends or liquidation preference without the affirmative vote
or consent of the holders of at least 66-2/3% of the shares of Series A
Preferred Stock then outstanding, voting as a separate class (given in person or
by proxy, either in writing or by resolution adopted at a special meeting called
for the purpose); and provided further, however, that the Corporation will not
---------------- -------
amend, alter or repeal any of the provisions applicable to the Series A
Preferred Stock set forth in its Certificate of Incorporation or in this
Certificate so as to change adversely (i) the dividend payable thereon, (ii) the
amount payable thereon upon liquidation or redemption or (iii) the mandatory
redemption provisions applicable thereto, without the affirmative vote or
consent of all holders of shares of Series A Preferred Stock then outstanding,
voting as a separate class (given in person or by proxy, either in writing or by
resolution adopted at a special meeting called for the purpose).
Each share of Series A Preferred Stock shall have one vote, and each
fractional share shall have a corresponding fractional vote.
6
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation of Series A Preferred Stock to be duly executed by its this 21st
----
day of April, 1998.
AMERICAN CELLULAR CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxx,
Chief Executive Officer
7
EXHIBIT C
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement") dated as of March 5,
1998 is made by and among American Cellular Corporation, a Delaware corporation,
and the parties listed on Exhibit A to this Agreement (collectively, the
---------
"Stockholders").
RECITALS
--------
The parties hereto have entered into a Stock Purchase Agreement (the
"Stock Purchase Agreement") dated as of March 5, 1998 with respect to the
purchase by the Stockholders of Shares and Preferred Shares (each as defined
below). The parties hereto desire to provide for certain transfer restrictions
and rights and board election rights with respect to the shares of capital stock
of the Company (as defined below) held by the Stockholders, as well as certain
other matters, all according to the terms of this Agreement.
AGREEMENT
---------
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions.
-------------------
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Affiliate" shall mean, with respect to any Person, a Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For the purposes of such definitions, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change of Control" shall mean (i) any sale, Transfer or other
conveyance, whether direct or indirect, of a majority of the fair market value
of the assets of the Company, in one transaction or a series of related
transactions, to any "person" or "group" (as such terms are used for purposes of
Section 13(d) of the Exchange Act, whether or not applicable), (ii) any "person"
or "group" (as such terms are used for purposes of Section 13(d) of the Exchange
Act, whether or not applicable) is or becomes the "beneficial owner," directly
or indirectly, of more than 50% of the total equity in the aggregate of all
classes of capital stock of the Company then outstanding normally entitled to
vote in elections of directors, or (iii) during any period of 12 consecutive
months after an Initial Public Offering, individuals who at the beginning of any
such 12-month period constituted the Board (together with any new directors
whose election by such Board or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board then in office. The Merger shall
not constitute a Change of Control.
(d) "Charter Documents" shall mean the Company's Certificate of
Incorporation and Bylaws.
(e) "Company" shall mean American Cellular Corporation, a Delaware
corporation, and any corporation into which it is merged or consolidated,
including the surviving corporation in the Merger.
(f) "Convertible Securities" shall mean (i) any indebtedness or
securities of the Company, convertible into or exchangeable for Shares, and (ii)
any rights, warrants or options to subscribe for or purchase Shares.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Initial Public Offering" shall mean the initial sale of shares of
the Company's Common Stock to the public pursuant to a registration statement
under the Securities Act which has been declared effective by the Securities and
Exchange Commission (other than a registration statement on Form S-8 or Form S-4
or any successor to such Form, or any other similar form) which results in an
active trading market in shares of Common Stock.
(i) "Merger" shall mean the merger of the Company with and into
PriCellular Corporation, a Delaware corporation ("PCC"), pursuant to the Merger
Agreement.
(j) "Merger Agreement" shall mean the Agreement and Plan of Merger to
be entered into between the Company and PCC, which provides, among other things,
for a merger price of $14.00 per share of the common stock of PCC.
(k) "New Securities" shall mean any Shares or Convertible Securities,
whether now authorized or not; provided that "New Securities" shall not include:
--------
(i) Shares issuable upon exercise or conversion of any previously issued
options, warrants, rights or securities convertible or exchangeable for Shares;
(ii) securities offered by the Company to the public generally pursuant to a
registration statement under the Securities Act; (iii) securities issued
pursuant to the acquisition of a business, whether pursuant to a merger,
consolidation, the purchase of assets or otherwise; (iv) any securities issued
to the officers, directors, employees or consultants of the Company as approved
by the Board (other than any officer, director or employer who is an affiliate
of any Stockholder); (v) Shares issued in connection with any stock split,
reclassification, recapitalization or stock dividend of the Company; (vi) Shares
or Convertible Securities issued to commercial lenders, investment banking firms
or other institutions for services rendered in connection with a debt financing
for the Company or it Affiliates.
2
(l) "Outstanding Voting Shares" shall mean, with respect to a
particular matter, the aggregate of all shares of the Company's capital stock
outstanding from time to time which pursuant to the Charter Documents are
entitled to vote on such matter.
(m) "Permitted Transfer" shall mean (i) a Stockholder's Transfer to
the Company of Shares or Preferred Shares or a direct or indirect interest in
Shares or Preferred Shares pursuant to a contractual right of repurchase granted
by the Company at the time such Shares or Preferred Shares were issued; (ii) a
Stockholder's Transfer of all or a portion of its Shares or Preferred Shares to
any Affiliate of such Stockholder or any Person that is a successor to such
Stockholder by merger, consolidation, reorganization or transfer of all, or
substantially all, of its assets; or (iii) if a Stockholder is a partnership,
such Stockholder's Transfer of all or a portion of its Shares or Preferred
Shares to any of its partners.
(n) "Person" shall mean any individual, partnership, limited liability
company, corporation, joint venture, trust, unincorporated organization, or any
other entity, or a government or any department, agency or political subdivision
thereof.
(o) "Preferred Shares" shall mean the shares of Series A Preferred
Stock of the Company.
(p) "Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
(q) "Shares" means shares of Class A Common Stock, par value $0.01 per
share, of the Company.
(r) "Transfer" means any direct or indirect transfer, sale,
assignment, pledge, hypothecation or other disposition.
2. Right of Co-Sale.
----------------
2.1. Definition. In the event that a Stockholder or Stockholders holding
----------
Shares or Preferred Shares which represent a majority of the Shares (or
Preferred Shares) then held by all Stockholders (the "Transferor") proposes to,
directly or indirectly, Transfer (in a single transaction or a series of related
transactions) a direct or indirect interest in Shares (or Preferred Shares)
owned by such Stockholders (the "Transferor Securities") to any Person or group
(as such term is used for purposes of Section 13(d) of the Exchange Act) for
value (the "Transferee"), each remaining Stockholders (a "Remaining
Stockholder") shall have a right of co-sale (the "Right of Co-Sale") to sell the
amount equal to a fraction, the numerator of which is the number of Shares (or
Preferred Shares) owned by such Remaining Stockholder and the denominator of
which is the aggregate number of Shares (or Preferred Shares) owned by all the
Stockholders, multiplied by the number of Shares (or Preferred Shares)
represented by the Transferor Securities (such product, the "Right of Co-Sale
Amount") on the same terms and at the same time as the Transferor, all as
described in this Section 2.
3
2.2. Right of Co-Sale Amount. Each Remaining Stockholder shall have the
-----------------------
right to sell that number of Shares (or Preferred Shares) held by such
Stockholder to the Transferee (or, upon the unwillingness of any Transferee to
purchase directly from such Stockholder, to the Transferor simultaneously with
the closing of the sale by the Transferor to the Transferee) up to its
respective Right of Co-Sale Amount determined as of the date the Transfer Notice
(as defined below) is delivered to the such Stockholder, upon the terms and
subject to the conditions pursuant to which the Transferor sells its Transferor
Securities to the Transferee.
2.3. Mechanics of Sale.
-----------------
(a) Exercise by the Stockholders.
----------------------------
If the Transferor proposes to Transfer any Transferor Securities in a
transaction subject to this Section 2, then it shall promptly notify, or cause
to be notified, the Remaining Stockholders, in writing, of each such proposed
Transfer (the "Transfer Notice"). Such Transfer Notice shall set forth: (i) the
name of the Transferee and the number of Transferor Securities proposed to be
Transferred, and (ii) the proposed amount and form of consideration and terms
and conditions of payment offered by the Transferee (the "Transferee Terms").
The Right of Co-Sale may be exercised by the Remaining Stockholders delivering a
written notice to the Transferor (the "Co-Sale Notice") within thirty (30)
calendar days following receipt of the Transfer Notice. The Co-Sale Notice
shall state the number of Shares (or Preferred Shares) that each Remaining
Stockholder wishes to include in such Transfer to the Transferee, which number
may not exceed its Right of Co-Sale Amount. Upon the giving of a Co-Sale
Notice, a Stockholder shall be irrevocably obligated to sell the number of
Shares or (Preferred Shares) set forth in its Co-Sale Notice to the Transferee
(or the Transferor, if applicable) on the Transferee Terms.
(b) Assignment of Interest.
----------------------
If a Stockholder exercises its respective Co-Sale Rights, then the
Transferor shall assign to such Stockholder as much of its interest in the
agreement of sale with the Transferee as such Stockholder shall be entitled to,
and such Stockholder shall be obligated to provide the representations,
warranties and covenants to the Transferee reasonably equivalent to those
provided by the Transferor under such agreement of sale. To the extent that any
Transferee prohibits such assignment or otherwise refuses to purchase Shares (or
Preferred Shares) from a Stockholder exercising its Right of Co-Sale hereunder,
then the Transferor shall not sell to such Transferee any Transferor Securities
unless and until, simultaneously with such sale, the Transferor shall purchase
such Shares (or Preferred Shares) from such Stockholder for the same
consideration per share and on the same terms and subject to the same conditions
as the proposed Transfer described in the Transfer Notice.
(c) Failure to Exercise Right of Co-Sale; Additional Transfers.
----------------------------------------------------------
If no Stockholder elects to exercise its Right of Co-Sale, then the
Transferor may, not later than 60 calendar days following delivery to the
Remaining Stockholders of the Transfer Notice, conclude a Transfer of not less
than all of the Transferor Securities covered by the
4
Transfer Notice on terms and subject to conditions not more favorable to the
Transferor than those described in the Transfer Notice. Any proposed Transfer of
more securities by the Transferor shall again be subject to the Right of Co-Sale
and shall require compliance by the Transferor with the procedures described in
this Section 2.
2.4. Exceptions to Right of Co-Sale. The Right of Co-Sale shall not apply
------------------------------
to Permitted Transfers.
3. Drag-Along Right.
----------------
3.1. In the event that a Stockholder or Stockholders holding Shares or
Preferred Shares which represent a majority of the Shares (or Preferred Shares)
then held by all Stockholders (the "Majority Stockholders") desire to pursue
discussions with any third party regarding a potential Transfer of all of the
Shares (or Preferred Shares) then held by the Majority Stockholders to such
third party at any time, the Majority Stockholders shall, prior to pursuing such
discussions, disclose to the Board their intentions with respect thereto.
3.2. In the event that the Majority Stockholders shall agree to Transfer,
in a bona fide arm's length transaction for value (either in a single
transaction or a series of related transactions), a direct or indirect interest
in all of the Shares (or Preferred Shares) owned by the Majority Stockholders to
any Person or "group" (as such term is used for purposes of Section 13(d) of the
Exchange Act) (the "Buyer"), which Buyer desires also to purchase all of the
Shares (or Preferred Shares) then owned by the Remaining Stockholders or their
successors or assigns for the same price per share as the Buyer contemplates
purchasing the Majority Stockholders' Shares (or Preferred Shares), the Majority
Stockholders shall notify the Remaining Stockholders and the Company in writing
(such notice, a "Drag-Along Notice") of its intention to effectuate such
contemplated transaction, setting forth in such Drag-Along Notice the identity
of the Buyer, the aggregate purchase price which the Buyer shall pay for all of
the Shares or Preferred Shares and the intended date on which such transaction
shall close; and the Remaining Stockholders shall, on the basis of such
notification, fully cooperate in such transaction and sell all of their Shares
or Preferred Shares to such Buyer, for the same price and otherwise in
accordance with identical terms and conditions as those on which the Majority
Stockholders shall sell their Shares or Preferred Shares to such Buyer. The
Drag-Along Notice shall be delivered no more than 90 nor fewer than 15 days
prior to the intended date of the closing of such transaction, and such
transaction shall not, in fact, close more than 270 calendar days after the
delivery of the Drag-Along Notice.
3.3. Exceptions to Drag-Along Right. The drag-along rights set forth in
------------------------------
this Article 3 shall not apply to Permitted Transfers.
4. Transfer Rights.
---------------
4.1. General. Transfers of Shares and Preferred Shares are strictly
-------
prohibited, except for (i) Permitted Transfers and (ii) Transfers consummated in
accordance with Section 2 or Section 3 hereof. Any attempt to Transfer any
Shares or Preferred Shares not in accordance with this Agreement shall be null
and void and neither the Company nor any transfer agent of such securities shall
give any effect to such attempted Transfer
5
in its records. Prior to consummation of any Transfer permitted under the first
sentence of this Section 4.1, the transferor shall cause the transferee to
execute an agreement in form and substance reasonably satisfactory to the Board,
providing that such transferee shall be bound by all the terms and provisions
of, and entitled (subject to Section 7.1) to all the rights and benefits under,
this Agreement, which are or theretofore had been applicable to the transferor
of the securities in question.
4.2. Legend. Any certificate representing outstanding Shares or Preferred
------
Shares which are held by a party to this Agreement or otherwise subject to the
terms hereof shall bear the following legend, in addition to any other legend
required by law or otherwise:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. NO SALE OR
TRANSFER OF THESE SHARES MAY BE MADE WITHOUT REGISTRATION UNDER SAID ACT OR
COMPLIANCE WITH EXEMPTIONS THEREFROM AND COMPLIANCE WITH APPLICABLE BLUE SKY
LAWS OR EXEMPTIONS THEREFROM."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY THE
TERMS OF THAT CERTAIN STOCKHOLDERS AGREEMENT (THE "STOCKHOLDERS AGREEMENT")
DATED AS OF MARCH 5, 1998, A COPY OF WHICH IS ON FILE AT THE OFFICES OF THE
COMPANY. ANY ATTEMPT TO TRANSFER OR ENCUMBER ANY INTEREST IN THE SHARES
REPRESENTED BY THIS CERTIFICATE NOT IN ACCORDANCE WITH SUCH STOCKHOLDERS
AGREEMENT SHALL BE NULL AND VOID AND NEITHER THE COMPANY NOR ANY TRANSFER AGENT
OF SUCH SECURITIES SHALL GIVE ANY EFFECT TO SUCH ATTEMPTED TRANSFER OR
ENCUMBRANCE IN ITS SHARE RECORDS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE
OF IT, AGREES TO BE BOUND BY THE TERMS OF THE STOCKHOLDERS AGREEMENT."
5. Management of the Company; Voting.
---------------------------------
5.1. Board Composition.
-----------------
(a) Subject to the provisions of this Section 5, each Stockholder
agrees to take such action as may be necessary, in its capacity as a stockholder
of the Company, to nominate and recommend to the stockholders of the Company as
the proposed members of the Board, at any annual or special meeting of
stockholders called for the purpose of voting on the election of directors, or
by consensual action of stockholders with respect to the election of directors,
as follows: (i) Xxxx X. Xxxxx; (ii) Xxxxx XxXxxxxx; (iii) two (2) individuals
designated in writing to the Company by Spectrum Equity Investors II, L.P., (iv)
two (2) individuals designated in writing to the Company by Providence Equity
Partners L.P., (v) one (1) individual designated in writing to the Company by
Sandler Capital Management and (vi) one (1) individual designated in writing to
the Company by Triumph Partners III, L.P. The individuals to be designated
initially by the foregoing entities are set forth on Schedule 5.1. The right to
------------
designate nominees shall be reduced as follows:
6
(A) From and after such time as any entity having the right to
designate two (2) nominees owns, together with its Affiliates, less than 75% of
the Shares purchased by such entity and its Affiliates pursuant to the Stock
Purchase Agreement, such entity shall forfeit its respective right to designate
one (1) nominee for election to the Board of Directors (excluding for purposes
hereof any decrease due to a reverse stock split, Transfer, or other change
affecting all Stockholders on a substantially proportionate basis). This clause
(A), if applicable, shall apply to the exclusion of clause (B) below.
(B) From and after such time as any entity having the right to
designate one nominees owns, together with its Affiliates, less than 50% of the
Shares purchased by such entity and its Affiliates pursuant to the Stock
Purchase Agreement, such entity shall forfeit its respective right to designate
any individual for election to the Board of Directors (excluding for purposes
hereof any decrease due to a reverse stock split, Transfer, or other change
affecting all Stockholders on a substantially proportionate basis).
(b) Except as otherwise provided in this Section 5, each of the
Stockholders further agrees (i) to appear in person or by proxy at any annual or
special meeting of stockholders of the Company for the purpose of obtaining a
quorum and to vote all voting securities of the Company now or hereafter
directly or beneficially owned by such Stockholder, either in person or by
proxy, at any such meeting of the stockholders of the Company called for the
purpose of voting on the election of directors, and (ii) to execute a written
consent pursuant to any consensual action with respect to the election of
directors (to the extent permitted by law), in each case (1) in favor of the
election of the directors nominated in accordance with designations made
pursuant to Section 5.1(a), 5.2 or 5.4 and (2) in favor of the removal of any
director required to be removed in accordance with Section 5.3.
5.2. Filling Vacancies. If, at any time during which Stockholders are
-----------------
entitled to designate directors pursuant to Section 5.1, a vacancy is created on
the Board by the death, removal or resignation of any one of the directors
designated by a Stockholder pursuant to Section 5.1(a)(iii)-(a)(vi), then the
Stockholder that had designated such director, if then entitled to designate
such director pursuant to Section 5.1, shall designate another individual to be
elected to the Board, and the Stockholders shall take such action as may be
necessary to cause, within ten (10) days after such designation occurs, the
election of such designated individual to the Board.
5.3. Removal of Directors Designated by Stockholder Entitled to Designate
--------------------------------------------------------------------
Directors. The Stockholders shall take such action as may be necessary to
---------
cause any director to be removed from the Board for any reason at the request of
the Stockholder that had designated such individual to be a director pursuant to
this Section 5. No Stockholder shall vote its voting securities of the Company
to remove any director designated by a Stockholder except as requested in
writing by the Stockholder who designated that director.
5.4. Replacement Nominees; Regulatory Restrictions.
---------------------------------------------
(a) If, prior to an individual's election to the Board pursuant to
Section 5.1 or 5.2, any individual designated by a Stockholder to serve as a
director shall be unable or
7
unwilling to serve as a director, the Stockholder who nominated any such
individual to serve as a director shall be entitled to nominate a replacement
and the Stockholders shall take all necessary action to elect such nominee to
the Board.
(b) Each Stockholder holding the right to designate a director
pursuant to Section 5.1 shall nominate an individual who, to the best of such
Stockholder's knowledge, does not have any attributable interests in any Person
who then owns or operates property subject to regulation by the Federal
Communications Commission ("Regulated Property") which would likely prohibit the
Company from acquiring or operating any interest in any Regulated Property. If
circumstances should change subsequent to a designee's election to the Board
such that maintaining such designee as a director would likely prohibit the
Company from acquiring or operating any interest in any Regulated Property, the
Stockholder who designated any such individual for election to the Board shall
promptly request the director's removal in accordance with Section 5.3 and
nominate a replacement designee in accordance with Section 5.2.
5.5. Voting of Board.
---------------
(a) The vote of the majority of the directors shall decide any matter
brought before the Board, unless the matter is one upon which by express
provision of law, the Charter Documents or this Agreement, a different vote is
required, in which case such express provision shall govern and control.
(b) Notwithstanding the provisions of Section 5.5(a), the affirmative
vote of each director designated by a Stockholder (as set forth on Schedule 5.1
or any replacement director designated in accordance with this Section), shall
be required for the Company to take, and each such Stockholder shall exercise
all voting rights and other powers of control available to it in relation to the
Company and the directors so as to ensure that the Company shall not without
such approval take, the following actions:
(i) authorize the execution, delivery and performance of the Merger
Agreement by the Company; and
(ii) waive any material condition in, or authorize any material
modification or amendment of the Merger Agreement by the Company (provided that
the Board of Directors may not approve any amendment to the Merger Agreement
which would raise the merger price above $14.00 per share).
The Stockholders referenced in the first sentence of this Section 5.5(b) shall
exercise all voting rights and other powers of control available to them in
relation to the Company and the directors to cause the directors to authorize
the delivery of a Drawdown Notice at such time as such Stockholders have a
reasonable basis to expect that the conditions to the Company's obligation to
consummate the Merger and the transactions contemplated by the Merger Agreement
will be satisfied or waived and the delivery of such Drawdown Notice is then
necessary to allow for the timely funding of the purchase of the Committed
Shares (as defined in the Stock Purchase Agreement).
8
(c) Notwithstanding the provisions of Section 5.5(a) and even if a
vote of the Board may not be required under applicable law for any of the
following, the affirmative vote (or the prior written consent) of five directors
shall be required for the Company to take, and the Stockholders shall exercise
all voting rights and other powers of control available to them in relation to
the Company and the directors so as to ensure that the Company shall not without
such approval take, the following actions:
(i) the disposition of assets (in a single transaction or a
series of related transactions) in an amount in excess of $5,000,000;
(ii) the entry into any transaction which would result in a
Change of Control;
(iii) subject to Section 7.3, the approval of the dissolution or
liquidation of the Company;
(iv) the declaration or payment of any dividends on, or the
incurrence of any obligation to make any other distribution in respect of,
outstanding equity interests of the Company;
(v) the incurring of, entry into or commitment to any
indebtedness, in an aggregate principal amount in excess of $5,000,000 (except
for incurrence of indebtedness to finance the Merger) in a single transaction or
series of related transactions;
(vi) any acquisition of assets (in a single transaction or a
series of related transactions) in an amount in excess of $5,000,000;
(vii) any amendment to the Charter Documents;
(viii) the repurchase or redemption of the Company's capital
stock from a Stockholder in an amount not equal to such Stockholder's pro rata
ownership of such capital stock;
(ix) any change in the number of directors;
(x) the removal or appointment of any senior executives,
including the Chief Executive Officer, Chief Operating Officer and Chief
Financial Officer;
(xi) any issuance of additional shares of capital stock of the
Company or any rights, options, warrants or other instruments convertible or
exchangeable therefor, other than the issuance of shares of capital stock
contemplated by the Stock Purchase Agreement;
(xii) any transaction with an Affiliate with a value in excess
of $250,000;
(xiii) entering into any other contract or arrangement material
to the Company; and
9
(xiv) any amendment to Schedule 3.11 of the Stock Purchase
-------------
Agreement.
5.6. Voting of Stockholders.
----------------------
(a) The vote of the holders of a majority of the Outstanding Voting
Shares entitled to vote shall decide any matters brought before any meeting of
Stockholders, unless the matter is one upon which by express provision of law,
the Charter Documents or this Agreement, a different vote is required, in which
case such express provision shall govern and control.
(b) Notwithstanding the provisions of Section 5.6(a) and even if a
vote of the Stockholders may not be required under applicable law for any of the
following, the vote or prior written consent of Stockholders then holding
Outstanding Voting Shares representing 66-2/3% of the Outstanding Voting Shares
held by all Stockholders shall be required before the Company may take, and the
Stockholders shall exercise all voting rights and other powers of control
available to them in relation to the Company and the directors so as to ensure
that the Company shall not without such approval take, the following actions:
(i) the sale of all or substantially all of the assets of the
Company by sale, assignment, merger, reorganization, or by any other manner;
(ii) the entry into any transaction which would result in a
Change of Control; and
(iii) any amendment to the Company's Charter Documents.
5.7. Approval of Merger. Notwithstanding any provision herein to the
------------------
contrary, upon approval by the Board of the Merger and the Merger Agreement,
each Stockholder shall vote, or act by written consent, and hereby gives its
written consent (subject only to such Board approval), in favor of the approval
and authorization of the Merger, the Merger Agreement and the transactions
contemplated thereby and shall execute all documents requested by the Board
necessary to effectuate such approval and authorization. Each Stockholder
agrees that it will not exercise, and hereby waives, any and all rights that it
may have to dissent or seek appraisal, arising from the Merger under the
Delaware General Corporation Law or any other principle of law with respect to
any of its shares of capital stock of the Company.
5.8. Officers of the Company. Each Stockholder agrees to cause its
-----------------------
nominees to the Board to take such action as may be necessary to appoint Xxxxx
Xxxxxxxxx as Chairman, Chief Executive Officer and Treasurer, and Xxxxxxxx
Xxxxxx as President and Secretary of the Company effective on or about the date
hereof. Effective upon consummation of the Merger, Xxxxx Xxxxxxxxx and Xxxxxxxx
Xxxxxx shall resign from their respective officer positions. Effective upon
consummation of the Merger, each Stockholder agrees to cause its nominees to the
Board to take such action as may be necessary to appoint Xxxx X. Xxxxx and Xxxxx
XxXxxxxx as Officers of the Company.
10
5.8.1. Board Observer. During such time as a Stockholder holds
--------------
Shares and Preferred Shares for which such Stockholder paid, or has committed to
pay, at least $10 million pursuant to the Stock Purchase Agreement (and has not
defaulted with respect to any such payment obligations), such Stockholder shall
have the right to designate one representative as a Board observer and as an
observer of any committee of the Board. In addition, each such Stockholder
shall have the right to designate one representative as an observer of the board
of directors of any wholly-owned subsidiary ("Subsidiary") of the Company which
does not consist solely of employees of the Company or its Subsidiaries and any
committees thereof. The Company shall provide notice of board and committee
meetings to any duly designated observer at such time and in such manner as it
provides notice to directors and such observer shall have the right to attend
such board and committee meetings. The observer shall be entitled to receive
written materials distributed to the relevant board or committee members. The
Company shall cause each Subsidiary subject to this Section 5.8.1 to comply with
the aforementioned notice and information requirements. Except for the rights
described herein, the observer shall not have any other rights of a board or
committee member, including the right to vote as a member thereof, and shall not
represent to any party that he is a director. The Company and each Subsidiary
subject hereto shall have the right to require any board or committee observer
to execute a confidentiality agreement as a precondition to his being a board or
committee observer.
5.9. Inspection Rights. During such time as a Stockholder shall have the
-----------------
right to appoint a designee for election to the Board pursuant to Section 5.1 or
to designate a Board observer pursuant to Section 5.9, such Stockholder shall
have the right to inspect the books, records and premises of the Company during
normal business hours upon reasonable notice.
6. Right of First Refusal on Issuance of New Securities by the Company.
-------------------------------------------------------------------
6.1. Generally. The Company hereby grants to each Stockholder the right
---------
of first refusal to purchase such Stockholder's pro rata share of New Securities
which the Company may from time to time propose to sell and issue. For purposes
of this right of first refusal, a Stockholder's pro rata share (the "Section 6
Pro Rata Share") shall be that proportion which the number of shares of Shares
then held by such Stockholder bears to the aggregate number of Shares then held
by all Stockholders.
6.2. Notice of New Issues. In the event the Company proposes to undertake
--------------------
an issuance of New Securities, it shall give each Stockholder written notice
(the "Section 6 Notice") of its intention, describing the type of New
Securities, the price, and the principal terms upon which the Company proposes
to issue the same. Each Stockholder shall have twenty (20) days from the
delivery date of any Section 6 Notice to agree, irrevocably, to purchase up to
the Stockholder's Section 6 Pro Rata Share of such New Securities for the price
and upon the terms specified in the Section 6 Notice by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased.
6.3. Failure to Exercise Right. In the event a Stockholder fails to agree
-------------------------
to purchase all of such Stockholder's Section 6 Pro Rata Share pursuant to
Section 6.2, the Company shall give a Section 6 Notice to the other Stockholders
of such failure pursuant
11
to Section 6.2, and the other Stockholders shall have the right to purchase all
such shares in the manner set forth in Section 6.2. In the event any shares of
New Securities are still not purchased after the foregoing procedures have been
effected, the Company shall have ninety (90) days after the last date on which
any Stockholder's right to purchase lapsed to sell or enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within ninety (90) days from the date of said agreement) to sell the
New Securities in respect of which such Stockholder's option was not exercised,
at or above the price and upon terms not more favorable to the purchasers of
such securities than the terms specified in the initial Section 6 Notice given
in connection with such sale. In the event the Company has not sold the New
Securities or entered into an agreement to sell the New Securities within said
ninety-day period (or sold and issued New Securities in accordance with the
foregoing within ninety (90) days from the date of said agreement), the Company
shall not thereafter issue or sell any New Securities without first offering
such New Securities to the Stockholders in the manner provided in this Section
6.
6.4. Waiver. Messrs. Fujii and XxXxxxxx agree to waive their respective
------
rights of first refusal under this Section 6 if the other Stockholders shall
have waived their rights under this Section.
7. Miscellaneous.
-------------
7.1. Entire Agreement; Successors and Assigns. This Agreement constitutes
----------------------------------------
the entire agreement between the Company and the Stockholders concerning the
subject matter hereof. Any previous agreement between the Company and the
Stockholders concerning the subject matter hereof is superseded by this
Agreement. Subject to Section 4.1 hereof, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors and permitted assigns of the
parties. Notwithstanding the foregoing or the definition of "Permitted
Transfers", the rights of the Stockholders set forth in Section 5.1 shall not be
transferable to any Person except to an Affiliate of a Stockholder upon a
Permitted Transfer by such Stockholder of all of its Shares to such Affiliate.
7.2. Termination. Sections 2, 3, 4.1 and 6 shall automatically terminate
-----------
upon an Initial Public Offering which raises at least $50,000,000 in proceeds to
the Company and is underwritten pursuant to a firm commitment underwriting by
nationally recognized underwriters. Section 5 shall terminate as provided
therein. Notwithstanding any provision hereof, this entire Agreement shall
terminate at such time as the Stockholders hold in the aggregate less than 20%
of the Outstanding Voting Shares.
7.3. Termination of Stock Purchase Agreements; Dissolution of the Company.
--------------------------------------------------------------------
Upon the termination of the Stock Purchase Agreement, the Board shall take all
action to effect the prompt dissolution and liquidation of the Company in
accordance with applicable law.
12
7.4. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the substantive laws of the State of Delaware, without reference
to any choice of law rules that would require the application of the laws of any
other jurisdiction.
7.5. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.6. Headings. The headings of the sections of this Agreement are for
--------
convenience and shall not by themselves determine the interpretation of this
Agreement.
7.7. Notices. Any notice required or permitted hereunder shall be given
-------
in writing and shall be conclusively deemed effectively given (a) upon personal
delivery to the person to be notified, (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient; if not, then on the next
business day, (c) five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt addressed as set forth on the signature
page of this Agreement, or at such other address as a party may designate by ten
(10) days' advance written notice to the other party.
7.8. Effectiveness; Amendment of Agreement. Any provision of this
-------------------------------------
Agreement may be amended only by a written instrument signed by Stockholders
then holding Shares representing 66-2/3% of the Shares then held by the
Stockholders; provided that Sections 2, 3, 4 and 7 (and related definitions) may
--------
be amended only by a written instrument signed by each of the Stockholders which
then hold any Shares or any Preferred Shares. In addition to the foregoing, any
amendment to Section 5 must be approved by the affirmative vote (or prior
written consent) of five directors; provided that Section 5.5(b) may be amended
--------
only by a written instrument signed by each of the Stockholders which then hold
any Shares; and, provided further, that no Stockholder shall as a result of any
-------- -------
amendment to Section 5.1 lose its right, if any, to designate a director
pursuant thereto, unless such Stockholder and its Affiliates hold less than 20%
of the Shares that such Stockholder and its affiliates purchased pursuant to the
Stock Purchase Agreement. Notwithstanding the foregoing, Exhibit A may be
---------
amended by the Company as necessary to reflect the addition of new Stockholders
pursuant to the terms hereof, or to reflect the addition of parties hereto as
contemplated by this Agreement; and further provided that no amendment which
--- ------- --------
adversely affects any Stockholder other than in the same manner that such
amendment affects each other Stockholder on a pro rata basis will be effective
without such first Stockholder's written consent.
7.9. Waiver; Severability. The waiver by one party hereto of any breach
--------------------
by the other (the "Breaching Party") of any provision of this Agreement shall
not operate or be considered as a waiver of any other (prior or subsequent)
breach by the Breaching Party, and the waiver of a breach of a provision in one
instance shall not be deemed a waiver of such provision in any other
circumstance. If any term or provision of this Agreement or the application
thereof to any Person, property or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons, property or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected
13
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
7.10. Ownership. Each Stockholder represents and warrants that it is the
---------
sole legal and beneficial owner of those Shares and Preferred Shares it
currently holds subject to this Agreement and that no other Person has any
interest (other than a community property interest) in such Shares or Preferred
Shares.
7.11. Attorneys' Fees. In the event that any dispute among the parties to
---------------
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
7.12. Specific Performance. Each of the Stockholders and the Company
--------------------
acknowledge that any violation of this Agreement will result in irreparable
injury to the non-breaching party, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such violation would not be
reasonable or adequate compensation to the non-breaching party for such a
violation. Accordingly, the Stockholders and the Company agree that if any of
the Stockholders and/or the Company violates any provision of this Agreement, in
addition to any other remedy which may be available at law or in equity, the
non-breaching party shall be entitled to specific performance and injunctive
relief, without posting bond or other security, and without the necessity of
proving actual damages.
7.13. Regulated Stockholders. At the request of any Regulated
----------------------
Stockholder, the Company will exchange (on a share-for-share basis) shares of
voting securities of the Company held by such Regulated Stockholder, or will
issue to such Regulated Stockholder in lieu of voting securities otherwise
issuable to such Regulated Stockholder pursuant to Section 6, shares of other
securities which (a) do not have voting rights (or which have such limited
voting rights as such Regulated Stockholder may reasonably request), (b) are
convertible into such voting securities on a share-for-share basis (subject to
such limitations as such Regulated Stockholder may request), and (c) are
otherwise identical to such voting securities. Any such non-voting or limited-
voting securities will constitute "Shares" for purposes of this Agreement.
"Regulated Stockholder" means any direct or indirect majority-owned subsidiary
---------------------
of a bank holding company, or any bank holding company.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE COMPANY:
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
THE STOCKHOLDERS:
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P., its Managing General Partner
Name: /s/ Xxxxx Xxxxxxxxx
--------------------------
Title: Managing General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: PROVIDENCE EQUITY PARTNERS L.L.C.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name:
---------------------------
Title:
--------------------------
Address: 00 Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxx Xxxxxx
TANDEM WIRELESS INVESTMENTS, L.P.,
a Delaware limited partnership
By: LIVE CYCLES HOLDINGS CO.
Its General Partner
By: /s/ Xxxx XxXxxxxx
-------------------------------------
Xxxx XxXxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxx
Title: President
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
-------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
--------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention:
SANDLER CAPITAL PARTNERS, IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------
Name: Xx Xxxxxxxxx
Title President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
TRIUMPH PARTNERS, III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TRIUMPH III INVESTORS, L.P.
a Delaware limited partnership
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TORONTO DOMINION INVESTMENTS, INC.
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
-----------------------------
Name: X.X. Xxxxxxx III
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
HARBOURVEST PARTNERS V - Direct Fund L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates LLC
its General Partner
By: HARBOURVEST PARTNERS, LLC
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Address: Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES-II,L.P.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
IA-II AFFILIATES FUND, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
TRIDENT CAPITAL MANAGEMENT-II,L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
WESTPOOL INVESTMENT TRUST,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
---------------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Elan Xxxxxxx
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXX FAMILY TRUST dated 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
LION INVESTMENTS LIMITED,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARTNERS
By: __________________________
Name: ____________________
Title: ___________________
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
--------------------------
Name: XXXX X. XXXXX
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx XxXxxxxx
--------------------------
Name: XXXXX XXXXXXXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
American Cellular Corporation Exhibit A
List of Stockholders
Class A Common Stock Class A Preferred Stock
-------------------------- -----------------------
Interim Closing
Total $ ----------------------
Investment $ Investment Shares $ Investment Shares
---------- ------------ ------ ------------ ------
Spectrum Equity Investors II, L.P. $50,000,000 $3,571,400 35,714 $1,428,500 14,285
Providence Equity Partners L.P. 50,000,000 3,571,400 35,714 1,428,500 14,285
Sandler Capital Partners IV, L.P. 21,264,200 1,518,800 15,188 607,600 6,076
Sandler Capital Partners IV, FTE, L.P. 8,736,000 624,000 6,240 249,600 2,496
21st Century Communications Partners, L.P. 10,170,700 726,500 7,265 290,600 2,906
21st Century Communications T-E, L.P. 3,460,300 247,200 2,472 98,900 989
21st Century Communications Foreign Partners, L.P. 1,368,800 97,800 978 39,100 391
Tandem Wireless Investments, L.P. 40,000,000 2,857,100 28,571 1,142,900 11,429
Triumph Partners III, L.P. 29,647,800 2,125,000 21,250 846,800 8,468
Triumph III Investors, L.P. 352,200 17,900 179 10,300 103
First Union Capital Partners, Inc. 25,000,000 1,785,700 17,857 714,300 7,143
HarbourVest Partners V 20,000,000 1,428,600 14,286 571,400 5,714
Information Associates, L.P. 2,918,700 208,600 2,086 83,400 834
Information Associates, C.V. 81,300 5,700 57 2,300 23
Information Associates-II, L.P. 12,000,000 857,200 8,572 342,900 3,429
IA-II Affiliates Fund, L.L.C. 700,000 50,000 500 20,000 200
Trident Capital Management-II, L.L.C. 4,300,000 307,100 3,071 122,900 1,229
SG Capital Partners, LLC 16,500,000 1,178,600 11,786 471,400 4,714
Xxxxxxx Xxxxx KECALP L.P. 1997 7,700,000 549,800 5,498 240,000 2,400
KECALP, Inc. 4,500,000 321,300 3,213 188,600 1,886
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,300,000 164,200 1,642 0 0
ML IBK Positions, Inc. 500,000 35,700 357 0 0
Toronto Dominion Investments, Inc. 15,000,000 1,071,400 10,714 428,600 4,286
Westpool Investment Trust 8,499,900 606,900 6,069 242,900 2,429
Lion Investments Limited 1,477,500 105,500 1,055 42,200 422
Xxxxx Family Trust dated 1/6/89 22,600 1,600 16 600 6
Generation Capital Partners L.P. 9,653,891 690,291 6,903 275,800 2,758
State Board Administration of Florida 342,162 24,462 245 9,800 98
Generation Parallel Management Partners L.P. 3,947 247 2 100 1
Xxxx Xxxxx 1,750,000 125,000 1,250 50,000 500
Xxxxx XxXxxxxx 1,750,000 125,000 1,250 50,000 500
----------------------------------------------------------------
$350,000,000 $25,000,000 250,000 $10,000,000 100,000
================================================================
Date of Funding: March 20, 1998 April 22, 1998
Class A Preferred Stock
-----------------------------------------------
Final Closing
----------------------- Total Total
$ Investment Shares $ Investment Shares
------------- ------ ------------ ------
Spectrum Equity Investors II, L.P. 45,000,100 450,001 $46,428,600 464,286
Providence Equity Partners L.P. 45,000,100 450,001 46,428,600 464,286
Sandler Capital Partners IV, L.P. 19,137,800 191,378 19,745,400 197,454
Sandler Capital Partners IV, FTE, L.P. 7,862,400 78,624 8,112,000 81,120
21st Century Communications Partners, L.P. 9,153,600 91,536 9,444,200 94,442
21st Century Communications T-E, L.P. 3,114,200 31,142 3,213,100 32,131
21st Century Communications Foreign Partners, L.P. 1,231,900 12,319 1,271,000 12,710
Tandem Wireless Investments, L.P. 36,000,000 360,000 37,142,900 371,429
Triumph Partners III, L.P. 26,676,000 266,760 27,522,800 275,228
Triumph III Investors, L.P. 324,000 3,240 334,300 3,343
First Union Capital Partners, Inc. 22,500,000 225,000 23,214,300 232,143
HarbourVest Partners V 18,000,000 180,000 18,571,400 185,714
Information Associates, L.P. 2,626,700 26,267 2,710,100 27,101
Information Associates, C.V. 73,300 733 75,600 756
Information Associates-II, L.P. 10,799,900 107,999 11,142,800 111,428
IA-II Affiliates Fund, L.L.C. 630,000 6,300 650,000 6,500
Trident Capital Management-II, L.L.C. 3,870,000 38,700 3,992,900 39,929
SG Capital Partners, LLC 14,850,000 148,500 15,321,400 153,214
Xxxxxxx Xxxxx KECALP L.P. 1997 6,910,200 69,102 7,150,200 71,502
KECALP, Inc. 3,990,100 39,901 4,178,700 41,787
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,135,800 21,358 2,135,800 21,358
ML IBK Positions, Inc. 464,300 4,643 464,300 4,643
Toronto Dominion Investments, Inc. 13,500,000 135,000 13,928,600 139,286
Westpool Investment Trust 7,650,100 76,501 7,893,000 78,930
Lion Investments Limited 1,329,800 13,298 1,372,000 13,720
Xxxxx Family Trust dated 1/6/89 20,400 204 21,000 210
Generation Capital Partners L.P. 8,687,800 86,878 8,963,600 89,636
State Board Administration of Florida 307,900 3,079 317,700 3,177
Generation Parallel Management Partners L.P. 3,600 36 3,700 37
Xxxx Xxxxx 1,575,000 15,750 1,625,000 16,250
Xxxxx XxXxxxxx 1,575,000 15,750 1,625,000 16,250
-----------------------------------------------
$315,000,000 3,150,000 $325,000,000 3,250,000
===============================================
Date of Funding: June 22, 1998
-------------
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
March 5, 1998 is entered into by and among American Cellular Corporation, a
Delaware corporation (the "Company"), and each of the parties listed on Exhibit
-------
A hereto (the "Stockholders"). As used in this Agreement, the defined term
-
"Company" shall refer to both American Cellular Corporation and any successor
entity thereto.
RECITALS
--------
A. The Stockholders own shares of the Company's common stock, par
value $.01 per share (the "Common Stock").
B. The Company and the Stockholders desire to provide for the
registration under the Securities Act of 1933, as amended, of the Registrable
Securities (as defined below), all according to the terms of this Agreement.
AGREEMENT
---------
1. Certain Definitions.
-------------------
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Common Shares" shall mean any and all series or classes of
-------------
the Common Stock of the Company, whether voting or non-voting.
(b) "Exchange Act" shall mean the Securities Act of 1934, as
------------
amended.
(c) "Initial Public Offering" shall mean the initial sale of
-----------------------
shares of Common Shares to the public pursuant to a registration statement under
the Securities Act which has been declared effective by the SEC (other than a
registration statement on Form S-8 or Form S-4 or any successor to such Form, or
any other similar form) which results in an active trading market in the Common
Shares.
(d) "NASD" shall mean the National Association of Securities
----
Dealers, Inc.
(e) "Prospectus" shall mean the prospectus included in any
----------
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(f) The terms "Register", "Registered" and "Registration" refer
-------- ---------- ------------
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(g) "Registrable Securities" shall mean all Common Shares issued
----------------------
to the Stockholders and any securities of the Company which may be issued or
distributed with respect to, or in exchange or substitution for, or upon
conversion into Common Shares pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
otherwise; provided, however, that any Registrable Securities shall cease to be
-------- -------
Registrable Securities when (i) a Registration Statement with respect to the
sale of such Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities are distributed pursuant to Rule 144
(or any similar provision then in force) under the Securities Act, or (iii) such
Registrable Securities shall have been otherwise transferred and new
certificates for them not bearing a legend restricting further transfer under
the Securities Act shall have been delivered by the Company; and provided,
--------
further, that any securities that have ceased to be Registrable Securities
-------
cannot thereafter become Registrable Securities and any security that is issued
or distributed in respect of securities that have ceased to be Registrable
Securities is not a Registrable Security.
(h) "Registration" shall mean a Demand Registration or a
------------
Piggyback Registration.
(i) "Registration Statement" shall mean any registration
----------------------
statement of the Company filed with the SEC which covers any of the Registrable
Securities, including the Prospectus, amendments and supplements to such
registration statement and all exhibits and all material incorporated by
reference in such registration statement.
(j) "SEC" shall mean the Securities and Exchange Commission.
---
(k) "Securities Act" shall mean the Securities Act of 1933, as
--------------
amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect at the time.
(l) "Stockholders Agreement" shall mean the Stockholders
----------------------
Agreement dated as of the date hereof by and among the Company and the
Stockholders.
(m) "Underwritten Registration" or "Underwritten Offering" shall
------------------------- ---------------------
mean a sale of securities of the Company to an underwriter for reoffering to the
public.
2. Demand Registration.
-------------------
(a) Right to Demand; Demand Notices. Subject to the terms of
-------------------------------
this Agreement, in the event the Company shall receive from the Stockholders
holding Common Shares representing an aggregate of at least 10% of the then
outstanding Registrable Securities (the "Initiating Holders") at any time and
from time to time commencing after an Initial Public Offering, a written request
that the Company effect a Registration (a "Demand Registration"), the
2
reasonably anticipated aggregate price to the public of which would be at least
$35,000,000, the Company shall (a) promptly give written notice of the proposed
Registration to all other Stockholders, and (b) as soon as practicable, use its
best efforts to effect Registration of the Registrable Securities specified in
such request, together with any Registrable Securities of any Stockholder
joining in such request as are specified in a written request given within
twenty (20) days after written notice from the Company of the proposed
Registration. Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such Registration pursuant to this Section 2(a)
(i) unless Stockholders holding Common Shares representing an aggregate of at
least 34% of the Registrable Securities then outstanding elect to participate in
such Demand Registration, or (ii) after the Company has effected three (3) such
Registrations pursuant to this Section 2(a) and such Registrations have been
declared effective; provided, however, that one Stockholder may not request more
than one Demand Registration that is effected.
(b) Company's Right to Defer Registration. If the Company is
-------------------------------------
requested to effect a Demand Registration and the Company furnishes to the
Initiating Holder a copy of a Board resolution certified by the secretary of the
Company stating that in the good faith judgment of the Board it would be adverse
to the Company and its Stockholders for such registration statement to be filed
on or before the date such filing would otherwise be required under this Section
2, the Company shall have the right to defer such filing for a period of not
more than ninety (90) days after the Company receives the registration request
from the Initiating Holder. If the Company so postpones the filing of a
registration statement, and if the Initiating Holder within thirty (30) days
after receipt of the notice of postponement advises the Company in writing that
it has determined to withdraw such request for Demand Registration, then such
Demand Registration shall be deemed to be withdrawn and such request shall be
deemed not to have been exercised for purposes of determining whether the
Initiating Holder has exhausted its single permitted request.
(c) Registration Statement Form. Registrations under this
---------------------------
Section 2 shall be on an appropriate SEC registration form (i) that is selected
by the Company and is reasonably acceptable to the Initiating Holder and (ii)
that permits the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition specified in the Initiating
Holder's request for such Demand Registration.
(d) Effective Registration Statement. The Company shall be
--------------------------------
deemed to have effected a Demand Registration if: (i) the SEC declares effective
the Registration Statement relating to such Demand Registration; provided,
--------
however, that no Demand Registration shall be deemed to have been effected if
-------
(x) such registration, after it has become effective, is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court by reason of an act or omission by the Company or
(y) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied because of an act or omission by the Company (other than a failure of
the Company or any of its representatives to execute or deliver any closing
certificate by reason of facts or circumstances not within the control of the
Company or such representatives); or (ii) at any time after an Initiating Holder
requests a Demand Registration and prior to the effectiveness of the
Registration Statement, the preparation of such Registration Statement is
discontinued or such Registration Statement is withdrawn or
3
abandoned at the request of the holders of a majority of Registrable Securities
sought to be registered in such Registration Statement (unless such Stockholders
have paid to the Company in full the Registration Expenses, defined in Section
6, in connection with such Registration Statement).
(e) Priority on Demand Registrations. If the managing
--------------------------------
underwriter or agent, if any, of a Demand Registration (or, in the case of a
Demand Registration not being underwritten, the Initiating Holder), advises the
Company in writing that in its opinion the number of securities requested to be
included in such Demand Registration exceeds the number which can be sold in the
offering covered by such Demand Registration without a significant adverse
effect on the price, timing or distribution of the securities offered, the
Company shall include in such registration only the number of securities that,
in the opinion of such underwriter or agent (or the Initiating Holder, as the
case may be), can be sold without a significant adverse effect on the price,
timing or distribution of the securities offered, selected pro rata among the
--- ----
Stockholders which have requested to be included in such Demand Registration
based upon their relative ownership of Registrable Securities prior to such
Registration, to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount recommended by such underwriters
or agent, if any (or the Initiating Holder, as the case may be). The Company and
other Stockholders may also include securities in such Registration if, but only
if, such underwriter or agent (or the Initiating Holder, as the case may be)
concludes that such inclusion will not interfere with the successful marketing
of all the Registrable Securities requested to be included in such registration.
(f) Selection of Underwriters. If any offering pursuant to a
-------------------------
Demand Registration involves an Underwritten Offering, the Initiating Holder
shall have the right to select the managing underwriter or underwriters to
administer the offering. Any managing underwriter must be a firm of nationally
recognized standing and reasonably satisfactory to the Company.
3. Piggyback Registrations.
-----------------------
(a) Participation. Subject to paragraph (b) and (e) below and
-------------
Section 9, if at any time after the date of this Agreement the Company files a
Registration Statement (other than a "universal shelf" Registration Statement
on Form S-3, registration on Form S-4 or S-8 or any successor to such forms, or
any other registration of securities as it relates to an offering and sale to
management of the Company pursuant to any employee stock plan or other employee
benefit plan arrangement) with respect to an offering that includes any shares
of Common Stock, then the Company shall give prompt notice (the "Piggyback
Notice") to the Stockholders, and the Stockholders shall be entitled to include
in such Registration Statement any or all of the Registrable Securities held by
them (the "Piggyback Registration"). The Piggyback Notice shall offer the
Stockholders the opportunity to register such number of shares of Registrable
Securities as each Stockholder may request and shall set forth (i) the
anticipated filing date of such Registration Statement and (ii) the number of
shares of Common Stock that is proposed to be included in such Registration
Statement. The Company shall include in such Registration Statement any shares
of Registrable Securities for which it has received written requests to register
such shares within fifteen (15) days after the Piggyback Notice has been given.
4
(b) Underwriter's Cutback. Notwithstanding the foregoing, if a
---------------------
Piggyback Registration pursuant to this Section 3 involves an Underwritten
Offering and the managing underwriter or underwriters of such proposed
Underwritten Offering delivers an opinion to the Stockholders that the total or
kind of securities which such Stockholders and any other persons or entities
intend to include in such offering would be reasonably likely to adversely
affect the price, timing or distribution of the securities offered in such
offering, then the Company shall include in such Piggyback Registration (i)
first, 100% of the securities the Company proposes to sell, and (ii) second, to
the extent of the amount of securities which all other Stockholders have
requested to be included in such Piggyback Registration, which, in the opinion
of the managing underwriter or underwriters, can be sold without the adverse
effect referred to above, such amount to be allocated pro rata among all other
--- ----
Stockholders based upon their relative ownership of Registrable Securities prior
to such Registration.
(c) Company Control. The Company may decline to file a
---------------
Registration Statement after giving the Piggyback Notice, or withdraw a
Registration Statement after filing and after such Piggyback Notice (but prior
to the effectiveness of the Registration Statement), provided that the Company
shall promptly notify each Stockholder in writing of any such action and
provided further that the Company shall bear all reasonable expenses incurred by
the Stockholders or otherwise in connection with the withdrawn Registration
Statement.
(d) No Effect on Demand Registrations. No Piggyback Registration
---------------------------------
effected under this Section 3 shall be deemed to have been effected pursuant to
Section 2 or shall relieve the Company of its obligation to effect any Demand
Registration upon request under Section 2.
(e) Initial Public Offering. No Stockholder shall be entitled to
-----------------------
include any Registrable Securities in a Registration Statement relating to the
Initial Public Offering unless at least (x) five members of the Board of
Directors of the Company, or (y) a majority of such Board of Directors,
whichever is greater, shall approve the inclusion.
4. Restrictions on Public Sale by the Company
------------------------------------------
The Company agrees not to effect any public sale or distribution of
any securities the same as or similar to those being registered by the Company,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) day period prior to, and during the ninety (90)
day period (or such longer period of up to 180 days as may be required by such
underwriter) beginning with, the effective date of a Registration Statement
filed under Section 2 or 3 or the commencement of the public distribution of
securities to the extent timely notified in writing by a Stockholder or the
managing underwriters (except as part of such registration, if permitted, or
pursuant to a "universal shelf" Registration Statement, registrations on Forms
S-4 or S-8 or any successor to such forms, or any other registration of
securities for offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement).
5. Registration Procedures. In connection with the Company's
-----------------------
Registration obligations pursuant to Sections 2 and 3, the Company shall use its
best efforts to effect such Registration to permit the sale of such Registrable
Securities in accordance with the
5
intended method or methods of distribution thereof. The Company shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration, including all exhibits and financial statements required
by the SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective; provided that before filing a
--------
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company will furnish to the holders of Registrable Securities covered by
such Registration Statement and their counsel and to each underwriter or agent,
if any, copies of such Registration Statement or Prospectus substantially in the
form proposed to be filed at least five (5) business days, with respect to any
Demand Registration, or two (2) business days, with respect to any Piggyback
Registration, prior to the filing date and copies of any amendments or
supplements substantially in the form proposed to be filed with respect to a
Demand Registration at least two (2) business days prior to the filing date,
which documents will be subject to the reasonable review of such Stockholders
and underwriter or agent and their respective counsel, and the Company will not
file any Registration Statement or Prospectus or, with respect to any Demand
Registration, any amendment or supplement thereto (including such documents
incorporated by reference) to which the majority of the Stockholders covered by
such Registration Statement shall reasonably object; and provided, further, that
-------- -------
the Company will furnish copies of any amendments or supplements in the form
filed with respect to any Piggyback Registration, simultaneously with the filing
of such amendments or supplements;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 180 days (or
such shorter period which will terminate when all Registrable Securities covered
by such Registration Statement have been sold or withdrawn), or, if such
Registration Statement relates to an Underwritten Offering, such longer period
as in the opinion of counsel for the underwriters a Prospectus is required by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act,
the Exchange Act, and the rules and regulations promulgated thereunder with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(c) notify the selling Stockholders and the managing underwriters,
if any, and (if requested) confirm such advice in writing, as soon as
practicable after notice thereof is received by the Company: (i) when the
Registration Statement or any amendment thereto has been filed or becomes
effective, the Prospectus or any amendment or supplement to the Prospectus has
been filed, and, to furnish such selling Stockholders and managing underwriters
with copies thereof, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary Prospectus or Prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if at any time the
representations and
6
warranties of the Company contemplated by paragraph (m) below cease to be true
and correct and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(d) promptly notify the selling Stockholders and the managing
underwriters, if any, at any time prior to nine months after the time of issue
of the Prospectus, when the Company becomes aware of the happening of any event
as a result of which the Prospectus included in such Registration Statement (as
then in effect) contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein (in the case of
the Prospectus and any preliminary Prospectus, in light of the circumstances
under which they were made) when such Prospectus was delivered not misleading
or, if for any other reason it shall be necessary during such time period to
amend or supplement the Prospectus in order to comply with the Securities Act
and, in either case as promptly as practicable thereafter, prepare and file with
the SEC, and furnish without charge to the selling Stockholders and the managing
underwriters, if any, a supplement or amendment to such Prospectus which will
correct such statement or omission or effect such compliance;
(e) make every reasonable effort to obtain the withdrawal of any
stop order or other order suspending the use of any preliminary Prospectus or
Prospectus or suspending any qualification of the Registrable Securities;
(f) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(g) furnish to each selling Stockholder and each managing
underwriter, without charge, one executed copy and as many conformed copies as
they may reasonably request, of the Registration Statement and any post-
effective amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(h) deliver to each selling Stockholder and the underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such Persons
may reasonably request (it being understood that the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Stockholders and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto) and such other documents as such selling Stockholder
7
may reasonably request in order to facilitate the disposition of the Registrable
Securities by such Stockholder;
(i) on or prior to the date on which the Registration Statement
is declared effective, use its best efforts to register or qualify, and
cooperate with the selling Stockholder, the managing underwriter or agent, if
any, and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as any such seller, underwriter or agent, if any, reasonably requests in
writing and do any and all other acts or things reasonably necessary or
advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; provided that the Company will not be required to
--------
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling Stockholders and the managing
underwriter or agent, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(k) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities and provide
the applicable trustee or transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with the
transfer agent selected by the Company;
(m) make such representations and warranties to the Stockholders
of Registrable Securities being registered, and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including an
underwriting agreement) and take all such other actions as the majority of the
Stockholders of any Registrable Securities being sold or the managing
underwriter or agent, if any, reasonably request in order to expedite or
facilitate the Registration and disposition of such Registrable Securities;
(o) obtain for delivery to the Stockholders of Registrable
Securities being registered and to the underwriter or agent, if any, an opinion
or opinions from counsel for the Company, upon consummation of the sale of such
Registrable Securities to the underwriters (the "Closing Date") in customary
form and in form, substance and scope reasonably satisfactory
8
to such Stockholders, underwriters or agents and their counsel;
(p) obtain for delivery to the Company and the underwriter or
agent, if any, with copies to the Stockholders, a cold comfort letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters as the managing
underwriter or the Stockholders of a majority of the Registrable Securities
being sold reasonably request, dated the effective date of the Registration
Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent, if any, participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD;
(r) make available for inspection by a representative of the
Stockholders of a majority of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration, and any attorney
or accountant retained by such Stockholders or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration; provided that any records,
--------
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by law;
(s) use its best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(t) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement or
the Prospectus, provide copies of such document to counsel for the selling
Stockholders and to the managing underwriters, if any;
(u) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and
(v) use its best efforts to list (if such Registrable Securities
are not already listed) all Registrable Securities covered by such Registration
Statement on The New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market.
The Company may require each seller of Registrable Securities as
to which any Registration is being effected to furnish to the Company any
information regarding the distribution of such securities and any other
information relating to such Stockholder and its ownership of Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Stockholder agrees to furnish such information to the Company and to
cooperate
9
with the Company as necessary to enable the Company to comply with the
provisions of this Agreement.
Each Stockholder agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (d), such Stockholder will
forthwith discontinue disposition of Registrable Securities pursuant to such
Registration Statement until such Stockholder's receipt of the copies of the
supplemented or amended Prospectus contemplated by paragraph (d), or until it is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by the Company,
such Stockholder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Stockholder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
6. Registration Expenses. Except as provided in Section 2(d), the
---------------------
Company shall bear all expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation (a) all
registration and filing fees, and any other fees and expenses associated with
filings required to be made with any stock exchange, the SEC and the NASD
(including, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by the rules and regulations of
the NASD), (b) all fees and expenses of compliance with state securities or blue
sky laws (including fees and disbursements of counsel for the underwriters or
selling Stockholders in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriters or the
majority of the Stockholders of the Registrable Securities being sold may
designate), (c) all printing and related messenger and delivery expenses
(including expenses of printing certificates for the Registrable Securities in a
form eligible for deposit with the transfer agent selected by the Company and of
printing prospectuses), (d) all fees and disbursements of counsel for the
Company and of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), (e) Securities Act liability insurance if
the Company so desires or the underwriters so require, (f) all fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange and all rating agency fees, (g) all reasonable fees and
disbursements of one counsel selected by the Stockholders holding a majority of
the Registrable Securities being registered to represent such Stockholders in
connection with such registration, (h) all fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities (excluding
underwriting discounts and commissions and transfer taxes, if any, that are
attributable to the Stockholders), and fees and disbursements of counsel to
underwriters (other than such fees and disbursements incurred in connection with
any registration or qualification of Registrable Securities under the securities
or blue sky laws of any state), and (i) fees and expenses of other Persons
retained by the Company (all such expenses being herein called "Registration
Expenses"), regardless of whether the Registration Statement becomes effective
(except as provided in Section 2(d)). The Company shall, in any event, pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing
10
legal or accounting duties), the expense of any audit and the fees and expenses
of any Person, including special experts, retained by the Company.
7. Indemnification.
---------------
(a) Indemnification by Company. The Company agrees to indemnify
--------------------------
and hold harmless, to the full extent permitted by law, each Stockholder, its
officers, directors and employees and each Person who controls such Stockholder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Stockholder expressly
for use therein; provided, however, that the Company shall not be liable in any
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such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such preliminary Prospectus if (i)
such Stockholder failed to deliver or cause to be delivered a copy of the
Prospectus to the Person asserting such loss, claim, damage, liability or
expense after the Company had furnished such Stockholder with a sufficient
number of copies of the same and (ii) the Prospectus completely corrected in a
timely manner such untrue statement or omission; and provided, further, that the
-------- -------
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement, omission or
alleged omission is completely corrected in an amendment or supplement to the
Prospectus and the Stockholder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of the
Registrable Securities to the Person asserting such loss, claim, damage,
liability or expense after the Company had furnished such Stockholder with a
sufficient number of copies of the same. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Stockholders, if requested.
(b) Indemnification by Selling Stockholder of Underlying
----------------------------------------------------
Securities. In connection with each Registration, each selling Stockholder shall
----------
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any Registration Statement or
Prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law, the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required to be
stated in the Registration Statement or Prospectus or preliminary Prospectus or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such selling Stockholder to
the Company specifically for inclusion in such Registration Statement or
Prospectus and has not been corrected in a subsequent writing prior to or
concurrently with the sale of the Registrable Securities to the
11
Person asserting such loss, claim, damage, liability or expense. In no event
shall the liability of any selling Stockholder under this Section 7 be greater
in amount than the dollar amount of the proceeds received by such Stockholder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification under this Section 7 shall (i) give prompt (but in any event
within 30 days after such Person has actual knowledge of the facts constituting
the basis for indemnification) written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any delay or
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failure to so notify the indemnifying party shall relieve the indemnifying party
of its obligations under this Section 7 only to the extent, if at all, that it
is prejudiced by reason of such delay or failure; provided, further however,
-------- ------- -------
that any Person entitled to indemnification under this Section 7 shall have the
right to select and employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such Person unless (a) the indemnifying party has agreed in writing to pay such
fees or expenses, or (b) the indemnifying party shall have failed to assume the
defense of such claim within a reasonable time after receipt of notice of such
claim from the Person entitled to indemnification under this Section 7 and
employ counsel reasonably satisfactory to such Person or (c) in the reasonable
judgment of any such Person, based upon advice of its counsel, a conflict of
interest may exist between such Person and the indemnifying party with respect
to such claims (in which case, if the Person notifies the indemnifying party in
writing that such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld), provided that an indemnified party shall not be
--------
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnified party other than financial obligations for which such indemnified
party will be indemnified under this Section 7. No indemnifying party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. Whenever the indemnified party or the indemnifying
party receives a firm offer to settle a claim for which indemnification is
sought under this Section 7, it shall promptly notify the other of such offer.
If the indemnifying party refuses to accept such offer within 20 business days
after receipt of such offer (or of notice thereof), such claim shall continue to
be contested and, if such claim is within the scope of the indemnifying party's
indemnity contained herein, the indemnified party shall be indemnified pursuant
to the terms of this Section 7. If the indemnifying party notifies the
indemnified Party in writing that the indemnifying party desires to accept such
offer, but the indemnified party refuses to accept such offer within 20 business
days after receipt of such notice, the indemnified party may continue to contest
such claim and, in such event, the total maximum liability of the indemnifying
party to indemnify or otherwise
12
reimburse the indemnified party under this Section 7 with respect to such claim
shall be limited to and shall not exceed the amount of such offer, plus
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees and disbursements) to the date of notice that the indemnifying party
desires to accept such offer, provided that this sentence shall not apply to any
--------
settlement of any claim involving the imposition of equitable remedies or to any
settlement imposing any material obligations on such indemnified party other
than financial obligations for which such indemnified party will be indemnified
under this Section 7. An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the written opinion of
counsel to the indemnified party, reasonably satisfactory to the indemnifying
party, use of one counsel would be expected to give rise to a conflict of
interest between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of one such additional counsel.
(d) Other Indemnification. Indemnification similar to that
---------------------
specified in this Section 7) (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under federal or
state law or regulation of governmental authority other than the Securities Act.
(e) Contribution. If for any reason the indemnification provided
------------
for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by the preceding
paragraphs (a) and (b), then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations, provided that no selling
Stockholder shall be required to contribute in an amount greater than the dollar
amount of the proceeds received by such selling Stockholder or the amount it
would have been required to contribute pursuant to Section 7(a) above had it
been enforceable, with respect to the sale of any securities. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Participation in Underwritten Registrations.
-------------------------------------------
No Person may participate in any Underwritten Registration under this
Section 8 unless such Person (a) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
to approve such arrangements, and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements. Nothing in this
Section 8 shall be construed to create any additional rights regarding the
Registration of Registrable Securities in any Person other than as set forth in
this Agreement.
9. Market Stand-off.
----------------
The Stockholders hereby agree that, if so requested by the Company or
the
13
managing underwriter or agent, if any, the Stockholders shall not sell or
otherwise transfer any Registrable Securities or other securities of the Company
during the seven (7) day period prior to, and during the 180 day period
following the effective date of a Registration Statement of the Company filed
under the Securities Act with respect to the Company's Initial Public Offering,
and during the period specified by the managing underwriter or agent, if any,
(not to exceed 90 days) following the effective date of a Registration Statement
of the Company filed under the Securities Act with respect to any subsequent
primary offering by the Company or a Demand Registration (except in either case
as part of such underwritten registration), in each case without the prior
written consent of the managing underwriter or agent, if any, for such offering;
provided that all officers of the Company enter into similar agreements.
10. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the Company and the Stockholders relative to the subject
matters hereof. Any previous agreement between the Company and the Stockholders
concerning Registration rights in connection with the Registrable Securities is
superseded by this Agreement.
(b) Consent. From and after the date of this Agreement, the
-------
Company shall not, without the consent of holders of a majority of the then
outstanding Registrable Securities, enter into any agreement granting any holder
or prospective holder of any securities of the Company registration rights with
respect to such securities unless such new registration rights, including
standoff obligations, are on a pari passu basis with, or are subordinate to, the
---- -----
rights of the holders hereunder.
(c) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware without regard to
its conflict of law principles or rules.
(d) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Headings. The headings of the Sections of this Agreement are
--------
for convenience and shall not by themselves determine the interpretation of this
Agreement.
(f) Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be conclusively deemed effectively given (a) upon
personal delivery to the person to be notified, (b) when sent by confirmed
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (c) five (5) days after deposit in the United States
mail, by registered or certified mail, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt addressed as set forth on the
signature page of this Agreement, or at such other address as a party may
designate by ten (10) days' advance written notice to the other party.
(g) Amendment of Agreement. Any provision of this Agreement may
----------------------
be amended, modified or waived only by a written instrument signed by the
Company and the holders of at least sixty-six and two-thirds percent (66-2/3%)
of the then outstanding Registrable
14
Securities; provided that no amendment which adversely affects any Stockholder
other than in the same manner that such amendment affects each other Stockholder
on a pro rata basis will be effective without such first Stockholder's written
consent. Exhibit A may be amended by the Company as necessary to reflect the
---------
addition of parties hereto consistent with Section 10(b) or reflect assignments
permitted by Section 10(h).
(h) Assignment; Successors and Assigns. Except as set forth
----------------------------------
herein, this Agreement is not assignable by the parties hereto without the
written consent of the other parties. The rights to cause the Company to
register Registrable Securities pursuant to Section 2 and 3 may be assigned by a
Stockholder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, general partner, limited partner or retired partner, member
or retired member of a Stockholder or (b) is a Stockholder's family member or
trust for the benefit of an individual Stockholder, provided, however, (i) the
transferor shall, at least 10 days prior to such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (ii) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
Except as otherwise expressly provided for herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of Registrable Securities from time to time; provided, however, that prior to
the receipt by the Company of adequate written notice of the transfer of any
Registrable Securities specifying the full name and address of the transferee,
the Company may deem and treat the person listed as the holder of such
Registrable Securities in its records as the absolute owner and holder of such
Registrable Securities for all purposes.
(i) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Attorney's Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorney's fees in addition to any other available remedy.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE COMPANY:
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By: /s/Xxxxx Xxxxxxxxx
------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
THE STOCKHOLDERS:
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P., its Managing General Partner
Name: /s/Xxxxx Xxxxxxxxx
------------------
Title: Managing General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: PROVIDENCE EQUITY PARTNERS, L.L.C.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: ________________
Title: _______________
Address: 00 Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxx Xxxxxx
TANDEM WIRELESS INVESTMENTS, L.P.,
a Delaware limited partnership
By: LIVE CYCLES HOLDINGS CO.
Its General Partner
By: /s/ Xxxx XxXxxxxx
-----------------
Xxxx XxXxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Xxxxxx Xxxxxxxx
Title: President
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention:
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
TRIUMPH PARTNERS III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TRIUMPH III INVESTORS, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TORONTO DOMINION INVESTMENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
--------------------
Name: X.X. Xxxxxxx III
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
HARBOURVEST PARTNERS V - Direct Fund L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates LLC
its General Partner
By: HARBOURVEST PARTNERS, LLC
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Address: Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES-II, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
IA-II AFFILIATES FUND, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
TRIDENT CAPITAL MANAGEMENT-II, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
WESTPOOL INVESTMENT TRUST,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Elan Xxxxxxx
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXX FAMILY TRUST dated 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
LION INVESTMENTS LIMITED,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARTNERS
By: ___________________________
Name: _____________________
Title: ______________________
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
--------------
Name: XXXX X. XXXXX
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx XxXxxxxx
------------------
Name: XXXXX XxXXXXXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
American Cellular Corporation Exhibit A
List of Stockholders
Class A Common Stock Class A Preferred Stock
-------------------------- -----------------------
Interim Closing
Total $ ----------------------
Investment $ Investment Shares $ Investment Shares
---------- ------------ ------ ------------ ------
Spectrum Equity Investors II, L.P. $50,000,000 $3,571,400 35,714 $1,428,500 14,285
Providence Equity Partners L.P. 50,000,000 3,571,400 35,714 1,428,500 14,285
Sandler Capital Partners IV, L.P. 21,264,200 1,518,800 15,188 607,600 6,076
Sandler Capital Partners IV, FTE, L.P. 8,736,000 624,000 6,240 249,600 2,496
21st Century Communications Partners, L.P. 10,170,700 726,500 7,265 290,600 2,906
21st Century Communications T-E, L.P. 3,460,300 247,200 2,472 98,900 989
21st Century Communications Foreign Partners, L.P. 1,368,800 97,800 978 39,100 391
Tandem Wireless Investments, L.P. 40,000,000 2,857,100 28,571 1,142,900 11,429
Triumph Partners III, L.P. 29,647,800 2,125,000 21,250 846,800 8,468
Triumph III Investors, L.P. 352,200 17,900 179 10,300 103
First Union Capital Partners, Inc. 25,000,000 1,785,700 17,857 714,300 7,143
HarbourVest Partners V 20,000,000 1,428,600 14,286 571,400 5,714
Information Associates, L.P. 2,918,700 208,600 2,086 83,400 834
Information Associates, C.V. 81,300 5,700 57 2,300 23
Information Associates-II, L.P. 12,000,000 857,200 8,572 342,900 3,429
IA-II Affiliates Fund, L.L.C. 700,000 50,000 500 20,000 200
Trident Capital Management-II, L.L.C. 4,300,000 307,100 3,071 122,900 1,229
SG Capital Partners, LLC 16,500,000 1,178,600 11,786 471,400 4,714
Xxxxxxx Xxxxx KECALP L.P. 1997 7,700,000 549,800 5,498 240,000 2,400
KECALP, Inc. 4,500,000 321,300 3,213 188,600 1,886
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,300,000 164,200 1,642 0 0
ML IBK Positions, Inc. 500,000 35,700 357 0 0
Toronto Dominion Investments, Inc. 15,000,000 1,071,400 10,714 428,600 4,286
Westpool Investment Trust 8,499,900 606,900 6,069 242,900 2,429
Lion Investments Limited 1,477,500 105,500 1,055 42,200 422
Xxxxx Family Trust dated 1/6/89 22,600 1,600 16 600 6
Generation Capital Partners L.P. 9,653,891 690,291 6,903 275,800 2,758
State Board Administration of Florida 342,162 24,462 245 9,800 98
Generation Parallel Management Partners L.P. 3,947 247 2 100 1
Xxxx Xxxxx 1,750,000 125,000 1,250 50,000 500
Xxxxx XxXxxxxx 1,750,000 125,000 1,250 50,000 500
----------------------------------------------------------------
$350,000,000 $25,000,000 250,000 $10,000,000 100,000
================================================================
Date of Funding: March 20, 1998 April 22, 1998
Class A Preferred Stock
-----------------------------------------------
Final Closing
----------------------- Total Total
$ Investment Shares $ Investment Shares
------------- ------ ------------ ------
Spectrum Equity Investors II, L.P. 45,000,100 450,001 $46,428,600 464,286
Providence Equity Partners L.P. 45,000,100 450,001 46,428,600 464,286
Sandler Capital Partners IV, L.P. 19,137,800 191,378 19,745,400 197,454
Sandler Capital Partners IV, FTE, L.P. 7,862,400 78,624 8,112,000 81,120
21st Century Communications Partners, L.P. 9,153,600 91,536 9,444,200 94,442
21st Century Communications T-E, L.P. 3,114,200 31,142 3,213,100 32,131
21st Century Communications Foreign Partners, L.P. 1,231,900 12,319 1,271,000 12,710
Tandem Wireless Investments, L.P. 36,000,000 360,000 37,142,900 371,429
Triumph Partners III, L.P. 26,676,000 266,760 27,522,800 275,228
Triumph III Investors, L.P. 324,000 3,240 334,300 3,343
First Union Capital Partners, Inc. 22,500,000 225,000 23,214,300 232,143
HarbourVest Partners V 18,000,000 180,000 18,571,400 185,714
Information Associates, L.P. 2,626,700 26,267 2,710,100 27,101
Information Associates, C.V. 73,300 733 75,600 756
Information Associates-II, L.P. 10,799,900 107,999 11,142,800 111,428
IA-II Affiliates Fund, L.L.C. 630,000 6,300 650,000 6,500
Trident Capital Management-II, L.L.C. 3,870,000 38,700 3,992,900 39,929
SG Capital Partners, LLC 14,850,000 148,500 15,321,400 153,214
Xxxxxxx Xxxxx KECALP L.P. 1997 6,910,200 69,102 7,150,200 71,502
KECALP, Inc. 3,990,100 39,901 4,178,700 41,787
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,135,800 21,358 2,135,800 21,358
ML IBK Positions, Inc. 464,300 4,643 464,300 4,643
Toronto Dominion Investments, Inc. 13,500,000 135,000 13,928,600 139,286
Westpool Investment Trust 7,650,100 76,501 7,893,000 78,930
Lion Investments Limited 1,329,800 13,298 1,372,000 13,720
Xxxxx Family Trust dated 1/6/89 20,400 204 21,000 210
Generation Capital Partners L.P. 8,687,800 86,878 8,963,600 89,636
State Board Administration of Florida 307,900 3,079 317,700 3,177
Generation Parallel Management Partners L.P. 3,600 36 3,700 37
Xxxx Xxxxx 1,575,000 15,750 1,625,000 16,250
Xxxxx XxXxxxxx 1,575,000 15,750 1,625,000 16,250
-----------------------------------------------
$315,000,000 3,150,000 $325,000,000 3,250,000
===============================================
Date of Funding: June 22, 1998
-------------
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"), dated as of
March 31, 1998, is made by and among American Cellular Corporation, a Delaware
corporation (the "Company"), and the parties listed on Exhibit A to this
---------
Amendment (the "Purchasers").
W I T N E S S E T H:
-------------------
WHEREAS, the Company and the Purchasers are parties to the Stock Purchase
Agreement, dated as of March 5, 1998 (the "Agreement"; to which reference is
made for the definition of all capitalized terms used herein without
definition); and
WHEREAS, the Company and the Purchasers wish to amend the Agreement to (i)
reduce the per share purchase price of each Committed Share and increase the
number of Committed Shares so that the total purchase price of all Committed
Shares remains $325,000,000 and (ii) provide for an interim purchase by the
Purchasers of $10,000,000 of the Committed Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and the Purchasers each hereby agree as follows:
SECTION 1. Recitals. The second sentence in paragraph A of the Recitals
--------
is hereby deleted in its entirety and replaced with the following:
"Subject to the terms of this Agreement, the Purchasers shall initially
purchase an aggregate of 250,000 shares of Class A Common Stock (the
"Initial Shares") and shall, at the request of the Company, purchase in one
---------------
or more installments as contemplated by Section 1.4 an aggregate of
3,250,000 shares of Series A Preferred Stock (the "Committed Shares" and,
----------------
collectively with the Initial Shares, the "Shares"), in each case in the
------
respective amounts set forth opposite each Purchaser's name on Exhibit A."
---------
SECTION 2. Section 1.4. Section 1.4 of the Agreement is hereby deleted in
-----------
its entirety and replaced with the following:
"1.4. Subsequent Purchases of Committed Shares.
----------------------------------------
(a) Upon receipt by each Purchaser of written notice from the Company, such
Purchaser shall within 15 days after its receipt of such notice, purchase
at a purchase price of $100 per share, its pro rata portion of $10,000,000
of the Committed Shares, as determined in accordance with Exhibit A. For
---------
purposes of this Agreement, the purchase of $10,000,000 of Committed Shares
by all the Purchasers pursuant to this Section 1.4(a) is referred to herein
as the "Interim Purchase,"
----------------
(b) Upon receipt by each Purchaser of written notice from the Company (the
"Drawdown Notice"), stating that the Company anticipates that the Merger is
---------------
reasonably expected to be consummated within 20 days, such Purchaser shall,
within 15 days after its receipt of the Drawdown Notice, purchase at a
purchase price of $100 per share, all of the Committed Shares to be
acquired by such Purchaser, as set forth on Exhibit A, less the number of
---------
Committed Shares purchased by such Purchaser in the Interim Purchase
pursuant to Section 1.4(a).
For purposes of this Agreement, the purchase of Committed Shares by all the
Purchasers pursuant to Section 1.4(b) is each referred to herein as the
"Final Purchase," and the consummation of each of the Interim Purchase and
---------------
the Final Purchase is individually referred to herein as a "Subsequent
----------
Closing." References to the "Subsequent Closing" in this Agreement shall
-------
refer to the closing of the Interim Purchase and the Final Purchase with
equal effect.
SECTION 3. Section 3.4. The first sentence in Section 3.4 of the
-----------
Agreement is hereby deleted in its entirety and replaced with the following:
"The authorized capital stock of the Company consists of 500,000
shares of common stock and 5,000,000 shares of preferred stock."
SECTION 4. Exhibits. Exhibit A of the Agreement is replaced with Exhibit
-------- --------- -------
A attached hereto.
-
SECTION 5. Reference to and Effect on the Agreement.
----------------------------------------
(a) On and after the date hereof, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "therein", or words of like import shall mean
and be a reference to the Agreement as amended hereby. No reference to this
Amendment need be made in any instrument or document at any time referring to
the Agreement, a reference to the Agreement in any of such to be deemed to be a
reference to the Agreement as amended hereby.
(b) Except as expressly amended by this Amendment, the Agreement shall
remain in full force and effect.
SECTION 6. Governing Law. This Amendment shall be governed by and
-------------
construed in accordance with the internal laws of the State of Delaware
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 7. Counterparts. This Amendment may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Stock
Purchase Agreement to be executed as of the date first above written.
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P.,
its managing general partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxx,
Managing General Partner
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: Providence Equity Partners, L.L.C.,
its general partner
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Xxxxxxxx Xxxxxx
President
TANDEM WIRELESS INVESTMENTS, L.P.
By: Live Cycles Holding Co.,
its general partner
By: /s/ Xxxx X. XxXxxxxx
------------------------------
Xxxx X. XxXxxxxx,
Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Xxxxxx Xxxxxxxx
President
3
21ST CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx,
President
21ST CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx,
President
4
21ST CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.,
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx,
President
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx,
President
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.,
its general partner
By: Sandler Capital Management,
its general partner
By: MJDM Corp.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxxx,
President
5
TRIUMPH PARTNERS III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.,
its general partner
By: Triumph III Advisors, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx,
Managing Director
TRIUMPH III INVESTORS, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx,
Managing Director
TORONTO DOMINION INVESTMENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx,
Vice President
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
---------------------------------------
X.X. Xxxxxxx III,
Senior Vice President
6
HARBOURVEST PARTNERS V - DIRECT FUND L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates, LLC,
its general partner
By: HarbourVest Partners, LLC,
its managing member
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx,
Managing Director
INFORMATION ASSOCIATES, L.P.
By: Trident Capital Management, L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx,
President
INFORMATION ASSOCIATES-II, L.P.
By: Trident Capital Management, L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx,
President
IA-II AFFILIATES FUND, L.L.C.
By: Trident Capital Management, L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx,
President
7
INFORMATION ASSOCIATES, C.V.
By: Trident Capital Management, L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
President
TRIDENT CAPITAL MANAGEMENT-II, L.L.C.
By: Trident Capital Management, L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
President
WESTPOOL INVESTMENT TRUST, a limited liability
company organized under the laws of England and
Wales
By: /s/ Xxxxxx X. Rayne
---------------------------------
Xxxxxx X. Rayne,
Director
LION INVESTMENT LIMITED, a limited liability
company organized under the laws of England and
Wales
By: /s/ Xxxxxx X. Rayne
---------------------------------
Xxxxxx X. Rayne,
Director
8
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx,
Managing Director
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx,
Managing Director
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx,
Managing Director
XXXXX FAMILY TRUST DATED 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx,
Trustee
/s/ Xxxx Xxxxx
------------------------------------
XXXX XXXXX,
an Individual
/s/ Xxxxx XxXxxxxx
------------------------------------
XXXXX XxXXXXXX,
an Individual
9
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its general partner
By: Generation Capital Company LLC,
its general partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx,
Managing Director
GENERATION PARALLEL
MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its general partner
By: Generation Capital Company LLC,
its general partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx,
Managing Director
STATE BOARD OF
ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its general partner
By: Generation Capital Company LLC,
its general partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx,
Managing Director
10
American Cellular Corporation Exhibit A
List of Stockholders
Class A Common Stock Class A Preferred Stock
-------------------------- -----------------------
Interim Closing
Total $ ----------------------
Investment $ Investment Shares $ Investment Shares
---------- ------------ ------ ------------ ------
Spectrum Equity Investors II, L.P. $50,000,000 $3,571,400 35,714 $1,428,500 14,285
Providence Equity Partners L.P. 50,000,000 3,571,400 35,714 1,428,500 14,285
Sandler Capital Partners IV, L.P. 21,264,200 1,518,800 15,188 607,600 6,076
Sandler Capital Partners IV, FTE, L.P. 8,736,000 624,000 6,240 249,600 2,496
21st Century Communications Partners, L.P. 10,170,700 726,500 7,265 290,600 2,906
21st Century Communications T-E, L.P. 3,460,300 247,200 2,472 98,900 989
21st Century Communications Foreign Partners, L.P. 1,368,800 97,800 978 39,100 391
Tandem Wireless Investments, L.P. 40,000,000 2,857,100 28,571 1,142,900 11,429
Triumph Partners III, L.P. 29,647,800 2,125,000 21,250 846,800 8,468
Triumph III Investors, L.P. 352,200 17,900 179 10,300 103
First Union Capital Partners, Inc. 25,000,000 1,785,700 17,857 714,300 7,143
HarbourVest Partners V 20,000,000 1,428,600 14,286 571,400 5,714
Information Associates, L.P. 2,918,700 208,600 2,086 83,400 834
Information Associates, C.V. 81,300 5,700 57 2,300 23
Information Associates-II, L.P. 12,000,000 857,200 8,572 342,900 3,429
IA-II Affiliates Fund, L.L.C. 700,000 50,000 500 20,000 200
Trident Capital Management-II, L.L.C. 4,300,000 307,100 3,071 122,900 1,229
SG Capital Partners, LLC 16,500,000 1,178,600 11,786 471,400 4,714
Xxxxxxx Xxxxx KECALP L.P. 1997 7,700,000 549,800 5,498 240,000 2,400
KECALP, Inc. 4,500,000 321,300 3,213 188,600 1,886
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,300,000 164,200 1,642 0 0
ML IBK Positions, Inc. 500,000 35,700 357 0 0
Toronto Dominion Investments, Inc. 15,000,000 1,071,400 10,714 428,600 4,286
Westpool Investment Trust 8,499,900 606,900 6,069 242,900 2,429
Lion Investments Limited 1,477,500 105,500 1,055 42,200 422
Xxxxx Family Trust dated 1/6/89 22,600 1,600 16 600 6
Generation Capital Partners L.P. 9,653,891 690,291 6,903 275,800 2,758
State Board Administration of Florida 342,162 24,462 245 9,800 98
Generation Parallel Management Partners L.P. 3,947 247 2 100 1
Xxxx Xxxxx 1,750,000 125,000 1,250 50,000 500
Xxxxx XxXxxxxx 1,750,000 125,000 1,250 50,000 500
----------------------------------------------------------------
$350,000,000 $25,000,000 250,000 $10,000,000 100,000
================================================================
Date of Funding: March 20, 1998 April 22, 1998
Class A Preferred Stock
-----------------------------------------------
Final Closing
----------------------- Total Total
$ Investment Shares $ Investment Shares
------------- ------ ------------ ------
Spectrum Equity Investors II, L.P. 45,000,100 450,001 $46,428,600 464,286
Providence Equity Partners L.P. 45,000,100 450,001 46,428,600 464,286
Sandler Capital Partners IV, L.P. 19,137,800 191,378 19,745,400 197,454
Sandler Capital Partners IV, FTE, L.P. 7,862,400 78,624 8,112,000 81,120
21st Century Communications Partners, L.P. 9,153,600 91,536 9,444,200 94,442
21st Century Communications T-E, L.P. 3,114,200 31,142 3,213,100 32,131
21st Century Communications Foreign Partners, L.P. 1,231,900 12,319 1,271,000 12,710
Tandem Wireless Investments, L.P. 36,000,000 360,000 37,142,900 371,429
Triumph Partners III, L.P. 26,676,000 266,760 27,522,800 275,228
Triumph III Investors, L.P. 324,000 3,240 334,300 3,343
First Union Capital Partners, Inc. 22,500,000 225,000 23,214,300 232,143
HarbourVest Partners V 18,000,000 180,000 18,571,400 185,714
Information Associates, L.P. 2,626,700 26,267 2,710,100 27,101
Information Associates, C.V. 73,300 733 75,600 756
Information Associates-II, L.P. 10,799,900 107,999 11,142,800 111,428
IA-II Affiliates Fund, L.L.C. 630,000 6,300 650,000 6,500
Trident Capital Management-II, L.L.C. 3,870,000 38,700 3,992,900 39,929
SG Capital Partners, LLC 14,850,000 148,500 15,321,400 153,214
Xxxxxxx Xxxxx KECALP L.P. 1997 6,910,200 69,102 7,150,200 71,502
KECALP, Inc. 3,990,100 39,901 4,178,700 41,787
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,135,800 21,358 2,135,800 21,358
ML IBK Positions, Inc. 464,300 4,643 464,300 4,643
Toronto Dominion Investments, Inc. 13,500,000 135,000 13,928,600 139,286
Westpool Investment Trust 7,650,100 76,501 7,893,000 78,930
Lion Investments Limited 1,329,800 13,298 1,372,000 13,720
Xxxxx Family Trust dated 1/6/89 20,400 204 21,000 210
Generation Capital Partners L.P. 8,687,800 86,878 8,963,600 89,636
State Board Administration of Florida 307,900 3,079 317,700 3,177
Generation Parallel Management Partners L.P. 3,600 36 3,700 37
Xxxx Xxxxx 1,575,000 15,750 1,625,000 16,250
Xxxxx XxXxxxxx 1,575,000 15,750 1,625,000 16,250
-----------------------------------------------
$315,000,000 3,150,000 $325,000,000 3,250,000
===============================================
Date of Funding: June 22, 1998
-------------
