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EXHIBIT 10.5
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT"), dated as of March 23, 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 (the
"XXXXXX FAMILY LP"), an Arkansas limited partnership, XXXXXXX X. XXXXXX
("XXXXXX"), XXXX X. XXXXXXX ("XXXXXXX"), XXXXX X. XXXXXX ("XXXXXX"), XXXXXXX
X. XXXXX ("XXXXX"), and XXXXXX X. XXXX ("LONG").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Stock Purchase Agreement
(the "SERIES A PURCHASE AGREEMENT"), dated as of May 12, 1997, by and among
Integrated Site Development, Inc. ("INTEGRATED" OR THE "COMPANY"), a Delaware
corporation (now known as SpectraSite Holdings, Inc.), U.S. Towers, Inc. ("UST"
OR "SPECTRASITE"), a Delaware corporation (now known as SpectraSite
Communications, Inc.), Telesite Services, LLC ("TELESITE"), an Arkansas limited
liability company, which merged into SpectraSite, Metrosite Management, LLC
("METROSITE"), an Arkansas limited liability company, JHW II and Kitty Hawk
III, (i) JHW II purchased 3,203,118 shares (the "JHW II SERIES A SHARES") of 8%
Series A Cumulative Convertible Redeemable Preferred Stock, $0.001 par value
per share (the "SERIES A PREFERRED STOCK"), of the Company and (ii) Kitty Hawk
III purchased 259,712 shares (the "KITTY HAWK SERIES A SHARES") of Series A
Preferred Stock; and
WHEREAS, pursuant to the terms of the Stock Contribution
Agreement, dated as of May 12, 1997, by and among Integrated, Xxxxx, Long and
UST, (i) Xxxxx acquired 687,395 shares (the "XXXXX SHARES") of common stock,
$0.001 par value per share, of the Company (the "COMMON STOCK") and (ii) Long
acquired 162,605 shares (the "LONG SHARES") of Common Stock; and
WHEREAS, pursuant to the terms of the Membership Interests
Contribution Agreement, dated as of May 12, 1997, by and among Integrated, Xxx
X. Xxxxxx, III, Xxxxxxxx Xxxxxx, the Xxxxxx Family LP, The Central Arkansas
Opportunity Foundation, a charitable trust organized under the laws of
Arkansas, Telesite and Metrosite, the Xxxxxx Family LP acquired 490,517 (the
"XXXXXX FAMILY COMMON SHARES") shares of Common Stock; and
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WHEREAS, pursuant to a Certificate of Amendment filed with the
Secretary of State of the State of Delaware on October 29, 1997, Integrated
changed its name to SpectraSite Holdings, Inc.; and
WHEREAS, pursuant to Articles of Amendment filed with the
Secretary of State of the State of Arkansas, Telesite changed its name to
SpectraSite Communications, LLC ("SPECTRASITE, LLC");
WHEREAS, pursuant to an Agreement and Plan of Merger, dated
October 31, 1997, between UST and SpectraSite, LLC, SpectraSite, LLC was merged
with and into UST with UST being the surviving corporation, and UST changed its
name to SpectraSite Communications, Inc.; and
WHEREAS, pursuant to a Purchase and Sale Agreement, dated
February 27, 1998, by and among Apex Site Management L.P., a Delaware limited
partnership ("APEX"), the Company, and Metrosite, the Company sold to Apex, and
Apex purchased from the Company, all of the issued and outstanding capital
membership units of Metrosite; and
WHEREAS, concurrently with the execution and delivery of this
Agreement and pursuant to the terms of the Stock Purchase Agreement, dated
March 23, 1998, by and among the Company, JHW II, JHW III, JHW Strategic III,
Xxxxxx, Xxxxx Hawk III, Xxxxx Xxxx XX, Eagle Creek, NCEF, Xxxxxx Family LP,
Xxxxxxx, Xxxxxx and Xxxxxx (the "SERIES B PURCHASE AGREEMENT"), (i) JHW II has
purchased 1,044,532 shares (the "JHW II SERIES B SHARES" and, together with the
JHW II Series A Shares, the "JHW II SHARES") of 8% Series B Cumulative
Convertible Redeemable Preferred Stock, $0.001 par value per share, of the
Company (the "SERIES B PREFERRED STOCK"), (ii) JHW III has purchased 2,039,910
shares (the "JHW III SHARES") of Series B Preferred Stock, (iii) JHW Strategic
III has purchased 49,155 shares (the "JHW STRATEGIC III SHARES") of Series B
Preferred Stock, (iv) Xxxxxx has purchased 746,095 shares (the "XXXXXX SHARES")
of Series B Preferred Stock, (v) Kitty Hawk III has purchased 37,305 shares
(the "KITTY HAWK III SERIES B SHARES") of Series B Preferred Stock, (vi) Xxxxx
Xxxx XX has purchased 186,524 shares (the "XXXXX XXXX XX SERIES B SHARES" and,
together with the Kitty Hawk Series A Shares and the Kitty Hawk III Series B
Shares, the "KITTY HAWK SHARES") of Series B Preferred Stock, (vii) Eagle Creek
has purchased 74,609 shares (the "EAGLE CREEK SHARES") of Series B Preferred
Stock; (viii) NCEF has purchased 30,357 shares (the "NCEF SHARES") of Series B
Preferred Stock, (ix) Xxxxxx Family LP has purchased 30,357 shares (the "XXXXXX
SERIES B SHARES") of Series B Preferred Stock (x) Xxxxxxx has purchased 2,846
shares (the "XXXXXXX SHARES") of Series B Preferred Stock, (xi) Xxxxxx has
purchased 2,846 shares (the "XXXXXX SHARES") of Series B Preferred Stock and
(xii) Xxxxxx has purchased 5,464 shares (the "XXXXXX SHARES") of Series B
Preferred Stock; and
WHEREAS, the Company and the other parties hereto desire to
provide for the circumstances under which the Company will register securities
of the Company on behalf of such other parties.
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NOW, THEREFORE, as an inducement to JHW II, JHW III, JHW
Strategic III, Xxxxxx, Xxxxx Xxxx, Eagle Creek, NCEF, Xxxxxx Family LP,
Xxxxxxx, Xxxxxx and Xxxxxx to consummate the transactions contemplated by the
Series B Purchase Agreement and in consideration of the premises and of the
mutual covenants and obligations hereinafter set forth, the parties hereto
hereby agree as follows:
1. CERTAIN DEFINITIONS. As used herein, the following
terms shall have the following respective meanings:
"CERTIFICATE OF INCORPORATION" shall mean the
Certificate of Incorporation of the Company, as amended, as in effect on the
date hereof.
"COMPANY" shall mean SpectraSite Holdings, Inc., a
Delaware corporation.
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other Federal agency at the time administering the
Securities Act.
"INSTITUTIONAL INVESTORS" shall mean JHW II, JHW III,
JHW Strategic III, Xxxxxx, Xxxxx Hawk III, Xxxxx Xxxx XX, Eagle Creek and
NCEF, and their respective successors and assigns.
"MANAGEMENT SHARES" shall mean the Xxxxx Shares, the
Long Shares and the Xxxxxx Family Common Shares, in each case, the certificates
for which are required to bear the legend set forth in Section 2 hereof.
"MANAGEMENT STOCKHOLDERS" shall mean Clark, Long, and
the Xxxxxx Family, LP, and each of their successors and assigns.
"REGISTRATION EXPENSES" shall mean the expenses so
described in Section 7 hereof.
"RESTRICTED SECURITIES" shall mean the Shares, the
Restricted Stock and the Management Shares, for so long as the instruments or
certificates evidencing such securities shall be required to bear the legend
set forth in Section 2 hereof.
"RESTRICTED STOCK" shall mean the shares of Common
Stock into which the Shares are convertible, the certificates for which are
required to bear the legend set forth in Section 2 hereof.
"SECURITIES ACT" shall mean the Securities Act of
1933, as amended, or any similar Federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so
described in Section 7 hereof.
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"SERIES A PREFERRED STOCK" shall have the meaning
assigned to that term in the first Whereas clause hereof.
"SERIES B PREFERRED STOCK" shall have the meaning
assigned to that term in the fifth Whereas clause hereof.
"SHARES" shall mean the JHW II Shares, the JHW III
Shares, the JHW Strategic III Shares, the Xxxxxx Shares, the Kitty Hawk
Shares, the Eagle Creek Shares, the NCEF Shares, the Xxxxxx Series B Shares,
the Xxxxxxx Shares, the Xxxxxx Shares, the Xxxxxx Shares and any additional
shares of Series B Preferred Stock purchased from the Company by JHW II, JHW
III, JHW Strategic III, Xxxxxx, Xxxxx Xxxx III, Xxxxx Xxxx XX, Eagle Creek,
NCEF, Xxxxxx Family LP, Xxxxxxx, Xxxxxx or Xxxxxx after the date hereof
pursuant to the terms of the Series B Purchase Agreement.
"THRESHOLD AMOUNT" shall mean one or more
Institutional Investors holding at least 75% of the Series A Preferred Stock
and the Series B Preferred Stock, collectively.
2. RESTRICTIVE LEGEND. Each certificate representing
the Shares, Restricted Stock and the Management Shares and, except as otherwise
provided in Section 3 hereof, each certificate issued upon exchange or transfer
of any such securities, shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 NOR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH
LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed
transfer of any Restricted Securities (other than under the circumstances
described in Section 4 or 5 hereof), the holder thereof shall give written
notice to the Company of its intention to effect such transfer. Each such
notice shall describe the manner of the proposed transfer and, if requested by
the Company, shall be accompanied by an opinion of counsel satisfactory to the
Company to the effect that the proposed transfer may be effected without
registration under the Securities Act, whereupon, subject to the terms of the
Stockholders' Agreement (as defined in the Purchase Agreement), such holder
shall be entitled to transfer such securities in accordance with the terms of
its notice; provided, however, that no such opinion of counsel shall be
required for a transfer by a holder of Shares or Restricted Stock that is a
partnership or limited liability company to a partner, member or employee of
such holder or a retired partner or retired employee of such holder who retires
after the date hereof, or to the estate of any such partner, retired partner,
employee or retired employee, or a transfer by gift, will or intestate
succession from any holder of Shares or Restricted Stock to his or her spouse
or members of his or her or his or her spouse's family or a trust for the
benefit of any of the foregoing persons, if the transferee agrees in writing to
be subject to the terms hereof to the same extent as if such transferee were an
original holder
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of Shares or Restricted Stock hereunder. All Restricted Securities transferred
as above provided shall bear the legend set forth in Section 2, except that
such securities shall not bear such legend if (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration
under the Securities Act.
4. REQUIRED REGISTRATION.
(a) The Threshold Amount of Institutional
Investors may, at any time after May 12, 1998, by written notice, request that
the Company register under the Securities Act all or any portion of the shares
of Restricted Stock held by such Institutional Investors for sale in the manner
specified in such notice; provided, however, that the Company shall not be
obligated to register Restricted Stock pursuant to such request unless at the
time of such request, the Institutional Investors shall hold in the aggregate
five percent (5.0%) or more of the total shares of Restricted Stock on a fully
diluted basis. Notwithstanding anything to the contrary contained herein, no
request may be made under this Section 4 within 360 days after the effective
date of a registration statement filed by the Company covering a firm
commitment underwritten public offering in which the holders of Restricted
Stock shall have been entitled to join pursuant to this Section 4 or Section 5
hereof and in which there shall have been effectively registered all shares of
Restricted Stock as to which registration shall have been so requested (and
which requests shall total at least twenty-five percent of the Restricted Stock
originally purchased by the Institutional Investors, after appropriate
adjustment for dividends, subdivisions, combinations or reclassifications of
Restricted Stock).
(b) Promptly following receipt of any notice
under this Section 4, the Company shall immediately notify any holders of
Restricted Stock from whom notice has not been received and shall file and use
its best efforts to have declared effective a registration statement under the
Securities Act for the public sale, in accordance with the method of
disposition specified in such notice from the requesting holders, of the number
of shares of Restricted Stock specified in such notice (and in any notices
received from other requesting holders of Restricted Stock within 20 days after
the date of such notice from the Company). If such method of disposition shall
be an underwritten public offering, the Company may designate the managing
underwriter of such offering, subject to the approval of a majority in interest
of the selling holders of Restricted Stock, which approval shall not be
unreasonably withheld. The number of shares of Restricted Stock to be included
in such an underwriting may be reduced (pro rata among all of the requesting
holders based on the number of shares requested by each holder to be included)
if and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities to be
sold therein. With respect to the preceding sentence, if the Company elects to
reduce pro rata the amount of Restricted Stock proposed to be offered in the
underwriting, for purposes of making any such reduction, each holder of
Restricted Stock which is a partnership or limited liability company, together
with the affiliates, partners, members, employees, retired partners and retired
employees of such holder, the estates and family members of any such partners,
employees, retired partners and retired employees and of their spouses, and any
trusts for the benefit of any of the foregoing
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persons shall be deemed to be a single "person", and any pro rata reduction
with respect to such "person" shall be based upon the aggregate amount of
shares of Restricted Stock requested to be included in such registration by all
entities and individuals included as such "person," as defined in this sentence
(and the aggregate amount so allocated to such "person" shall be allocated
among the entities and individuals included in such "person" in such manner as
such holder of Restricted Stock may reasonably determine). The Company shall
be obligated to register Restricted Stock pursuant to requests made by the
Threshold Amount of Institutional Investors under this Section 4 on one
occasion only; provided, however, that as to such occasion such obligation
shall be deemed satisfied only when a registration statement covering all
shares of Restricted Stock specified in notices received as aforesaid, for sale
in accordance with the method of disposition specified by the requesting
holders, shall have become effective and, if such method of disposition is a
firm commitment underwritten public offering, all such shares shall have been
sold pursuant thereto.
(c) Each of (i) the Company and (ii) the other
stockholders, including without limitation, the Management Stockholders, of
the Company ("Other Holders"), as limited below, shall be entitled to include
in any registration statement referred to in this Section 4 for which the
method of distribution is an underwritten public offering, for sale in
accordance with the method of disposition specified by the requesting holders,
shares of Common Stock to be sold by the Company for its own account, or such
other Holders, as the case may be, except as and to the extent that, in the
opinion of the managing underwriter, such inclusion would adversely affect the
marketing of the Restricted Stock to be sold; provided further, that shares of
Common Stock may be included for Other Holders only if and to the extent that,
in the opinion of the managing underwriter, such inclusion would not adversely
affect the marketing of the Restricted Stock or of such shares of Common Stock
as the Company desires be included in such registration. Except with respect
to registration statements on Form S-8, or as otherwise provided in this
paragraph 4(c), the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its own
account or that of other stockholders, from the date of receipt of a notice
from requesting holders pursuant to this Section 4 until the completion of the
period of distribution of the registration contemplated thereby.
5. INCIDENTAL REGISTRATION; FORM S-3 REGISTRATION.
(a) If the Company at any time (other than pursuant to
Section 4 hereof) proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Form S-4 or S-8, or another form not available for registering
Restricted Stock for sale to the public), each such time it will give written
notice to all holders of Restricted Stock and Management Shares of its
intention so to do. Upon the written request of any such holder of Restricted
Stock or Management Shares, given within 20 days after the date of any such
notice, to register any of its Restricted Stock or Management Shares, as the
case may be (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Restricted Stock
and Management Shares as to which registration shall have been so requested to
be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit the
sale or
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other disposition by such holders (in accordance with their written request) of
such Restricted Stock or Management Shares, as the case may be so registered.
The Company may withdraw any such registration statement before it becomes
effective or postpone the offering of securities contemplated by such
registration statement without any obligation to the holders of any Restricted
Stock or Management Shares. In the event that any registration pursuant to
this Section 5 shall be, in whole or in part, an underwritten public offering
of Common Stock, any request by a holder pursuant to this Section 5 to register
Restricted Stock or Management Shares, shall specify that either (i) such
Restricted Stock or Management Shares, as the case may be, are to be included
in the underwriting on the same terms and conditions as the shares of Common
Stock otherwise being sold through underwriters under such registration or (ii)
such Restricted Stock or Management Shares, as the case may be, are to be sold
in the open market without any underwriting, on terms and conditions comparable
to those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock and Management Shares
to be included in such an underwriting may be reduced if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein. In such event, the Company shall include in such registration (i)
first, the securities the Company proposes to sell; (ii) second, the Restricted
Stock requested to be included in such registration, pro rata among the holders
thereof on the basis of the number of shares requested by each such holder to
be included in such registration; (iii) third, the Management Shares requested
to be included in such registration, pro rata among the holders thereof on the
basis of the number of shares requested by each such older to be included in
such registration; and (iv) fourth, other securities requested to be included
in such registration by persons other than holders of Restricted Stock and
Management Shares. For purposes of making any such reduction, each holder of
Restricted Stock which is a partnership or limited liability company, together
with the affiliates, partners, members, employees, retired partners and retired
employees of such holder, the estates and family members of any such partners,
employees, retired partners and retired employees and of their spouses, and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "person," and any pro rata reduction with respect to such "person" shall
be based upon the aggregate amount of shares of Restricted Stock requested to
be included in such registration by all entities and individuals included as
such "person," as defined in this sentence (and the aggregate amount so
allocated to such "person" shall be allocated among the entities and
individuals included in such "person" in such manner as such holder of
Restricted Stock may reasonably determine). Notwithstanding anything to the
contrary contained in Section 4 or this Section 5, in the event that there is
an underwritten offering of securities of the Company pursuant to a
registration covering Restricted Stock or Management Shares and a selling
holder does not elect to sell his, her or its Restricted Stock or Management
Shares to the underwriters of the Company's securities in connection with such
offering, such holder shall refrain from selling such Restricted Stock or
Management Shares, as the case may be, not registered pursuant to this Section
5 and any other securities of the Company held by such holder during the period
of distribution of the Company's securities by such underwriters and the period
in which the underwriting syndicate participates in the after market; provided,
however, that such holder shall not, in any event, be restricted from selling
its Restricted Stock, Management Shares and other securities for a period of
in excess of 180 days after the effective date of such registration statement.
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(b) If, at a time when Form S-3 is available for such
registration, the Company shall receive from any Institutional Investor a
written request that the Company effect a registration on Form S-3 of any of
such holder's Restricted Stock, the Company will promptly give written notice
of the proposed registration to all other holders of Restricted Stock and, as
soon as practicable, effect such registration and all such related
qualifications and compliances as may be reasonably requested and as would
permit or facilitate the sale and distribution of all Restricted Stock as are
specified in such request and any written requests of other holders given
within 20 days after receipt of such notice. The Company shall have no
obligation to effect a registration under this Section 5(b) unless the
aggregate offering price of the securities requested to be sold pursuant to
such registration is, in the good faith judgment of the Company, expected to be
equal to or greater than $1,000,000. Any registration under this Section 5(b)
will not be counted as a registration under Section 4 above.
6. REGISTRATION PROCEDURES. If and whenever the Company
is required by any of the provisions of Section 4 or 5 hereof to use its best
efforts to effect the registration of any shares of Restricted Stock or
Management Shares under the Securities Act, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 4 hereof, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause
such registration statement to become and remain effective for the period of
the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph 6 (a) above and as to
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock and Management Shares covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons may reasonably request in order to facilitate the public sale or other
disposition of the Restricted Stock and Management Shares covered by such
registration statement;
(d) use its best efforts to register or qualify
the Restricted Stock and Management Shares covered by such registration
statement under the securities or blue sky laws of such jurisdictions as the
sellers of Restricted Stock and Management Shares or, in the case of an
underwritten public offering, the managing underwriter shall reasonably
request; provided, however, that the Company shall not be required to register
or qualify in any states which require it to qualify to do business in such
state or subject itself to general service of process.
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(e) immediately notify each seller under such
registration statement and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
not misleading in the light of the circumstances then existing;
(f) use its best efforts to furnish, at the
request of any seller, on the date that Restricted Stock or Management Shares
are delivered to the underwriters for sale pursuant to an underwritten
registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters
and to such seller, stating (A) that such registration statement has become
effective under the Securities Act, (B) that, to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act and (C) that the registration statement
and the related prospectus, and each amendment or supplement thereof, comply as
to form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder (except
that such counsel need not express any opinion as to financial statements
contained therein), and to such other effects as may reasonably be requested by
counsel for the underwriters or by such seller or its counsel, and (ii) a
letter dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and to such seller, stating that they
are independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to the registration in respect of which
such letter is being given as such underwriters or such seller may reasonably
request; and
(g) make available for inspection by each seller,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of paragraphs 6 (a) and (b) above and of Section
4(c) hereof, the period of distribution of Restricted Stock or Management
Shares in a firm commitment underwritten public offering shall be deemed to
extend until each underwriter has completed the distribution of all securities
purchased by it, and the period of distribution of Restricted Stock and
Management Shares in any other registration shall be deemed to extend until the
earlier of the sale of all Restricted Stock and Management Shares covered
thereby or nine months after the effective date thereof.
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In connection with each registration hereunder, the selling
holders of Restricted Stock or Management Shares shall furnish to the Company
in writing such information with respect to themselves and the proposed
distribution by them as shall be necessary in order to assure compliance with
Federal and applicable state securities laws, and the furnishing of such
information shall be a precondition to inclusion of such holder's shares.
In connection with each registration pursuant to Sections 4
and 5 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature,
provided that such agreement shall not contain any such provision applicable to
the Company which is inconsistent with the provisions hereof and provided,
further, that the time and place of the closing under said agreement shall be
as mutually agreed upon between the Company and such managing underwriter.
7. EXPENSES. All expenses incurred by the Company in
complying with Sections 4 and 5 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., fees of transfer agents and
registrars and costs of insurance and fees and expenses of one law firm
serving as counsel for the sellers of Restricted Stock ("Legal Fees"), but
excluding any Selling Expenses, are herein called "Registration Expenses". All
underwriting discounts, transfer taxes and selling commissions applicable to
the sale of Restricted Stock or Management Shares are herein called "Selling
Expenses." The Company will pay all Registration Expenses in connection with
each registration statement filed pursuant to Section 4 or Section 5 hereof.
All Selling Expenses incurred in connection with any sale of Restricted Stock
or Management Shares by any participating seller shall be borne by such
participating seller, or by such persons other than the Company (except to the
extent the Company shall be a seller) as they may agree.
8. INDEMNIFICATION. In the event of a registration of
any of the Restricted Stock or Management Shares under the Securities Act
pursuant to Section 4 or 5 hereof, the Company will indemnify and hold harmless
each seller of such Restricted Stock or Management Shares thereunder and each
underwriter of such Restricted Stock or Management Shares thereunder and each
other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Restricted Stock or Management Shares were registered under the
Securities Act pursuant to Section 4 or 5, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with
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investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by such
seller, such underwriter or such controlling person in writing specifically for
use in such registration statement or prospectus.
In the event of a registration of any of the Restricted Stock
or Management Shares under the Securities Act pursuant to Section 4 or 5
hereof, each seller of such Restricted Stock or Management Shares thereunder,
severally and not jointly, will indemnify and hold harmless the Company and
each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer or director or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
or Management Shares was registered under the Securities Act pursuant to
Section 4 or 5, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, and provided, however, that such seller
will be liable hereunder in any such case if and only to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information pertaining to such seller, as
such, furnished in writing to the Company by such seller specifically for use
in such registration statement or prospectus; provided, further, however, that
the liability of each seller hereunder shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the public offering price of the shares sold by such seller
under such registration statement bears to the total public offering price of
all securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock or Management Shares covered by such
registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party under this Section 8. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to assume
and undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
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indemnified party of its election to assume and undertake the defense thereof,
the indemnifying party shall not be liable to such indemnified party under this
Section 8 for any legal expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however,
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably and
in good faith concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably and in good
faith may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate
counsel and to assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. If the indemnification provided for in the first two paragraphs of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the seller or sellers of such Restricted Stock, or Management Shares on the
other, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or actions, as well as any other relevant
equitable considerations including the failure to give any notice under the
third paragraph of this Section 8. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one hand,
or by the seller or sellers of such Restricted Stock or Management Shares, on
the other, and to the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Restricted Stock and Management
Shares agree that it would not be just and equitable if contribution pursuant
to this Section 8 were determined by pro rata allocation (even if all of the
sellers of Restricted Stock and Management Shares were treated as one entity
for such purpose) or by any other method of allocation which does not take
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account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or action in respect
thereof, referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this and the immediately preceding paragraph, the sellers of such
Restricted Stock or Management Shares shall not be required to contribute any
amount in excess of the amount, if any, by which the total price at which the
Common Stock sold by each of them was offered to the public exceeds the amount
of any damages which they would have otherwise been required to pay by reason
of such untrue or alleged untrue statement of omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. The indemnification of
underwriters provided for in this Section 8 shall be on such other terms and
conditions as are at the time customary and reasonably required by such
underwriters. In that event the indemnification of the sellers of Restricted
Stock or Management Shares in such underwriting shall at the sellers' request
be modified to conform to such terms and conditions. Upon the reasonable
request of any stockholder selling Restricted Stock or Management Shares
pursuant to a registration statement or any underwriter of such stock, the
Company shall obtain, if reasonably available, an insurance policy covering the
risks described above in this Section 8 in an amount and with a deductible
reasonably requested by such seller or underwriter and naming such seller, any
underwriter of such stock and any person controlling such seller or underwriter
as beneficiaries. The costs of obtaining and maintaining any such insurance
shall be borne by the Company.
9. CHANGES IN COMMON STOCK. If, and as often as, there
are any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so that
the rights and privileges granted hereby shall continue with respect to the
Common Stock as so changed.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Institutional Investors, Jackman,
Eckert, Xxxxxx and the Management Stockholders as follows:
(a) The execution, delivery and performance of
this Agreement by the Company have been duly authorized by all requisite
corporate action and will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation or
By-laws of the Company, or any provision of any indenture, agreement or other
instrument to which it or any of its properties or assets is bound, or conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
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(b) This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief
of debtors, rules and laws governing specific performance, injunctive relief
and other equitable remedies, and with respect to the indemnification and
contribution provisions of Section 8 hereof, principles of public policy.
11. RULE 144 REPORTING. The Company agrees with the
Institutional Investors and the Management Stockholders as follows:
(a) The Company shall make and keep public
information available as those terms are understood and defined in Rule 144
under the Securities Act, at all times from and after 90 days following the
effective date of the first registration of the Company under the Securities
Act of an offering of its securities to the general public.
(b) The Company shall file with the Commission in
a timely manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act at any time after the Company
has become subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of
Restricted Stock or Management Shares forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements
of Rule 144 (at any time from and after 90 days following the effective date of
the first registration statement of the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements),
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed as a holder may reasonably
request to avail itself of any rule or regulation of the Commission allowing a
holder of Restricted Stock or Management Shares to sell any such securities
without registration.
12. MISCELLANEOUS.
(a) All covenants and agreements contained in
this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. Without limiting the generality of the
foregoing, the registration rights conferred herein on the holders of
Restricted Stock or Management Shares shall inure to the benefit of any and all
subsequent holders from time to time of the Restricted Stock or Management
Shares, as the case may be, for so long as the certificates representing the
Restricted Stock or the Management Shares, as the case may be, shall be
required to bear the legend specified in Section 2 hereof.
(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
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if to the Company: SpectraSite Holdings, Inc., 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000, Attention:
Messrs. Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, III;
if to JHW II: c/o X. X. Xxxxxxx & Co., 000 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; Attention: Messrs. Xxxxxxx X.
Xxxxx and Xxxxxx X. X'Xxxxx;
if to Xxxxxx: Xxxxxx-Xxxxxx Media Partners, L.P.,
c/o Xxxxxx-Xxxxxx Management Group, Inc., 0 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention: Xxxxxx X. Xxxxxxxxx, Xx.
if to JHW III: c/o X. X. Xxxxxxx & Co., 000 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; Attention: Messrs. Xxxxxxx X.
Xxxxx and Xxxxxx X. X'Xxxxx;
if to JHW Strategic III: c/o X. X. Xxxxxxx & Co.,
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; Attention: Messrs.
Xxxxxxx X. Xxxxx and Xxxxxx X. X'Xxxxx;
if to Kitty Hawk III: Kitty Hawk Capital Limited
Partnership, III, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000; Attention: Mr. W. Xxxxx Xxxxxx;
if to Xxxxx Xxxx XX: Kitty Hawk Capital Limited
Partnership, IV, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000; Attention: Mr. W. Xxxxx Xxxxxx;
if to Eagle Creek: Eagle Creek Capital, L.L.C., 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx 00000; Attention: Xxxxx X.
Xxxxxxxx;
if to Xxxxx or Long: c/o SpectraSite Communications,
Inc., 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000;
if to the Xxxxxx Family L.P.: c/o Xxx X. Xxxxxx, III,
00000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000;
if to NCEF: The North Carolina Enterprise Fund, L.P.,
0000 Xxxxxxxx Xxx., Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000;
Attention: Xxxxxxx X. Xxxxxxx, Xx.;
if to Xxxxxxx, Xxxxxx or Xxxxxx: c/o PCX Corporation,
0000 X.X. Xxxxxxx 00 Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000;
if to any subsequent holder of Restricted Stock or
Management Shares, to it at such address as may have been furnished to
the Company in writing by such holder; and
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or, in any case, at such other address or addresses
as shall have been furnished in writing to the Company (in the case of
a holder of Restricted Stock or Management Shares) or to the holders
of Restricted Stock and Management Shares (in the case of the
Company).
(c) This 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.
(d) This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified or amended except in writing.
(e) 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
SPECTRASITE HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
WHITNEY EQUITY PARTNERS, L.P.
By: X.X. Xxxxxxx Equity Partners, LLC,
Its General Partner
By: /s/ XXXXXX X. X'XXXXX
-------------------------------------
Name: Xxxxxx X. X'Xxxxx
X.X. XXXXXXX III, L.P.
By: X.X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By: /s/ XXXXXX X. X'XXXXX
-------------------------------------
Name: Xxxxxx X. X'Xxxxx
A Managing Member
WHITNEY STRATEGIC
PARTNERS III, L.P.
By: X.X. Xxxxxxx Equity Partners III, LLC
Its General Partner
By: /s/ XXXXXX X. X'XXXXX
-------------------------------------
Name: Xxxxxx X. X'Xxxxx
A Managing Member
[FIRST SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
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XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: /s/ XXXXXX-XXXXXX MEDIA LLC
--------------------------------------
Its General Partner
By:/s/ XXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, III
By: Kitty Hawk Partners Limited
Partnership, III,
Its General Partner
By:/s/ W. XXXXX XXXXXX
---------------------------------------
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
---------------------------------------
Name: W. Xxxxx Xxxxxx
A Manager
[SECOND SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
00
XXXXX XXXXX XXXXXXX, X.X.X.
By:/s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
A Manager
THE NORTH CAROLINA ENTERPRISE
FUND, L.P.
By: The North Carolina Enterprise
Corporation,
Its General Partner
By:/s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxxx
------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxx
------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxx
------------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxx
------------------------------------------
XXXXXX X. XXXX
[THIRD SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
20
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXX X. XXXXXX III
--------------------------------------
Name: XXX X. XXXXXX III
Title: General Partner
[FOURTH SIGNATURE PAGE TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
