EXHIBIT 4.1
FIRST AMENDMENT TO
SECURITYHOLDERS AGREEMENT
THIS FIRST AMENDMENT TO SECURITYHOLDERS AGREEMENT (this "Amendment") is
made and entered into as of _________, 2006 by and among Windstream Corporation
(f.k.a. Valor Communications Group, Inc.) (the "Company") and the Investors
signatory hereto.
WHEREAS, the Company and the Investors entered into that certain
Securityholders Agreement (the "Securityholders Agreement"), dated as of
February 14, 2005;
WHEREAS, the Company entered into an Agreement and Plan of Merger,
dated as of December 8, 2005, by and among Alltel Corporation, Alltel Holding
Corp. ("Spinco") and the Company (the "Merger Agreement"), pursuant to which
Spinco will merge with and into the Company upon the terms and subject to the
conditions set forth in the Merger Agreement (the "Merger"); and
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Merger Agreement, the Company and certain Investors agreed
to amend the terms of the Securityholders Agreement as set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Securityholders
Agreement.
2. Amendments. Effective simultaneously with the consummation of the
Merger, Securityholders Agreement is hereby amended as follows:
(A) Section 1 of the Securityholders Agreement is hereby amended
as follows:
(I) the definitions of "Company Offering," "Delay
Notice," "Information Delay Notice," "Shelf
Registration Statement," and "Transaction Delay
Notice" are hereby deleted in their entirety and
replaced with the following:
"Company Offering" shall have the meaning set forth
in Section 4(c) hereof.
"Delay Notice" shall have the meaning set forth in
Section 4(c) hereof.
"Information Delay Notice" shall have the meaning set
forth in Section 4(a) hereof.
"Shelf Registration Statement" shall have the meaning
set forth in Section 4(a) hereof.
"Transaction Delay Notice" shall have the meaning set
forth in Section 4(c) hereof.
(II) the following definitions are hereby added to Section
1 of the Securityholders Agreement:
"Merger" shall mean the merger of Alltel Holding
Corp. with and into the Company pursuant to the
Merger Agreement.
"Merger Agreement" shall mean that certain Agreement
and Plan of Merger, dated as of December 8, 2005, by
and among the Company, Alltel Corporation and Alltel
Holding Corp.
"Underwritten Offering" shall have the meaning set
forth in Section 4(b) hereof."
(III) the following definitions are hereby deleted from
Section 1 of the Securityholders Agreement:
"Long-Form Registrations"
"Short-Form Registrations"
"Threshold Amount"
"Vestar Designee"
"Welsh Designee"
(B) Section 4 of the Securityholders Agreement is hereby amended
by deleting such Section in its entirety and substituting in
lieu thereof the following:
"4. Shelf Registration; Underwritten Offerings;
(a) Shelf Registration.
(i) Filing of Shelf Registration Statement. As soon as
practicable after the consummation of the Merger, the Company
shall, at its cost, prepare and file and use its reasonable
best efforts to cause to be declared effective a shelf
registration statement pursuant to Rule 415 of the Securities
Act (the "Shelf Registration Statement") covering all of the
Registrable Securities held by the Investors. The Company
shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 7 hereof
to the extent necessary to ensure that it is available for
resales of the Registrable Securities by the holders thereof
entitled to benefit
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from this Section 4(a), and to ensure that it conforms to the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, for a continuous period until the earlier
to occur of (i) the second anniversary of the effectiveness of
the Shelf Registration Statement (extended as may be necessary
to compensate for any periods during which sales of
Registrable Securities are suspended under the Shelf
Registration Statement as provided in this Agreement) or (ii)
the date on which each of the Welsh Investors and the Vestar
Investors may sell all of their respective Registrable
Securities without regard to volume limitation pursuant to
Rule 144 of the Securities Act.
(ii) Suspension of the Shelf Registration Statement. The
Company may suspend sales under the Shelf Registration
Statement if the Company determines in its good faith judgment
after consultation with its securities counsel that the filing
of an amendment or supplement to the Shelf Registration
Statement is necessary in order to effect resales pursuant to
the Shelf Registration Statement and such filing would require
disclosure of material non-public information which the
Company has a bona fide business purpose for preserving as
confidential and the Company provides the Investors written
notice (the "Information Delay Notice") thereof promptly after
the Company makes such determination, the Company may suspend
resales of Registrable Securities under the Shelf Registration
Statement for up to 75 days. Notwithstanding the foregoing,
with respect to suspensions of resales of Registrable
Securities under the Shelf Registration Statement described
above (x) the Company shall use its reasonable best efforts to
cause to be terminated as soon as it is practicable, any such
period under which sales of Registrable Securities are
suspended under the Shelf Registration Statement and (y) the
Company shall not deliver more than one Information Delay
Notice within any period of 180 consecutive days.
(iii) Notice Requirement. Not more than four (4) business days
nor less than two (2) business days prior to effecting any
sale of Registrable Securities under the Shelf Registration
Statement representing in excess of 0.25% of the Company's
then outstanding common stock on a fully diluted basis, the
Welsh Investors shall provide written notice to the Company of
their intention to effect such sale.
(b) Underwritten Offering.
(i) Request for Underwritten Offering. At any time after the
90th day following the consummation of the Merger, the holders
of at least 50% of the outstanding Registrable Securities
initially held by the Welsh Investors, the Vestar Investors
and their respective affiliates (the "Requesting Party") may
request the Company effect an underwritten offering under the
Shelf Registration Statement of all or any portion of the
Registrable Securities held by the Requesting Party (an
"Underwritten Offering"). The Requesting Party shall be
entitled to request up to one (1) Underwritten Offering
pursuant to this Section
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4(b); provided that the Company's obligation with respect to
any such Underwritten Offering shall be deemed satisfied only
when 75% of the Registrable Securities of the Requesting Party
specified in such notice and of any other party that has
requested pursuant to Section 4(b)(ii) below that its
Registrable Securities be included in such Underwritten
Offering shall have been sold pursuant thereto.
(ii) Participation by Other Investors in an Underwritten
Offering; Procedure. Promptly following receipt of any notice
under this Section 4 from any Requesting Party, the Company
shall immediately notify the other Investors and shall use its
reasonable best efforts to include in such Underwritten
Offering the number of Registrable Securities specified in any
notice received from such requesting Investors (and in any
notices received from such Investors within 20 days after
notice from the Company), in each case subject to Section 4(c)
below.
(iii) Designation of Managing Underwriter. The Board may
designate the managing underwriter of an offering pursuant to
this Section 4(b), such underwriter to be reasonably
acceptable to the Majority Sellers.
(c) Certain Restrictions.
(i) Notwithstanding anything in this Section 4 to the
contrary, the only securities that the Company shall be
required to register pursuant to this Section 4 shall be
Registrable Securities.
(ii) If, upon receipt of a request pursuant to Section 4(b),
the Company is advised in writing by a nationally recognized
investment banking firm in the United States selected by the
Company that, in such firm's opinion, an Underwritten Offering
by the Company at the time and on the terms requested would
adversely affect any public offering of securities of the
Company (other than in connection with employee benefit and
similar plans) (a "Company Offering") with respect to which
the Company has commenced preparations for a registration
prior to the receipt of a registration request pursuant to
Section 4(b) and the Company furnishes the Investors with a
certificate signed by the Chief Executive Officer or Chief
Financial Officer of the Company to such effect (the
"Transaction Delay Notice" and, together with any Information
Delay Notice, a "Delay Notice") promptly after such request,
the Company shall not be required to effect a registration
pursuant to Section 4(b) until the earliest of (i) 30 days
after the completion of such Company Offering, (ii) promptly
after the abandonment of such Company Offering or (iii) 120
days after the date of the Transaction Delay Notice; provided
that in any event the Company shall not be required to effect
any Underwritten Offering prior to the termination, waiver or
reduction of any "blackout period" required by the
underwriters to be applicable to the Investors in connection
with any Company Offering; and provided further that in no
event shall the Company delay such Underwritten Offering for
more than 180 days.
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(iii) If upon receipt of a request pursuant to Section 4(b) or
while a request pursuant to Section 4(b) is pending, the
Company delivers an Information Delay Notice to the Investors,
the Company shall not be required to comply with its
obligations under Section 4(b) until the earlier of (i) the
date upon which such material information is disclosed to the
public or ceases to be material or (ii) 75 days after the
Investors' receipt of such notice.
(iv) Notwithstanding the foregoing provisions of this Section
4(c), the Company shall be entitled to serve only one Delay
Notice within any period of 180 consecutive days."
(C) Section 5 of the Securityholders Agreement is hereby amended
by deleting the final sentence of such Section in its entirety
and substituting in lieu thereof the following:
"If the method of disposition of any such registration shall
be an underwritten public offering and the managing
underwriter advises the Company in writing that the number of
securities requested to be included in such offering exceeds
the number of securities which can be sold therein without
adversely affecting the marketability of the offering, the
Company will include in such registration, as may be
determined by the managing underwriters: (A) first, all the
securities which the Company proposes to sell for its own
account, and (B) second, the Registrable Securities and any
other securities requested to be included in such
registration, pro rata among the holders of such Registrable
Securities or other securities, based on the number of such
Registrable Securities or other securities which they own."
(D) Section 6(a) of the Securityholders Agreement is hereby
amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"(a) As may be required by the managing underwriter of an
underwritten registration of securities of the Company
pursuant to the Securities Act, in its sole discretion, the
Welsh Investors and the Vestar Investors shall not effect any
public sale or distribution (including sales pursuant to Rule
144) of Registrable Securities for the lesser of (i) the
period from seven days prior to and 90 days following the
effective date of any such underwritten registration of
securities of the Company (or, in the case of an underwritten
offering of shares pursuant to an effective shelf registration
statement (other than the Shelf Registration Statement), the
seven days prior to and 90 days following the time such
offering is to commence) and (ii) the period of time required
by the managing underwriter of such underwritten registration,
provided that the Welsh Investors and the Vestar Investors
shall not be subject to the restrictions contained in this
Section 6(a) more than once in any period of 180 consecutive
days."
(E) Section 6 of the Agreement is hereby amended to include the
following subsection (c):
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"(c) Notwithstanding anything to the contrary set forth
herein, for a period of 90 days following the consummation of
the Merger, the Welsh Investors shall not, without the prior
written consent of the Company, directly or indirectly sell,
contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or
transfer, or enter into any swap or other agreement or
transaction that transfers, in whole or in part, the economic
consequences of ownership of, any Registrable Securities
(including any transfer under the Shelf Registration
Statement). The foregoing restrictions, however, shall not
apply to any transfers (i) as a bona fide gift or gifts; (ii)
to any trust for the direct or indirect benefit of the Welsh
Investors (or any limited partner or stockholder of any Welsh
Investor) or the immediate family of the Welsh Investors (or
any limited partner of stockholder of any Welsh Investor);
(iii) as a distribution to limited partners or stockholders of
any Welsh Investor; or (iv) to any Welsh Investor's affiliates
or to any investment fund or other entity controlled or
managed by the such Welsh Investor; provided that in any such
case, prior to such transfer, the Company shall receive a
signed agreement from such transferee agreeing to the
restrictions set forth above for the balance of the 90 day
period, as well as the other provisions of this Agreement, and
an opinion of counsel, reasonably satisfactory to the Company,
that such transfer is exempt from registration under the
Securities Act. For purposes of this Agreement, "immediate
family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. The Welsh
Investors also agree and consent to the entry of stop transfer
instructions with the Company's transfer agent and registrar
against the transfer of the Registrable Securities except in
compliance with the foregoing restrictions."
(F) Section 7 of the Securityholders Agreement is hereby amended
as follows:
(I) The first sentence of Section 7 of the
Securityholders Agreement is hereby amended by
deleting such sentence in its entirety and
substituting in lieu thereof the following:
"If and whenever the Company is required to effect or cause
the registration of any Registrable Securities or an
Underwritten Offering of such securities under the Securities
Act as provided in this Agreement, the Company will, as
expeditiously as possible:"
(II) Section 7(a) of the Securityholders Agreement is
hereby amended by deleting such section in its
entirety and substituting in lieu thereof the
following:
"(a) use its reasonable best efforts to prepare and file with
the Commission a registration statement or prospectus on any
form for which the Company then qualifies or which counsel for
the Company shall deem appropriate, and which form shall be
available for the sale of the Registrable Securities in
accordance with the intended methods of distribution thereof,
and use its reasonable best efforts to cause such registration
statement to become and remain effective as
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promptly as practicable; provided that before filing with the
Commission a registration statement or any amendments or
supplements thereto, the Company will (i) furnish to the
selling Investors copies of the form of prospectus (including
the preliminary prospectus) proposed to be filed and furnish
to counsel for the selling Investors copies of all such
documents proposed to be filed, which documents will be
subject to the review of such counsel and, in the case of any
registration hereunder other than an incidental registration
pursuant to Section 5, shall not be filed without the approval
of such counsel (which approval shall not be unreasonably
withheld, conditioned or delayed) and (ii) notify the selling
Investors of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered."
(III) Section 7(b) of the Securityholders Agreement is
hereby amended by deleting such section in its
entirety and substituting in lieu thereof the
following:
"(b) [RESERVED]"
(IV) Section 7(e) of the Securityholders Agreement is
hereby amended by adding the word "reasonable" prior
to the words "best efforts" appearing on the first
line thereof.
(V) Section 7(j) of the Securityholders Agreement is
hereby amended by adding the word "reasonable" prior
to the words "best efforts" appearing on the first
line thereof.
(VI) Section 7(k) of the Securityholders Agreement is
hereby amended by adding the parenthetical "(in the
case of an Underwritten Offering)" to the end of such
Section.
(VII) Section 7(m) of the Securityholders Agreement is
hereby amended by adding the word "reasonable" prior
to the words "best efforts" appearing on the first
line thereof.
(VIII) Section 7(n) of the Securityholders Agreement is
hereby amended by adding the word "reasonable" prior
to the words "best efforts" appearing on the first
line thereof.
(G) Section 9 of the Securityholders Agreement is hereby amended
by deleting such Section in its entirety and substituting in
thereof the following:
"9. [RESERVED]"
(H) Section 13 of the Securityholders Agreement is hereby amended
to include the following subsection (q):
"(q) Term. This Agreement, including the Company's obligation
to maintain the Shelf Registration Statement and all rights of
holders thereunder, shall
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terminate effective upon the earlier to occur of the (A)
second anniversary of the effectiveness of the Shelf
Registration Statement (extended as may be necessary to
compensate for any periods during which sales of Registrable
Securities are suspended under the Shelf Registration
Statement as provided in this Agreement) or (B) the date on
which all Registrable Securities can be sold without regard to
volume limitations or manner of sale restrictions pursuant to
Rule 144 promulgated under the Securities Act."
3. No Other Amendments. Except for the amendments expressly set forth and
referred to in Section 2 hereof, the Securityholders Agreement shall
remain unchanged and in full force and effect. In the event that the
Merger Agreement is terminated for any reason, then this Amendment will
be of no force or effect and the Securityholders Agreement will not be
amended by any of the amendments set forth in Section 2 hereof.
4. Entire Agreement. The Securityholders Agreement, as amended by this
Amendment, constitutes the entire agreements and understandings of the
parties hereto in respect of the subject matter contained herein, and
there are no restrictions, promises, representations, warranties,
covenants, or undertakings with respect to the subject matter hereof,
other than those expressly set forth or referred to herein. The
Securityholders Agreement, as amended by this Amendment, supersedes all
prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
5. Applicable Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware without
regard to principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required
thereby.
6. Severability. The invalidity, illegality or unenforceability of one or
more of the provisions of this Amendment in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of
this Amendment in such jurisdiction or the validity, legality or
enforceability of this Amendment, including any such provision, in any
other jurisdiction, it being intended that all rights and obligations
of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
7. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same Amendment.
8. Headings. The headings and captions contained herein are for
convenience of reference only and shall not control or affect the
meaning or construction of any provision hereof.
*****
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IN WITNESS WHEREOF the parties have executed this Amendment as of the
day and year first written above.
VALOR COMMUNICATIONS GROUP, INC.
By:
----------------------------------------
Name:
Title:
INVESTORS:
WCA Management Corporation
The Xxxxxxx Xxxxx 2004 Irrevocable Trust
Xxxxxxx X. Xxxxxx
The Xxxxx X. Xxxxxxxx 2004 Irrevocable
Trust
Xxxxxx X. Xxxx
Xxxxxxxxx Holdings, L.P.
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Municucci
Xxxxxxx X. xxXxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxxx, Xx.
Xxxxxx Xxxxx
Xxxx Xxx
Xxxxxxxx X. Rather
By:
----------------------------------------
Xxxxxxxx X. Rather, Individually and as
Attorney-in-Fact
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WELSH XXXXXX XXXXXXXX & XXXXX IX, L.P.
By: WCAS IX Associates LLC,
Its: General Partner
By:
----------------------------------------
Name:
Title:
WCAS IX ASSOCIATES LLC
By:
----------------------------------------
Name:
Title:
WCAS IX ASSOCIATES LLC
as agent for Participating LP's
By:
----------------------------------------
Name:
Title:
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS III Associates LLC,
Its: General Partner
By:
----------------------------------------
Name:
Title:
00
XXXXX XXXXXX XXXXXXXX & XXXXX XXXX, L.P.
By: WCAS VIII Associates LLC,
Its: General Partner
By:
----------------------------------------
Name:
Title:
WCAS VIII ASSOCIATES LLC
By:
----------------------------------------
Name:
Title:
WCAS VIII ASSOCIATES LLC
as agent for Participating LP's
By:
----------------------------------------
Name:
Title:
VESTAR CAPITAL PARTNERS III, L.P.
By: Vestar Associates III, L.P.
Its: General Partner
By: Vestar Associates Corporation III
It's: General Partner
By:
----------------------------------------
Name:
Title:
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VESTAR CAPITAL PARTNERS IV, L.P.
By: Vestar Associates IV, L.P.
Its: General Partner
By: Vestar Associates Corporation IV
Its: General Partner
By:
----------------------------------------
Name:
Title:
VESTAR/VALOR, LLC
By: Vestar Associates IV, L.P.
Its: Managing Member
By: Vestar Associates Corporation IV
Its: General Partner
By:
----------------------------------------
Name:
Title:
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