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Exhibit 10.36
JOINDER AGREEMENT
TO SPECTRASITE
RESTATED REGISTRATION RIGHTS AGREEMENT
January 5, 2000
To the several persons listed as Apex Stockholders on the Signature pages
hereto:
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated
Registration Rights Agreement dated April 20, 1999 among SpectraSite Holdings,
Inc. (the "Company"), the WCAS Purchasers, the Whitney Purchasers, the CIBC
Purchasers and the Additional Purchasers, including TPC, each as defined therein
(such agreement being referred to herein as the "Existing Registration Rights
Agreement" and the Purchasers thereunder being referred to as the "Existing
Holders"). Reference is also made to that certain Merger Agreement and Plan of
Reorganization, dated as of November 24, 1999, as amended (the "Merger
Agreement"), among the Company, Apex Site Management Holdings, Inc. ("Apex"),
and Apex Merger Sub, Inc., pursuant to which the stockholders of Apex listed on
the signature pages hereto (the "Apex Stockholders") will be entitled to become
stockholders of the Company. The Company and each of the Apex Stockholders who
executes and delivers this Joinder Agreement agree as follows:
1. By executing this Joinder Agreement, subject to the terms
and conditions set forth herein, (a) you will become a party to the Existing
Registration Rights Agreement as a holder of "Apex Restricted Stock" (as defined
below), (b) the Common Stock received by you pursuant to the Merger Agreement,
including the Buyer Shares, Holdback Shares, and Additional Buyer Shares (each
as defined in the Merger Agreement) received by you thereunder (the "Apex
Restricted Stock") shall be treated as "Restricted Stock" as that term is used
in the Existing Registration Rights Agreement for all purposes thereof, and (c)
you will be entitled to all of the benefits of and subject to all of the
obligations of a holder of "Restricted Stock" under the Existing Registration
Rights Agreement as if you had been an original party thereto.
2. Notwithstanding anything to the contrary in Paragraph 1
above, the Company and each of the Apex Stockholders acknowledge and agree that
neither the Apex Stockholders nor the Apex Restricted Stock are subject to,
limited by, or entitled to the benefits under, the Stockholders' Agreement
referred to in the Existing Registration Rights Agreement (the "Stockholders'
Agreement"). Without limiting the generality of the preceding sentence, the
Company acknowledges and agrees that the registration of shares of Apex
Restricted Stock pursuant to Section 4, 5 or 6 of the Existing Registration
Rights Agreement is not subject to the transfer restrictions and other
provisions of Section 2 of the Stockholders' Agreement.
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3. For purposes of Section 4 of the Existing Registration
Rights Agreement, it is understood that in measuring the 25% threshold, all
shares of Restricted Stock currently outstanding and subject to the Existing
Registration Rights Agreement (including the Preferred Stock as provided
therein) and all shares of Apex Restricted Stock shall be taken into account.
4. For purposes of Section 5 of the Existing Registration
Rights Agreement, the following Apex Stockholders shall be treated as
"Institutional Investors": ▇▇▇▇▇▇-▇▇▇▇▇▇ Media Partners, L.P., Mellon Ventures,
Inc., and Spectrum Equity Investors, L.P.
5. The Company represents and warrants to the undersigned as
follows:
(a) The Company has full corporate power and
authority to execute and deliver this Joinder Agreement and to perform its
obligations hereunder. This Joinder Agreement constitutes the valid and
legally binding obligation of the Company, enforceable in accordance with its
terms and conditions, subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect affecting creditors'
rights generally. The Company does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any other
party in order to consummate the transactions contemplated by this Joinder
Agreement other than such notices, filings, authorizations, consents and
approvals as have been obtained.
(b) Neither the execution and the delivery of
this Joinder Agreement, nor the consummation of the transactions
contemplated hereby, (i) violate any injunction, judgment, order, decree,
ruling, charge, or other restriction of any governmental authority to which the
Company is subject or any provision of its charter or bylaws or (ii) other than
such notices, filings, authorizations, consents and approvals as have been
obtained and after giving effect to them, violate, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which the Company is a party or by which it is bound or to which any of its
assets is subject.
6. Consistent with the Lock-Up Agreement that you will be
required to execute in connection with the Company's "initial public offering"
(which Lock-Up Agreement will contain terms no less favorable to you than the
terms of the lock-up agreements signed by the other holders of the Company's
common stock in connection with the Company's "initial public offering"), your
incidental registration rights under Section 6 of the Existing Registration
Rights Agreement may not be exercised in connection with the Company's "initial
public offering" or at any time during the lock-up period.
7. Notices, requests, consents and other communications mailed
pursuant to Section 13(c) of the Existing Registration Rights Agreement, if
mailed to the Apex Stockholders, shall be mailed to them at
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Apex Site Management Holdings, Inc.
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Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Shareholder Representatives
with a copy to:
Kleinbard ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
8. This Joinder Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of law of such state.
9. This Joinder Agreement, together with the Existing
Registration Rights Agreement as modified hereby, constitutes the entire
agreement of the parties with respect to the subject matter hereof. Hereafter,
the Joinder Agreement shall be deemed part of and incorporated into the Existing
Registration Rights Agreement, and the Existing Registration Rights Agreement
(including this Joinder Agreement) may be modified or amended only in accordance
with Section 13(e) of the Existing Registration Rights Agreement, taking into
account the Apex Restricted Stock then outstanding in measuring the 60%
threshold provided therein, except that any modification or amendment that
adversely affects the rights or privileges of the Apex Stockholders and does not
affect the other holders of Restricted Stock and Management Stock in a
substantially similar manner shall require the consent of either the Stockholder
Representatives on behalf of the Apex Stockholders (if then authorized to act on
behalf of the Apex Stockholders) or not less than 50% of the voting power of the
Apex Restricted Stock then outstanding.
10. This Joinder Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called the "Joinder Agreement") shall be a binding agreement
between the Company and you.
Very truly yours,
SPECTRASITE HOLDINGS, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
[COUNTERSIGNATURES NEXT PAGE]
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[SIGNATURE PAGE TO APEX REGISTRATION RIGHTS JOINDER AGREEMENT]
AGREED TO AND ACCEPTED
as of January 4, 2000
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, JTWROS
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, JTWROS
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/s/▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇▇▇ Broker
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▇▇▇▇▇▇ Broker
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MELLON VENTURES, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
G3 VENTURES, INC.
By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇-▇▇▇▇▇▇ MEDIA PARTNERS, L.P.
By: /s/▇▇▇▇▇▇-▇▇▇▇▇▇ Media, LLC
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Its General Partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
SPECTRUM EQUITY INVESTORS, L.P.
By: Spectrum Equity Associates, L.P.,
Its General Partner
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its General Partner
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APEX SGP, Inc.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
/s/R. ▇▇▇▇▇ ▇▇▇▇▇▇
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R. ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇, JTWROS
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▇▇▇▇▇ ▇▇▇▇▇, JTWROS
S.R.Y. CAPITAL CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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BEACH REALTY ASSOCIATES
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Representative
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