EXHIBIT 2.8
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
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the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
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(a) Grant of Proxy. The Stockholder hereby appoints Parent
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and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
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any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
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Stockholders. The Stockholder represents and warrants to Parent as follows:
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(a) Ownership. The Stockholder is the sole beneficial owner
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of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
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Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
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Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
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Section 2.2 Representations and Warranties of Parent. Parent
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hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
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all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
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Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
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(a) Restriction on Transfer of Subject Shares, Proxies and
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Noninterference. The Stockholder shall not, directly or indirectly: (A) except
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pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
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(b) No Solicitation. The Stockholder shall not take, or
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authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
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waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
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Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
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expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
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amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
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party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of
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any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
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Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
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and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
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other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Xxxxxx, Xxxxx & Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Xxxxx Xxxxxxxxx, Esq., Telecopy: 000-000-0000, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
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rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
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enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
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deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
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event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
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portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
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more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: CEO
STOCKHOLDER:
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Address: Xxx 000
Xxxxxxx, XX X0X 0X0
XXXXX XXXXXXX FAMILY TRUST:
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx Family Trust
Address: Xxx 000
Xxxxxxx, XX X0X 0X0
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SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
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Xxxxx Xxxxxxx 80,000
Xxxxx Xxxxxxx Family Trust 755,000
