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Exhibit 10.6
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this
"Agreement"), dated as of March 23, 1998, by and among SPECTRASITE HOLDINGS,
INC. (the "Company"), a Delaware corporation, WHITNEY EQUITY PARTNERS, L.P.
("JHW II"), a Delaware limited partnership, X.X. XXXXXXX III, L.P. ("JHW
III"), a Delaware limited partnership, WHITNEY STRATEGIC PARTNERS III, L.P.
("JHW Strategic III"), a Delaware limited partnership, XXXXXX-XXXXXX MEDIA
PARTNERS, L.P. ("Xxxxxx"), a Delaware limited partnership, KITTY HAWK CAPITAL
LIMITED PARTNERSHIP, III ("Kitty Hawk III"), a Delaware limited partnership,
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV ("Xxxxx Xxxx XX"), a Delaware
limited partnership, EAGLE CREEK CAPITAL, LLC ("Eagle Creek"), a Washington
limited liability company, XXXXXXX X. XXXXX ("Xxxxx"), XXXXXX X. XXXX ("Long"),
XXXXXX FAMILY LIMITED PARTNERSHIP ("Xxxxxx XX"), an Arkansas limited
partnership, THE NORTH CAROLINA ENTERPRISE FUND, L.P. ("NCEF"), a North
Carolina limited partnership, XXXXXX X. XXXXXXXXX ("Lutkewich"), XXXX X.
XXXXXXX ("Xxxxxxx"), XXXXX X. XXXXXX ("Xxxxxx") and XXXXXXX X. XXXXXX
("Xxxxxx"). JHW II, JHW III, JHW Strategic III, Xxxxxx, Xxxxx Hawk III, Xxxxx
Xxxx XX, Eagle Creek, Clark, Long, the Xxxxxx XX, NCEF, Lutkewich, Jackman,
Xxxxxx and Xxxxxx are sometimes hereinafter collectively referred to as the
"Stockholders" and each individually as a "Stockholder."
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Stock Purchase Agreement
(the "Series A Purchase Agreement"), dated as of May 12, 1997, by and among
Integrated Site Development, Inc. ("Integrated" or the "Company"), a Delaware
corporation (now known as SpectraSite Holdings, Inc.), U.S. Towers, Inc. ("UST"
or "SpectraSite"), a Delaware corporation (now known as SpectraSite
Communications, Inc.), Telesite Services, LLC ("Telesite"), an Arkansas limited
liability company, which merged into SpectraSite, Metrosite Management, LLC
("Metrosite"), an Arkansas limited liability company, JHW II and Kitty Hawk
III, (A) JHW II purchased 3,203,118 shares of 8% Series A Cumulative
Convertible Redeemable Preferred Stock, $0.001 par value per share (the "Series
A Preferred Stock"), of the Company and (B) Kitty Hawk III purchased 259,712
shares of Series A Preferred Stock; and
WHEREAS, pursuant to the terms of the Stock Contribution
Agreement, dated as of May 12, 1997, by and among Integrated, Xxxxx, Long and
UST, (A) Xxxxx acquired 687,395 shares of common stock, $0.001 par value per
share, of the Company (the "Common Stock"), and (B) Long acquired 162,605
shares of Common Stock; and
WHEREAS, pursuant to the terms of the Membership Interests
Contribution Agreement, dated as of May 12, 1997, by and among Integrated, Xxx
X. Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX, The Central Arkansas Opportunity
Foundation, a charitable trust organized the under the laws of Arkansas,
Telesite and Metrosite, the Xxxxxx XX acquired 490,517 shares of Common Stock;
and
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WHEREAS, a warrant held by PCX Corporation ("PCX"), a Delaware
corporation, to purchase 150,000 shares of Common Stock has been transferred
and assigned to NCEF, Kitty Hawk III, Clark, Lutkewich, Xxxxxxx, Xxxxxx and
Xxxxxx, and, as a result of such assignment, NCEF holds a warrant (the "NCEF
Warrant") to purchase 33,340.42 shares of Common Stock, Kitty Hawk III holds a
warrant to purchase 33,340.42 shares of Common Stock (the "Kitty Hawk
Warrant"), Xxxxx holds a warrant to purchase 50,416.05 shares of Common Stock
(the "Xxxxx Warrant"), Lutkewich holds a warrant to purchase 19,901.07 shares
of Common Stock (the "Lutkewich Warrant"), Xxxxxxx holds a warrant to purchase
3,316.85 shares of Common Stock (the "Xxxxxxx Warrant"), Xxxxxx holds a warrant
to purchase 3,316.85 shares of Common Stock (the "Xxxxxx Warrant") and Xxxxxx
holds a warrant to purchase 6,368.34 shares of Common Stock (the "Xxxxxx
Warrant" and together with the NCEF Warrant, the Kitty Hawk Warrant, the Xxxxx
Warrant, the Lutkewich Warrant, the Xxxxxxx Warrant and the Xxxxxx Warrant, the
"PCX Stockholder Warrants"); and
WHEREAS, pursuant to a Certificate of Amendment filed with the
Secretary of State of the State of Delaware on October 29, 1997, Integrated
changed its name to SpectraSite Holdings, Inc.; and
WHEREAS, pursuant to Articles of Amendment filed with the
Secretary of State of the State of Arkansas, Telesite changed its name to
SpectraSite Communications, LLC ("SpectraSite, LLC"); and
WHEREAS, pursuant to an Agreement and Plan of Merger, dated
October 31, 1997, between UST and SpectraSite, LLC, SpectraSite, LLC merged
with and into UST with UST being the surviving corporation, and UST changed its
name to SpectraSite Communications, Inc.; and
WHEREAS, pursuant to a Purchase and Sale Agreement, dated
February 27, 1998, by and among Apex Site Management L.P., a Delaware limited
partnership ("Apex"), the Company, and Metrosite, the Company sold to Apex, and
Apex purchased from the Company, all of the issued and outstanding capital
membership units of Metrosite; and
WHEREAS, pursuant to the terms of the Stock Purchase Agreement
(the "Series B Purchase Agreement"), dated as of March 23, 1998, by and among
the Company, JHW II, JHW III, JHW Strategic III, Xxxxxx, Xxxxx Hawk III, Xxxxx
Xxxx XX, Eagle Creek, NCEF, Xxxxxx XX, Xxxxxxx, Xxxxxx and Xxxxxx, and
concurrently with the execution and delivery of the Series B Purchase
Agreement, (A) JHW II has purchased from the Company 1,044,532 shares of 8%
Series B Cumulative Convertible Redeemable Preferred Stock, $0.001 par value
per share, of the Company (the "Series B Preferred Stock"), (B) JHW III has
purchased 2,039,910 shares of Series B Preferred Stock, (C) JHW Strategic III
has purchased 49,155 shares of Series B Preferred Stock, (D) Xxxxxx has
purchased 746,095 shares of Series B Preferred Stock, (E) Kitty Hawk III has
purchased 37,305 shares of Series B Preferred Stock, (F) Xxxxx Xxxx XX has
purchased 186,524 shares of Series B Preferred Stock, (G) Eagle Creek has
purchased 74,609 shares of Series B Preferred Stock, (H) NCEF has purchased
30,357 shares of Series B Preferred Stock, (I) Xxxxxx XX has purchased 30,357
shares of Series B Preferred Stock, (J) Xxxxxxx has
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purchased 2,846 shares of Series B Preferred Stock, (K) Xxxxxx has purchased
2,846 shares of Series B Preferred Stock and (L) Xxxxxx has purchased 5,464
shares of Series B Preferred Stock; and
WHEREAS, in connection with the Series A Purchase Agreement,
the Company, JHW II, Kitty Hawk III, Clark, Long, the Xxxxxx XX and PCX entered
into a Stockholders' Agreement, dated as of May 12, 1997, which was amended and
restated as of July 1, 1997, with an effective date of May 12, 1997 (the
"Stockholders' Agreement"); and
WHEREAS, the Stockholders believe that it is in the best
interest of the Company and the Stockholders that provision be made for the
continuity and stability of the business and policies of the Company, and,
accordingly, desire to make certain arrangements among themselves with respect
to the election of directors of the Company and with respect to certain other
matters and in connection therewith, to amend and restate the Stockholders'
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenant and obligations hereinafter set forth and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby amend and restate the Original Stockholders' Agreement as
follows:
SECTION 1. Definitions. As used herein, the following terms
shall have the following respective meanings:
(a) "Affiliate" shall mean (i) in the case of an entity,
any Person who or which, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
any specified Person or (ii) in the case of an individual, such individual's
spouse, children, grandchildren or parents or a trust primarily for the benefit
of any of the foregoing.
(b) "Bona Fide Purchaser" shall mean any Person (other
than a selling Stockholder's Affiliates) who or which has delivered a good
faith written offer to purchase all or any portion of such Stockholder's
Shares.
(c) "Certificate of Incorporation" shall mean the
Certificate of Incorporation of the Company, as amended, as in effect as of
March 23,1998.
(d) "Common Stock" shall have the meaning assigned to
that term in the second Whereas clause of this Agreement.
(e) "Company" shall mean SpectraSite Holdings, Inc., a
Delaware corporation.
(f) "Dispose" or "Disposition" (and any derivatives
thereof) shall mean (i) a voluntary or involuntary sale, assignment, mortgage,
grant, pledge, hypothecation, exchange,
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transfer, conveyance or other disposition of a Stockholder's Shares, and (ii)
any agreement, contract or commitment to do any of the foregoing.
(g) "Encumbrance" or "Encumber" shall mean or refer to
any lien, claim, charge, pledge, mortgage, encumbrance, security interest,
preferential arrangement, restriction on voting or alienation of any kind,
adverse interest, or the interest of a third party under any conditional sale
agreement, capital lease or other title retention agreement.
(h) Initial Public Offering" shall mean the consummation
of a public offering by either the Company or any of its Subsidiaries of its
capital stock pursuant to a registration statement on Form S-1 or other
registration statement under the Securities Act (other than a registration
statement relating solely to an employee benefit plan or transaction covered by
Rule 145 of the Securites Act).
(i) "Kitty Hawk" means Kitty Hawk III and Xxxxx Xxxx XX.
(j) "PCX Stockholders" shall mean NC Enterprise Fund,
Kitty Hawk, Clark, Lutkewich, Jackman, Xxxxxx and Xxxxxx.
(k) "PCX Stockholder Warrants" shall have the meaning
assigned to that term in the fourth Whereas clause hereof.
(l) "Permitted Transferees" shall mean in the case of (i)
JHW II, JHW III and JHW Strategic III, the Affiliates, partners and retired
partners of JHW II, JHW III, JHW Strategic III or Whitney, the estates and
family members of any such partners and retired partners and of their spouses,
and any trusts for the benefit of any of the foregoing Persons, (ii) Xxxxxx,
the Affiliates, partners and retired partners of Xxxxxx, the estates and family
members of any such partners and retired partners and of their spouses, and any
trusts for the benefit of any of the foregoing Persons, (iii) Kitty Hawk III
and Xxxxx Xxxx XX, the Affiliates, partners and retired partners of Kitty Hawk
III and Xxxxx Xxxx XX, the estates and family members of any such partners and
retired partners and of their spouses, and any trusts for the benefit of any of
the foregoing Persons, (iv) Eagle Creek, the Affiliates, members and retired
members of Eagle Creek, the estates and family members of any such members and
retired members and of their spouses, and any trusts for the benefit of any of
the foregoing Persons, (v) NCEF, the Affiliates, partners and retired partners
of NCEF, the estates and family members of any such partners and retired
partners and of their spouses, and any trusts for the benefit of any of the
foregoing Persons, (vi) in the case of the Xxxxxx XX, the partners of the
Xxxxxx XX, provided that such partners are family members of Xxx X. Xxxxxx,
III, the estates and family members of any such partners and of their spouses,
and any trusts for the benefit of any of the foregoing Persons, (vii) in the
case of the other Stockholders who are not trusts, the estates and family
members of such Stockholder, and any trusts for the benefit of the foregoing
Persons, (viii) in the case of the other Stockholders who are trusts, the
estates and family members of such trusts beneficiaries, and any other trusts
for the benefit of such beneficiaries, and (ix) in the case of a PCX
Stockholder, any other PCX Stockholder with respect to any transfer effected
pursuant to the original terms of the Warrant Holders Agreement; provided,
however, that in each case such person shall agree in
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writing with the parties hereto to be bound by and to comply with all
applicable provisions of this Agreement.
(m) "Person" shall mean any individual, partnership,
corporation, limited liability company, joint venture, trust, firm,
association, unincorporated organization or other entity.
(n) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar Federal statute, and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(o) "Shares" shall mean, with respect to any Stockholder,
(i) the shares of capital stock of the Company, including, without limitation,
Common Stock, Series A Preferred Stock and Series B Preferred Stock, held at
any time by such Stockholder, and, if applicable, (ii) any option, warrant,
including, without limitation, the PCX Stockholder Warrants, or other right,
held at any time by any Stockholder, exercisable for shares of capital stock of
the Company, and (iii) any security, including, without limitation, Series A
Preferred Stock and Series B Preferred Stock, held at any time by such
Stockholder, convertible into or exchangeable for capital stock of the Company.
(p) "Stockholder" shall mean each person so identified in
the preamble hereto and shall include any other person who agrees in writing
with the parties hereto to be bound by and to comply with all applicable
provisions of this Agreement.
(q) "Subsidiaries" shall mean, with respect to any
Person, a corporation or other entity of which 50% or more of the voting power
of the voting equity securities or equity interest is owned, directly or
indirectly, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company.
(r) "Warrant Holders Agreement" shall mean the Warrant
Holders Agreement, dated as of the date hereof and effective as of May 12,
1997, by and among the PCX Stockholders and Xxxxxxxxx & Xxxxx PLLC, as the
Escrow Agent named therein.
(s) "Whitney" shall mean X.X. Xxxxxxx & Co.
(t) "Whitney Funds" shall mean JHW II, JHW III and JHW
Strategic III.
SECTION 2. Preemptive Rights. (a) If at any time the Company
wishes to issue any shares of Common Stock or any rights to acquire Common
Stock, including, without limitation, any rights to acquire securities
exercisable for, convertible into or exchangeable for Common Stock
(collectively the "Equity Equivalents") to any Person or Persons, the Company
shall promptly deliver a notice of its intention to sell (the "Company's Notice
of Intention to Sell") to the Stockholders setting forth a description of the
Equity Equivalents to be sold, the proposed purchase price thereof and the
terms of sale. Upon receipt of the Company's Notice of Intention to Sell, each
Stockholder shall have the right to elect to purchase, at the price and on
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the terms stated in the Company's Notice of Intention to Sell, a number of the
Equity Equivalents equal to such Stockholder's aggregate proportionate
ownership of Equity Equivalents (calculated on a fully-diluted basis) held by
all Stockholders immediately prior to the issuance of the Equity Equivalents
proposed to be sold by the Company (for each Stockholder, the "Pro Rata
Percentage"), multiplied by the number of Equity Equivalents proposed to be
sold by the Company. Such election is to be made by each Stockholder by
written notice (the "Election Notice") to the Company within 10 days after
receipt by such Stockholder of the Company's Notice of Intention to Sell (the
"Acceptance Period for Equity Equivalents"). Each Stockholder shall also have
the option, exercisable by so specifying in such Election Notice, to purchase
such Stockholder's Pro Rata Percentage of any remaining Equity Equivalents not
purchased by other Stockholders pursuant to this Section, in which case the
Stockholders exercising such further option shall be deemed to have elected to
purchase such Stockholders' Pro Rata Percentage of such remaining Equity
Equivalents, up to an aggregate maximum number of Equity Equivalents which such
Stockholder shall have specified in such Election Notice. The Company shall
promptly notify each electing Stockholder in writing of each Election Notice
received from other Stockholders pursuant to this paragraph 2(a). The Company
may, subject to paragraph 2(b) below, offer and sell to another Person or
Persons any remaining Equity Equivalents not elected to be purchased as
evidenced by Election Notices timely received by the Company.
(b) If effective acceptances shall not be received
pursuant to Section 2(a) above in respect of all the Equity Equivalents, then
the Company may, at its election, during a period of 120 days following the
expiration of the Acceptance Period for Equity Equivalents, sell and issue the
remaining Equity Equivalents to another Person at a price and upon terms not
more favorable to such Person than those stated in the Company's Notice of
Intention to Sell; provided, however, that failure by a Stockholder to exercise
his, her or its option to purchase with respect to one offering, sale and
issuance of Equity Equivalents shall not affect his, her or its option to
purchase Equity Equivalents in any subsequent offering, sale and purchase. In
the event the Company has not sold the Equity Equivalents, or entered into an
agreement to sell the Equity Equivalents, within such 120 day period, the
Company shall not thereafter issue or sell any Equity Equivalents without first
offering such securities to each Stockholder in the manner provided in Section
2(a) hereof.
(c) If a Stockholder gives the Company notice, pursuant
to the provisions of this Section 2, that such Stockholder desires to purchase
any of the Equity Equivalents, payment therefor shall be by check or wire
transfer, against delivery of the securities at the executive offices of the
Company within 15 business days after giving the Company such notice, or, if
later, the closing date for the sale of such Equity Equivalents. In the event
that any such proposed issuance is for a consideration other than cash, such
Stockholder will be entitled to pay cash for each share or other unit, in lieu
of such other consideration, in the amount determined in good faith by the
Board of Directors of the Company to constitute the fair value of such
consideration other than cash to be paid per share or other unit.
(d) The preemptive rights contained in this Section 2
shall not apply to (i) securities issued (A) as a stock dividend to holders of
Common Stock,
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Series A Preferred Stock or Series B Preferred Stock or upon any subdivision or
combination of shares of Common Stock, Series A Preferred Stock or Series B
Preferred Stock, (B) pursuant to an Initial Public Offering, (C) upon the
conversion of any equity security or debt security of the Company issued on or
prior to the date hereof or contemplated by the Series A Purchase Agreement or
the Series B Purchase Agreement, (D) upon the exercise of any option, warrant
or other right to subscribe for, purchase or otherwise acquire either Common
Stock or any equity security or debt security convertible into Common Stock,
issued prior to the date hereof or contemplated by the Series A Purchase
Agreement or the Series B Purchase Agreement (including, without limitation,
the PCX Stockholder Warrants), (E) upon the exercise of up to 1,817,700
options, of which 1,244,700 options have been granted as of the date hereof and
573,000 options which may be granted in the future (the "Options") to purchase
shares of Common Stock reserved or to be reserved for issuance upon the
exercise of such stock options, granted or to be granted exclusively to
employees, officers, directors or consultants of the Company pursuant to the
Company's employee stock option plan(s) to be established with the approval of
the Board of Directors of the Company and Whitney, (F) pursuant to the
acquisition of another corporation or business entity by the Company or any one
or more of its wholly-owned Subsidiaries by merger, consolidation, share
exchange, purchase of substantially all the assets or other reorganization
whereby the stockholders (and/or their Affiliates) of the Company immediately
prior to the transaction own in the aggregate more than 50% of the voting power
of the Company or other surviving entity after the transaction, or (G) in
connection with any borrowings by the Company or any of its subsidiaries from,
or indebtedness of the Company or any of its subsidiaries to, any institutional
lender that may be reasonably satisfactory to Whitney; or (ii) the issuance of
shares of Series B Preferred Stock pursuant to the Series B Purchase Agreement.
(e) Notwithstanding any provision in this Agreement to
the contrary, unless the Whitney Funds otherwise agree, the Company shall not
issue or sell any shares of capital stock or securities or rights exercisable
for, convertible into or exchangeable for capital stock of the Company (other
than the Options and any shares of Common Stock issued upon the exercise of the
Options) to any Person who at the time of such issuance or sale is not a party
to this Agreement unless such Person agrees in writing to be bound by all of
the provisions of this Agreement as if such Person were a Stockholder on the
same terms as are applicable generally to all the Stockholders other than the
Whitney Funds or Xxxxxx, except that such Person shall not be subject to or
entitled to the benefits of Section 2 hereof.
SECTION 3. Transfer of Shares; General Right of First
Refusal. (a) No Stockholder (other than any of the Whitney Funds) shall effect
a Disposition of any of his, her or its Shares, except to a Permitted
Transferee or as otherwise provided in this Agreement. Notwithstanding the
foregoing, each PCX Stockholder may effect a Disposition of his or its PCX
Stockholder Warrant to another PCX Stockholder pursuant to the original terms
of the Warrant Holders Agreement without complying with this Section 3.
(b) If any Stockholder (hereinafter an "Offeror
Stockholder"), other than any of the Whitney Funds, Xxxxxx, Eagle Creek or
Kitty Hawk, desires to sell all, or any part, of the Shares owned by such
Stockholder (hereinafter the "Offered Shares") to a Bona Fide Purchaser, the
Offeror Stockholder shall send a notice to the Company (hereinafter the
"Company Share Notice") stating (i) the Offeror Stockholder's desire to sell
the Offered Shares, and (ii) the price and terms of the Bona Fide Purchaser's
offer (the "Purchase Offer") to purchase the Offered
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Shares. Upon the receipt of the Company Share Notice, the Company shall have
thirty (30) days within which to elect to purchase the Offered Shares specified
therein. If the Company chooses not to purchase all of the Offered Shares, the
Company, in turn, shall promptly send a counter notice to the Offeror
Stockholder informing the Offeror Stockholder of the Company's decision, as
well as notices (hereinafter the "Share Offer Notices") to the other
Stockholders (hereinafter the "Share Offer Recipients") stating (i) the Offeror
Stockholder's desire to sell the Offered Shares, (ii) the number of Offered
Shares each Share Offer Recipient is entitled to purchase, as determined on a
pro rata basis according to the number of Shares then owned by each such Share
Offer Recipient in relation to the aggregate number of Shares then owned by all
the Share Offer Recipients (calculated on a fully diluted basis), and (iii) the
price and terms of the Purchaser Offer. Upon the receipt of such Share Offer
Notice, each Share Offer Recipient shall have a non-assignable option to
purchase any or all of the Offered Shares specified in such Share Offer Notice,
exercisable in accordance with the terms provided for below.
(c) The options referred to in Section 3(b) above may be
exercised by the Share Offer Recipients by giving a counter notice (the "Share
Counter Notice") within thirty (30) days after the receipt of the Share Offer
Notice, to the Company and the Offeror Shareholder stating the number of
Offered Shares a particular Share Offer Recipient wishes to purchase at the
price and terms indicated in the Share Offer Notice.
(d) If any Share Offer Recipient fails to give a Share
Counter Notice or gives a Share Counter Notice with respect to fewer Offered
Shares than such Share Offer Recipient would be entitled to acquire pursuant to
this paragraph (hereinafter a "Declining Share Recipient"), the Offered Shares
as to which options have not been exercised by any Declining Share Recipient
shall be reoffered to the Whitney Funds and to Xxxxxx by using procedures for
providing notice that are similar to those described in Section 3(b) above. The
Whitney Funds and Xxxxxx thereupon will each have the option exercisable within
twenty (20) days from the giving of the Share Offer Notice to acquire all or
any part of such reoffered Shares on a pro rata basis according to the number
of Shares then owned by each of Xxxxxx and the Whitney Funds in relation to the
aggregate number of Shares then owned by Xxxxxx and the Whitney Funds together
(calculated on a fully diluted basis). If the Whitney Funds and Xxxxxx fail to
exercise such option in full, then the Shares not so elected to be purchased
shall be reoffered to the other Share Offer Recipients (hereinafter "Accepting
Share Recipients") who have given Share Counter Notices with respect to all of
the Offered Shares they are respectively entitled to pursuant to this Section
by using procedures for providing notice that are similar to those described in
Section 3(b) above. Each Accepting Share Recipient thereupon will have the
option, exercisable by giving a Share Counter Notice to the Company and the
Offeror Shareholder within ten (10) days from the giving of the Share Offer
Notice, to acquire such reoffered Shares on a pro rata basis according to the
number of Shares then owned by each such Accepting Share Recipient in relation
to the aggregate number of Shares then owned by all the Accepting Share
Recipients (calculated on a fully diluted basis). Each Accepting Share
Recipient who has exercised his, her or its option to the fullest extent
permitted hereby shall have such number of additional ten (10) day options,
exercised on the terms and in the manner provided for herein, as may be
required until at least one Shareholder has the opportunity to acquire all of
the remaining Offered Shares. The Share Counter Notice shall be deemed an
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irrevocable offer by the Share Offer Recipient to purchase the number of
Offered Shares specified therein at the price and terms set forth in the
corresponding Share Offer Notice.
(e) If all the Offered Shares are not accepted for
purchase by the Company and/or the Share Offer Recipients, then the Offeror
Stockholder, may at his, her or its election, (i) either sell to the Company
and/or the Share Offer Recipients the Offered Shares, if any, which the Company
and/or the Share Offer Recipients have elected to purchase, and sell any
remaining Offered Shares to the Bona Fide Purchaser, or (ii) rescind its offer
to sell the Offered Shares, which rescission shall be effected by written
notice delivered to the Share Offer Recipients and the Company within ten (10)
days after the final ten (10) day option referred to in Section 3(d) expires,
and keep all, but not less than all, of the Offered Shares, subject to the
restrictions set forth in this Agreement. In the event that all the Offered
Shares are accepted for purchase by the Company and/or the Share Offer
Recipients or the Offeror Stockholder elects to sell the Offered Shares
pursuant to clause (i) of this Section 3(e), the Company, the Share Offer
Recipients, and/or the Bona Fide Purchaser, as the case may be, must purchase
such Shares no more than sixty (60) days after the end of the final ten (10)
day option referred to in Section 3(d) strictly in accordance with the terms
and conditions of the Purchaser Offer. The prospective Bona Fide Third Party,
as a condition precedent to the purchase of the Offered Shares, or any part
thereof, shall subscribe to this Agreement and agree to be bound by all of the
terms and conditions hereof. In the event that an Offeror Stockholder shall
not have sold all of his, her or its Offered Shares on or before the expiration
of such sixty (60) day period, such Offeror Stockholder shall not thereafter
sell any Shares pursuant to the Purchaser Offer or otherwise without first
offering such Shares to the other Stockholders in the manner set forth in this
Section 3 hereof.
SECTION 3A. First Special Right of First Refusal. (a) None of
Kitty Hawk III, Xxxxx Xxxx XX or Eagle Creek shall effect a Disposition of any
of their Shares, except as provided in this Agreement.
(b) If any of Kitty Hawk III, Xxxxx Xxxx XX or Eagle
Creek desires to sell all, or any part, of their Shares (hereinafter the
"Section 3A Offered Shares") to a Bona Fide Purchaser, Kitty Hawk III, Xxxxx
Xxxx XX or Eagle Creek, as the case may be (each, a "Section 3A Offeror") shall
send a notice to the Whitney Funds and, if the Section 3A Offered Shares are
shares of Series B Preferred Stock (or Common Stock issued upon conversion of
Series B Preferred Stock) to Xxxxxx (hereinafter the "Section 3A Share
Notice"), stating (i) the Section 3A Offeror's desire to sell the Section 3A
Offered Shares, and (ii) the price and terms of the Bona Fide Purchaser's offer
(the "Section 3A Purchase Offer") to purchase the Section 3A Offered Shares.
Upon the receipt of the Section 3A Share Notice, the Whitney Funds and Xxxxxx
(if applicable) shall have thirty (30) days within which to elect to purchase
all, but not less than all, of the Section 3A Offered Shares specified therein.
The right of first refusal provided for Waller under this Section 3A shall only
apply to the sale by any of Kitty Hawk III, Xxxxx Xxxx XX or Eagle Creek of its
shares of Series B Preferred Stock or shares of Common Stock issued upon
conversion of its Series B Preferred Stock. The number of Section 3A Offered
Shares that each of the Whitney Funds and, if applicable, Xxxxxx, is entitled
to purchase shall be determined on a pro rata basis, according to the number of
Shares then owned by each of the Whitney Funds and Xxxxxx (if applicable) in
relation to the aggregate number of Shares then owned by the Whitney Funds and,
if applicable, Xxxxxx (calculated on a fully diluted basis), or in such other
proportion
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as the Whitney Funds (provided that the Whitney Funds may allocate among
themselves as they may agree the number of Section 3A Offered Shares allocated
to the Whitney Funds) and Xxxxxx (if applicable) shall agree. If either the
Whitney Funds or Xxxxxx (if applicable) fails to purchase all of its pro rata
share of the Section 3A Offered Shares, the remaining Whitney Funds and/or
Xxxxxx (if applicable) shall have an additional ten (10) days within which to
elect to purchase all, but not less than all, of the remaining Section 3A
Offered Shares. If all the Section 3A Offered Shares are not accepted for
purchase by the Whitney Funds and/or Xxxxxx (if applicable), then the Section
3A Offeror may, at its election, (i) either sell to the Whitney Funds or Xxxxxx
(if applicable) the Section 3A Offered Shares, if any, which the Whitney Funds
and/or Xxxxxx (if applicable) have elected to purchase, and sell any remaining
Section 3A Offered Shares to the Bona Fide Purchaser, or (ii) rescind its offer
to sell the Section 3A Offered Shares, which rescission shall be effected by
written notice delivered to the Whitney Funds and Xxxxxx (if applicable) within
ten (10) days of the end of the thirty (30) day period referred to above, and
keep all, but not less than all, of the Section 3A Offered Shares, subject to
the restrictions set forth in this Agreement. In the event that all the
Section 3A Offered Shares are accepted for purchase by the Whitney Funds and
Xxxxxx (if applicable) or the Section 3A Offeror elects to sell the Section 3A
Offered Shares pursuant to clause (i) of this Section 3A(b), the Whitney Funds
and Xxxxxx (if applicable) and/or the Bona Fide Purchaser, as the case may be,
must purchase such shares no more than sixty (60) days after the end of the
thirty (30) day period referred to above strictly in accordance with the terms
and conditions of the Section 3A Purchaser Offer. The prospective Bona Fide
Purchaser, as a condition precedent to the purchase of the Section 3A Offered
Shares, or any part thereof, shall subscribe to this Agreement and agree to be
bound by all of the terms and conditions hereof. In the event that the Section
3A Offeror shall not have sold all of its Section 3A Offered Shares on or
before the expiration of such sixty (60) day period, the Section 3A Offeror
shall not thereafter sell any of the Section 3A Offered Shares pursuant to the
Section 3A Purchase Offer or otherwise without first offering such shares to
the Whitney Funds and Xxxxxx (if applicable) in the manner set forth in this
Section 3A hereof.
SECTION 3B. Second Special Right of First Refusal. (a) Xxxxxx
shall not effect a Disposition of any of its Shares, except as provided in this
Agreement.
(b) If Xxxxxx desires to sell all, or any part, of its
Shares (hereinafter the "Section 3B Offered Shares") to a Bona Fide Purchaser,
Xxxxxx shall send a notice to the Whitney Funds (hereinafter the "Section 3B
Share Notice"), stating (i) Xxxxxx'x desire to sell the Section 3B Offered
Shares, and (ii) the price and terms of the Bona Fide Purchaser's offer (the
"Section 3B Purchase Offer") to purchase the Section 3B Offered Shares. Upon
the receipt of the Section 3B Share Notice, the Whitney Funds shall have thirty
(30) days within which to elect to purchase all, but not less than all, of the
Section 3B Offered Shares specified therein. The number of Section 3B Offered
Shares that each of the Whitney Funds is entitled to purchase shall be
determined on a pro rata basis, according to the number of Shares then owned by
each of the Whitney Funds in relation to the aggregate number of Shares then
owned by all of the Whitney Funds (calculated on a fully diluted basis), or
such other proportion as the Whitney Funds may agree. If any of the Whitney
Funds fails to purchase all of its pro rata share of the Section 3B Offered
Shares, the remaining Whitney Funds shall have an additional ten (10) days
within which to elect to purchase all, but not less than all, of the remaining
Section 3B Offered Shares. If all the Section 3B Offered Shares are not
accepted for purchase by the Whitney Funds, then
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Xxxxxx may, at its election, (i) either sell to the Whitney Funds the Section
3B Offered Shares, if any, which the Whitney Funds have elected to purchase,
and sell any remaining Section 3B Offered Shares to the Bona Fide Purchaser, or
(ii) rescind its offer to sell the Section 3B Offered Shares, which rescission
shall be effected by written notice delivered to the Whitney Funds within ten
(10) days of the end of the thirty (30) day period referred to above, and keep
all, but not less than all, of the Section 3B Offered Shares, subject to the
restrictions set forth in this Agreement. In the event that all the Section 3B
Offered Shares are accepted for purchase by the Whitney Funds or Xxxxxx elects
to sell the Section 3B Offered Shares pursuant to clause (i) of this Section
3B(b), the Whitney Funds and/or the Bona Fide Purchaser, as the case may be,
must purchase such shares no more than sixty (60) days after the end of the
thirty (30) day period referred to above strictly in accordance with the terms
and conditions of the Section 3B Purchaser Offer. The prospective Bona Fide
Purchaser, as a condition precedent to the purchase of the Section 3B Offered
Shares, or any part thereof, shall subscribe to this Agreement and agree to be
bound by all of the terms and conditions hereof. In the event that Xxxxxx
shall not have sold all of its Section 3B Offered Shares on or before the
expiration of such sixty (60) day period, Xxxxxx shall not thereafter sell any
of the Section 3B Offered Shares pursuant to the Section 3B Purchase Offer or
otherwise without first offering such shares to the Whitney Funds in the manner
set forth in this Section 3B hereof.
SECTION 4. Right of Bring-Along.
(a) If the Whitney Funds propose to Dispose of all (but
not less than all) of the Shares owned by them to a Bona Fide Purchaser, other
than any transfers by the Whitney Funds to its Permitted Transferees, then,
notwithstanding anything in this Agreement to the contrary, the Whitney Funds
may require the other Stockholders (the "Other Shareholders") to Dispose of
their Shares to such Bona Fide Purchaser for the same consideration such Other
Shareholders would have received if the Company had been sold and liquidated in
accordance with the provisions of the Certificate of Incorporation and
otherwise on the same terms and conditions (other than with respect to
representations and warranties) upon which the Whitney Funds effect the
Disposition of their Shares; provided, however, that the Other Shareholders
must receive in consideration for their Shares an amount determined by an
independent, nationally recognized investment bank or appraisal firm mutually
acceptable to the Whitney Funds and a majority in interest of all Other
Shareholders to be fair market value therefor (without discount for a minority
interest).
(b) In the event that the Whitney Funds desire to
exercise their rights pursuant to Section 4(a), the Whitney Funds shall deliver
to the Company and the Other Shareholders written notice ("Sale Notice")
setting forth the consideration per share to be paid by such Bona Fide
Purchaser and the other terms and conditions of such Disposition (the Sale
Notice shall have attached to it the fairness opinion, valuation report or
similar document from the investment bank or appraisal firm opining on the fair
market value of the Other Shareholders' Shares, as required by Section 4(a)).
Within 10 days following the date of such notice, each of the Other
Shareholders shall deliver to the Whitney Funds (i) a stock certificate or
certificates or other appropriate instrument evidencing such Other
Shareholders' Shares, together with an appropriate assignment separate from
certificate or instrument duly executed in a proper form to effect the
Disposition of such Shares from the Other Shareholders to the Bona Fide
Purchaser on the books
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and records of the Company and (ii) a limited power-of-attorney authorizing the
Whitney Funds to effect the Disposition of such Shares pursuant to the terms of
such Bona Fide Purchaser's offer as such terms may be modified by the Whitney
Funds, provided, that all of the Other Shareholders' Shares are disposed of for
the same consideration per share and otherwise on the same terms and conditions
upon which the Whitney Funds effect the Disposition of their Shares. In the
event that any Other Shareholder shall fail to deliver such stock
certificate(s) or instrument(s), assignment separate from certificate and
limited power-of-attorney to the Whitney Funds, the Company shall cause a
notation to be made on its books and records to reflect that the Shares of such
Other Shareholder are bound by the provisions of this Section 4 and that the
Disposition of such Shares may be effected without such Other Shareholder's
consent or surrender of its Shares.
In addition, in the event the Whitney Funds exercise their
rights under Section 4(a), the Other Shareholders shall be required to make to
a Bona Fide Purchaser such unqualified representations and warranties with
respect to their Shares as are set forth in Section 4(e) hereof and
representations and warranties with respect to all other matters as are
reasonably requested by the Bona Fide Purchaser, provided that the Other
Shareholders will only be required to provide representations and warranties on
the same basis and subject to the same qualifications as the Whitney Funds and
will only be required to indemnify the Bona fide Purchaser against breaches of
such representations and warranties up to an aggregate dollar amount not to
exceed their respective consideration received other than with respect to
representations and warranties regarding ownership of stock and authority to
consummate the transaction in question.
(c) Promptly (but in no event later than the day of
receipt) after the consummation of the Disposition of Shares pursuant to this
Section 4, the Whitney Funds shall (i) deliver notice thereof to the Other
Shareholders, (ii) remit to the Other Shareholders the total sales price of
their respective Shares Disposed of pursuant hereto, and (iii) furnish such
other evidence of the completion and time of completion of such Disposition and
the terms thereof as may be reasonably requested in writing by the Other
Shareholders.
(d) If, within ninety 90 days after the Whitney Funds'
delivery of the notice required pursuant to Section 4(b), the Whitney Funds
shall not have completed the Disposition of its Shares and that of the Other
Shareholders in accordance herewith, the Whitney Funds shall return to the
Other Shareholders (i) the stock certificates, instruments and assignments of
certificates or instruments with respect to the Other Shareholders' Shares
which the Other Shareholders delivered pursuant to this Section 4 and (ii) the
related limited power-of-attorney. Upon the Other Shareholders' receipt of
such materials, all the restrictions on Disposition contained in this Agreement
with respect to the Shares owned by the Stockholders shall again be in effect.
(e) All sales of Shares to be made pursuant to this
Section 4 shall be subject to the following terms:
(1) the Disposing Stockholder shall deliver to
the Bona Fide Purchaser the certificates and instruments evidencing the Shares
being sold, free and clear of Encumbrances, together with duly executed stock
transfer powers or other instruments of
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assignment in favor of the Bona Fide Purchaser or its nominees and such other
documents, including evidence of ownership and authority, as the Bona Fide
Purchaser may reasonably request;
(2) except as otherwise specifically set forth
herein, the Disposing Stockholder shall not be required to make any
representations or warranties to any Person in connection with such sale,
except as to (i) good title to the Shares being sold, (ii) the absence of
Encumbrances with respect to the Shares being sold, (iii) its valid existence
and good standing (if applicable), (iv) the authority for, and validity and
binding effect of (as against such Disposing Stockholder), any agreement
entered into by such Disposing Stockholder in connection with such sale, (v)
all required material consents to Disposing Stockholder's sale and material
governmental approvals having been obtained (excluding any securities laws) and
(vi) the fact that no broker's commission is payable by the Disposing
Stockholder as a result of Disposing Stockholder's conduct in connection with
the sale; and
(3) the Disposing Stockholder shall not be
required to provide any indemnities in connection with such sale except for
breach of the representations and warranties specifically required by the terms
of this Agreement.
SECTION 5. Election of Directors.
(a) At any annual or special stockholders' meeting called
for such purpose, or by written consent in lieu of a meeting, the Stockholders
agree to vote the Shares owned of record or beneficially by them to (i)
maintain a seven-member Board of Directors, (ii) elect to the Board of
Directors of the Company (A) three nominees designated by the Whitney Funds,
who shall initially be Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and W. Xxxxx Xxxxxx,
(B) one nominee designated by Xxxxxx, who shall initially be Xxxxxx X.
Xxxxxxxxx, Xx., (C) two nominees designated by the management of the Company
("Management"), who shall initially be Xxxxx and Xxxxxx, and (E) one
"independent" nominee mutually acceptable to the Whitney Funds, Xxxxxx, Xxxxx
Xxxx and Management, and (iii) elect two nominees of the Whitney Funds and one
nominee designated by Management to each of the Company's audit committee and
compensation committee.
(b) All such directors shall hold office until their
respective successors shall have been elected and shall have qualified.
Notwithstanding the foregoing, at such time as the Whitney Funds shall no
longer beneficially own an aggregate number of shares of Series A Preferred
Stock and Series B Preferred Stock that is convertible into at least ten
percent (10%) of the aggregate number of shares of Common Stock into which the
shares of Series A Preferred Stock and Series B Preferred Stock beneficially
owned by the Whitney Funds as at the latest Closing Date (as defined in the
Series B Purchase Agreement) that occurred were convertible as at such Closing
Date (after appropriate adjustment for dividends, subdivisions, combinations or
reclassifications), then the Stockholders' obligations to elect the designees
of the Whitney Funds as set forth in subsection (a) above shall be limited to
having one director designated by the Whitney Funds elected to the Company's
Board of Directors, who shall also be elected to serve on the audit committee
and compensation committee.
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(c) For so long as the Whitney Funds shall continue to
beneficially own an aggregate number of shares of Series A Preferred Stock and
Series B Preferred Stock that is convertible into at least ten percent (10%) of
the aggregate number of shares of Common Stock into which the shares of Series
A Preferred Stock and Series B Preferred Stock beneficially owned by the
Whitney Funds as at the latest Closing Date (as defined in the Series B
Purchase Agreement) that occurred were convertible, as at such Closing Date
(after appropriate adjustments for dividends, subdivisions, combinations or
reclassifications), the Whitney Funds may, in their sole discretion, require
the Stockholders to, at any annual or special stockholders' meeting called for
such purpose, or by written consent in lieu of a meeting, vote the Shares owned
of record or beneficially by them to increase the size of the Company's Board
of Directors by two members (so as to establish up to a nine (9) member Board
of Directors) and to have two (2) additional nominees (for a total of five (5)
nominees) designated by the Whitney Funds elected to serve as such additional
members of the Company's Board of Directors.
(d) In the event that any of the Whitney Funds, Xxxxxx or
Kitty Hawk (each an "Institutional Investor") shall not have a designee serving
on the Board of Directors of the Company for any reason, the Company shall give
each such Institutional Investor notice of (in the same manner as notice is
given to directors), and permit one Person designated by each such
Institutional Investor to attend as observer, all meetings of the Company's
Board of Directors and all executive and other committee meetings of the Board
of Directors and shall provide to each such Institutional Investor the same
information concerning the Company, and access thereto, provided to members of
the Company's Board of Directors. The reasonable travel expenses incurred by
any such designee of the Whitney Funds in attending any board or committee
meetings shall be reimbursed by the Company to the extent consistent with the
Company's then existing policy of reimbursing directors generally for such
expenses.
(e) The parties hereto agree to use their best efforts to
cause the Company's Board of Directors to meet at least once every three months
or more frequently to the extent that the directors designated by the Whitney
Funds, or in the event no such directors are then serving on the Board of
Directors, an observer designated by the Whitney Funds, reasonably wishes the
Board of Directors to meet.
(f) The respective rights of each of the Whitney Funds,
on the one hand, and Xxxxxx, on the other hand, under subsections (a) and (b)
of this Section 5 shall survive, in each case, for so long as the Whitney
Funds, collectively, or Xxxxxx, as the case may be, shall beneficially own an
aggregate number of shares of Series A Preferred Stock and Series B Preferred
Stock that in the aggregate is convertible into at least five percent (5%) of
the aggregate number of shares of Common Stock into which the shares of Series
A Preferred Stock and Series B Preferred Stock beneficially owned by the
Whitney Funds, collectively, or Xxxxxx, as the case may be, as at the latest
Closing Date (as defined in the Series B Purchase Agreement) that occurred were
convertible, as at such Closing Date (after appropriate adjustment for
dividends, subdivisions, combinations or reclassifications).
SECTION 6. Co-Sale Rights.
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(a) If any of the Whitney Funds desires to sell (other
than to its Permitted Transferees) all, or any part, of their Shares consisting
of Series B Preferred Stock or Common Stock issued upon conversion of such
shares of Series B Preferred Stock (hereinafter the "Whitney Offered Shares")
to a Bona Fide Purchaser, such Whitney Fund(s) (each, a "Whitney Offeror")
shall send a notice (hereinafter the "Whitney Sale Notice") to Xxxxxx, Xxxxx
Xxxx XX and Eagle Creek (each, a "Co-Sale Offeree" and collectively, the
"Co-Sale Offerees") stating (i) the Whitney Offeror's desire to sell the
Whitney Offered Shares, and (ii) the price and terms of the Bona Fide
Purchaser's offer (the "Whitney Purchase Offer"). Upon the receipt of the
Whitney Sale Notice, each of the Co-Sale Offerees shall have thirty (30) days
to give written notice (a "Tag-Along Notice") to the Whitney Offeror that such
Co-Sale Offeree wishes to participate in such proposed sale of Whitney Offered
Shares, with respect to the same class of Shares and at the same time and on
the same terms and conditions as specified in the Whitney Purchase Offer, and
specifying the number of "Co-Sale Offeree Shares" (which, for the purposes of
this Section 6, shall mean, for each Co-Sale Offeree, any Shares of Series B
Preferred Stock and Common Stock issued upon conversion of such Shares of
Series B Preferred Stock then owned by such Co-Sale Offeree) that such Co-Sale
Offeree desires to include in such proposed sale. Each Co-Sale Offeree may
sell all or any part of that number of Co-Sale Offeree Shares equal to the
product obtained by multiplying (x) the aggregate number of Whitney Offered
Shares covered by the Whitney Purchase Offer by (y) a fraction, the numerator
of which is the number of Co-Sale Offeree Shares at the time owned by such
Co-Sale Offeree and the denominator of which is the aggregate number of Co-Sale
Offeree Shares and "Whitney Offeror Shares" (which, for the purposes of this
Section 6, shall mean any Shares of Series B Preferred Stock and Common Stock
issued upon conversion of such Shares of Series B Preferred Stock then owned by
the Whitney Offeror). If none of the Co-Sale Offerees gives a timely Tag-Along
Notice with respect to the sale proposed in the Whitney Sale Notice, the
Whitney Offeror may transfer the Whitney Offered Shares within the ninety (90)
day period following the date of the Whitney Sale Notice, on terms and
conditions no more favorable than those set forth in the Whitney Sale Notice.
If any of the Co-Sale Offerees shall give the Whitney Offeror a timely
Tag-Along Notice, then the Whitney Offeror shall request of the Bona Fide
Purchaser that the Bona Fide Purchaser agree to acquire all Co-Sale Offeree
Shares identified in the Tag-Along Notice (up to the maximum number of shares
permitted under this Section 6(a)), upon the same terms and conditions
(including, without limitation, the ability to receive a ratable share of all
consideration being paid, directly or indirectly, to the Whitney Offeror as set
forth in the Whitney Sale Notice). If the Bona Fide Purchaser is unwilling or
unable to acquire all of the Co-Sale Offeree Shares upon such terms, then the
Whitney Offeror may rescind its offer to sell the Whitney Offered Shares, which
rescission shall be effected by written notice delivered to the Co-Sale
Offerees within ten (10) days of the end of the ninety (90) day period referred
to above, and keep all, but not less than all, of the Whitney Offered Shares,
subject to the restrictions set forth in this Agreement. The prospective Bona
Fide Purchaser, as a condition precedent to the purchase of the Whitney Offered
Shares (including any shares proposed to be sold by the Co-Sale Offerees
pursuant to the terms of this Section 6), shall subscribe to this Agreement and
agree to be bound by all of the terms and conditions hereof. In the event that
the Whitney Offeror shall not have sold all of its Whitney Offered Shares
pursuant to this Section 6 within a period of ninety (90) days following the
date of the Whitney Sale Notice, the Whitney Offeror shall not thereafter sell
any of the Whitney Offered Shares pursuant to the Whitney Purchase
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Offer or otherwise without first offering such shares to the Co-Sale Offerees
in the manner set forth in this Section 6 hereof.
(b) If any of the Co-Sale Offerees exercises its right
pursuant to Section 6(a) above, upon the request of the Whitney Offeror, such
Co-Sale Offeree shall deliver to the Whitney Offeror, as agent for such Co-Sale
Offeree, for transfer to the Bona Fide Purchaser, one or more certificates
properly endorsed for transfer, which represent the number of Co-Sale Offeree
Shares which such Co-Sale Offeree so elects to Dispose pursuant to Section
6(a). The stock certificate or certificates delivered by such Co-Sale Offeree
to the Whitney Offeror pursuant to this paragraph shall be transferred by the
Whitney Offeror to the Bona Fide Purchaser in consummation of the Disposition
of the Shares pursuant to the terms and conditions specified in Section 6(a),
and the Whitney Offeror shall promptly thereafter remit, or cause to be
remitted, to such Co-Sale Offeree that portion of the Disposition proceeds to
which such Co-Sale Offeree is entitled by reason of its participation in such
Disposition.
(c) Notwithstanding anything contained in this Section 6
or any notice given hereunder, the provisions of this Section 6 shall be
suspended immediately upon the occurrence of any event within the scope of
Section 4 hereof.
(d) The Whitney Funds shall have corresponding co-sale
rights on the same terms and conditions as are set forth in subsections (a) and
(b) of this Section 6 with respect to any proposed sale by any of the Co-Sale
Offerees of any of their Co-Sale Offeree Shares.
SECTION 7. Put Rights.
(a) Subject to Section 7(c) hereof, the Company hereby
irrevocably grants to each holder of Series B Preferred Stock (each, a "Series
B Holder") the right and option, beginning on March 23, 2004, to sell to the
Company (hereinafter referred to as the "Put") all or any portion of the shares
of Series B Preferred Stock then held by such Series B Holder (the "Put
Shares"), at a purchase price per Put Share equal to the greater of (a) $4.00
(subject to appropriate adjustment for subdivisions and combinations of the
Series B Preferred Stock) plus any accrued but unpaid dividends on the Put
Shares and (b) the Fair Market Value (as defined below) per Put Share (the
"Purchase Price"). For the purposes of this Section 7, the "Fair Market Value"
per Put Share on any date shall be deemed to be the average of the daily
closing prices per share of Common Stock for the ten (10) consecutive trading
days commencing fifteen (15) trading days before such date. If on any such
date the shares of Common Stock are not listed or admitted for trading on any
national securities exchange or quoted by NASDAQ or a similar service, the Fair
Market Value shall be the fair market value of such shares on such date, as
determined by an independent investment banking firm or other appraiser (the
"Appraiser") reasonably acceptable to such Series B Holder(s) and Management.
If such parties cannot agree on the selection of the Appraiser, the fair market
value per Put Shares shall be determined as follows: (i) Each of the Series B
Holder(s) exercising the Put, on the one hand, and the management of the
Company ("Management"), on the other hand, shall select one Appraiser (each, an
"Appraiser") reasonably acceptable to such Series B Holder(s) and Management to
determine the fair market value per Put Share; (ii) the two Appraisers selected
by Management and such Series B Holder(s) shall then mutually agree on and
select a third Appraiser; (iii) each
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of the Appraisers shall submit to the Company and such Series B Holder(s) a
written determination of the fair market value per Put Share; and (iv) the Fair
Market Value shall be the average of the values submitted by the three
Appraisers. The total cost and expenses incurred by the Appraiser or
Appraisers, as the case may be, in determining the Fair Market Value shall be
borne by such Series B Holders as exercise the Put, pro rata according to the
number of Put Shares being put by each such Series B Holder.
(b) Subject to the provisions of Sections 7(a), 7(c) and
7(d) hereof, and at any time on or after March 23, 2004, each Series B Holder
may exercise the Put and sell to the Company, and the Company agrees to
purchase from such Series B Holder, all or any portion of the Put Shares. A
Series B Holder shall exercise the Put by providing written notice to the
Company specifying the number of Put Shares as to which the Put is exercised
and effective date of the exercise.
(c) The payment for and delivery of Put Shares shall be
made as set forth below.
(i) Subject to clause (iii) below, the Company
shall pay the Purchase Price to each Series B Holder exercising the Put in
accordance with clause (ii) below for each Put Share put by such Series B
Holder and purchased by the Company in exchange for the delivery to the Company
of a stock certificate or certificates representing the total number of Put
Shares being put and purchased, duly endorsed in blank by such Series B Holder
or having attached thereto a stock power executed by such Series B Holder in
proper form for transfer.
(ii) The Company shall pay the Purchase Price for
the Put Shares by paying the Purchase Price in cash or by certified, cashier's
or other check acceptable to each such Series B Holder, or by wire transfer
pursuant to such Series B Holder's instructions, within 45 days after the
determination of the Fair Market Value, as described above, subject to such
Series B Holder's compliance with the delivery requirements set forth in clause
(ii) above.
(iii) In the event that any payment to be made by
the Company under this Section 7 is prohibited by applicable provisions of
corporate law or by any other applicable law, or by any loan or other covenant
("Restrictive Covenants") contained in agreements between the Company or any of
its subsidiaries and any lending or other financial institution, then such
payment shall be immediately made by the Company at the next earliest time, and
to the extent possible, when compliance with said law may be effected, or
waiver or termination of any such Restrictive Covenant shall occur, 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 or waiver. In connection with the foregoing sentence, the
Company agrees to cooperate with the Series B Holders and take such actions
from time to time as the Series B Holders may reasonably propose, including,
without limitation, the sale of designated assets of the Company in order to
facilitate the repurchase of the Put Shares, to the extent that such actions,
in the determination and discretion of the Board of Directors of the Company,
do not materially impair either the business operations of the Company or the
rights of the Company's creditors. Any Put Shares for which a Put has been
exercised and payment in full shall not have been made by the Company shall
continue to be deemed issued and outstanding
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shares of Series B Preferred Stock (for all purposes, including, without
limitation, with respect to dividends) until the date such payment is made.
(d) The Put (and all rights related thereto) shall
terminate, whether or not it has then become exercisable, upon the first to
occur of (i) an Initial Public Offering, (ii) a sale of all or substantially
all of the assets of the Company, (iii) a merger or consolidation of the
Company with or into another corporation or entity (other than a transaction in
which the holders of capital stock of the Company immediately prior to such
merger or consolidation continue to hold at least a majority of the voting
power of the surviving entity), or (iv) with respect to each share of Series B
Preferred Stock, the date of conversion of such share into Common Stock.
SECTION 8. Special Approval Rights.
(a) Notwithstanding anything in the Certificate of
Incorporation to the contrary, the following actions by the Company shall
require the prior written consent of Xxxxxx and the Whitney Funds:
(1) Engaging in any business other than the business
in which the Company or its Subsidiaries are currently engaged;
(2) Any amendment, restatement or modification of
the Certificate of Incorporation which adversely affects the rights of the
holders of the Series B Preferred Stock;
(3) The entering into of any agreement with, or the
making of any payments (other than as provided in the Certificate of
Incorporation) to, any holder of Series A Preferred Stock with respect to its
Series A Preferred Stock (including, without limitation, the redemption (other
than as provided in the Certificate of Incorporation), repurchase or other
acquisition by the Company of Series A Preferred Stock), the effect of which
would be to advantage such holder to the detriment of the holders of the Series
B Preferred Stock;
(4) A voluntary liquidation or dissolution of the
Company; or
(5) The filing by the Company of a petition under
bankruptcy or other insolvency laws, or the admission in writing that the
Company is bankrupt, insolvent or generally unable to pay its debts as they
become due.
(b) The respective rights of each of the Whitney Funds,
on the one hand, and Xxxxxx, on the other hand, under this Section 8 shall
survive, in each case, for so long as the Whitney Funds, collectively, or
Xxxxxx, as the case may be, shall beneficially own an aggregate number of
shares of Series A Preferred Stock and Series B Preferred Stock that in the
aggregate is convertible into at least five percent (5%) of the aggregate
number of shares of Common Stock into which the shares of Series A Preferred
Stock and Series B Preferred Stock beneficially owned by the Whitney Funds,
collectively, or Xxxxxx, as the case may be, as at the latest Closing Date (as
defined in the Series B Purchase Agreement) that occurred were convertible as
at such Closing Date (after appropriate adjustment for dividends, subdivisions,
combinations or reclassifications).
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SECTION 9. Legend on Stock Certificates. Each certificate of
the signatories hereto representing Shares shall bear the following legend
until such time as the Shares represented thereby are no longer subject to the
provisions hereof:
"THE SALE, TRANSFER OR ENCUMBRANCE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, DATED AS OF MARCH 23,
1998, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AMONG SPECTRASITE
HOLDINGS, INC. AND CERTAIN HOLDERS OF ITS OUTSTANDING CAPITAL STOCK. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SPECTRASITE HOLDINGS, INC.
SECTION 10. Duration of Agreement. The rights and obligations
of each Stockholder under this Agreement shall terminate as to such Stockholder
upon the transfer of all Shares owned by such Stockholder in accordance with
this Agreement. Upon consummation of an Initial Public Offering,
notwithstanding anything to the contrary in this Agreement, the rights and
obligations of each Stockholder under Sections 2, 3, 3A, 3B, 4, 6, 7 and 8 of
this Agreement shall terminate.
SECTION 11. Representations and Warranties. Each Stockholder
represents and warrants to the other Stockholders as follows:
(a) The execution, delivery and performance of this
Agreement by such Stockholder will not violate any provision of law, any order
of any court or other agency of government, or any provision of any indenture,
agreement or other instrument to which such Stockholder or any of his, her or
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of such Stockholder.
(b) This Agreement has been duly executed and delivered
by such Stockholder and constitutes the legal, valid and binding obligation of
such Stockholder, enforceable in accordance with its terms.
(c) The Shares of such Stockholder listed on Schedule I
hereto constitute all the shares of capital stock of the Company owned by such
Stockholder as of the date hereof, and such Stockholder does not have any right
or obligation to acquire any additional shares of capital stock of the Company.
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
19
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STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH
STATE.
SECTION 13. Benefits of Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns, legal representatives and heirs. Any Disposition of
the Shares in violation of the provisions of this Agreement shall be void.
SECTION 14. Notices. All notices, requests and other
communications to be given or otherwise made to any Stockholder or other party
hereto shall be deemed to be sufficient if contained in a written instrument
duly transmitted by telecopy or telex or duly sent by overnight courier service
or first class registered or certified mail, postage prepaid, addressed to such
party at the address set forth below or at such other address as may hereafter
be designated in writing by the addressee to the addressor listing all parties:
(a) if to the Company:
SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Xxx. X. Xxxxxx, III
with a copy to:
Xxxxxxxxx & Xxxxx PLLC
0000 Xxxxxxxxx Xxxx, Xxxxx000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
(b) if to JHW II, JHW III and JHW Strategic III:
c/o X.X. Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Xxxxxx X. X'Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
20
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Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(c) if to Xxxxxx:
Xxxxxx-Xxxxxx Media Partners, L.P.
c/o Xxxxxx-Xxxxxx Management Group, Inc.
0 Xxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
with a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, Esq.
(d) if to Kitty Hawk III or Xxxxx Xxxx XX:
Kitty Hawk Capital Limited Partnership
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: W. Xxxxx Xxxxxx
with a copy to:
Xxxxx Xxxxx Mulliss & Xxxxx, LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telefacsimile Number: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
(e) if to Eagle Creek:
Eagle Creek Capital, L.L.C.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx, 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
(f) if to Xxxxx:
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Xxxxxxx X. Xxxxx
c/o SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxx PLLC
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
(g) if to Long:
Xxxxxx X. Xxxx
c/o SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxx PLLC
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
(h) if to the Xxxxxx XX:
c/o Xxx X. Xxxxxx, III
00000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Friday, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Price X. Xxxxxxx, Esq.
22
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Telecopier No.: (000) 000-0000
(i) If to any PCX Stockholder other than Kitty Xxxx,
Xxxxx or NCEF:
c/o PCX Corporation
0000 X.X. Xxxxxxx 00 Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(j) If to NCEF:
The North Carolina Enterprise Fund, L.P.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
with a copy to:
Xxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
or to such other address or addresses as shall have been
furnished in writing to the other parties hereto. Each Stockholder agrees, at
all times, to provide the Company with an address for notices hereunder.
All notices hereunder shall be effective on the date of
transmission if transmitted by telex or telecopy, on the first day after
delivery to an overnight national courier service if sent by such service and
on the date of receipt if sent by mail.
SECTION 15. Modification. Except as otherwise provided
herein, neither this Agreement nor any provision hereof shall be modified,
changed, discharged or terminated except by an instrument in writing signed by
the party against whom the enforcement of any modification, change, discharge
or termination is sought or by the agreement of the Whitney
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Funds and a majority of all other holders of the Shares, if any, subject to
this Agreement (calculated on a fully-diluted basis); provided, however, that
no modification or amendment shall be effective to reduce the percentage of the
Shares the consent of the holders of which is required under this Section 14;
and provided further, that the provisions of Sections 6 or 7 shall not be
modified, changed, discharged or terminated except by an instrument in writing
signed by the party against whom the enforcement of any such modification,
change, discharge or termination is sought or by the agreement of the Whitney
Funds and a majority of the other holders of Series B Preferred Stock
(calculated on a fully-diluted basis); and provided further, that the
provisions of Sections 8 shall not be modified, changed, discharged or
terminated except by an instrument in writing signed by the party against whom
the enforcement of any such modification, change, discharge or termination is
sought or by the agreement of the Whitney Funds and Xxxxxx.
SECTION 16. Entire Agreement. If the terms of this Agreement
and the terms of the Warrant Holders Agreement conflict, the terms of this
Agreement shall govern. This Agreement and the Warrant Holders Agreement
constitute the entire agreement among the undersigned with respect to matters
or understandings involving the ownership, control or disposition of their
Shares and supersedes any and all prior agreements or understandings, oral or
written, among any or all of the undersigned relating to such ownership,
control or disposition (including, without limitation, the Stockholders'
Agreement).
SECTION 17. Counterparts. Telefacsimile transmissions of any
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties hereto shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties. This Agreement may
be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
25
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
SPECTRASITE HOLDINGS, INC.
By:/s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
WHITNEY EQUITY PARTNERS, L.P.
By: X.X. Xxxxxxx Equity Partners, LLC,
Its General Partner
By:/s/ XXXXXX X. X'XXXXX
---------------------------------------
Name: Xxxxxx X. X'Xxxxx
A Managing Member
X.X. XXXXXXX III, L.P.
By: X.X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By:/s/ XXXXXX X. X'XXXXX
---------------------------------------
Name: Xxxxxx X. X'Xxxxx
A Managing Member
[FIRST SIGNATURE PAGE TO SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
25
26
WHITNEY STRATEGIC
PARTNERS III, L.P.
By: X.X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By:/s/ XXXXXX X. X'XXXXX
---------------------------------------
Name: Xxxxxx X. X'Xxxxx
A Managing Member
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: XXXXXX-XXXXXX MEDIA, LLC
--------------------------------------
Its General Partner
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, III
By: Kitty Hawk Partners Limited
Partnership, III,
Its General Partner
By:/s/ W. XXXXX XXXXXX
----------------------------------------
Name: W. Xxxxx Xxxxxx
A General Partner
[SECOND SIGNATURE PAGE TO SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
27
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV
By: Kitty Hawk Partners LLC, IV
Its General Partner
By:/s/ W. XXXXX XXXXXX
--------------------------------------
Name: W. Xxxxx Xxxxxx
A Manager
EAGLE CREEK CAPITAL, L.L.C.
By:/s/ XXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
A Manager
/s/ XXXXXXX X. XXXXX
------------------------------------------
XXXXXXX X. XXXXX
/s/ XXXXXX X. XXXX
------------------------------------------
XXXXXX X. XXXX
XXXXXX FAMILY LIMITED PARTNERSHIP
By:/s/ XXX X. XXXXXX III
------------------------------------------
Name: Xxx X. Xxxxxx III
Title: General Partner
[THIRD SIGNATURE PAGE TO SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
28
THE NORTH CAROLINA ENTERPRISE
FUND, L.P.
By: The North Carolina Enterprise
Corporation,
General Partner
By:/s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxx
------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxx
------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
XXXXXXX X. XXXXXX
[FOURTH SIGNATURE PAGE TO SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
29
SCHEDULE I
NAME OF STOCKHOLDER NUMBER OF SHARES
------------------- ----------------
1. Issued and Outstanding Common Stock:
Xxxxxxx X. Xxxxx 687,395
Xxxxxx X. Xxxx 162,605
Xxxxxx Family Limited Partnership 490,517
2. Issued and Outstanding Series A Convertible Preferred Stock:
Whitney Equity Partners, L.P. 3,203,118
Kitty Hawk Capital Limited Partnership, III 259,712
3. Issued and Outstanding Series B Convertible Preferred Stock:
Whitney Equity Partners, L.P. 1,044,532
X.X. Xxxxxxx III, L.P. 2,039,910
Whitney Strategic Partners III, LLC 49,155
Xxxxxx-Xxxxxx Media Partners, L.P. 746,095
Kitty Hawk Capital Limited Partnership, III 37,305
Kitty Hawk Capital Limited Partnership, IV 186,524
Eagle Creek Capital, L.L.C. 74,609
The North Carolina Enterprise Fund, L.P. 30,357
Xxxx X. Xxxxxxx 2,846
Xxxxx X. Xxxxxx 2,846
Xxxxxxx X. Xxxxxx 5,464
Xxxxxx Family Limited Partnership 30,357
4. Warrants to Purchase Common Stock:
Kitty Hawk Capital Limited
Partnership, III 33,340.42
The North Carolina Enterprise Fund, L.P. 33,340.42
Xxxxxx X. Xxxxxxxxx 19,901.07
Xxxx X. Xxxxxxx 3,316.85
Xxxxx X. Xxxxxx 3,316.85
Xxxxxxx X. Xxxxxx 6,368.34
Xxxxxxx X. Xxxxx 50,416.05
30
5. Options to Purchase Common Stock:
Xxxxxxx X. Xxxxx 725,000
Xxxxxx X. Xxxx 38,800
