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EXHIBIT 10.4
SECOND AMENDMENT
TO STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT (this "SECOND AMENDMENT"), dated as of August
27, 1998, by and among SPECTRASITE HOLDINGS, INC. (the "COMPANY"), a Delaware
corporation, WHITNEY EQUITY PARTNERS, L.P. ("JHW II"), a Delaware limited
partnership, X. X. XXXXXXX III, L.P. ("JHW III"), a Delaware limited
partnership, WHITNEY STRATEGIC PARTNERS III, L.P., ("JHW STRATEGIC III"), a
Delaware limited partnership, XXXXXX-XXXXXX MEDIA PARTNERS, L.P. ("XXXXXX"), a
Delaware limited partnership, KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III
("KITTY HAWK III"), a Delaware limited partnership, KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, IV ("XXXXX XXXX XX"), a Delaware limited partnership, EAGLE CREEK
CAPITAL, L.L.C. ("EAGLE CREEK"), a Washington limited liability company, THE
NORTH CAROLINA ENTERPRISE FUND, L.P. ("NCEF"), a North Carolina limited
partnership, XXXXXX FAMILY LIMITED PARTNERSHIP ("XXXXXX XX"), an Arkansas
limited partnership, XXXXXXX X. XXXXXX ("XXXXXX"), a North Carolina resident,
XXXX X. XXXXXXX ("XXXXXXX"), a North Carolina resident, and XXXXX X. XXXXXX
("XXXXXX" and together with JHW II, JHW III, JHW Strategic III, Xxxxxx, Xxxxx
Hawk III, Xxxxx Xxxx XX, Eagle Creek, NCEF, Xxxxxx XX, Xxxxxx and Xxxxxxx, each
a "PURCHASER" and collectively the "PURCHASERS"), a North Carolina resident, to
the Stock Purchase Agreement (the "STOCK PURCHASE AGREEMENT"), dated as of March
23, 1998, by and among the Company and the Purchasers, as amended by the First
Amendment (the "FIRST AMENDMENT"), dated as of May 29, 1998, by and among, the
Company and the Purchasers. The Stock Purchase Agreement, as amended by the
First Amendment, is hereinafter referred to as the "ORIGINAL AGREEMENT." The
Original Agreement as amended by this Second Amendment is hereinafter referred
to as the "AGREEMENT." All capitalized terms used herein without definition
shall have the respective meanings assigned to such terms in the Stock Purchase
Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 2.2(b) of the Original Agreement, the
Company delivered written notice, dated July 26, 1998, to the Purchasers,
requesting that the Second Closing occur on the date hereof; and
WHEREAS, the issuance and sale by the Company of the Additional Sares
to JHW II would require each of the Company and JHW II to comply with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX"), which
would result in a delay of the Second Closing beyond the date hereof; and
WHEREAS, the Company desires to proceed with the Second Closing on
the date hereof and to issue and sell all of the Additional Shares, as
contemplated by Section 2.2(b) of the Original Agreement, other than the 675,874
shares (the "JHW II ADDITIONAL SHARES") of Series B Preferred Stock required to
be sold by the Company to JHW II, and purchased by JHW II from the
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Company, and the Purchasers desire that, on the date hereof, each of the
Purchasers, other than JHW II, purchase the Additional Shares as contemplated
under the Original Agreement; and
WHEREAS the Company and the Purchasers desire that the Company issue
and sell, and JHW II purchase, the JHW II Additional Shares on the terms set
forth in the Original Agreement after the Company and JHW II have complied with
the requirements of the HSR Act.
NOW THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the parties hereto agree to amend the Original Agreement
as follows:
ARTICLE 1
AMENDMENTS TO ORIGINAL AGREEMENT
1.1 PURCHASE AND SALE OF THE OTHER ADDITIONAL SHARES.
Notwithstanding that JHW II will not purchase the JHW II Additional Shares on
the date hereof, each of the Purchasers other than JHW II (the "OTHER
PURCHASERS") shall, on the date hereof, purchase the Additional Shares
contemplated by the Original Agreement to be purchased by them (the "PURCHASER
ADDITIONAL SHARES") subject to the terms and conditions of the Agreement (other
than the condition contained in Article 3 of the Original Agreement that JHW II
simultaneously purchase the JHW II Additional Shares).
1.2 PURCHASE AND SALE OF JHW II ADDITIONAL SHARES. The Company
shall issue and sell to JHW II, and JHW II shall purchase, the JHW II Additional
Shares from the Company subject to the terms and conditions of the Agreement
(other than the condition contained in Article 3 of the Original Agreement that
the Other Purchasers simultaneously purchase the Purchaser Additional Shares).
For all purposes under the Agreement, the JHW II Additional Shares shall be
deemed to be "Shares."
1.3 CLOSING OF THE SALE AND PURCHASE OF THE JHW II ADDITIONAL
SHARES. The issuance and purchase of the JHW II Additional Shares shall take
place at the closing (the "JHW II CLOSING") to be held at the offices of
Xxxxxxxxx & Xxxxx PLLC, 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx
Xxxxxxxx, xx the date that is five business days after all the conditions to the
JHW II Second Closing have been satisfied, including, without limitation, the
condition that the Company and JHW II comply with the requirements of the HSR
Act (the "JHW II SECOND CLOSING DATE"), but in no event later than April 1,
1999. At the JHW II Second Closing, the Company shall deliver to JHW II the JHW
II Additional Shares against delivery by JHW II to the Company of the purchase
price therefor, payable by wire transfer of immediately available funds to an
account or accounts designated in writing by the Company. With respect only to
the sale and purchase of the JHW II Additional Shares, (i) the term "Second
Closing" as used in the Agreement shall mean the JHW II Second Closing and (ii)
the term "Second Closing Date" shall mean the JHW II Second Closing Date.
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1.4 DEFAULT SHARES. The provisions of Section 2.1(c) and 2.3 of the
Original Agreement shall not apply to JHW II's failure to purchase and pay for
the JHW II Additional Shares on the date hereof, but shall only apply in the
event JHW II fails or refuses to pay for the JHW II Additional Shares, in
accordance with the terms and subject to the conditions of the Agreement, on the
JHW II Second Closing Date.
1.5 CONDITIONS TO CLOSING. In addition to the conditions set forth
in Article 3 of the Original Agreement, the obligations of JHW II to purchase
the JHW II Additional Shares, to pay the purchase price therefor at the JHW II
Second Closing and to perform any other obligations under the Agreement shall be
subject to the consummation of the purchase on the date hereof by the Other
Purchasers of the Additional Shares on the terms set forth in the Agreement.
1.6 HSR ACT. The Company and JHW II shall take all actions
necessary and shall cooperate to comply with the provisions of the HSR Act,
including, without limitation, the filing by each of the Company and JHW II of a
"Notification and Report Form for Certain Mergers and Acquisitions" with the
United States Federal Trade Commission, in connection with the purchase and sale
of the JHW II Additional Shares. The representations and warranties in Sections
5.3 and 6.11 of the Purchase Agreement (as they relate to the JHW II Additional
Shares) are hereby modified by the parties acknowledgment that the purchase and
sale of the JHW II Additional Shares is subject to the provisions of the HSR
Act.
ARTICLE 2
MISCELLANEOUS
2.1 RATIFICATION. The terms and provisions set forth in this Second
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Original Agreement and, except as expressly modified and superseded
by this Second Amendment, the terms and provisions set forth in the Original
Agreement are hereby ratified and confirmed and shall continue in full force and
effect.
2.2 FEES. The Company confirms and agrees that its obligations
under Section 2.5(a) of the Original Agreement include, without limitation, the
obligation of the Company to pay the out-of-pocket expenses (including, without
limitation, attorneys' fees, charges and disbursements, consultants' fees and
expenses and due diligence expenses) of (i) Whitney, JHW II, JHW III, JHW
Strategic III, Xxxxxx, Xxxxx Xxxx III and Xxxxx Xxxx XX incurred in connection
with the negotiation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and (ii) JHW II incurred
in connection with its compliance with the HSR Act as contemplated by Section
1.6 hereof, including, without limitation, any filing fees required under the
HSR Act.
2.3 SIGNATURES; COUNTERPARTS. Telefacsimile transmissions of any
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed
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to be the same as the delivery of an executed original. At the request of any
party hereto, the other parties hereto shall confirm telefacsimile transmissions
by executing duplicate original documents and delivering the same to the
requesting party or parties. This Second Amendment may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
2.4 HEADINGS. The headings in this Second Amendment are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
2.5 GOVERNING LAW. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
2.6 JURISDICTION. EACH PARTY TO THE AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE
AGREEMENT, THE SHARES, OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY
SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES
THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH
COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE ADDRESS SET FORTH IN SECTION 9.2 OF THE ORIGINAL
AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
2.7 SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
2.8 RULES OF CONSTRUCTION. Unless the context otherwise requires,
"or" is not exclusive, and references to sections or subsections refer to
sections or subsections of this Second Amendment.
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2.11 ENTIRE AGREEMENT. The Agreement, together with the exhibits and
schedules thereto and the other Transaction Documents, are intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
therein. The Agreement, together with the exhibits and schedules thereto, and
the other Transaction Documents supersede all prior agreements and
understandings between the parties with respect to such subject matter.
2.13. FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations, or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed and delivered by their respective officers hereunto
duly authorized as of the date first above written.
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:President
WHITNEY EQUITY PARTNERS, L.P.
By: X. X. Xxxxxxx Equity Partners, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
A Managing Member
X. X. XXXXXXX III, L.P.
By: X. X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
A Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X. X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
A Managing Member
[FIRST SIGNATURE PAGE TO SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT]
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XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: /s/ Xxxxxx-Xxxxxx Media, LLC
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Name:
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
A General Partner
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III
By: Kitty Hawk Partners Limited Partnership, III
Its General Partner
By: /s/ W. Xxxxx Xxxxxx
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Name: W. Xxxxx Xxxxxx
A General Partner
KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, IV
By: Kitty Hawk Partners LLC, IV
Its General Partner
By: /s/ W. XXXXX XXXXXX
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Name: W. XXXXX XXXXXX
A Manager
EAGLE CREEK CAPITAL, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
A Manager
[SECOND SIGNATURE PAGE TO SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT]
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THE NORTH CAROLINA ENTERPRISE FUND, L.P.
By: The North Carolina Enterprise Corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title:President & CEO
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxx III
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Name: Xxx X. Xxxxxx III
Title: Managing General Partner
/s/ XXXXXXX X.XXXXXX
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XXXXXXX X. XXXXXX
/s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
/S/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
[THIRD SIGNATURE PAGE TO SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT]
