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Exhibit 10.21
STOCK RESTRICTION AGREEMENT
This Agreement is made as of May 12, 1997, between Integrated Site
Development, Inc., a Delaware corporation (the "Company"), and Xxxxxx Family
Limited Partnership, an Arkansas limited partnership (the "Stockholder").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Shares Subject to Agreement.
(a) In connection with the Membership Interests Contribution
Agreement, dated May 12, 1997, by and among the Company and Xxx X. Xxxxxx, III
("Xxxxxx"), Xxxxxxxx X. Xxxxxx, the Stockholder, The Central Arkansas
Opportunity Foundation, Telesite Services, LLC ("Telesite"), and Metrosite
Management, LLC ("Metrosite") (the "Contribution Agreement"), the Company has
issued to the Stockholder 490,517 shares of the Common Stock, par value $0.001
per share, of the Company (the "Common Stock"), of which 408,764 shares of the
Common Stock (the "Shares") were issued subject to the terms and conditions set
forth in this Agreement. The Company and the Stockholder agree that the Shares
shall be subject to the Purchase Option set forth in Section 2 of this
Agreement and the Put Option set forth in Section 4 of this Agreement.
(b) In order to facilitate any repurchase of the Shares by the
Company under this Agreement, the stock certificates representing the Shares
shall, for so long as such Shares are subject to repurchase under any of the
provisions of this Agreement, remain in the custody of Xxxxxxxx Xxxxx Singer &
Xxxxxxxxx, LLP (the "Escrow Agent") acting as escrow agent pursuant to an
Escrow Agreement in the form attached as an Exhibit between the Company, the
Stockholder, and the Escrow Agent. The Stockholders agree to provide the Escrow
Agent, with a stock power or other instrument of transfer, appropriately
endorsed in blank, in respect of the Shares. If there is a dispute,
controversy, action, or legal proceeding between the Company and the
Stockholder pursuant to the Escrow Agreement, the court shall award costs and
expenses to the prevailing party in such dispute, controversy, action, or legal
proceeding.
2. Purchase Option.
For purposes of this Agreement, the term "1997 Revenues" shall mean the
aggregate consolidated gross revenues of the Company (including US Towers, Inc.,
Telesite and Metrosite) determined as of the end of the 1997 fiscal year of the
Company. For purposes of this Agreement, the term "1998 Revenues" shall mean the
aggregate consolidated gross revenues of the Company (including US Towers, Inc.,
Telesite and Metrosite) determined as of the end of the 1998 fiscal year of the
Company. Such determinations shall be made within 120 days of the end of the
applicable fiscal year of the Company by the Company's independent certified
public accountant in accordance with generally accepted accounting principles,
consistently applied.
If Telesite provides services to US Towers at rates or compensation less
than the rates or fees then in effect for similar services rendered to other
customers of similar location and
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quantity, then for purposes of determining 1997 Revenues or 1998 Revenues, as
the case may be, the gross revenues shall be increased to reflect the fair
market value of such services. Fair market value shall mean the then current
rates charged by Telesite for such services.
In the event that the 1997 Revenues or 1998 Revenues are within certain
amounts as set forth below, the Company shall have the right and option (the
"Purchase Option") to purchase from the Stockholder for the amount of $0.001 per
share (the "Option Price"), up to that percentage of the Shares subject to the
Purchase Option as set forth below.
Percentage of Shares
1997 Revenues Subject to Purchase Option
Less Than or Equal to $10 Million 50%
Greater Than $10 Million and Less Than $16 .000833% for each $100 by which 1997
Million Revenues are Less Than $16 Million up to a
Maximum of 50%
Greater Than or Equal to $16 Million - 0 -
Percentage of Shares
1998 Revenues Subject to Purchase Option
Less Than or Equal to $10 Million 50%
Greater Than $10 Million and Less Than $16 .000833% for each $100 by which 1998
Million Revenues are Less Than $16 Million up to a
Maximum of 50%
Greater Than or Equal to $16 Million - 0 -
3. Exercise of Purchase Option and Closing.
(a) The Company may exercise the Purchase Option by delivering or
mailing to the Stockholder, in accordance with Section 14, written notice of
exercise within 60 days after the delivery to the Company of a written report of
its independent certified public accountant as to the 1997 Revenues or the 1998
Revenues, as the case may be. Such notice shall specify the number of Shares to
be purchased. If and to the extent the Purchase Option is not so exercised
within such 60-day period, the Purchase Option shall automatically expire and
terminate effective upon the expiration of such 60-day period.
(b) After the time at which any Shares are required to be delivered
to the Company for transfer to the Company pursuant to Section 3(b) above, the
Company shall not pay any dividend to the Stockholder on account of such Shares
or permit the Stockholder to exercise
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any of the privileges or rights of a stockholder with respect to such Shares,
but shall, in so far as permitted by law, treat the Company as the owner of such
Shares.
(c) The Company shall not purchase any fraction of a Share upon
exercise of the Purchase Option, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
4. Put Option.
(a) If the Executive Employment Agreement, of even date herewith (the
"Xxxxxx Employment Agreement"), by and between the Company and Xxxxxx is not
renewed by the Company or Xxxxxx at the end of the initial term (unless such
non-renewal is a result of an involuntary termination pursuant to Section 6(b)
of the Xxxxxx Employment Agreement), the Company hereby irrevocably grants and
issues to Stockholder the right and option beginning on May 12, 1999 and ending
on August 12, 1999, to sell to the Company (hereinafter referred to as the
"Put") all, but not fewer than all, of the Shares at a purchase price per Share
of $2.89 (the "Put Price"). Stockholder shall exercise the Put by written notice
to the Company.
(b) The Company shall pay the Put Price of the Shares as determined
in Section 4(a) above to the Stockholder in accordance with Section 4(c) and
Section 4(d) in exchange for the delivery to the Company of a stock certificate
or certificates representing the Shares, duly endorsed in blank by the
Stockholder or having attached thereto a stock power executed by the Stockholder
in proper form for transfer.
(c) The Company shall pay the Put Price for the Shares by paying in
cash or by certified, cashier's or other check acceptable to the Stockholder or
by wire transfer per the Stockholder's instructions within thirty (30) days of
the notice from the Stockholder of its exercise of the Put such portion of the
Put Price as the Company may pay out of legally available funds provided that:
(i) the Company is solvent and would not be rendered insolvent by the payment
thereby and (ii) the payment thereof would not constitute a violation or breach
of, or a default under, any agreement, instrument, or other document relating to
indebtedness of the Company, including, without limitation any indebtedness of
the Company to X.X. Xxxxxxx & Co. or any of its affiliates, including, without
limitation, Whitney Subordinated Debt Fund, L.P. (collectively, "Affiliates"),
or any institutions that participate along with Whitney or any of its Affiliates
in any debt financing provided to the Company. The remainder of the Put Price
shall be paid pursuant to a promissory note executed by the Company and payable
to the Stockholder providing: (i) for the payment of interest at the rate of
seven percent (7%) per annum, payable in one installment, together with the
principal amount thereof, on the second anniversary of the notice date or (ii)
for the payment on such other terms as the Company determines, within its
reasonable discretion to be necessary so as to not render the Company insolvent
or result in a violation or breach of, or a default under, any agreement,
instrument, or other document relating to indebtedness of the Company.
Notwithstanding the foregoing, the Company hereby covenants and agrees that
until such time as the Put Price is paid in full, the Company shall not enter
into any agreement that contains a prohibition against stock redemptions that
would expressly prohibit the Company from
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redeeming the Shares and paying the Put Price if the Stockholder exercised the
Put in accordance with the provisions of this Agreement.
(d) In the event that any payment to be made by the Company is
prohibited by the provisions of the foregoing Section hereof, then such payment
shall be immediately made by the Company at the next earliest time, and to the
extent possible, when compliance with the foregoing Section may be effected, and
the Company agrees that it will execute all such documents and take all such
other steps as may be necessary to expedite and effectuate to the extent
possible such compliance.
5. Restrictive Legend. All certificates representing Shares shall have
affixed thereto a legend in substantially the following form, in addition to any
other legends that may be required under federal or state securities laws:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Stock Restriction Agreement between the corporation and the
registered owner of this certificate (or his or her predecessor in
interest), and such Agreement is available for inspection without
charge at the principal office of the corporation."
6. Investment Representations. The Stockholder represents, warrants and
covenants as follows:
(a) The Stockholder is acquiring the Shares for the Stockholder's own
account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any
rule or regulation under the Securities Act.
(b) The Stockholder has had such opportunity as the Stockholder has
deemed adequate to obtain from representatives of the Company such information
as is necessary to permit the Stockholder to evaluate the merits and risks of
the Stockholder's investment in the Company.
(c) The Stockholder has sufficient experience in business, financial
and investment matters to be able to evaluate the risks involved in the
acquisition of the Shares and to make an informed investment decision with
respect to such purchase.
(d) The Stockholder can afford a complete loss of the value of the
Shares and is able to bear the economic risk of holding such Shares for an
indefinite period.
(e) The Stockholder understands that (i) the Shares have not been
registered under the Securities Act and are "restricted securities' within the
meaning of Rule 144 under the Securities Act, (ii) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(iii) in any event, the exemption from registration under Rule 144 will not be
available for at least two years and even then will not be available unless a
public market then exists for
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the Common Stock, adequate information concerning the Company is then available
to the public, and other terms and conditions of Rule 144 are complied with; and
(iv) there is now no registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company and the Company has
no obligation or current intention to register the Shares under the Securities
Act.
(f) A legend substantially in the following form will be placed on
the certificate representing the Shares:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws. Accordingly, the securities represented
by this certificate may not be sold, offered for sale, transferred,
pledged or hypothecated without an effective registration statement
for such securities under the Act or applicable state securities law
or an opinion of counsel satisfactory to the Corporation that
registration is not required under the Act or any applicable state
securities law. "
7. Adjustments for Stock Splits, Stock Dividends, etc.
(a) If from time to time during the terms of the Purchase Option
there is any stock split-up, stock dividend, stock distribution or other
reclassification of the Common Stock of the Company, any and all new,
substituted or additional securities to which the Stockholder are entitled by
reason of the Stockholder's ownership of the Shares shall be immediately subject
to the Purchase Option, and the Put Option in the same manner and to the same
extent as the Shares, and the Option Price and the Put Price shall be
approximately adjusted.
(b) If the Shares are converted into or exchanged for, or
stockholders of the Company receive by reason of any distribution in total or
partial liquidation, securities of another corporation (an "Acquiring
Corporation"), or other property (including cash), pursuant to any merger of the
Company or acquisition of its assets by an Acquiring Corporation, then the
rights of the Company under this Agreement shall inure to the benefit of the
Acquiring Corporation and this Agreement shall apply to the securities or other
property received from the Acquiring Corporation upon such conversion, exchange
or distribution in the same manner and to the same extent as the Shares.
8. Withholding Taxes. The Stockholder acknowledges and agrees that the
Company has the right to deduct from payments of any kind otherwise due to the
Stockholders any federal, state or local taxes of any kind required by law to be
withheld with respect to the acquisition of the Shares by the Stockholders.
9. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
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10. Waiver. Any provision contained in this Agreement may be waived,
either generally or in any particular instance, by the Board of Directors of the
Company on behalf of the Company.
11. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Stockholders and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
12. Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party hereto at the address shown beneath the
Stockholders' or the Company's respective signature to this Agreement, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 12.
13. Entire Agreement. This Agreement, the Stockholder's Agreement, of
even date herewith, by and among the Company, Whitney Equity Partners, L.P., a
Delaware limited partnership, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxx, and the
Partnership, the terms of which are incorporated herein by reference, and the
Xxxxxx Employment Agreement, the terms of which are incorporated herein by
reference, constitute the entire agreement between the parties, and supersedes
all prior agreements and understandings, relating to the subject matter of this
Agreement.
14. Amendment. This Agreement may be amended or modified only by a
written instrument executed by the Company and the Stockholders.
15. No Assignment. Neither this Agreement nor any interest herein may be
assigned by the Stockholder without the prior written consent of the Company.
16. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware without regard to
its rules with respect to choice of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
INTEGRATED SITE DEVELOPMENT, INC.
By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
Address: 0000 Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
XXXXXX FAMILY LIMITED
PARTNERSHIP
By: /s/ Xxx X. Xxxxxx, III
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Xxx X. Xxxxxx, III
General Partner
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