EXHIBIT 4
[CONFORMED COPY]
STOCKHOLDERS AGREEMENT
dated as of February 10, 1998
among
BLACKSTONE CCI CAPITAL PARTNERS L.P.,
BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.,
CHASE EQUITY ASSOCIATES, L.P.,
SUNAPEE SECURITIES, INC.,
SQUAM LAKE INVESTORS, II, L.P.,
and
COMMNET CELLULAR INC.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . 1
SECTION 1.1 Defined Terms . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions;
Interpretation . . . . . . . . . . . . . . . 3
ARTICLE II
TRANSFERS . . . . . . . . . . . . . . 3
SECTION 2.1 Limitations on Transfer . . . . . . . . . . . . . 3
SECTION 2.2 Transfers to Affiliates . . . . . . . . . . . . . 4
SECTION 2.3 Effect of Void Transfers . . . . . . . . . . . . 4
SECTION 2.4 Legend on Securities . . . . . . . . . . . . . . 4
SECTION 2.5 Tag-Along Rights . . . . . . . . . . . . . . . . 5
SECTION 2.6 Drag-Along Rights . . . . . . . . . . . . . . . . 6
ARTICLE III
REGISTRATION RIGHTS . . . . . . . . . . . . . 8
SECTION 3.1 Piggyback Rights . . . . . . . . . . . . . . . . 8
SECTION 3.2 Demand Registrations . . . . . . . . . . . . . . 9
SECTION 3.3 Registration Procedures . . . . . . . . . . . . . 10
SECTION 3.4 Other Registration-Related Matters . . . . . . 13
ARTICLE IV
INDEMNIFICATION . . . . . . . . . . . . . 15
SECTION 4.1 Indemnification by the Company . . . . . . . . 15
SECTION 4.2 Indemnification by the Seller . . . . . . . . . 16
SECTION 4.3 Notices of Claims, Etc. . . . . . . . . . . . . 17
SECTION 4.4 Contribution . . . . . . . . . . . . . . . . . 17
SECTION 4.5 Other Indemnification . . . . . . . . . . . . . 18
SECTION 4.6 Non-Exclusivity . . . . . . . . . . . . . . . . 18
ARTICLE V
PARTICIPATION RIGHTS . . . . . . . . . . . 18
SECTION 5.1 Participation Rights . . . . . . . . . . . . . 18
ARTICLE VI
VOTING AGREEMENT . . . . . . . . . . . . 19
SECTION 6.1 Voting Agreement . . . . . . . . . . . . . . . 19
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . 19
SECTION 7.1 Additional Securities Subject to Agreement . . 19
SECTION 7.2 BCP CommNet L.P. . . . . . . . . . . . . . . . 20
SECTION 7.3 Termination . . . . . . . . . . . . . . . . . . 20
SECTION 7.4 Injunctive Relief . . . . . . . . . . . . . . . 20
SECTION 7.5 Other Stockholders' Agreements . . . . . . . . 21
SECTION 7.6 Amendments; Waivers . . . . . . . . . . . . . . 21
SECTION 7.7 Successors and Assigns . . . . . . . . . . . . 21
SECTION 7.8 Notices . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.9 Integration; No Third Party Beneficiaries . . . 23
SECTION 7.10 Severability . . . . . . . . . . . . . . . . . 23
SECTION 7.11 Counterparts . . . . . . . . . . . . . . . . . 23
SECTION 7.12 Governing Law; Submission to Jurisdiction . . . 23
SECTION 7.13 No Recourse . . . . . . . . . . . . . . . . . . 24
STOCKHOLDERS AGREEMENT dated as of February 10, 1998 among
Blackstone CCI Capital Partners L.P., a Delaware limited partnership
("BCP CCI"), Blackstone CCI Offshore Capital Partners L.P., a Cayman Islands
exempted limited partnership ("BCP CCI Offshore"), Blackstone Family
Investment Partnership II L.P., a Delaware limited partnership ("BFIP" and,
together with BCP CCI and BCP CCI Offshore, the "Blackstone Partnerships"),
Chase Equity Associates, L.P., a California limited partnership ("Chase"),
Sunapee Securities, Inc., a Massachusetts corporation ("Sunapee"), Squam Lake
Investors, II, L.P., a Delaware limited partnership ("Squam
Lake", and, together with Sunapee, "Xxxx"; and, Bain, together with
Blackstone and Chase, the "Stockholders") and CommNet Cellular Inc., a
Colorado corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Agreement and Plan of Merger dated as of May 27, 1997
(the "Merger Agreement"), between the Company and AV Acquisition Corp., a
Delaware corporation ("AV"), provides for the merger (the "Merger") of AV
with and into the Company;
WHEREAS, immediately prior to the consummation of the Merger, the
Stockholders shall own, collectively, 100% of the issued and outstanding
capital stock of AV;
WHEREAS, immediately following the consummation of the Merger, the
Stockholders shall own, collectively, approximately 87% of the issued and
outstanding common stock, par value $0.001 per share, of the Company ("Common
Stock");
WHEREAS, each Blackstone Partnership is entering into this
Agreement on its own account and not as a partner, agent, trustee or
Affiliate of any other Blackstone Partnership; and
WHEREAS, the parties hereto wish to enter into certain agreements
with respect to the Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, terms
defined in the heading and the recitals shall have their respective assigned
meanings, and the following capitalized terms shall have the meanings
ascribed to them below:
"Affiliate" shall mean, with respect to any Person, (i) any other
Person that directly or indirectly controls, is controlled by or is
under common control with, such Person or (ii) any director, officer,
partner or employee of such Person or any Person specified in clause
(i); provided, that (x) current or former officers, directors or
employees of the Company shall be deemed not to be Affiliates of
Blackstone for purposes hereof solely by reason of being officers,
directors or employees of the Company and (y) none of the Other
Stockholders shall be deemed to be an Affiliate of Blackstone.
"Blackstone" shall mean, collectively, the Blackstone Partnerships
and their respective Permitted Transferees.
"Business Day" shall mean a day other than a Saturday, Sunday,
United States or New York State holiday or other day on which commercial
banks in New York City are authorized or required by law to close.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the
same may be amended from time to time.
"Holders' Counsel" shall mean one firm of attorneys selected by
Stockholders which own a majority of the shares of Common Stock to be
included in any registration pursuant to Article III of this Agreement
which are owned by Stockholders.
"Other Stockholders" shall mean, collectively, Chase and Bain and
their respective Permitted Transferees.
"Person" shall mean any individual, corporation, partnership,
limited liability company, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or
other entity of any nature whatsoever.
"Public Offering" shall mean the sale of shares of Common Stock to
the public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor
form) filed under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
the performance by the Company of or compliance by the Company with
Article III hereof, including, without limitation, (i) all SEC, stock
exchange, National Association of Securities Dealers, Inc. registration
and filing fees, (ii) all fees and expenses of complying with securities
or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications), (iii) all
printing, messenger and delivery expenses, (iv) the fees and
disbursements of counsel for the Company and of its independent public
accountants, (v) the reasonable fees and disbursements of Holders'
Counsel, (vi) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions applicable to shares owned by Stockholders,
(vii) liability insurance if the Company so desires or if the
underwriters so require and (viii) the reasonable fees and expenses of
any special experts retained by the Company in connection with the
requested registration, but excluding transfer taxes, if any.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same may be
amended from time to time.
"Transfer" shall mean any transfer, sale, assignment, exchange,
mortgage, pledge, hypothecation or other disposition of any Common Stock
or any interest therein.
"Warrant" shall mean the warrant dated February 10, 1998 pursuant
to which Chase shall have the right to acquire 43,113 shares of Common
Stock from BCP CCI, 12,714 shares of Common Stock from BCP CCI Offshore
and 90 shares of Common Stock from BFIP.
SECTION 1.2 Other Definitional Provisions; Interpretation. (a)
The words "hereof", "herein", and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement, and Article, Section and
Exhibit references are to this Agreement unless otherwise specified.
(b) The headings in this Agreement are included for convenience of
reference only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
ARTICLE II
TRANSFERS
SECTION 2.1 Limitations on Transfer. Each of the Other
Stockholders agrees not to Transfer any Common Stock, provided, that the
foregoing shall not be applicable to Transfers (i) described in Section 2.2,
(ii) described in Section 7.2, (iii) to another Stockholder, (iv) pursuant to
a merger or consolidation in which the Company is a constituent corporation,
(v) pursuant to a Public Offering, (vi) pursuant to Rule 144 under the
Securities Act or (vii) pursuant to Sections 2.5 or 2.6.
SECTION 2.2 Transfers to Affiliates. Notwithstanding anything
contained herein to the contrary, each Stockholder shall be entitled, from
time to time, to Transfer any or all of the shares of Common Stock owned by
it to any of its Affiliates who agree in a writing reasonably satisfactory in
form and substance to the Company to become a party to, and be bound to the
same extent as its transferor by the terms of, this Agreement, and any such
transferee shall be deemed to be a "Stockholder" hereunder (any such
transferee, a "Permitted Transferee"). Any Transfer by a Blackstone
Partnership or any of its Permitted Transferees to any of its stockholders
(or partners, members or other equity owners) of any or all of the shares of
Common Stock owned by them (including a distribution of such shares upon a
liquidation of a Blackstone Partnership or any of its Permitted Transferees
or any other distribution, a dividend or otherwise) shall be deemed to be a
Transfer to an Affiliate of a Blackstone Partnership for purposes of this
Section 2.2.
SECTION 2.3 Effect of Void Transfers. In the event of any
purported Transfer of any shares of Common Stock in violation of the
provisions of this Agreement, such purported Transfer shall be void and of no
effect and the Company shall not give effect to such Transfer. The Company
shall not be required to enter in its stock or other records, or reflect,
recognize or give effect to for any purpose, any transfer of Common Stock in
violation of this Agreement.
SECTION 2.4 Legend on Securities. Each certificate representing
shares of Common Stock issued to any Stockholder shall bear the following
legend on the face thereof (which legend may be removed upon the termination
of Article II of this Agreement):
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDERS AGREEMENT AMONG BLACKSTONE CCI CAPITAL
PARTNERS L.P., BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P., CHASE EQUITY
ASSOCIATES, L.P., SUNAPEE SECURITIES, INC., SQUAM LAKE INVESTORS,
II, L.P. AND COMMNET CELLULAR INC. (THE "COMPANY"), A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE,
ASSIGNMENT, EXCHANGE, MORTGAGE, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
AGREEMENT."
SECTION 2.5 Tag-Along Rights. (a) Subject to the last sentence
of Section 2.6(b), with respect to any proposed Transfer by Blackstone (in
such capacity, a "Transferring Stockholder") of Common Stock permitted
hereunder (other than a Transfer: (i) described in Section 2.2, (ii)
described in Section 7.2, (iii) to another Stockholder, (iv) pursuant to a
merger or consolidation in which the Company is a constituent corporation,
(v) pursuant to a Public Offering, (vi) pursuant to Rule 144 under the
Securities Act or (vii) pursuant to Section 2.6.), the Transferring
Stockholder shall have the obligation, and Chase and its Permitted
Transferees (in such capacity, the "Chase Tagging Stockholder Group") and
Bain and its Permitted Transferees (in such capacity, the "Bain Tagging
Stockholder Group", and together with the Chase Tagging Stockholder Group,
the "Tagging Stockholder Groups") shall have the right to require the
proposed transferee to purchase from each of such Tagging Stockholder Groups
a number of shares of Common Stock up to the product (rounded up to the
nearest whole number) of (i) the quotient determined by dividing (A) the
aggregate number of shares of Common Stock owned by such Tagging Stockholder
Group and sought by such Tagging Stockholder Group to be included in the
contemplated Transfer by (B) the aggregate number of shares of Common Stock
owned by the Transferring Stockholder, such Tagging Stockholder Group and any
other Persons who have the right to include shares of Common Stock in such
sale pursuant hereto or any other agreement (including any employment or
option agreement between the Company and an employee thereof) (provided that
for purposes of this clause (i) a Stockholder shall be deemed to have sought
to include an amount equal to all of such Stockholder's shares of Common
Stock if such amount exceeds the entire amount to be sold to the transferee
in the contemplated Transfer), and (ii) the total number of shares of Common
Stock proposed to be directly or indirectly Transferred to the transferee in
the contemplated Transfer, and at the same price per share of Common Stock
and upon the same terms and conditions (including, without limitation, time
of payment and form of consideration) as to be paid and given to the
Transferring Stockholder; provided, that in order to be entitled to exercise
its right to sell shares of Common Stock to the proposed transferee pursuant
to this Section 2.5, each participating member of each Tagging Stockholder
Group must agree to make to the transferee the same representations,
warranties, covenants, indemnities and agreements as the Transferring
Stockholder agrees to make in connection with the proposed Transfer of the
shares of Common Stock of the Transferring Stockholder; provided, further,
that all representations and warranties shall be made by the participating
members of each Tagging Stockholder Group and the Transferring Stockholder
severally and not jointly.
(b) The Transferring Stockholder shall give notice to each Tagging
Stockholder Group of each proposed Transfer giving rise to the rights of such
Tagging Stockholder Group set forth in the first sentence of Section 2.5(a)
at least 20 days prior to the proposed consummation of such Transfer, setting
forth the number of shares of Common Stock proposed to be so transferred, the
name and address of the proposed transferee, the proposed amount and form of
consideration and other material terms and conditions of payment offered by
the proposed transferee. The tag-along rights provided by this Section 2.5
must be exercised by members of each Tagging Stockholder Group within 10
Business Days following receipt of the notice required by the preceding
sentence, by delivery of a written notice to the Transferring Stockholder
indicating the desire of members of such Tagging Stockholder Group to
exercise their rights and specifying the number of shares of Common Stock
they desire to sell.
(c) The Transferring Stockholder shall be entitled under this
Section 2.5 to Transfer to the proposed transferee the number of shares of
Common Stock equal to the difference between (1) the number referred to in
clause (ii) of paragraph (a) above and (2)(A) the aggregate number of shares
of Common Stock set forth in the written notice, if any, delivered by all
Tagging Stockholder Groups pursuant to Section 2.5(b) (in each case, up to
the maximum number of shares of Common Stock owned by such Tagging
Stockholder Group required to be purchased by the proposed transferee
pursuant to the first sentence of Section 2.5(a)) plus (B) the aggregate
number of shares of Common Stock to be sold by any other Persons who have the
right to include shares of Common Stock in such sale.
(d) If the proposed transferee fails to purchase shares of Common
Stock from any member of the Tagging Stockholder Groups that has properly
exercised its tag-along rights under Section 2.5(a), then the Transferring
Stockholder shall not be permitted to make the proposed Transfer, and any
such attempted Transfer shall be void and of no effect, as provided in
Section 2.3 hereof.
(e) If any Stockholder exercises its rights under Section 2.5(a),
such Stockholder shall (i) prior to the closing of any such Transfer, execute
and deliver any purchase agreement or other documentation required by the
proposed transferee to consummate the sale (including all legal opinions,
cross-receipts and certificates), which purchase agreement and other
documentation shall contain terms described in the provisos to Section 2.5(a)
and (ii) at the closing of any such Transfer, deliver to the proposed
transferee the certificate or certificates representing the shares of Common
Stock to be sold pursuant to such sale by such Stockholder, duly endorsed for
transfer, against receipt of the purchase price thereof. The closing of the
purchase of the Common Stock with respect to which such rights have been
exercised shall take place concurrently with the closing of the sale of the
Transferring Stockholder's Common Stock.
SECTION 2.6 Drag-Along Rights. (a) If Blackstone receives an
offer from a Person other than an Affiliate thereof (a "Third Party") to
purchase any shares of Common Stock then owned by Blackstone and such offer
is accepted by Blackstone, then, at the election of Blackstone, each of the
Other Stockholders hereby agrees that it will Transfer all (or if less than
100% of the aggregate shares owned by Blackstone are subject to such
Transfer, the percentage subject to such Transfer) of the shares of Common
Stock owned by it to such Third Party on the terms of the offer so accepted
by Blackstone, including the same per share consideration. In connection
with any such election, each of the Other Stockholders must agree to make to
the transferee the same representations, warranties, covenants, indemnities
and agreements as Blackstone agrees to make in connection with the proposed
Transfer of the shares of Common Stock of Blackstone; provided, further, that
all representations and warranties shall be made by Blackstone, Chase and its
Permitted Transferees and Bain and its Permitted Transferees severally and
not jointly. In the event that both Sections 2.5 and 2.6 apply to a single
transaction, the "drag-along" rights set forth in this Section 2.6 shall have
priority over the "tag-along" rights set forth in Section 2.5 above, and the
"tag-along" rights set forth in Section 2.5 shall not become exercisable by
any Stockholder unless Blackstone shall have determined not to exercise its
rights under this Section 2.6.
(b) If it elects to exercise its rights under Section 2.6(a),
Blackstone shall give notice (the "Drag-Along Notice") to Chase and its
Permitted Transferees and to Bain and its Permitted Transferees of any
proposed Transfer giving rise to the rights of such Transferring Stockholder
set forth in Section 2.6(a) as soon as practicable following the acceptance
of the offer referred to in Section 2.6(a). The Drag-Along Notice shall set
forth the number of shares of Common Stock proposed to be so Transferred, the
name of the proposed transferee, the proposed amount and form of
consideration and the other terms and conditions of the offer. If the
Transfer referred to in the Drag-Along Notice is not consummated within 180
days from the date of the Drag-Along Notice, the Transferring Stockholder
must deliver another Drag-Along Notice in order to exercise its rights under
this Section 2.6 with respect to such Transfer or any other Transfer.
(c) If Blackstone exercises its rights under Section 2.6(a), each
Other Stockholder shall (i) prior to the closing of any such Transfer,
execute and deliver any purchase agreement or other documentation required by
the proposed transferee to consummate the sale (including all legal opinions,
cross-receipts and certificates), which purchase agreement and other
documentation shall contain terms described in the second sentence of Section
2.6(b) and (ii) at the closing of any such Transfer, deliver to the proposed
transferee the certificate or certificates representing the shares of Common
Stock to be sold pursuant to such sale by such Stockholder, duly endorsed for
transfer, against receipt of the purchase price thereof. The closing of the
purchase of the Common Stock with respect to which such rights have been
exercised shall take place concurrently with the closing of the sale of
Blackstone's Common Stock.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1 Piggyback Rights. (a) If at any time the Company
intends to file a registration statement under the Securities Act (other than
a registration statement on Form S-4 or S-8 or any similar or successor form)
in connection with the proposed offer and sale of Common Stock by the Company
or by Blackstone (the "Initiating Party"), the Company shall give prompt
written notice to any Stockholder which is not an Initiating Party and has
rights to registration under this Section in respect of such registration
statement (collectively, the "Non-Initiating Parties") regarding the rights
of such parties under this Section, at least 20 Business Days prior to the
anticipated filing date of such registration statement; provided, that the
Other Stockholders shall not have any rights pursuant to this Section with
respect to any offer or sale of Common Stock if the Company is the Initiating
Party and if no shares of Common Stock owned by Blackstone are to be included
in such registration statement.
(b) Upon the written request of any Non-Initiating Party, made
within 10 Business Days after the receipt of any such notice from the
Company, which request shall specify the shares of Common Stock (the "Piggy-
Back Shares") intended to be disposed of by such Non-Initiating Party in such
offering, the Company will use its reasonable best efforts to include in the
registration statement all Piggy-Back Shares which the Company has been so
requested to register by such Non-Initiating Parties to the extent required
to permit the disposition of such Piggy-Back Shares; provided, that (i) if,
at any time after giving written notice of its intention to register any
Common Stock and prior to the effective date of the registration statement
filed in connection with such registration, the Initiating Party shall
determine for any reason not to proceed with the proposed registration, the
Company may at its election give written notice of such determination to each
holder of Piggy-Back Shares and thereupon shall be relieved of its obligation
to register any Piggy-Back Shares in connection with such registration, and
(ii) if such registration involves an underwritten offering, each holder of
Piggy-Back Shares requesting to be included in the Company's registration
must sell its Piggy-Back Shares to the underwriters on the same terms and
conditions as apply to Blackstone.
(c) If a registration pursuant to this Section 3.1 involves an
underwritten offering and the managing underwriter or underwriters in good
faith advise Blackstone or the Company in writing that, in their opinion, the
number of shares of Common Stock which the Company, the holders of Piggy-Back
Shares and any other Persons who have the right to include shares of Common
Stock in such registration pursuant hereto or any other agreement (including
any employment or option agreement between the Company and any employee
thereof) intend to include in such registration exceeds the largest number of
shares of Common Stock which can be sold in such offering without having an
adverse effect on such offering (including, but not limited to, the price at
which the shares of Common Stock can be sold), then the Company will include
in such registration (i) first, 100% of the shares of Common Stock the
Company proposes to sell for its own account, if any, (ii) second, to the
extent that the number of shares of Common Stock which the Company proposes
to sell is less than the number of shares of Common Stock which Blackstone or
the Company has been advised can be sold in such offering without having an
adverse effect referred to above, the number of shares of Common Stock to be
included in such offering will be determined on the basis of the relative
percentage relationships, on the date the Company delivers the notice
referred to in Section 3.1(a), of (w) the number of outstanding shares of
Common Stock owned by Blackstone, (x) the number of outstanding shares of
Common Stock owned by Chase and its Permitted Transferees, (y) the number of
outstanding shares of Common Stock owned by Bain and its Permitted
Transferees and (z) with respect to any employee of the Company who is a
party to a stock option agreement with the Company which provides for piggy-
back rights in connection with such registration, the number of shares of
Common Stock issuable or issued upon exercise of stock options covered by
such agreement, and (iii) third, to the extent that the number of shares of
Common Stock which the Company and the Stockholders propose to sell is less
than the number of shares of Common Stock which Blackstone or the Company has
been advised can be sold in such offering without having an adverse effect
referred to above, shares of Common Stock of any other Persons who have the
right to include shares in such registration pursuant hereto or any other
agreement.
(d) Each requesting Other Stockholder agrees that such Other
Stockholder shall execute and deliver such other agreements and other
documents (such as legal opinions, cross-receipts and certificates) as
Blackstone is delivering or as Blackstone or the Company may otherwise
reasonably request to implement the provision of this Section.
SECTION 3.2 Demand Registrations. (a) Upon the written request
from time to time (a "Request") of Blackstone that the Company effect the
registration under the Securities Act of all or part of the shares of Common
Stock owned by the Blackstone Partnerships and such Permitted Transferees,
the Company will as expeditiously as possible use its best efforts to effect
the registration under the Securities Act of such shares.
(b) The Company shall select the registration statement form for
any registration pursuant to this Section 3.2; provided, that if any
registration requested pursuant to this Section 3.2 which is proposed by the
Company to be effected by the filing of a registration statement on Form S-3
(or any successor or similar short-form registration statement) shall be in
connection with an underwritten public offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, the use
of another form of registration statement is of material importance to the
success of such proposed offering, then such registration shall be effected
on such other form.
(c) If a requested registration pursuant to this Section 3.2
involves an underwritten offering, the investment banker(s), underwriter(s)
and manager(s) for such registration shall be selected by Blackstone,
provided, however, that such investment banker(s), underwriter(s) and
manager(s) shall be reasonably acceptable to the Company.
(d) If the Company at any time grants to any other holders of
Common Stock (or securities that are convertible into or exchangeable or
exercisable for Common Stock) any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock (or
any such securities) on terms more favorable to such holders than the terms
set forth in this Section 3.2, the terms of this Section 3.2 shall be deemed
amended or supplemented to the extent necessary to provide Blackstone such
more favorable rights and benefits.
SECTION 3.3 Registration Procedures. If and whenever the Company
is required to use its best efforts to effect or cause the registration of
any shares of Common Stock under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible:
(a) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the Company,
file with the SEC a registration statement with respect to such Common Stock
and use its best efforts to cause such registration statement to become
effective; provided, however, that the Company may discontinue any
registration of its securities which is being effected pursuant to Section
3.1 at any time prior to the effective date of the registration statement
relating thereto;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
for a period not less than 180 days nor in excess of 270 days and to comply
with the provisions of the Securities Act and the Exchange Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such registration statement;
provided, that before filing a registration statement or prospectus, or any
amendments or supplements thereto, the Company will furnish to Holders'
Counsel copies of all documents proposed to be filed, which documents will be
subject to the review of such counsel;
(c) furnish to each seller of Common Stock such number of copies
of such registration statement and of each amendment and supplement thereto
(in each case including all exhibits filed therewith, including any documents
incorporated by reference), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
summary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in order
to facilitate the disposition of the Registrable Securities by such seller;
(d) use its best efforts to register or qualify the Common Stock
covered by such registration in such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Common Stock owned by such seller,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction where,
but for the requirements of this subsection (d), it would not be obligated to
be so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause such Common Stock covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition thereof;
(f) notify each seller of any Common Stock covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of an amended or supplemental prospectus
as may be necessary so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders,
as soon as reasonably practicable (but not more than 18 months) after the
effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its best efforts to list such shares on any securities
exchange or market on which the Common Stock is then listed if such shares
are not already so listed and if such listing is then permitted under the
rules of such exchange and (ii) use its best efforts to provide a transfer
agent and registrar for such shares covered by such registration statement
not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an
underwriting agreement in customary form), which may include indemnification
provisions in favor of underwriters and other Persons in addition to, or in
substitution for the provisions of Article IV hereof, and take such other
actions as sellers of a majority of such shares or the underwriters, if any,
reasonably requested in order to expedite or facilitate the disposition of
such shares;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers
of a majority of such shares shall reasonably request;
(k) make available for inspection by any seller of such shares
covered by such registration statement, by any underwriter participating in
any disposition to be effected pursuant to such registration statement and by
any attorney, accountant or other agent retained by any such seller or any
such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) notify Holders' Counsel and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement,
shall have become effective, or any supplement to the prospectus or any
amendment prospectus shall have been filed, (ii) of the receipt of any
comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for
additional information, and (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration statement for offering or
sale in any jurisdiction, or of the institution or threatening of any actions
or proceedings for any of such purposes;
(m) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the use of any preliminary prospectus and,
if any such order is issued, to obtain the withdrawal of any such order at
the earliest possible moment;
(n) if requested by the managing underwriter or agent or any
holder of shares covered by the registration statement, promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the managing underwriter or agent or such holder reasonably requests to be
included therein, including, with respect to the number of shares being sold
by such holder to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent and with respect to any other terms of
the underwritten offering of the shares to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after being notified of the matters
incorporated in such prospectus supplement or post-effective amendment;
(o) obtain for delivery to the holders of shares being registered
and to the underwriter or agent an opinion or opinions from counsel for the
Company in customary form and in form, substance and scope reasonably
satisfactory to such holders, underwriters or agents and their counsel; and
(p) use its best efforts to make available the executive officers
of the Company to participate with the holders of such shares and any
underwriters in any "road shows" or other selling efforts that may be
reasonably requested by such holders in connection with the methods of
distribution for the Registrable Securities.
SECTION 3.4 Other Registration-Related Matters. (a) Each
Stockholder agrees that it shall not effect any public sales of Common Stock
or securities convertible into or exercisable or exchangeable for Common
Stock during the 14 days prior to and up to a 180 day period beginning on the
effective date of a registration statement relating to an underwritten public
offering of Common Stock (whether pursuant to Section 3.1 or 3.2 or
otherwise, except as part of such registration) if and to the extent
reasonably requested in writing (with reasonable prior written notice) by
the managing underwriter of the underwritten public offering.
(b) The Company agrees not to (and to cause each other holder of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock purchased from the Company after the date hereof at any time
other than in a Public Offering not to (except shares of Common Stock
purchased pursuant to an existing agreement and plan of reorganization among
Two Buttes Cellular Inc., the Company and Cellular Inc. Network Corporation))
effect any sales of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock (other than an offering on Form
S-8) during the 14 days prior to and the 180 day period beginning on the
effective date of any registration statement in which any Stockholder is
participating in connection with an underwritten public offering of Common
Stock, if and to the extent reasonably requested in writing (with reasonable
prior written notice) by the managing underwriter of the underwritten public
offering.
(c) The Company may require any Person that is selling shares of
Common Stock in a Public Offering pursuant to Section 3.1 or 3.2 to furnish
to the Company in writing such information regarding such Person and the
distribution of the shares of Common Stock which are included in a Public
Offering as may from time to time reasonably be requested in writing in order
to comply with the Securities Act.
(d) The Company will pay all Registration Expenses in connection
with (i) each registration or proposed registration of Common Stock pursuant
to Section 3.1 and (ii) the first eight registrations of Common Stock
pursuant to Section 3.2. All expenses for any subsequent registrations of
Common Stock pursuant to Section 3.2 shall be paid pro rata by the Company
and all other Persons (including the Stockholders) participating in such
registration on the basis of the relative number of shares of Common Stock of
each such Person included in such registration.
(e) Each Stockholder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.3(f) such Stockholder will forthwith discontinue disposition of Common
Stock pursuant to the registration statement covering such Common Stock until
such Stockholder's receipt of the copies of the amended or supplemented
prospectus contemplated by Section 3.3(f) and, if so directed by the Company,
such Stockholder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Stockholder's
possession, of the prospectus covering such Common Stock current at the time
of receipt of such notice. In the event the Company shall give any such
notice, the period for which the Company shall be required to keep the
registration statement effective shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 3.3(f) and including the date when each seller of Common
Stock covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by Section 3.3(f).
(f) The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act (or, if the
Company is not required to file such reports, it will, upon the request of
Blackstone, make publicly available such information), and it will take such
further action as Blackstone may reasonably request, all to the extent
required from time to time to enable a Stockholder to sell shares of Common
Stock without registration under the Securities Act within the limitations of
the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Stockholder, the
Company will deliver to such Stockholder a written statement as to whether it
has complied with such requirements. Notwithstanding anything contained in
this Section 3.4(f) to the contrary, the Company may deregister under
Section 12 of the Exchange Act if it then is permitted to do so pursuant to
the Exchange Act.
ARTICLE IV
INDEMNIFICATION
SECTION 4.1 Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act
pursuant to Article III, the Company shall, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Common Stock
covered by such registration statement, each Affiliate of such seller and
their respective directors and officers or general and limited partners (and
any director, officer, Affiliate, employee, agent and controlling Person of
any of the foregoing), each Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
lawsuits, claims, actions or proceedings (collectively, "Actions") (whether
or not an Indemnified Party is a party thereto), losses, damages or
liabilities, joint or several, and expenses (including reasonable attorney's
fees and reasonable expenses of investigation) to which such Indemnified
Party may become subject under the Securities Act, common law or otherwise,
insofar as such Actions, losses, damages, liabilities or expenses arise out
of, relate to or are based upon (a) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, or (b) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading; provided, that the
Company shall not be liable to any Indemnified Party in any such case to the
extent that any such Action, loss, damage, liability or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
or amendment or supplement thereto or in any such preliminary, final or
summary prospectus in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such seller specifically stating that it is for use in the preparation
thereof; and, provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of Common
Stock or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, under the indemnity agreement in this Section
with respect to any preliminary, final or summary prospectus, or any
amendment or supplement thereto, to the extent that any such Action, loss,
damage, liability or expense of such underwriter or controlling Person
results from the fact that such underwriter sold Common Stock to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus (including any documents
incorporated by reference therein) or of the final prospectus, as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if the Company has previously furnished
copies thereof to such underwriter. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Indemnified Party and shall survive the transfer of securities by any seller.
SECTION 4.2 Indemnification by the Seller. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Article III hereof, that the
Company shall have received an undertaking reasonably satisfactory to it from
the prospective seller of such Registrable Securities or any underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 4.1) the Company and all other prospective sellers or any
underwriter, as the case may be, with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by such seller or underwriter
specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment
or supplement, or a document incorporated by reference into any of the
foregoing. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or any of the
prospective sellers, or any of their respective Affiliates, directors,
officers or controlling Persons and shall survive the transfer of securities
by any seller. In no event shall the liability of any selling Stockholder
hereunder be greater in amount than the dollar amount of the proceeds
received by such Stockholder upon the sale of the Common Stock giving rise to
such indemnification obligation.
SECTION 4.3 Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any
Action with respect to which a claim for indemnification may be made pursuant
to this Article IV, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of such Action; provided, that the failure of
the indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Article IV, except to the extent
that the indemnifying party is materially prejudiced by such failure to give
notice. In case any such Action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such Action, the indemnifying party will be entitled to participate in and to
assume the defense thereof (at its expense), jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party will settle any Action or consent to
the entry of any judgment without the prior written consent of the
indemnified party, unless such settlement or judgment (i) includes as an
unconditional term thereof the giving by the claimant or plaintiff of a
release to such Indemnified Party from all liability in respect of such
Action and (ii) does not involve the imposition of equitable remedies or the
imposition of any obligations on such indemnified party and does not
otherwise adversely affect such indemnified party, other than as a result of
the imposition of financial obligations for which such indemnified party will
be indemnified hereunder.
SECTION 4.4 Contribution. (a) If the indemnification provided for
in this Article IV from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any Actions, losses, damages,
liabilities or expenses referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Actions,
losses, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and indemnified party
in connection with the actions which resulted in such Actions, losses,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party under this Section 4.4 as a
result of the Actions, losses, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any Action.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in Section 4.4(a). No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
SECTION 4.5 Other Indemnification. Indemnification similar to
that specified in this Article IV (with appropriate modifications) shall be
given by the Company and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any
law or regulation or with any Governmental authority other than as required
by the Securities Act.
SECTION 4.6 Non-Exclusivity. The obligations of the parties under
this Article IV shall be in addition to any liability which any party may
otherwise have to any other party.
ARTICLE V
PARTICIPATION RIGHTS
SECTION 5.1 Participation Rights. (a) So long as this
Agreement shall remain in effect, the Company shall not issue (an "Issuance")
additional shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock to Blackstone unless, prior to
such Issuance, the Company notifies the Other Stockholders in writing of the
proposed Issuance and grants to the Other Stockholders the right (the
"Participation Right"), but not the obligation, to subscribe for and purchase
such additional shares of Common Stock or convertible, exercisable or
exchangeable securities, as the case may be, so issued at the same price and
upon the same terms and conditions as issued in the Issuance such that
immediately after giving effect to the Issuance and assuming the exercise of
the Participation Right, the shares of Common Stock beneficially owned on a
fully diluted basis by each of the Other Stockholders (rounded to the nearest
whole share) shall represent the same percentage of the aggregate number of
shares of Common Stock outstanding on a fully diluted basis as was
beneficially owned on a fully diluted basis by such Other Stockholder and its
Affiliates immediately prior to the Issuance.
(b) The Participation Right may be exercised by each of the Other
Stockholders at any time by written notice to the Company within 10 Business
Days after the date on which such Other Stockholder receives notice from the
Company of the proposed Issuance, and the closing of any purchase and sale
pursuant to the exercise of the Participation Right shall occur at least 10
Business Days after the Company receives notice of the exercise of the
Participation Right and prior to or concurrently with the closing of the
Issuance. Notwithstanding the foregoing, the Participation Right shall not
apply to (i) any Issuance to all holders of Common Stock on a pro rata basis
or (ii) any Issuance pursuant to a Public Offering.
ARTICLE VI
VOTING AGREEMENT
SECTION 6.1 Voting Agreement. (a) Each of the Other Stockholders
agrees to permit BCP CCI to vote all the Common Stock owned by such parties
from time to time. In that connection, each of Chase and Xxxx (i) have
executed and delivered to BCP CCI an irrevocable proxy substantially in the
form attached as Exhibit A hereto and (ii) shall require any Permitted
Transferee thereof, as a condition to the acquisition by any such Permitted
Transferee of any shares of Common Stock, to execute and deliver to BCP CCI
an irrevocable proxy substantially in the form attached as Exhibit A hereto.
To the extent that any such irrevocable proxy shall not be in full force and
effect, each of Chase and Xxxx agrees to (and to cause its respective
Permitted Transferees to) vote all of its Common Stock in the manner that BCP
CCI votes its shares of Common Stock from time to time on all matters
presented to stockholders of the Company for vote; provided BCP CCI notifies
such party regarding how BCP CCI will vote its shares of Common Stock.
(b) Each of the Other Stockholders hereby agrees that, except
pursuant to this Agreement or as otherwise consented to by BCP CCI, such
Shareholder shall not deposit any Common Stock into a voting trust, enter
into any voting agreement with respect to any Common Stock or grant any
proxies with respect to any Common Stock.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Additional Securities Subject to Agreement. Each
Stockholder agrees that any other shares of Common Stock which it shall
hereafter acquire (including, in the case of Chase, pursuant to the Warrant)
(but, in each case, other than pursuant to a Public Offering) and any
securities issued in respect of any shares of Common Stock, or in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization shall be subject to
the provisions of this Agreement. If any of the Stockholders is issued any
warrants, rights, calls, options or other securities exchangeable or
exercisable for or convertible into Common Stock, the parties agree to amend
this Agreement to the extent necessary to reflect such issuance in a manner
consistent with the terms and conditions hereof.
SECTION 7.2 BCP CommNet L.P. Each of the Stockholders agrees
that, subject to receipt of any necessary regulatory approvals (including any
approval of the Federal Communications Commission), each Stockholder shall
enter into an Agreement of Limited Partnership of BCP CommNet L.P. (the
"Partnership"), substantially in the form attached as Exhibit B hereto, and
shall contribute all shares of Common Stock then owned by such Stockholder in
exchange for a percentage of Class A partnership interests in the Partnership
equal to the proportionate number of shares of Common Stock such Stockholder
shall contribute to the Partnership relative to the aggregate number of
shares contributed to the Partnership by all of the Stockholders (the
"Contribution"). In connection with the Contribution and as a condition
thereto, the Company and the Partnership shall enter into a Registration
Rights Agreement, in form and substance reasonably satisfactory to
Blackstone, providing the Partnership with the same registration rights and
obligations with respect to any Common Stock owned by the Partnership from
time to time as the registration rights and obligations of Blackstone
hereunder.
SECTION 7.3 Termination. This Agreement shall terminate, and
thereby become null and void, upon the earlier of (i) the consummation of the
Contribution or (ii) the earliest date on which the Stockholders own
collectively less than 25% of the Common Stock then outstanding; provided,
that unless this Agreement is terminated pursuant to clause (i) above, the
provisions of Articles I, III, IV, VI and VII (other than Section 7.2) shall
survive until the Stockholders own collectively less than 3% of the Common
Stock then outstanding; and provided, further, that the provisions of
Sections 7.8 through 7.13, inclusive, shall survive the termination of this
Agreement.
SECTION 7.4 Injunctive Relief. The parties acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which adequate remedy at law is not
available. Accordingly, it is agreed that each Stockholder shall be entitled
to an injunction, restraining order or other equitable relief to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction, in
addition to any other remedy to which they may be entitled at law or equity.
SECTION 7.5 Other Stockholders' Agreements. None of the parties
hereto shall enter into, or has entered into, any stockholder agreement or
other arrangement of any kind with any Person with respect to shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock which is inconsistent with the provisions of this Agreement
or which may impair its ability to comply with this Agreement.
SECTION 7.6 Amendments; Waivers. (a) This Agreement may be
amended only by a written instrument signed by each Blackstone Partnership
and Permitted Transferee thereof, in each case that then owns Common Stock;
provided, that any amendment which adversely affects any Other Stockholder or
the Company or imposes an additional obligation on any Other Stockholder or
the Company must be approved in writing by such party.
(b) At any time, any party may (i) extend the time for the
performance of any of the obligations or other acts of the other parties or
(ii) waive compliance with any of the agreements contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of
such rights.
SECTION 7.7 Successors and Assigns. Except as provided in Section
2.2, neither this Agreement, nor any of the rights or obligations hereunder,
shall be assigned, in whole or in part, by any party hereto without the prior
written consent of the other parties hereto, except that Blackstone may
assign, in whole or in part, any of its rights and obligations hereunder to
any Person who acquires from Blackstone in one transaction or a series of
related transactions more than 10% of the then outstanding Common Stock.
Subject to the preceding sentence, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 7.8 Notices. Any notices or other communications required
or permitted hereunder shall be sufficiently given if delivered personally or
sent by telecopier, or overnight courier, addressed as follows or to such
other address of which the parties may have given notice:
To any of the Blackstone Partnerships:
Blackstone CCI Capital Partners X.X.
Xxxxxxxxxx CCI Offshore Capital Partners X.X.
Xxxxxxxxxx Family Investment Partnership II L.P.
c/o Blackstone Management Associates II L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx III, Esq.
Telecopy: (000) 000-0000
To Chase:
Chase Equity Associates, L.P.
c/o Chase Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
To Bain:
Sunapee Securities, Inc.
Squam Lake Investors, II, L.P.
c/o Bain & Company, Inc.
Two Xxxxxx Place
Boston, Massachusetts
Attention: Xxxx X. Xxxxxxxxx
Telecopy: 617-572-3266
To the Company:
CommNet Cellular Inc.
0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: 000-000-0000
With copies to:
Blackstone CCI Capital Partners L.P., Blackstone CCI Offshore Capital
Partners L.P., Blackstone Family Investment Partnership II L.P. and
Xxxxxxx Xxxxxxx & Xxxxxxxx, at their respective addresses set forth
above.
Unless otherwise specified herein, such notices or other communications shall
be deemed received (i) on the date delivered, if delivered personally or sent
by telecopier, and (ii) one business day after being sent by overnight
courier.
SECTION 7.9 Integration; No Third Party Beneficiaries. (a) This
Agreement (including the Exhibits hereto) and the documents referred to
herein, or delivered pursuant hereto, contain the entire understanding of the
parties with respect to the subject matter hereof and thereof. There are no
agreements, representations, warranties, covenants or undertakings with
respect to the subject matter hereof and thereof other than those expressly
set forth herein and therein. This Agreement supersedes all other prior
agreements and understandings between the parties with respect to such
subject matter.
(b) This Agreement, other than as provided in Section 7.13 or the
indemnification provisions of Article IV, is not intended to confer, and
shall not confer, upon any Person other than the parties any rights or
remedies.
SECTION 7.10 Severability. If one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
SECTION 7.11 Counterparts. This Agreement may be executed in two
or more counterparts, and by different parties on separate counterparts each
of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
SECTION 7.12 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York without regard to the conflicts of law
principles thereof. Each of the parties by its execution hereof hereby (i)
irrevocably submits to the jurisdiction of the federal and state courts
located in the Southern District of New York for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement or any
other agreement contemplated hereby or relating to the subject matter hereof
or thereof and (ii) waives to the extent not prohibited by applicable law,
and agrees not to assert by way of motion, as a defense or otherwise, that
its property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that any
right or remedy relating to this Agreement or any other agreement
contemplated hereby, or the subject matter hereof or thereof, may not be
enforced in or by such court. Each of the parties hereby consents to service
of process in any such proceeding in any manner permitted by the laws of the
State of New York, and agrees that service of process by registered or
certified mail, return receipt requested, at its address specified pursuant
to Section 7.8 hereof is reasonably calculated to give actual notice.
SECTION 7.13 No Recourse. (a) Notwithstanding anything that may
be expressed or implied in this Agreement, the Company and each Stockholder
covenant, agree and acknowledge that no recourse under this Agreement or any
documents or instruments delivered in connection with this Agreement, the
Merger Agreement or the Merger shall be had against any current or future
director, officer, employee, general or limited partner, member, Affiliate,
agent or assignee of Blackstone or of any of the foregoing (except, in the
case of an assignee of a Stockholder hereunder, to the extent provided in
Section 7.7), whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred
by any current or future director, officer, employee, general or limited
partner, member, Affiliate or assignee of Blackstone or of any of the
foregoing (except, in the case of an assignee of a Stockholder hereunder, to
the extent provided in Section 7.7) as such for any obligation of Blackstone
under this Agreement or any documents or instruments delivered in connection
with this Agreement, the Merger Agreement or the Merger for any claim based
on, in respect of or by reason of such obligations or their creation.
(b) Notwithstanding anything that may be expressed or implied in
this Agreement, the Company and each Stockholder covenant, agree and
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement, the Merger Agreement
or the Merger shall be had against any current or future director, officer,
employee, general or limited partner, member, Affiliate, agent or assignee of
Chase or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7), whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to, be imposed on or otherwise be incurred by any current or future director,
officer, employee, general or limited partner, member, Affiliate or assignee
of Chase or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7) as such for any
obligation of Chase under this Agreement or any documents or instruments
delivered in connection with this Agreement, the Merger Agreement or the
Merger for any claim based on, in respect of or by reason of such obligations
or their creation.
(c) Notwithstanding anything that may be expressed or implied in
this Agreement, the Company and each Stockholder covenant, agree and
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement, the Merger Agreement
or the Merger shall be had against any current or future director, officer,
employee, general or limited partner, member, Affiliate, agent or assignee of
Bain or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7), whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to, be imposed on or otherwise be incurred by any current or future director,
officer, employee, general or limited partner, member, Affiliate or assignee
of Bain or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7) as such for any
obligation of Bain under this Agreement or any documents or instruments
delivered in connection with this Agreement, the Merger Agreement or the
Merger for any claim based on, in respect of or by reason of such obligations
or their creation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
BLACKSTONE CCI CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.,
as General Partner
By: /s/ Xxxx X. Xxxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxxx
Title: Member
BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.,
as General Partner
By: /s/ Xxxx X. Xxxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxxx
Title: Member
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II
L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II
L.L.C., as General Partner
By: /s/ Xxxx X. Xxxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxxx
Title: Member
CHASE EQUITY ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
SUNAPEE SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
______________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
SQUAM LAKE INVESTORS, II, L.P.
By: GPI, INC., as General Partner,
By: /s/ Xxxx X. Xxxxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
COMMNET CELLULAR INC.
By: /s/ Xxxxxx X. Xxxx
______________________________
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
Exhibit A
IRREVOCABLE PROXY
By its execution hereof and in accordance with Section 6.1 of the
Stockholders Agreement dated as of February 10, 1998, among Blackstone CCI
Capital Partners L.P. ("BCP CCI"), CommNet Cellular Inc. (the "Company"), the
undersigned and the other parties thereto (the "Agreement"), the undersigned
hereby irrevocably constitutes and appoints BCP CCI and any designee of BCP
CCI and any successors and assigns of BCP CCI as its true and lawful
attorney-in-fact and proxy, to: (i) vote all shares of Common Stock (as
defined in the Stockholders Agreement) which the undersigned may be entitled
to vote from time to time upon the election of directors or any other matter
at any annual or special meeting of stockholders of the Company; (ii) to
execute written consents in lieu of voting with respect to the election of
directors or any other matter at any annual or special meeting of
stockholders of the Company; and (iii) to execute, acknowledge, swear to and
file in the undersigned's name, place and stead any consent, approval or
other document to be executed by stockholders in connection with any item in
clause (i) or (ii). The proxy granted hereby shall terminate upon the
termination of Article VI of the Agreement. The proxy hereby granted is
irrevocable and shall be deemed coupled with an interest and it shall survive
the undersigned's insolvency. The undersigned shall take such further action
and shall execute such other instruments as may be necessary to effectuate
the intent of this proxy and hereby revokes any proxy previously granted by
the undersigned with respect to all share of Common Stock owned by the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable
Proxy this __ day of February, 1998.
[STOCKHOLDER]
By: ________________________
Name:
Title:
