EXHIBIT 10.10
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement") dated as of March 5,
1998 is made by and among American Cellular Corporation, a Delaware corporation,
and the parties listed on Exhibit A to this Agreement (collectively, the
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"Stockholders").
RECITALS
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The parties hereto have entered into a Stock Purchase Agreement (the
"Stock Purchase Agreement") dated as of March 5, 1998 with respect to the
purchase by the Stockholders of Shares and Preferred Shares (each as defined
below). The parties hereto desire to provide for certain transfer restrictions
and rights and board election rights with respect to the shares of capital stock
of the Company (as defined below) held by the Stockholders, as well as certain
other matters, all according to the terms of this Agreement.
AGREEMENT
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NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions.
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As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Affiliate" shall mean, with respect to any Person, a Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For the purposes of such definitions, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change of Control" shall mean (i) any sale, Transfer or other
conveyance, whether direct or indirect, of a majority of the fair market value
of the assets of the Company, in one transaction or a series of related
transactions, to any "person" or "group" (as such terms are used for purposes of
Section 13(d) of the Exchange Act, whether or not applicable), (ii) any "person"
or "group" (as such terms are used for purposes of Section 13(d) of the Exchange
Act, whether or not applicable) is or becomes the "beneficial owner," directly
or indirectly, of more than 50% of the total equity in the aggregate of all
classes of capital stock of the Company then outstanding normally entitled to
vote in elections of directors, or (iii) during any period of 12 consecutive
months after an Initial Public Offering, individuals who at the beginning of any
such 12-month period constituted the Board (together with any new directors
whose election by such Board or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board then in office. The Merger shall
not constitute a Change of Control.
(d) "Charter Documents" shall mean the Company's Certificate of
Incorporation and Bylaws.
(e) "Company" shall mean American Cellular Corporation, a Delaware
corporation, and any corporation into which it is merged or consolidated,
including the surviving corporation in the Merger.
(f) "Convertible Securities" shall mean (i) any indebtedness or
securities of the Company, convertible into or exchangeable for Shares, and (ii)
any rights, warrants or options to subscribe for or purchase Shares.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Initial Public Offering" shall mean the initial sale of shares of
the Company's Common Stock to the public pursuant to a registration statement
under the Securities Act which has been declared effective by the Securities and
Exchange Commission (other than a registration statement on Form S-8 or Form S-4
or any successor to such Form, or any other similar form) which results in an
active trading market in shares of Common Stock.
(i) "Merger" shall mean the merger of the Company with and into
PriCellular Corporation, a Delaware corporation ("PCC"), pursuant to the Merger
Agreement.
(j) "Merger Agreement" shall mean the Agreement and Plan of Merger to
be entered into between the Company and PCC, which provides, among other things,
for a merger price of $14.00 per share of the common stock of PCC.
(k) "New Securities" shall mean any Shares or Convertible Securities,
whether now authorized or not; provided that "New Securities" shall not include:
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(i) Shares issuable upon exercise or conversion of any previously issued
options, warrants, rights or securities convertible or exchangeable for Shares;
(ii) securities offered by the Company to the public generally pursuant to a
registration statement under the Securities Act; (iii) securities issued
pursuant to the acquisition of a business, whether pursuant to a merger,
consolidation, the purchase of assets or otherwise; (iv) any securities issued
to the officers, directors, employees or consultants of the Company as approved
by the Board (other than any officer, director or employer who is an affiliate
of any Stockholder); (v) Shares issued in connection with any stock split,
reclassification, recapitalization or stock dividend of the Company; (vi) Shares
or Convertible Securities issued to commercial lenders, investment banking firms
or other institutions for services rendered in connection with a debt financing
for the Company or it Affiliates.
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(l) "Outstanding Voting Shares" shall mean, with respect to a
particular matter, the aggregate of all shares of the Company's capital stock
outstanding from time to time which pursuant to the Charter Documents are
entitled to vote on such matter.
(m) "Permitted Transfer" shall mean (i) a Stockholder's Transfer to
the Company of Shares or Preferred Shares or a direct or indirect interest in
Shares or Preferred Shares pursuant to a contractual right of repurchase granted
by the Company at the time such Shares or Preferred Shares were issued; (ii) a
Stockholder's Transfer of all or a portion of its Shares or Preferred Shares to
any Affiliate of such Stockholder or any Person that is a successor to such
Stockholder by merger, consolidation, reorganization or transfer of all, or
substantially all, of its assets; or (iii) if a Stockholder is a partnership,
such Stockholder's Transfer of all or a portion of its Shares or Preferred
Shares to any of its partners.
(n) "Person" shall mean any individual, partnership, limited liability
company, corporation, joint venture, trust, unincorporated organization, or any
other entity, or a government or any department, agency or political subdivision
thereof.
(o) "Preferred Shares" shall mean the shares of Series A Preferred
Stock of the Company.
(p) "Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
(q) "Shares" means shares of Class A Common Stock, par value $0.01 per
share, of the Company.
(r) "Transfer" means any direct or indirect transfer, sale,
assignment, pledge, hypothecation or other disposition.
2. Right of Co-Sale.
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2.1. Definition. In the event that a Stockholder or Stockholders holding
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Shares or Preferred Shares which represent a majority of the Shares (or
Preferred Shares) then held by all Stockholders (the "Transferor") proposes to,
directly or indirectly, Transfer (in a single transaction or a series of related
transactions) a direct or indirect interest in Shares (or Preferred Shares)
owned by such Stockholders (the "Transferor Securities") to any Person or group
(as such term is used for purposes of Section 13(d) of the Exchange Act) for
value (the "Transferee"), each remaining Stockholders (a "Remaining
Stockholder") shall have a right of co-sale (the "Right of Co-Sale") to sell the
amount equal to a fraction, the numerator of which is the number of Shares (or
Preferred Shares) owned by such Remaining Stockholder and the denominator of
which is the aggregate number of Shares (or Preferred Shares) owned by all the
Stockholders, multiplied by the number of Shares (or Preferred
Shares)represented by the Transferor Securities (such product, the "Right of Co-
Sale Amount") on the same terms and at the same time as the Transferor, all as
described in this Section 2.
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2.2. Right of Co-Sale Amount. Each Remaining Stockholder shall have the
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right to sell that number of Shares (or Preferred Shares) held by such
Stockholder to the Transferee (or, upon the unwillingness of any Transferee to
purchase directly from such Stockholder, to the Transferor simultaneously with
the closing of the sale by the Transferor to the Transferee) up to its
respective Right of Co-Sale Amount determined as of the date the Transfer Notice
(as defined below) is delivered to the such Stockholder, upon the terms and
subject to the conditions pursuant to which the Transferor sells its Transferor
Securities to the Transferee.
2.3. Mechanics of Sale.
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(a) Exercise by the Stockholders.
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If the Transferor proposes to Transfer any Transferor Securities in a
transaction subject to this Section 2, then it shall promptly notify, or cause
to be notified, the Remaining Stockholders, in writing, of each such proposed
Transfer (the "Transfer Notice"). Such Transfer Notice shall set forth: (i) the
name of the Transferee and the number of Transferor Securities proposed to be
Transferred, and (ii) the proposed amount and form of consideration and terms
and conditions of payment offered by the Transferee (the "Transferee Terms").
The Right of Co-Sale may be exercised by the Remaining Stockholders delivering a
written notice to the Transferor (the "Co-Sale Notice") within thirty (30)
calendar days following receipt of the Transfer Notice. The Co-Sale Notice
shall state the number of Shares (or Preferred Shares) that each Remaining
Stockholder wishes to include in such Transfer to the Transferee, which number
may not exceed its Right of Co-Sale Amount. Upon the giving of a Co-Sale
Notice, a Stockholder shall be irrevocably obligated to sell the number of
Shares or (Preferred Shares) set forth in its Co-Sale Notice to the Transferee
(or the Transferor, if applicable) on the Transferee Terms.
(b) Assignment of Interest.
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If a Stockholder exercises its respective Co-Sale Rights, then the
Transferor shall assign to such Stockholder as much of its interest in the
agreement of sale with the Transferee as such Stockholder shall be entitled to,
and such Stockholder shall be obligated to provide the representations,
warranties and covenants to the Transferee reasonably equivalent to those
provided by the Transferor under such agreement of sale. To the extent that any
Transferee prohibits such assignment or otherwise refuses to purchase Shares (or
Preferred Shares) from a Stockholder exercising its Right of Co-Sale hereunder,
then the Transferor shall not sell to such Transferee any Transferor Securities
unless and until, simultaneously with such sale, the Transferor shall purchase
such Shares (or Preferred Shares) from such Stockholder for the same
consideration per share and on the same terms and subject to the same conditions
as the proposed Transfer described in the Transfer Notice.
(c) Failure to Exercise Right of Co-Sale; Additional Transfers.
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If no Stockholder elects to exercise its Right of Co-Sale, then the
Transferor may, not later than 60 calendar days following delivery to the
Remaining Stockholders of the Transfer Notice, conclude a Transfer of not less
than all of the Transferor Securities covered by the
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Transfer Notice on terms and subject to conditions not more favorable to the
Transferor than those described in the Transfer Notice. Any proposed Transfer of
more securities by the Transferor shall again be subject to the Right of Co-Sale
and shall require compliance by the Transferor with the procedures described in
this Section 2.
2.4. Exceptions to Right of Co-Sale. The Right of Co-Sale shall not apply
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to Permitted Transfers.
3. Drag-Along Right.
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3.1. In the event that a Stockholder or Stockholders holding Shares or
Preferred Shares which represent a majority of the Shares (or Preferred Shares)
then held by all Stockholders (the "Majority Stockholders") desire to pursue
discussions with any third party regarding a potential Transfer of all of the
Shares (or Preferred Shares) then held by the Majority Stockholders to such
third party at any time, the Majority Stockholders shall, prior to pursuing such
discussions, disclose to the Board their intentions with respect thereto.
3.2. In the event that the Majority Stockholders shall agree to Transfer,
in a bona fide arm's length transaction for value (either in a single
transaction or a series of related transactions), a direct or indirect interest
in all of the Shares (or Preferred Shares) owned by the Majority Stockholders to
any Person or "group" (as such term is used for purposes of Section 13(d) of the
Exchange Act) (the "Buyer"), which Buyer desires also to purchase all of the
Shares (or Preferred Shares) then owned by the Remaining Stockholders or their
successors or assigns for the same price per share as the Buyer contemplates
purchasing the Majority Stockholders' Shares (or Preferred Shares), the Majority
Stockholders shall notify the Remaining Stockholders and the Company in writing
(such notice, a "Drag-Along Notice") of its intention to effectuate such
contemplated transaction, setting forth in such Drag-Along Notice the identity
of the Buyer, the aggregate purchase price which the Buyer shall pay for all of
the Shares or Preferred Shares and the intended date on which such transaction
shall close; and the Remaining Stockholders shall, on the basis of such
notification, fully cooperate in such transaction and sell all of their Shares
or Preferred Shares to such Buyer, for the same price and otherwise in
accordance with identical terms and conditions as those on which the Majority
Stockholders shall sell their Shares or Preferred Shares to such Buyer. The
Drag-Along Notice shall be delivered no more than 90 nor fewer than 15 days
prior to the intended date of the closing of such transaction, and such
transaction shall not, in fact, close more than 270 calendar days after the
delivery of the Drag-Along Notice.
3.3. Exceptions to Drag-Along Right. The drag-along rights set forth in
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this Article 3 shall not apply to Permitted Transfers.
4. Transfer Rights.
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4.1. General. Transfers of Shares and Preferred Shares are strictly
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prohibited, except for (i) Permitted Transfers and (ii) Transfers consummated in
accordance with Section 2 or Section 3 hereof. Any attempt to Transfer any
Shares or Preferred Shares not in accordance with this Agreement shall be null
and void and neither the Company nor any transfer agent of such securities shall
give any effect to such attempted Transfer
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in its records. Prior to consummation of any Transfer permitted under the first
sentence of this Section 4.1, the transferor shall cause the transferee to
execute an agreement in form and substance reasonably satisfactory to the Board,
providing that such transferee shall be bound by all the terms and provisions
of, and entitled (subject to Section 7.1) to all the rights and benefits under,
this Agreement, which are or theretofore had been applicable to the transferor
of the securities in question.
4.2. Legend. Any certificate representing outstanding Shares or Preferred
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Shares which are held by a party to this Agreement or otherwise subject to the
terms hereof shall bear the following legend, in addition to any other legend
required by law or otherwise:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. NO SALE OR
TRANSFER OF THESE SHARES MAY BE MADE WITHOUT REGISTRATION UNDER SAID ACT OR
COMPLIANCE WITH EXEMPTIONS THEREFROM AND COMPLIANCE WITH APPLICABLE BLUE SKY
LAWS OR EXEMPTIONS THEREFROM."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY THE
TERMS OF THAT CERTAIN STOCKHOLDERS AGREEMENT (THE "STOCKHOLDERS AGREEMENT")
DATED AS OF MARCH 5, 1998, A COPY OF WHICH IS ON FILE AT THE OFFICES OF THE
COMPANY. ANY ATTEMPT TO TRANSFER OR ENCUMBER ANY INTEREST IN THE SHARES
REPRESENTED BY THIS CERTIFICATE NOT IN ACCORDANCE WITH SUCH STOCKHOLDERS
AGREEMENT SHALL BE NULL AND VOID AND NEITHER THE COMPANY NOR ANY TRANSFER AGENT
OF SUCH SECURITIES SHALL GIVE ANY EFFECT TO SUCH ATTEMPTED TRANSFER OR
ENCUMBRANCE IN ITS SHARE RECORDS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE
OF IT, AGREES TO BE BOUND BY THE TERMS OF THE STOCKHOLDERS AGREEMENT."
5. Management of the Company; Voting.
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5.1. Board Composition.
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(a) Subject to the provisions of this Section 5, each Stockholder
agrees to take such action as may be necessary, in its capacity as a stockholder
of the Company, to nominate and recommend to the stockholders of the Company as
the proposed members of the Board, at any annual or special meeting of
stockholders called for the purpose of voting on the election of directors, or
by consensual action of stockholders with respect to the election of directors,
as follows: (i) Xxxx X. Xxxxx; (ii) Xxxxx XxXxxxxx; (iii) two (2) individuals
designated in writing to the Company by Spectrum Equity Investors II, L.P., (iv)
two (2) individuals designated in writing to the Company by Providence Equity
Partners L.P., (v) one (1) individual designated in writing to the Company by
Sandler Capital Management and (vi) one (1) individual designated in writing to
the Company by Triumph Partners III, L.P. The individuals to be designated
initially by the foregoing entities are set forth on Schedule 5.1. The right to
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designate nominees shall be reduced as follows:
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(A) From and after such time as any entity having the right to
designate two (2) nominees owns, together with its Affiliates, less than 75% of
the Shares purchased by such entity and its Affiliates pursuant to the Stock
Purchase Agreement, such entity shall forfeit its respective right to designate
one (1) nominee for election to the Board of Directors (excluding for purposes
hereof any decrease due to a reverse stock split, Transfer, or other change
affecting all Stockholders on a substantially proportionate basis). This clause
(A), if applicable, shall apply to the exclusion of clause (B) below.
(B) From and after such time as any entity having the right to
designate one nominees owns, together with its Affiliates, less than 50% of the
Shares purchased by such entity and its Affiliates pursuant to the Stock
Purchase Agreement, such entity shall forfeit its respective right to designate
any individual for election to the Board of Directors (excluding for purposes
hereof any decrease due to a reverse stock split, Transfer, or other change
affecting all Stockholders on a substantially proportionate basis).
(b) Except as otherwise provided in this Section 5, each of the
Stockholders further agrees (i) to appear in person or by proxy at any annual or
special meeting of stockholders of the Company for the purpose of obtaining a
quorum and to vote all voting securities of the Company now or hereafter
directly or beneficially owned by such Stockholder, either in person or by
proxy, at any such meeting of the stockholders of the Company called for the
purpose of voting on the election of directors, and (ii) to execute a written
consent pursuant to any consensual action with respect to the election of
directors (to the extent permitted by law), in each case (1) in favor of the
election of the directors nominated in accordance with designations made
pursuant to Section 5.1(a), 5.2 or 5.4 and (2) in favor of the removal of any
director required to be removed in accordance with Section 5.3.
5.2. Filling Vacancies. If, at any time during which Stockholders are
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entitled to designate directors pursuant to Section 5.1, a vacancy is created on
the Board by the death, removal or resignation of any one of the directors
designated by a Stockholder pursuant to Section 5.1(a)(iii)-(a)(vi), then the
Stockholder that had designated such director, if then entitled to designate
such director pursuant to Section 5.1, shall designate another individual to be
elected to the Board, and the Stockholders shall take such action as may be
necessary to cause, within ten (10) days after such designation occurs, the
election of such designated individual to the Board.
5.3. Removal of Directors Designated by Stockholder Entitled to Designate
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Directors. The Stockholders shall take such action as may be necessary to
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cause any director to be removed from the Board for any reason at the request of
the Stockholder that had designated such individual to be a director pursuant to
this Section 5. No Stockholder shall vote its voting securities of the Company
to remove any director designated by a Stockholder except as requested in
writing by the Stockholder who designated that director.
5.4. Replacement Nominees; Regulatory Restrictions.
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(a) If, prior to an individual's election to the Board pursuant to
Section 5.1 or 5.2, any individual designated by a Stockholder to serve as a
director shall be unable or
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unwilling to serve as a director, the Stockholder who nominated any such
individual to serve as a director shall be entitled to nominate a replacement
and the Stockholders shall take all necessary action to elect such nominee to
the Board.
(b) Each Stockholder holding the right to designate a director
pursuant to Section 5.1 shall nominate an individual who, to the best of such
Stockholder's knowledge, does not have any attributable interests in any Person
who then owns or operates property subject to regulation by the Federal
Communications Commission ("Regulated Property") which would likely prohibit the
Company from acquiring or operating any interest in any Regulated Property. If
circumstances should change subsequent to a designee's election to the Board
such that maintaining such designee as a director would likely prohibit the
Company from acquiring or operating any interest in any Regulated Property, the
Stockholder who designated any such individual for election to the Board shall
promptly request the director's removal in accordance with Section 5.3 and
nominate a replacement designee in accordance with Section 5.2.
5.5. Voting of Board.
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(a) The vote of the majority of the directors shall decide any matter
brought before the Board, unless the matter is one upon which by express
provision of law, the Charter Documents or this Agreement, a different vote is
required, in which case such express provision shall govern and control.
(b) Notwithstanding the provisions of Section 5.5(a), the affirmative
vote of each director designated by a Stockholder (as set forth on Schedule 5.1
or any replacement director designated in accordance with this Section), shall
be required for the Company to take, and each such Stockholder shall exercise
all voting rights and other powers of control available to it in relation to the
Company and the directors so as to ensure that the Company shall not without
such approval take, the following actions:
(i) authorize the execution, delivery and performance of the Merger
Agreement by the Company; and
(ii) waive any material condition in, or authorize any material
modification or amendment of the Merger Agreement by the Company (provided that
the Board of Directors may not approve any amendment to the Merger Agreement
which would raise the merger price above $14.00 per share).
The Stockholders referenced in the first sentence of this Section 5.5(b) shall
exercise all voting rights and other powers of control available to them in
relation to the Company and the directors to cause the directors to authorize
the delivery of a Drawdown Notice at such time as such Stockholders have a
reasonable basis to expect that the conditions to the Company's obligation to
consummate the Merger and the transactions contemplated by the Merger Agreement
will be satisfied or waived and the delivery of such Drawdown Notice is then
necessary to allow for the timely funding of the purchase of the Committed
Shares (as defined in the Stock Purchase Agreement).
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(c) Notwithstanding the provisions of Section 5.5(a) and even if a
vote of the Board may not be required under applicable law for any of the
following, the affirmative vote (or the prior written consent) of five directors
shall be required for the Company to take, and the Stockholders shall exercise
all voting rights and other powers of control available to them in relation to
the Company and the directors so as to ensure that the Company shall not without
such approval take, the following actions:
(i) the disposition of assets (in a single transaction or a
series of related transactions) in an amount in excess of $5,000,000;
(ii) the entry into any transaction which would result in a
Change of Control;
(iii) subject to Section 7.3, the approval of the dissolution or
liquidation of the Company;
(iv) the declaration or payment of any dividends on, or the
incurrence of any obligation to make any other distribution in respect of,
outstanding equity interests of the Company;
(v) the incurring of, entry into or commitment to any
indebtedness, in an aggregate principal amount in excess of $5,000,000 (except
for incurrence of indebtedness to finance the Merger) in a single transaction or
series of related transactions;
(vi) any acquisition of assets (in a single transaction or a
series of related transactions) in an amount in excess of $5,000,000;
(vii) any amendment to the Charter Documents;
(viii) the repurchase or redemption of the Company's capital
stock from a Stockholder in an amount not equal to such Stockholder's pro rata
ownership of such capital stock;
(ix) any change in the number of directors;
(x) the removal or appointment of any senior executives,
including the Chief Executive Officer, Chief Operating Officer and Chief
Financial Officer;
(xi) any issuance of additional shares of capital stock of the
Company or any rights, options, warrants or other instruments convertible or
exchangeable therefor, other than the issuance of shares of capital stock
contemplated by the Stock Purchase Agreement;
(xii) any transaction with an Affiliate with a value in excess
of $250,000;
(xiii) entering into any other contract or arrangement material
to the Company; and
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(xiv) any amendment to Schedule 3.11 of the Stock Purchase
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Agreement.
5.6. Voting of Stockholders.
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(a) The vote of the holders of a majority of the Outstanding Voting
Shares entitled to vote shall decide any matters brought before any meeting of
Stockholders, unless the matter is one upon which by express provision of law,
the Charter Documents or this Agreement, a different vote is required, in which
case such express provision shall govern and control.
(b) Notwithstanding the provisions of Section 5.6(a) and even if a
vote of the Stockholders may not be required under applicable law for any of the
following, the vote or prior written consent of Stockholders then holding
Outstanding Voting Shares representing 66-2/3% of the Outstanding Voting Shares
held by all Stockholders shall be required before the Company may take, and the
Stockholders shall exercise all voting rights and other powers of control
available to them in relation to the Company and the directors so as to ensure
that the Company shall not without such approval take, the following actions:
(i) the sale of all or substantially all of the assets of the
Company by sale, assignment, merger, reorganization, or by any other manner;
(ii) the entry into any transaction which would result in a
Change of Control; and
(iii) any amendment to the Company's Charter Documents.
5.7. Approval of Merger. Notwithstanding any provision herein to the
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contrary, upon approval by the Board of the Merger and the Merger Agreement,
each Stockholder shall vote, or act by written consent, and hereby gives its
written consent (subject only to such Board approval), in favor of the approval
and authorization of the Merger, the Merger Agreement and the transactions
contemplated thereby and shall execute all documents requested by the Board
necessary to effectuate such approval and authorization. Each Stockholder
agrees that it will not exercise, and hereby waives, any and all rights that it
may have to dissent or seek appraisal, arising from the Merger under the
Delaware General Corporation Law or any other principle of law with respect to
any of its shares of capital stock of the Company.
5.8. Officers of the Company. Each Stockholder agrees to cause its
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nominees to the Board to take such action as may be necessary to appoint Xxxxx
Xxxxxxxxx as Chairman, Chief Executive Officer and Treasurer, and Xxxxxxxx
Xxxxxx as President and Secretary of the Company effective on or about the date
hereof. Effective upon consummation of the Merger, Xxxxx Xxxxxxxxx and Xxxxxxxx
Xxxxxx shall resign from their respective officer positions. Effective upon
consummation of the Merger, each Stockholder agrees to cause its nominees to the
Board to take such action as may be necessary to appoint Xxxx X. Xxxxx and Xxxxx
XxXxxxxx as Officers of the Company.
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5.8.1. Board Observer. During such time as a Stockholder holds
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Shares and Preferred Shares for which such Stockholder paid, or has committed to
pay, at least $10 million pursuant to the Stock Purchase Agreement (and has not
defaulted with respect to any such payment obligations), such Stockholder shall
have the right to designate one representative as a Board observer and as an
observer of any committee of the Board. In addition, each such Stockholder
shall have the right to designate one representative as an observer of the board
of directors of any wholly-owned subsidiary ("Subsidiary") of the Company which
does not consist solely of employees of the Company or its Subsidiaries and any
committees thereof. The Company shall provide notice of board and committee
meetings to any duly designated observer at such time and in such manner as it
provides notice to directors and such observer shall have the right to attend
such board and committee meetings. The observer shall be entitled to receive
written materials distributed to the relevant board or committee members. The
Company shall cause each Subsidiary subject to this Section 5.8.1 to comply with
the aforementioned notice and information requirements. Except for the rights
described herein, the observer shall not have any other rights of a board or
committee member, including the right to vote as a member thereof, and shall not
represent to any party that he is a director. The Company and each Subsidiary
subject hereto shall have the right to require any board or committee observer
to execute a confidentiality agreement as a precondition to his being a board or
committee observer.
5.9. Inspection Rights. During such time as a Stockholder shall have the
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right to appoint a designee for election to the Board pursuant to Section 5.1 or
to designate a Board observer pursuant to Section 5.9, such Stockholder shall
have the right to inspect the books, records and premises of the Company during
normal business hours upon reasonable notice.
6. Right of First Refusal on Issuance of New Securities by the Company.
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6.1. Generally. The Company hereby grants to each Stockholder the right
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of first refusal to purchase such Stockholder's pro rata share of New Securities
which the Company may from time to time propose to sell and issue. For purposes
of this right of first refusal, a Stockholder's pro rata share (the "Section 6
Pro Rata Share") shall be that proportion which the number of shares of Shares
then held by such Stockholder bears to the aggregate number of Shares then held
by all Stockholders.
6.2. Notice of New Issues. In the event the Company proposes to undertake
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an issuance of New Securities, it shall give each Stockholder written notice
(the "Section 6 Notice") of its intention, describing the type of New
Securities, the price, and the principal terms upon which the Company proposes
to issue the same. Each Stockholder shall have twenty (20) days from the
delivery date of any Section 6 Notice to agree, irrevocably, to purchase up to
the Stockholder's Section 6 Pro Rata Share of such New Securities for the price
and upon the terms specified in the Section 6 Notice by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased.
6.3. Failure to Exercise Right. In the event a Stockholder fails to agree
-------------------------
to purchase all of such Stockholder's Section 6 Pro Rata Share pursuant to
Section 6.2, the Company shall give a Section 6 Notice to the other Stockholders
of such failure pursuant
11
to Section 6.2, and the other Stockholders shall have the right to purchase all
such shares in the manner set forth in Section 6.2. In the event any shares of
New Securities are still not purchased after the foregoing procedures have been
effected, the Company shall have ninety (90) days after the last date on which
any Stockholder's right to purchase lapsed to sell or enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within ninety (90) days from the date of said agreement) to sell the
New Securities in respect of which such Stockholder's option was not exercised,
at or above the price and upon terms not more favorable to the purchasers of
such securities than the terms specified in the initial Section 6 Notice given
in connection with such sale. In the event the Company has not sold the New
Securities or entered into an agreement to sell the New Securities within said
ninety-day period (or sold and issued New Securities in accordance with the
foregoing within ninety (90) days from the date of said agreement), the Company
shall not thereafter issue or sell any New Securities without first offering
such New Securities to the Stockholders in the manner provided in this Section
6.
6.4. Waiver. Messrs. Fujii and XxXxxxxx agree to waive their respective
------
rights of first refusal under this Section 6 if the other Stockholders shall
have waived their rights under this Section.
7. Miscellaneous.
-------------
7.1. Entire Agreement; Successors and Assigns. This Agreement constitutes
----------------------------------------
the entire agreement between the Company and the Stockholders concerning the
subject matter hereof. Any previous agreement between the Company and the
Stockholders concerning the subject matter hereof is superseded by this
Agreement. Subject to Section 4.1 hereof, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors and permitted assigns of the
parties. Notwithstanding the foregoing or the definition of "Permitted
Transfers", the rights of the Stockholders set forth in Section 5.1 shall not be
transferable to any Person except to an Affiliate of a Stockholder upon a
Permitted Transfer by such Stockholder of all of its Shares to such Affiliate.
7.2. Termination. Sections 2, 3, 4.1 and 6 shall automatically terminate
-----------
upon an Initial Public Offering which raises at least $50,000,000 in proceeds to
the Company and is underwritten pursuant to a firm commitment underwriting by
nationally recognized underwriters. Section 5 shall terminate as provided
therein. Notwithstanding any provision hereof, this entire Agreement shall
terminate at such time as the Stockholders hold in the aggregate less than 20%
of the Outstanding Voting Shares.
7.3. Termination of Stock Purchase Agreements; Dissolution of the Company.
--------------------------------------------------------------------
Upon the termination of the Stock Purchase Agreement, the Board shall take all
action to effect the prompt dissolution and liquidation of the Company in
accordance with applicable law.
12
7.4. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the substantive laws of the State of Delaware, without reference
to any choice of law rules that would require the application of the laws of any
other jurisdiction.
7.5. Counterparts. This 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.
7.6. Headings. The headings of the sections of this Agreement are for
--------
convenience and shall not by themselves determine the interpretation of this
Agreement.
7.7. Notices. Any notice required or permitted hereunder shall be given
-------
in writing and shall be conclusively deemed effectively given (a) upon personal
delivery to the person to be notified, (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient; if not, then on the next
business day, (c) five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt addressed as set forth on the signature
page of this Agreement, or at such other address as a party may designate by ten
(10) days' advance written notice to the other party.
7.8. Effectiveness; Amendment of Agreement. Any provision of this
-------------------------------------
Agreement may be amended only by a written instrument signed by Stockholders
then holding Shares representing 66-2/3% of the Shares then held by the
Stockholders; provided that Sections 2, 3, 4 and 7 (and related definitions) may
--------
be amended only by a written instrument signed by each of the Stockholders which
then hold any Shares or any Preferred Shares. In addition to the foregoing, any
amendment to Section 5 must be approved by the affirmative vote (or prior
written consent) of five directors; provided that Section 5.5(b) may be amended
--------
only by a written instrument signed by each of the Stockholders which then hold
any Shares; and, provided further, that no Stockholder shall as a result of any
-------- -------
amendment to Section 5.1 lose its right, if any, to designate a director
pursuant thereto, unless such Stockholder and its Affiliates hold less than 20%
of the Shares that such Stockholder and its affiliates purchased pursuant to the
Stock Purchase Agreement. Notwithstanding the foregoing, Exhibit A may be
---------
amended by the Company as necessary to reflect the addition of new Stockholders
pursuant to the terms hereof, or to reflect the addition of parties hereto as
contemplated by this Agreement; and further provided that no amendment which
--- ------- --------
adversely affects any Stockholder other than in the same manner that such
amendment affects each other Stockholder on a pro rata basis will be effective
without such first Stockholder's written consent.
7.9. Waiver; Severability. The waiver by one party hereto of any breach
--------------------
by the other (the "Breaching Party") of any provision of this Agreement shall
not operate or be considered as a waiver of any other (prior or subsequent)
breach by the Breaching Party, and the waiver of a breach of a provision in one
instance shall not be deemed a waiver of such provision in any other
circumstance. If any term or provision of this Agreement or the application
thereof to any Person, property or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons, property or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected
13
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
7.10. Ownership. Each Stockholder represents and warrants that it is the
---------
sole legal and beneficial owner of those Shares and Preferred Shares it
currently holds subject to this Agreement and that no other Person has any
interest (other than a community property interest) in such Shares or Preferred
Shares.
7.11. Attorneys' Fees. In the event that any dispute among the parties to
---------------
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
7.12. Specific Performance. Each of the Stockholders and the Company
--------------------
acknowledge that any violation of this Agreement will result in irreparable
injury to the non-breaching party, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such violation would not be
reasonable or adequate compensation to the non-breaching party for such a
violation. Accordingly, the Stockholders and the Company agree that if any of
the Stockholders and/or the Company violates any provision of this Agreement, in
addition to any other remedy which may be available at law or in equity, the
non-breaching party shall be entitled to specific performance and injunctive
relief, without posting bond or other security, and without the necessity of
proving actual damages.
7.13. Regulated Stockholders. At the request of any Regulated
----------------------
Stockholder, the Company will exchange (on a share-for-share basis) shares of
voting securities of the Company held by such Regulated Stockholder, or will
issue to such Regulated Stockholder in lieu of voting securities otherwise
issuable to such Regulated Stockholder pursuant to Section 6, shares of other
securities which (a) do not have voting rights (or which have such limited
voting rights as such Regulated Stockholder may reasonably request), (b) are
convertible into such voting securities on a share-for-share basis (subject to
such limitations as such Regulated Stockholder may request), and (c) are
otherwise identical to such voting securities. Any such non-voting or limited-
voting securities will constitute "Shares" for purposes of this Agreement.
"Regulated Stockholder" means any direct or indirect majority-owned subsidiary
---------------------
of a bank holding company, or any bank holding company.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE COMPANY:
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
THE STOCKHOLDERS:
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P., its Managing General Partner
Name: /s/ Xxxxx Xxxxxxxxx
--------------------------
Title: Managing General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: PROVIDENCE EQUITY PARTNERS L.L.C.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name:
---------------------------
Title:
--------------------------
Address: 00 Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxx Xxxxxx
TANDEM WIRELESS INVESTMENTS, L.P.,
a Delaware limited partnership
By: LIVE CYCLES HOLDINGS CO.
Its General Partner
By: /s/ Xxxx XxXxxxxx
-------------------------------------
Xxxx XxXxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxx
Title: President
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
-------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
--------------------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention:
SANDLER CAPITAL PARTNERS, IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
---------------------
Name: Xx Xxxxxxxxx
Title President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
TRIUMPH PARTNERS, III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TRIUMPH III INVESTORS, L.P.
a Delaware limited partnership
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TORONTO DOMINION INVESTMENTS, INC.
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
-----------------------------
Name: X.X. Xxxxxxx III
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
HARBOURVEST PARTNERS V - Direct Fund L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates LLC
its General Partner
By: HARBOURVEST PARTNERS, LLC
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Address: Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES-II,L.P.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
IA-II AFFILIATES FUND, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
TRIDENT CAPITAL MANAGEMENT-II,L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
WESTPOOL INVESTMENT TRUST,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
---------------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Elan Xxxxxxx
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXX FAMILY TRUST dated 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
LION INVESTMENTS LIMITED,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARTNERS
By: __________________________
Name: ____________________
Title: ___________________
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
--------------------------
Name: XXXX X. XXXXX
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx XxXxxxxx
--------------------------
Name: XXXXX XXXXXXXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
American Cellular Corporation Exhibit A
List of Stockholders
Class A Common Stock Class A Preferred Stock
-------------------------- -----------------------
Interim Closing
Total $ ----------------------
Investment $ Investment Shares $ Investment Shares
---------- ------------ ------ ------------ ------
Spectrum Equity Investors II, L.P. $50,000,000 $3,571,400 35,714 $1,428,500 14,285
Providence Equity Partners L.P. 50,000,000 3,571,400 35,714 1,428,500 14,285
Sandler Capital Partners IV, L.P. 21,264,200 1,518,800 15,188 607,600 6,076
Sandler Capital Partners IV, FTE, L.P. 8,736,000 624,000 6,240 249,600 2,496
21st Century Communications Partners, L.P. 10,170,700 726,500 7,265 290,600 2,906
21st Century Communications T-E, L.P. 3,460,300 247,200 2,472 98,900 989
21st Century Communications Foreign Partners, L.P. 1,368,800 97,800 978 39,100 391
Tandem Wireless Investments, L.P. 40,000,000 2,857,100 28,571 1,142,900 11,429
Triumph Partners III, L.P. 29,647,800 2,125,000 21,250 846,800 8,468
Triumph III Investors, L.P. 352,200 17,900 179 10,300 103
First Union Capital Partners, Inc. 25,000,000 1,785,700 17,857 714,300 7,143
HarbourVest Partners V 20,000,000 1,428,600 14,286 571,400 5,714
Information Associates, L.P. 2,918,700 208,600 2,086 83,400 834
Information Associates, C.V. 81,300 5,700 57 2,300 23
Information Associates-II, L.P. 12,000,000 857,200 8,572 342,900 3,429
IA-II Affiliates Fund, L.L.C. 700,000 50,000 500 20,000 200
Trident Capital Management-II, L.L.C. 4,300,000 307,100 3,071 122,900 1,229
SG Capital Partners, LLC 16,500,000 1,178,600 11,786 471,400 4,714
Xxxxxxx Xxxxx KECALP L.P. 1997 7,700,000 549,800 5,498 240,000 2,400
KECALP, Inc. 4,500,000 321,300 3,213 188,600 1,886
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,300,000 164,200 1,642 0 0
ML IBK Positions, Inc. 500,000 35,700 357 0 0
Toronto Dominion Investments, Inc. 15,000,000 1,071,400 10,714 428,600 4,286
Westpool Investment Trust 8,499,900 606,900 6,069 242,900 2,429
Lion Investments Limited 1,477,500 105,500 1,055 42,200 422
Xxxxx Family Trust dated 1/6/89 22,600 1,600 16 600 6
Generation Capital Partners L.P. 9,653,891 690,291 6,903 275,800 2,758
State Board Administration of Florida 342,162 24,462 245 9,800 98
Generation Parallel Management Partners L.P. 3,947 247 2 100 1
Xxxx Xxxxx 1,750,000 125,000 1,250 50,000 500
Xxxxx XxXxxxxx 1,750,000 125,000 1,250 50,000 500
----------------------------------------------------------------
$350,000,000 $25,000,000 250,000 $10,000,000 100,000
================================================================
Date of Funding: March 20, 1998 April 22, 1998
Class A Preferred Stock
-----------------------------------------------
Final Closing
----------------------- Total Total
$ Investment Shares $ Investment Shares
------------- ------ ------------ ------
Spectrum Equity Investors II, L.P. 45,000,100 450,001 $46,428,600 464,286
Providence Equity Partners L.P. 45,000,100 450,001 46,428,600 464,286
Sandler Capital Partners IV, L.P. 19,137,800 191,378 19,745,400 197,454
Sandler Capital Partners IV, FTE, L.P. 7,862,400 78,624 8,112,000 81,120
21st Century Communications Partners, L.P. 9,153,600 91,536 9,444,200 94,442
21st Century Communications T-E, L.P. 3,114,200 31,142 3,213,100 32,131
21st Century Communications Foreign Partners, L.P. 1,231,900 12,319 1,271,000 12,710
Tandem Wireless Investments, L.P. 36,000,000 360,000 37,142,900 371,429
Triumph Partners III, L.P. 26,676,000 266,760 27,522,800 275,228
Triumph III Investors, L.P. 324,000 3,240 334,300 3,343
First Union Capital Partners, Inc. 22,500,000 225,000 23,214,300 232,143
HarbourVest Partners V 18,000,000 180,000 18,571,400 185,714
Information Associates, L.P. 2,626,700 26,267 2,710,100 27,101
Information Associates, C.V. 73,300 733 75,600 756
Information Associates-II, L.P. 10,799,900 107,999 11,142,800 111,428
IA-II Affiliates Fund, L.L.C. 630,000 6,300 650,000 6,500
Trident Capital Management-II, L.L.C. 3,870,000 38,700 3,992,900 39,929
SG Capital Partners, LLC 14,850,000 148,500 15,321,400 153,214
Xxxxxxx Xxxxx KECALP L.P. 1997 6,910,200 69,102 7,150,200 71,502
KECALP, Inc. 3,990,100 39,901 4,178,700 41,787
Xxxxxxx Xxxxx KECALP International L.P. 1997 2,135,800 21,358 2,135,800 21,358
ML IBK Positions, Inc. 464,300 4,643 464,300 4,643
Toronto Dominion Investments, Inc. 13,500,000 135,000 13,928,600 139,286
Westpool Investment Trust 7,650,100 76,501 7,893,000 78,930
Lion Investments Limited 1,329,800 13,298 1,372,000 13,720
Xxxxx Family Trust dated 1/6/89 20,400 204 21,000 210
Generation Capital Partners L.P. 8,687,800 86,878 8,963,600 89,636
State Board Administration of Florida 307,900 3,079 317,700 3,177
Generation Parallel Management Partners L.P. 3,600 36 3,700 37
Xxxx Xxxxx 1,575,000 15,750 1,625,000 16,250
Xxxxx XxXxxxxx 1,575,000 15,750 1,625,000 16,250
-----------------------------------------------
$315,000,000 3,150,000 $325,000,000 3,250,000
===============================================
Date of Funding: June 22, 1998
-------------
