EXHIBIT 10.15
SUBSCRIPTION AGREEMENT
AMONG
PINNACLE TOWERS INC.,
ABRY BROADCAST PARTNERS II, L.P.
AND
THE INVESTORS NAMED HEREIN
TABLE OF CONTENTS
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Page
ARTICLE I: PURCHASE, PLEDGE AND CONTRIBUTION OF SHARES................. 1
1.1 Share Purchase.............................................. 1
1.2 Share Pledge................................................ 1
1.3 Contribution to Pinnacle Holdings........................... 2
1.4 Preemptive Rights........................................... 2
ARTICLE II: TRANSFER OF SHARES GENERALLY; SALE OR
REORGANIZATION OF THE ISSUER................................ 3
2.1 Transfer of Shares.......................................... 3
2.2 Tag-Along Rights............................................ 5
2.3 Sale of the Issuer.......................................... 6
2.4 Recapitalization............................................ 8
2.5 Holdback.................................................... 8
ARTICLE III: REPRESENTATIONS AND WARRANTIES.............................. 8
3.1 Representations and Warranties of the
Investors................................................... 8
3.2 Representations and Warranties of the
Issuer...................................................... 12
3.3 Survival.................................................... 13
ARTICLE IV: GENERAL PROVISIONS.......................................... 13
4.1 Transfer of Restricted Securities........................... 14
4.2 Addresses and Notices....................................... 15
4.3 Binding Effect.............................................. 16
4.4 Amendment; Waiver........................................... 16
4.5 Consent to Jurisdiction..................................... 16
4.6 Further Action.............................................. 16
4.7 Other Definitional Provisions............................... 17
4.8 Severability................................................ 17
4.9 Entire Agreement............................................ 17
4.10 Counterparts................................................ 18
4.11 Descriptive Headings........................................ 18
4.12 Governing Law............................................... 18
4.13 No Strict Construction...................................... 18
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LIST OF EXHIBITS
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EXHIBIT A Investors
EXHIBIT B Defined Terms
EXHIBIT C Form of Pledge Agreement
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SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT is entered into as of December 31, 1995 by
and among Pinnacle Towers Inc., a Delaware corporation ("Pinnacle Towers"), ABRY
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Broadcast Partners II, L.P., a Delaware limited partnership ("ABRY"), and the
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Persons named on the attached Exhibit A (the "Investors").
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Certain terms used in this Agreement have the respective meanings
which the attached Exhibit B assigns to those terms.
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Subject to the terms and conditions of this Agreement, each Investor
desires to purchase capital stock of Pinnacle Towers and the Investors and
Pinnacle Towers desire to set forth certain agreements among them with respect
to the ownership of such capital stock.
Therefore, the parties hereto agree as follows:
ARTICLE I
PURCHASE, PLEDGE AND CONTRIBUTION OF SHARES
1.1 SHARE PURCHASE. On the Closing Date, each Investor will
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purchase from Pinnacle Towers, and Pinnacle Towers will issue to each Investor,
25 shares of Pinnacle Towers' Class A Common, for a cash purchase price of
$2,500 (i.e., $100 per share). The purchase and sale of the Shares pursuant to
this Section 1.1 (the "Closing") will occur on the date, and at the time and
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place, specified by Pinnacle Towers by written notice to the Investors not less
than 5 Business Days prior to the Closing. This Agreement will terminate
without any action by any Person if the Closing does not occur on or prior to
December 31, 1995.
1.2 Share Pledge. If requested to do so in writing by Pinnacle
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Towers, each Investor will pledge to NationsBank of Texas, National Association
("NationsBank") any or all of the Shares acquired by such Investor pursuant to
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this Agreement, to secure Pinnacle Towers' obligations under the Senior Credit
Agreement and certain related agreements and instruments. Such pledge will be
made on the same terms as the pledge made by ABRY in connection with the Senior
Credit Agreement, under a pledge agreement substantially in the form of the
attached Exhibit C. Upon such request, each Investor will execute and deliver
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such a pledge agreement and all related stock powers and other documents and
instruments which NationsBank may reasonably deem necessary to give effect to
such pledge, and will surrender the certificate(s) representing the pledged
Shares as directed by Pinnacle Towers or NationsBank.
1.3 CONTRIBUTION TO PINNACLE HOLDINGS.
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(a) It is contemplated that, on or after the Closing Date, the
present stockholders of Pinnacle Towers will capitalize Pinnacle Holdings
Inc., a Delaware corporation ("Pinnacle Holdings"), by contributing to the
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capital of Pinnacle Holdings all of the capital stock of Pinnacle Towers
held by them in exchange for shares of the capital stock of Pinnacle
Holdings of a like kind and a like number. Upon such contribution, Pinnacle
Towers will assign all of its rights under this Agreement to Pinnacle
Holdings, and Pinnacle Holdings will assume all of Pinnacle Towers'
obligations under this Agreement.
(b) Each Investor agrees that, upon such contribution being made by
ABRY, and without further action by such Investor, such Investor will
similarly contribute to Pinnacle Holdings all shares of Pinnacle Towers
held by such Investor. Each Investor agrees that Pinnacle Towers may
retain the certificate representing shares of Pinnacle Towers issued to
such Investor in order to facilitate such contribution by it.
(c) Prior to such contribution by the Investors, as used in this
Agreement the term "Issuer" will refer to Pinnacle Towers and the term
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"Shares" will refer to the shares of Pinnacle Towers' Class A Common issued
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pursuant to Section 1.1.
(d) From and after such contribution by the Investors, as used in
this Agreement the term "Issuer" will refer to Pinnacle Holdings and the
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term "Shares" will refer to the shares of Pinnacle Holdings' Class A Common
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issued pursuant to this Section 1.3 in exchange for shares of Pinnacle
Towers' Class A Common upon such contribution.
1.4 Preemptive Rights.
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(A) GENERAL RIGHT. Except for any Exempt Issuance, if after the
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Closing the Issuer authorizes the issuance or sale of any Common Equivalents,
then the Issuer will give each Investor written notice offering to sell to that
Investor a portion of such Common Equivalents equal to that Investor's Ownership
Percentage. Such notice will describe in reasonable detail the Common
Equivalents being offered, the purchase price, the payment terms and such
Investor's Ownership Percentage. Each Investor (and each other stockholder of
the Issuer) will be entitled to purchase those Common Equivalents at the same
price and on the same other terms as those Common Equivalents are issued to
other Persons; provided that, if other Persons purchasing or receiving Common
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Equivalents are required to also purchase other securities of the Issuer or any
other Person, then the Investors exercising their rights under this
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Section 1.4 will also be required to purchase the same strip of securities (on
the same terms and conditions) that such other Persons are required to purchase.
(B) METHOD OF EXERCISE. In order to exercise its purchase rights
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under this Section 1.4, an Investor must, within 10 Business Days after receipt
of the written notice described in Section 1.4(a), deliver a written notice to
the Issuer stating that such Investor is electing to purchase Common Equivalents
and stating the quantity of Common Equivalents for which that Investor will
subscribe.
(C) SALE TO OTHERS. During the 180 days after the end of the 10-day
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offering period described in Section 1.4(b), the Issuer will be entitled to sell
any Common Equivalents which the Investors and the other stockholders of the
Issuer have not elected to purchase, on terms and conditions no more favorable
to the purchasers thereof than those offered to the Investors. Any Common
Equivalents offered or sold by the Issuer after such 180-day period must be
reoffered in accordance with the terms of this Section 1.4 to the Investors and
the other stockholders of the Issuer.
(D) TERMINATION. The rights of the Investors under this Section 1.4
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will terminate upon an IPO.
ARTICLE II
TRANSFER OF SHARES GENERALLY;
SALE OR REORGANIZATION OF THE ISSUER
2.1 TRANSFER OF SHARES.
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(A) TRANSFER RESTRICTIONS. Because it is the intention of the Issuer
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and its stockholders that the Issuer satisfy the provisions of the Code relating
to qualification of the Issuer as a "real estate investment trust," particularly
Section 856(a)(5) of the Code, no holder of any Share may Transfer any Share or
any interest therein to any other Person if, as a result of such Transfer,
either (i) beneficial ownership of shares of all classes of capital stock of the
Issuer would be held by less than 100 Persons (the "Aggregate Ownership Limit"),
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if beneficial ownership of all Common Shares was held by 100 or more Persons
prior to such Transfer, or (ii) if such Transfer would result in the ownership
by the Transferee in combination with four or fewer individuals (within the
meaning of Section 542(a)(2) of the Code) of more than fifty percent of the
aggregate value of all shares of all classes of capital stock of the Issuer (the
"Percentage Ownership Limit").
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(B) REGISTRATION OF TRANSFER. The Issuer will keep at its principal
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office (or such other place as the Issuer reasonably
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designates) a register for the registration of Shares. Upon the surrender at
such place of any certificate representing Shares with respect to all of which a
transfer would satisfy all requirements of Section 2.1(a), the Issuer will, at
the request of the registered holder of such certificate, execute and deliver a
new certificate or certificates in exchange therefor representing in the
aggregate the number of shares of the class represented by the surrendered
certificate, and the Issuer forthwith will cancel such surrendered certificate.
Each such new certificate will be registered in such name and will represent
such number of shares of such class as is requested by the holder of the
surrendered certificate (so long as the requirements of this Section 2.1(b) and
Section 2.1(a) are otherwise satisfied with respect to the Shares represented by
such certificate) and will be substantially identical in form to the surrendered
certificate. The issuance of new certificates will be made without charge to
the holders of the surrendered certificates for any issuance tax in respect
thereof or other cost incurred by the Issuer in connection with such issuance.
(C) EFFECT OF UNAUTHORIZED TRANSFERS. Any Transfer of any Share in
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violation of the Percentage Ownership Limit, the Aggregate Ownership Limit,
and/or any other restriction or requirement specified in the Issuer's Charter (a
"Purported Transfer") will be void and of no legal effect. Any Purported
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Transfer will cause (without action on the part of the Issuer, the Transferee
(the "Prohibited Transferee"), or the Transferor) all Shares (or interests
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therein) involved in such Purported Transfer to be transferred to the Issuer, as
trustee (in such capacity, the "Trustee") in trust for the exclusive benefit of
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one or more organizations described in Section 501(c)(3) of the Code (the
"Charitable Beneficiaries"). The Trustee will be deemed to own such Shares for
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the benefit of the Charitable Beneficiaries on the day prior to the date of the
Purported Transfer. Any dividends or distributions paid by the Issuer to the
Purported Transferee prior to discovery of a Purported Transfer will be
disgorged and repaid to the Issuer, as Trustee, by the Prohibited Transferee.
Any dividend declared after a Purported Transfer but unpaid will be rescinded as
void ab initio with respect to the Prohibited Transferee. Any dividends so
disgorged or rescinded will then be paid over to the Trustee and held in trust
for the Charitable Beneficiaries. Any vote taken by a Prohibited Transferee
prior to the discovery by the Issuer of a Purported Transfer will be rescinded
as void ab initio. With respect to the Shares involved in the Purported
Transfer, the Trustee will be deemed to have an irrevocable proxy to vote such
Shares for the benefit of the Charitable Beneficiaries.
(D) NOTIFICATION OF PROPOSED TRANSFERS. In order that the Issuer may
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enforce the Aggregate Ownership Limit and the Percentage Ownership Limit, no
Share will be Transferrable by the holder thereof (except pursuant to Section
1.3) unless, not less
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than 30 days prior to any such proposed Transfer, the holder of any and all
Shares proposed to be Transferred ("Transferred Shares") delivers to the Issuer
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written notice of its intention to effect such a Transfer.
2.2 TAG-ALONG RIGHTS.
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(A) TAG-ALONG SALE NOTICE. Not later than the 5th Business Day prior
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to any Transfer of Common Shares by ABRY, ABRY will give each Investor a written
notice (the "Tag-Along Sale Notice") specifying the material terms of the
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proposed Transfer. Each Investor may elect to participate in such Transfer as
an additional Transferor on the terms of this Section 2.2, by delivering written
notice to that effect to ABRY within 5 Business Days after delivery of the Tag-
Along Sale Notice.
(B) MANNER OF PARTICIPATION. If any Investor elects to participate in
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any such Transfer, then each Investor participating in that Transfer as a
Transferor will be entitled to include in that Transfer, at the same price and
on the same terms (subject to Section 2.2(c)), up to a quantity of Shares which
is equal to the product of (1) the quotient determined by dividing that
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Investor's Ownership Percentage by the aggregate Ownership Percentages of all
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Persons (including ABRY and the Investors and other stockholders of the Issuer
which have elected to participate in such Transfer) multiplied by (2) the
aggregate number of Common Shares to be included in that Transfer.
For example, if ABRY proposes to Transfer 100,000 Common Shares, and one
Investor and one non-Investor stockholder of the Issuer elect to
participate in that Transfer, and the Ownership Percentage of ABRY is 60%
and the respective Ownership Percentages of the Investor and the Non-
Investor stockholder are 0.01% and 1%, then the Investor will be entitled
to include in that Transfer approximately 16.4 Common Shares./1/
(C) ALLOCATION OF CONSIDERATION. In any Transfer of Common Shares
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in accordance with this Section 2.2, the aggregate consideration paid by the
Transferee in question will be divided among ABRY and the participating
Investors and other stockholders of the Issuer as if such consideration were to
be distributed as a Distribution to the Issuer's stockholders in accordance with
the Issuer's Charter and the Common Shares Transferred were the only shares of
the Issuer's capital stock outstanding.
(D) EXCEPTED TRANSFERS. The provisions of this Section 2.2 will not
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apply to any Transfer by ABRY (i) to an
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/1/i.e., [0.01% /(60% + 1% + 0.01%)] x 100,000 Common Shares.
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Affiliate of ABRY (provided that the Affiliate agrees to be bound by the terms
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of this Agreement with respect to any subsequent Transfer of the Common Shares
Transferred to that Affiliate), (ii) pursuant to Section 2.3, (iii) in any
Public Sale (including in connection with or as part of an IPO), or (iv) to any
employee of the Issuer or any Subsidiary.
(E) TRANSFERS IN VIOLATION. Any Transfer of any Common Shares in
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violation of this Section 2.2 will be null and void, and the Issuer will not
give any effect to any such Transfer in the Issuer's records. ABRY will not
Transfer (other than pursuant to clause (ii), clause (iii) or clause (iv) of
Section 2.2(d)) any Common Shares to any Person which does not agree to permit
participation by the holders of Shares in such Transfer in accordance with this
Section 2.2.
(F) TERMINATION OF RESTRICTIONS. If any Common Shares are Transferred
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in accordance with this Section 2.2 (other than to an Affiliate of ABRY), then
no Investor will have any rights pursuant to this Section 2.2 with respect to
any subsequent Transfer of those Common Shares. The rights of the Investors
under this Section 2.2 will terminate with respect to all Transfers of Common
Shares upon an IPO or a Sale of the Issuer.
2.3 SALE OF THE ISSUER.
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(A) GENERALLY. In connection with any Approved Sale, each Investor
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will vote in favor of, consent to and raise no objection with respect to the
Approved Sale, and if the Approved Sale is structured as a sale of the Issuer's
capital stock, then each Investor will sell capital stock of the Issuer,
Options, Convertible Securities and other rights to acquire securities of the
Issuer on the terms and conditions applicable to the Approved Sale. Each
Investor will take all actions which may be necessary to approve and effect any
Approved Sale (including waiving any dissenter's or similar rights which such
Investor may have with respect to any Approved Sale) and will use its best
efforts to cooperate in any Approved Sale and will take all other necessary and
desirable actions in connection with the consummation of any Approved Sale as
the Issuer or ABRY may reasonably request.
(B) CONDITIONS. The obligations of each Investor with respect to any
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Approved Sale are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, each Investor will
receive the same form of consideration and the same amount of consideration
per share or other unit of securities, subject to Section 2.3(c);
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(ii) if any holders of a class of the Issuer's securities are given
an option as to the form and amount of consideration to be received, then
each Investor which holds any securities of that class will be given the
same option;
(iii) each Investor which holds any then currently exercisable
Options, Convertible Securities or other rights to acquire securities of
the Issuer of any class will be given an opportunity to either (A) exercise
those rights prior to the consummation of the Approved Sale and participate
in the Approved Sale as a holder of the securities issuable upon exercise
or (B) upon consummation of the Approved Sale, receive in exchange for
those rights consideration equal to the amount determined by multiplying
(1) the per-unit amount received by the holders of securities of that class
in connection with the Approved Sale less the per-unit exercise price
payable upon the exercise of those rights by (2) the number of units
issuable upon the exercise of those rights; and
(iv) no Investor will be required by reason of any Approved Sale to
incur indemnification liability in a proportion which is greater than that
Investor's pro rata share of the proceeds of the Approved Sale with respect
to breaches of representations and warranties regarding matters other than
that Investor and the securities purported to be owned by that Investor.
(C) DISTRIBUTIONS UPON SALE OF THE ISSUER. In the event of a Sale of
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the Issuer, including an Approved Sale, which is effected by means of a sale or
exchange of the Issuer's capital stock (whether by sale, merger,
recapitalization, reorganization, consolidation, combination, sale or transfer
of capital stock or otherwise), each Investor will receive in exchange for the
shares owned by such Investor to be sold or exchanged the same portion of the
aggregate consideration from such sale or exchange that such Investor would have
received if such aggregate consideration had been distributed by the Issuer in
complete liquidation of the Issuer pursuant to Issuer's Charter, determined as
if the securities involved in such Approved Sale of the Issuer were the Issuer's
sole outstanding securities. Each Investor will take all necessary or desirable
actions in connection with the distribution of the aggregate consideration from
such sale or exchange as are requested by the Issuer to give effect to this
Section 2.3(c).
2.4 RECAPITALIZATION. In the event that a Transfer to which the
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tag-along rights described in Section 2.2 would apply, or a Public Offering, is
proposed and ABRY requests in order to facilitate that Transfer, or the
underwriters or other Persons managing or administering that offering on behalf
of the Issuer (the "Managers") advise the Issuer in writing that in their
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opinion
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the equity structure of the Issuer (including the fact that the Issuer is
organized as a corporation) may adversely affect the marketability of the
offering, then each Investor will consent to and vote for a recapitalization or
reorganization of the Issuer and/or the exchange or conversion of the Issuer's
capital stock into a form of business organization and/or common and preferred
securities that ABRY or the Managers, as the case may be, propose, and will take
all other necessary or desirable actions in connection with the consummation of
the recapitalization, reorganization and/or exchange or conversion, including
entering into any amendment or restatement of this Agreement or approving any
amendment or restatement of the Issuer's Charter which may be required in order
to preserve the relative rights and obligations of any Person; provided that the
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resulting organization and the common and preferred securities issued in
connection with that recapitalization or reorganization reflect and are
consistent with the relative rights, duties and preferences among the Issuer's
outstanding securities prior to such recapitalization or reorganization.
2.5 HOLDBACK. No Investor will offer to the public for sale, or
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make any public sale or distribution of, any Share or any other Common Shares or
other equity security of the Issuer, or any securities convertible into or
exchangeable or exercisable for any of the foregoing, during the seven days
prior to or the 180 days after the effective date of any underwritten registered
offering of the Issuer's capital stock or other securities, unless the
underwriters managing such underwritten offering otherwise agree. The
restrictions set forth in this Section 2.5 will continue with respect to any
particular security until the date on which that security has been sold in a
Public Sale.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. As an
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inducement to the Issuer to enter into this Agreement and to consummate the
transactions contemplated by this Agreement, each Investor represents and
warrants to the Issuer, effective as of the time of and immediately after giving
effect to the Closing (as if such representations and warranties were made at
such time), and with respect to itself or himself and not with respect to any
other Person, that:
(A) AUTHORIZATION AND BINDING EFFECT. The execution, delivery and
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performance by that Investor of this Agreement have (to the extent required)
been duly authorized by it or him, and that Investor has full legal capacity to
enter into this Agreement.
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This Agreement constitutes a valid and binding obligation of that Investor which
is enforceable in accordance with its terms.
(B) ABSENCE OF CONFLICTS. The execution and delivery by that
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Investor of this Agreement, and that Investor's fulfillment of and compliance
with the terms of this Agreement, do not and will not in any material respect
(i) conflict with or result in a breach of the terms, conditions or
provisions of,
(ii) constitute a default under,
(iii) result in the creation of any lien, security interest,
charge or encumbrance upon that Investor's assets pursuant to,
(iv) give any third party the right to accelerate any obligation
under,
(v) result in a violation of, or
(vi) require any authorization, consent, approval, exemption or
other action by or notice to any Government Entity or any other
Person pursuant to,
any of the charter, bylaws, plan, trust or other organizational documents of
that Investor (if any), or any Law to which that Investor or any of its or his
assets is subject.
(C) INVESTMENT REPRESENTATIONS. With respect to the Shares to be
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acquired by the representing and warranting Investor pursuant to Sections 1.1
and 1.3:
(I) INVESTMENT RISK. The representing and warranting Investor, by
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reason of its or his, or its or his purchaser representative's, business or
financial experience, is capable of evaluating the risks and merits of an
investment in those Shares and of protecting its or his own interests in
connection with the investment pursuant to this Agreement. That Investor
further acknowledges that those Shares are a speculative investment which
involves a substantial degree of risk of loss by that Investor of its or
his entire investment in the Issuer, and that Investor understands and
takes full cognizance of the risk factors related to the acquisition of
those Shares and that the Issuer has only recently been organized and has a
limited financial and operating history. That Investor is financially able
to bear the economic risk of an investment in those Shares, including the
total loss of that investment.
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(II) NO GENERAL SOLICITATION. The representing and warranting
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Investor has not seen, received, been presented with, or been solicited by
any leaflet, public promotional meeting, newspaper or magazine article or
advertisement, radio or television advertisement, or any other form of
advertising or general solicitation, with respect to the issuance of those
Shares.
(III) INVESTMENT INTENT; STATUS. The representing and warranting
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Investor is acquiring those Shares for investment purposes for its or his
own account only, and not with a view to or for sale in connection with any
distribution of all or any part of those Shares. No other Person will have
any direct or indirect beneficial interest in or right to those Shares.
That Investor either (a) is an "accredited investor" (as that term is
defined in Rule 501 promulgated under the Securities Act) or (b) is making
the investment in Shares based upon the knowledge and experience in
financial and business matters of the "purchaser representative" (as that
term is defined in Rule 501 promulgated under the Securities Act) named on
that Investor's signature page attached to this Agreement. That Investor
is a resident of the state or nation specified below on that Investor's
signature page attached to this Agreement.
(IV) LACK OF REGISTRATION. The representing and warranting Investor
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acknowledges that those Shares have not been registered under the
Securities Act or the securities laws of any state, in reliance, in part,
on its or his representations, warranties, and agreements set forth in this
Agreement. That Investor understands that each such Share is a "restricted
security" under the Securities Act in that those Shares will be acquired
from the Issuer in a transaction not involving a public offering, that
those Shares may be resold without registration under the Securities Act
only in certain limited circumstances, and that otherwise those Shares must
be held indefinitely. That Investor further understands and agrees that the
Issuer and its stockholders are under no obligation to register or qualify
those Shares under the Securities Act or under any state securities law, or
to assist that Investor in complying with any exemption from regis tration
and qualification. That Investor agrees that it or he will not make any
disposition of all or any part of those Shares which will result in the
violation by it or him or by the Issuer of the Securities Act, or any other
applicable securities laws.
(V) LACK OF LIQUIDITY. The representing and warranting Investor
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acknowledges that there are substantial restrictions on the transferability
of those Shares pursuant to this Agreement and applicable law, that there
is no public market
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for those Shares or other securities of the Issuer and none is expected to
develop, and that, accordingly, it may not be possible for that Investor to
liquidate its or his investment in the Shares.
(VI) ACCESS TO INFORMATION. The representing and warranting Investor,
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or its or his purchaser representative, if any, has received and reviewed
the Confidential Offering Memorandum dated November 1, 1995 regarding the
offering of the Shares. That Investor, or its or his purchaser
representative, if any, has had an opportunity to ask questions and
receive answers from the Issuer and the Persons involved in organizing,
establishing and managing the business and affairs of the Issuer regarding
the terms and conditions of acquisition of those Shares and regarding the
proposed business, financial affairs, and other aspects of the Issuer, and
has further had the opportunity to obtain all information (to the extent
the Issuer possesses or can acquire such information without unreasonable
effort or expense) which that Investor, or its or his purchaser
representative, if any, deems necessary to evaluate its or his investment
in those Shares and to verify the accuracy of information otherwise
provided to it or him. That Investor, or its or his purchaser
representative, if any, has received and reviewed all information which it
or he considers necessary or appropriate for deciding whether to acquire
and commit to acquire those Shares.
(VII) LACK OF REPRESENTATIONS. Neither the Issuer, ABRY, nor any
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representative of the Issuer or ABRY, nor any other Person, has at any time
expressly or implicitly represented, guaranteed, or warranted to that
Investor that it or he may freely Transfer those Shares, that a percentage
of profit and/or amount or type of consideration will be realized as a
result of an investment in those Shares, that past performance or
experience on the part of any Person in any way indicates the predictable
results of the ownership of those Shares or of the Issuer's business, that
any cash distributions from Issuer operations or otherwise will be made to
the owners of Shares by any specific date or will be made at all, or that
any specific tax benefits will accrue as a result of an investment in the
Issuer.
(VIII) CONSULTATION WITH ADVISORS. The representing and warranting
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Investor has been advised to consult with its or his own legal counsel and
financial advisors (including its or his purchaser representative, if any)
regarding all legal and financial matters concerning an investment in the
Issuer and the tax and other consequences of investing in the Issuer and
acquiring and owning those Shares, and has done so, to the extent that
Investor considers necessary.
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(IX) TAX MATTERS. The representing and warranting Investor
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acknowledges that the tax consequences to it or him of acquiring and owning
those Shares will depend on its or his particular circumstances, and
neither the Issuer nor any representative of the Issuer nor any other
Person will be responsible or liable for the tax consequences to that
Investor of an investment in the Issuer. That Investor will look solely
to, and rely upon, its or his own advisors with respect to the tax
consequences of this investment. That Investor acknowledges that there can
be no assurance that the Code or the Treasury Regulations or any other Law
will not be amended or interpreted in the future in such a manner so as to
deprive the Issuer and its Investors of some or all of the tax benefits
they might receive, nor that some of the deductions claimed by the Issuer
or the allocations of items of income, gain, loss, deduction, or credit
among the Issuer's Investors may not be challenged by the Internal Revenue
Service or any other taxing authority.
3.2 REPRESENTATIONS AND WARRANTIES OF THE ISSUER. As an inducement
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to each Investor to enter into this Agreement and to acquire or agree to acquire
Shares, the Issuer represents and warrants to each Investor as of the time of
and immediately after giving effect to the Closing and as of the time of the
contribution described in Section 1.3 (in each case as if such representations
and warranties were made at each such time) that:
(A) AUTHORIZATION AND BINDING EFFECT. The execution, delivery and
--------------------------------
performance by the Issuer of this Agreement have been duly authorized by
the Issuer, and this Agreement constitutes a valid and binding obligation
of the Issuer which is enforceable in accordance with its terms.
(B) ABSENCE OF CONFLICTS. The execution and delivery by the Issuer of
--------------------
this Agreement, and the Issuer's fulfillment of and compliance with the
terms of this Agreement do not and will not in any material respect
(i) conflict with or result in a breach of the terms,
conditions or provisions of,
(ii) constitute a default under,
(iii) result in the creation of any lien, security interest, charge or
encumbrance upon the Issuer's assets pursuant to,
(iv) give any third party the right to accelerate any obligation
under,
(v) result in a violation of, or
-12-
(vi) require any authorization, consent, approval, exemption or other
action by or notice to any Government Entity or any other Person
pursuant to,
any of the charter or bylaws of the Issuer, or any Law to which The Issuer
or any of its assets is subject.
(C) TAX MATTERS. The Issuer acknowledges that the Investors'
-----------
investments are being made based upon the understanding that, for United
States federal income tax purposes, the Issuer will be eligible to be
treated, and will in fact be treated, as a real estate investment trust (a
"REIT"). In furtherance of that understanding and in order to induce the
----
Investors to make the investments described in Section 1.1, the Issuer
represents that the Issuer will (1) use reasonable efforts to become and
continue to be qualified to be so treated, (2) validly and timely elect to
be taxed as a REIT, (3) acquire, manage and dispose of such assets in such
manner as to continue to be eligible to be taxed as a REIT, (4) make such
dividend distributions to its stockholders at such times as may be required
to maintain its qualification as a REIT, and (5) take or refrain from
taking such other actions as may be necessary or desirable to preserve its
eligibility to be taxed as a REIT. In addition, insofar as is reasonably
practicable, the Issuer warrants and covenants that it will manage the
Issuer's affairs in such a manner as to avoid the incurrence of any
material amount of United States federal income taxes, including taxes
relating to foreclosure property and taxes imposed upon prohibited
transactions.
3.3 SURVIVAL. Each representation and warranty set forth in Section
--------
3.1 or Section 3.2 will survive the execution and delivery of this Agreement and
the Closing.
ARTICLE IV
GENERAL PROVISIONS
4.1 TRANSFER OF RESTRICTED SECURITIES.
---------------------------------
(A) GENERALLY. Without limiting Section 2.1, Shares which are
---------
Restricted Securities may be Transferred only (i) in Public Offerings, (ii)
under Rule 144 or Rule 144A promulgated under the Securities Act (or any similar
rule or rules then in force) if such rule is available, (iii) pursuant to
Section 2.2, 2.3 or 2.4, or (iv) subject to the conditions specified in Section
4.1(b), by any other legally available means of Transfer.
(B) OPINION DELIVERY. In connection with the transfer of any
----------------
Restricted Securities (other than a Transfer described in
-13-
Section 4.1(a)(i), 4.1(a)(ii) or 4.1(a)(iii)), the holder of such Restricted
Securities will deliver written notice to the Issuer describing in reasonable
detail the Transfer or proposed Transfer, together with an opinion (in form and
substance reasonably satisfactory to the Issuer) of legal counsel which (to the
Issuer's reasonable satisfaction) is knowledgeable in securities law matters, to
the effect that such transfer of Restricted Securities may be effected without
registration of such Restricted Securities under the Securities Act. In
addition, if such holder of the Restricted Securities delivers to the Issuer an
opinion (in form and substance reasonably acceptable to the Issuer) of such
legal counsel to the effect that no subsequent Transfer of such Restrict ed
Securities will require registration under the Securities Act, then the Issuer
will upon such contemplated transfer deliver new certificates for such
Restricted Securities which do not bear the Securities Act legend set forth in
Section 4.1(c). If the Issuer is not required to deliver new certificates for
such Restricted Securities not bearing such legend, then such holder will not
Transfer the same until the prospective Transferee has confirmed to the Issuer
in writing its agreement to be bound by the conditions contained in this Section
4.1.
(C) LEGEND. Each certificate representing Restricted Securities will
------
be imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
______________, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE SUBSCRIPTION
AGREEMENT DATED AS OF _________, 1995, AS IN EFFECT FROM TIME TO TIME,
BETWEEN THE ISSUER (THE "ISSUER") AND CERTAIN INVESTORS, AND THE ISSUER
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF
SUCH CONDITIONS WILL BE FURNISHED BY THE ISSUER TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
(D) LEGEND REMOVAL. If any Restricted Securities become eligible for
--------------
sale pursuant to Rule 144(k) promulgated under the Securities Act (or any
similar rule or rules then in force), then the Issuer will, upon the request of
the holder of such Restricted Securities, remove the legend set forth in Section
4.1(c) from the certificates for such Restricted Securities.
4.2 ADDRESSES AND NOTICES. Any notice, demand, request or report
---------------------
required or permitted to be given or made to any Person under this Agreement
will be in writing and will be deemed given or made when delivered in person or
when sent by first class mail or
-14-
by other commercially reasonable means of written communication (including
delivery by an internationally recognized courier service or by facsimile
transmission) (i) to the Issuer or to ABRY, at the address, and with the copy,
specified below, or (ii) to any Investor, at that Investor's address as shown on
the Issuer's books and records.
To the Issuer:
-------------
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
with a copy (which copy will not
--------------------------------
constitute notice to the Issuer) to:
-----------------------------------
ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
To ABRY:
-------
ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
with a copy (which copy will not
--------------------------------
constitute notice to ABRY) to:
-----------------------------
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
or to such other address as the recipient may have theretofore specified to the
sending Person in accordance with this Section 4.2.
4.3 BINDING EFFECT. This Agreement will be binding upon and inure to
--------------
the benefit of the parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assigns. Notwithstanding the
foregoing, no Investor will Transfer any Share (other than in a Public Sale, a
Sale of the Issuer or a Transfer made in accordance with Section 1.3 or Section
2.1) to any Person who does not agree in writing to be bound by the provisions
of this Agreement applicable to such Shares immediately prior to such Transfer.
4.4 AMENDMENT; WAIVER. Except as otherwise provided in this
-----------------
Agreement, no modification, amendment or waiver of any provision of this
Agreement will be effective unless such modification, amendment or waiver is
approved in writing by the Issuer and the holders of a majority of the Shares.
No failure by any party
-15-
to insist upon the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy consequent upon a
breach thereof will constitute a waiver of any such breach or any other
covenant, duty, agreement or condition.
4.5 CONSENT TO JURISDICTION. Each Investor, ABRY and the Issuer
-----------------------
agrees that any legal proceeding instituted against it or him with respect to
the Issuer's business or property, or relating to this Agreement, may be brought
in any court of competent jurisdiction located in the State of Delaware or the
Commonwealth of Massachusetts, as selected by the Board, and each Investor, ABRY
and the Issuer waives the right to trial by jury with respect to all such
matters. Each Investor, ABRY and the Issuer irrevocably accepts and submits to
the non-exclusive jurisdiction of each of the aforementioned courts in personam
generally and unconditionally with respect to any such proceeding for itself or
himself and its or his property. If any such proceeding is brought in any such
jurisdiction, each Investor, ABRY and the Issuer hereby (a) waives any objection
on the ground of venue or the convenience of the forum, and (b) agrees that any
judgment obtained in any such proceeding will be conclusive and may be enforced
in any other jurisdiction by suit on the judgment, a certified or exemplified
copy of which will be conclusive evidence of the fact and amount of that
Investor's, ABRY's or the Issuer's obligations. Service of process and notice
of any such proceeding may be made by any means provided for in Section 4.2.
4.6 FURTHER ACTION. The parties will execute and deliver all
--------------
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
4.7 Other Definitional Provisions.
-----------------------------
(A) "HEREOF," ETC. The terms "hereof," "herein" and "hereunder" and
-------------
terms of similar import will refer to this Agreement as a whole and not to any
particular provision of this Agreement. Section, clause and Exhibit references
contained in this Agreement are references to Sections, clauses and Exhibits in
or attached to this Agreement, unless otherwise specified.
(B) NUMBER AND GENDER. Each defined term used in this Agreement has a
-----------------
comparable meaning when used in its plural or singular form. Each gender-
specific term used in this Agreement has a comparable meaning whether used in a
masculine, feminine or gender-neutral form.
(C) INCLUDING. Whenever the term "including" is used in this
---------
Agreement (whether or not that term is followed by the phrase "but not limited
to" or "without limitation" or words of similar
-16-
effect) in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only and
will not be interpreted as a limitation on, or an exclusive listing of, the
items within that classification.
(D) SUCCESSOR LAWS. Each reference in this Agreement or any other
--------------
Transaction Document to any Law will be deemed to include such Law as it
hereafter may be amended, supplemented or modified from time to time and any
successor Law thereto, unless such treatment would be contrary to the express
terms of this Agreement or such Transaction Document.
4.8 SEVERABILITY. Whenever possible, each provision of this
------------
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
4.9 ENTIRE AGREEMENT. This Agreement embodies the complete agreement
----------------
and understanding among the parties to this Agreement with respect to the
subject matter of this Agreement and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter of this Agreement in any
way; provided that this Section 4.9 shall not cause any representation contained
--------
in the confidential offering memorandum or any supplement thereto, or any other
written offering literature, furnished by the Issuer to any Investor or
prospective Investor to be superseded, preempted or merged with this Agreement,
and each such representation will survive the execution of this Agreement and
the consummation of the transactions contemplated hereby.
4.10 COUNTERPARTS. This Agreement may be executed simultaneously in
------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
4.11 DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a substantive part of
this Agreement.
4.12 GOVERNING LAW. ALL MATTERS RELATING TO THE INTERNAL AFFAIRS OF
-------------
THE ISSUER AND THE RELATIVE RIGHTS OF THE HOLDERS OF THE
-17-
ISSUER'S CAPITAL STOCK AS SUCH WILL BE GOVERNED BY THE DELAWARE ACT. ALL OTHER
ISSUES AND QUESTIONS, INCLUDING THOSE CONCERNING THE CONSTRUCTION, VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE EXHIBITS WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR
RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE
APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF
DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT
(AND ALL SCHEDULES AND EXHIBITS HERETO), EVEN IF UNDER THAT JURISDICTION'S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER
JURISDICTION WOULD ORDINARILY APPLY.
4.13 NO STRICT CONSTRUCTION. The parties to this Agreement have
----------------------
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties, and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * * *
-18-
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Subscription Agreement as of the first date set
forth above.
PINNACLE TOWERS INC.
By____________________________
Its___________________________
ABRY BROADCAST PARTNERS, L.P.
By ABRY Capital, L.P.
Its General Partner
By ABRY Holdings, Inc.
Its General Partner
By_______________________
Its______________________
-19-
SIGNATURE PAGE FOR INVESTOR
------------------ --------
PINNACLE TOWERS INC.
--------------------
SUBSCRIPTION AGREEMENT IF INDIVIDUAL INVESTOR:
----------------------
_______________________________
(please print or type name)
_______________________________
(signature)
IF NON-INDIVIDUAL INVESTOR:
_______________________________
(please print or type name)
By_____________________________
(signature)
Its____________________________
(specify title)
FOR ALL INVESTORS:
State (or Nation, if other
than the United States of
America) of Residence/Domicile:
_______________________________
(please print or type)
check one:
____ Accredited Investor
____ Not an Accredited Investor --
If not an Accredited
Investor, name of Purchaser
Representative:
_____________________________
(please print or type)
-20-
EXHIBIT A
INVESTORS
---------
(ATTACHED)
-21-
EXHIBIT B
DEFINED TERMS
-------------
As used in the Subscription Agreement to which this Exhibit B is
attached, the following terms have the following respective meanings:
"AFFILIATE" means any Person that directly or indirectly controls, is
---------
controlled by, or is under common control with the Person in question. For
purposes of this Agreement, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise; provided that each direct and indirect partner of ABRY
--------
will be deemed to be an Affiliate of ABRY.
"AGREEMENT" means this Subscription Agreement, as in effect from time
---------
to time.
"AGGREGATE OWNERSHIP LIMIT" has the meaning set forth in Section
-------------------------
2.1(a).
"APPROVED SALE" means any Sale of the Issuer which is approved by
-------------
holders of Common Shares entitled to cast a majority of the votes entitled to be
cast by the outstanding Common Shares, voting in the manner provided in the
Issuer's Charter.
"BOARD" means the Issuer's board of directors.
-----
"BUSINESS DAY" means Monday through Friday of each week (determined by
------------
reference to Boston, Massachusetts, time), except that a legal holiday
recognized as such by the government of the United States will not be regarded
as a Business Day.
"CHARITABLE BENEFICIARIES" has the meaning set forth in Section
------------------------
2.1(c).
"CLASS A COMMON" means the Issuer's Class A Common Stock, par value
--------------
$0.001 per share.
"CLASS B COMMON" means the Issuer's Class B Common Stock, par value
--------------
$0.001 per share.
"CLASS C COMMON" means the Issuer's Class C Common Stock, par value
--------------
$0.001 per share.
"CLASS D COMMON" means the Issuer's Class D Common Stock, par value
--------------
$0.001 per share.
-22-
"CLOSING" has the meaning set forth in Section 1.1.
-------
"CLOSING DATE" means the date upon which the Closing occurs.
------------
"CODE" means the United States Internal Revenue Code of 1986, as in
----
effect from time to time.
"COMMON EQUIVALENT" means any Common Share, Option or Convertible
-----------------
Security.
"COMMON SHARE" means any share of Class A Common, Class B Common,
------------
Class C Common or Class D Common and will include any common securities issued
in respect of any of those Common Shares in connection with any recapitalization
described in Section 2.4.
"CONVERTIBLE SECURITIES" means any securities of the Issuer directly
----------------------
or indirectly convertible into or exchangeable for Common Shares.
"DISTRIBUTION" has the meaning which the Issuer's Charter assigns to
------------
that term.
"EXEMPT ISSUANCE" means any issuance or sale of any Common Equivalent
---------------
by the Issuer (a) to any employee of the Issuer or any Subsidiary, (b) in
connection with the acquisition of another company, business or assets, (c)
pursuant to a Public Offering, (d) upon the exercise, conversion or exchange of
any Option or Convertible Security issued in accordance with Section 1.4 or any
Exempt Issuance, (e) to ABRY, as part of its initial commitment to purchase up
to 200,000 shares of Class A Common at $100 per share, (f) upon the conversion
of Class D Common into Class C Common in accordance with the Issuer's Charter,
(g) as part of any recapitalization or reorganization described in Section 2.4,
or (h) as a distribution in the form of securities of the Issuer.
"GOVERNMENT ENTITY" means the United States of America or any other
-----------------
nation, any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government in each case having jurisdiction over the matter in
question, including any Tribunal.
"IPO" means the initial Public Offering, other than a Public Offering
---
registered on Form S-8 or any similar or successor form promulgated under the
Securities Act.
"ISSUER" has the meaning set forth in Section 1.3.
------
"ISSUER'S CHARTER" means the Issuer's Certificate of Incorporation, as
----------------
in effect from time to time.
-23-
"LAWS" means all applicable statutes, laws, ordinances, regulations,
----
rules, orders, judgments, writs, injunctions, acts or decrees of any Tribunal or
other Government Entity.
"MANAGERS" has the meaning set forth in Section 2.4.
--------
"NATIONSBANK" has the meaning set forth in Section 1.2.
-----------
"OPTIONS" means any warrants, options or other rights to directly or
-------
indirectly subscribe for or purchase Common Shares or Convertible Securities.
"OWNERSHIP PERCENTAGE" for any Person at any time means the aggregate
--------------------
number of shares of Class A Common, Class B Common and Class C Common
(determined as if all Class D Common were converted into Class C Common in
accordance with the Issuer Charter immediately prior to that time) which are
held by that Person, expressed as a percentage of the aggregate number of shares
of Class A Common, Class B Common and Class C Common (determined as if all Class
D Common were converted into Class C Common in accordance with the Issuer
Charter immediately prior to that time) which are then outstanding.
"PERCENTAGE OWNERSHIP LIMIT" has the meaning set forth in Section
--------------------------
2.1(a).
"PERSON" means an individual or a corporation, limited liability
------
company, partnership, trust, unincorporated organization, association or other
entity, including any Government Entity.
"PINNACLE HOLDINGS" has the meaning set forth in Section 1.3(a).
-----------------
"PUBLIC OFFERING" means any public offering of Shares or other equity
---------------
securities of the Issuer which is registered pursuant to the Securities Act.
"PUBLIC SALE" means any sale of Common Shares to the public pursuant
-----------
to an offering registered under the Securities Act or through a broker, dealer
or market maker pursuant to the provisions of Rule 144, or pursuant to Rule
144(k), adopted pursuant to the Securities Act.
"PROHIBITED TRANSFER" has the meaning set forth in Section 2.1(c).
-------------------
"PURPORTED TRANSFER" has the meaning set forth in Section 2.1(c).
------------------
"RESTRICTED SECURITIES" means (i) the Shares issued under this
---------------------
Agreement or issued upon conversion of any such Shares, and
-24-
(ii) any securities issued with respect to the securities referred to in clause
(i) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Restricted Securities, such securities
will cease to be Restricted Securities when they have (a) been effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, (b) been distributed to the public through
a broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act or become eligible for sale pursuant to
Rule 144(k) (or any similar provision then in force) promulgated under the
Securities Act or (c) been otherwise transferred and new certificates for them
not bearing the Securities Act legend set forth in Section 4.1(c) have been
delivered by the Issuer in accordance with Section 4.1(b).
"SALE OF THE ISSUER" means any transaction or series of related
------------------
transactions pursuant to which any Person(s) in the aggregate acquire(s) (i)
other than from the Issuer, equity securities representing a majority of the
economic interest in the Issuer at the time of such acquisition (whether by
merger, consolidation, reorganization, combination, sale or transfer of capital
stock or otherwise), (ii) from the Issuer and/or the Subsidiaries, a majority of
the Issuer's assets determined on a consolidated basis, or (iii) from the Issuer
and/or the Subsidiaries, all or substantially all of the Issuer's assets
determined on a consolidated basis.
"SECURITIES ACT" means the United States Securities Act of 1933 and
--------------
applicable rules and regulations thereunder, in each case as in effect from time
to time.
"SENIOR CREDIT AGREEMENT" means the Credit Agreement among Pinnacle
-----------------------
Towers, NationsBank, as Administrative Lender, and the Lenders referred to
therein, dated as of September 1, 1995, as in effect from time to time.
"SHARE" has the meaning set forth in Section 1.3.
-----
A "SUBSIDIARY" of any Person means any corporation, limited liability
----------
company, partnership, association or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the limited
liability company, membership, partnership or other similar ownership interest
thereof
-25-
is at the time owned or controlled, directly or indirectly, by any Person or one
or more subsidiaries of that Person or a combination thereof. For purposes of
this Agreement, a Person or Persons will be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons are allocated a majority of limited
liability company, partnership, association or other business entity gains or
losses or control any manager, managing director or general partner of such
limited liability company, partnership, association or other business entity.
The capitalized term "SUBSIDIARY" refers to a subsidiary of the Issuer.
----------
"TAG-ALONG NOTICE" has the meaning set forth in Section 2.2(a).
----------------
"TRANSFER" means any direct or indirect sale, pledge, encumbrance,
--------
assignment, gift, hypothecation, exchange, transfer or other disposition (and
the terms "Transferee," "Transferor" and "Transferred" have correlative
---------- ---------- -----------
meanings).
"TRANSFERRED SHARES" has the meaning set forth in Section 2.1(d).
------------------
"TREASURY REGULATIONS" means the income tax regulations promulgated
--------------------
under the Code, as such regulations are in effect from time to time.
"TRIBUNAL" means any government, arbitration panel, court or
--------
governmental department, commission, board, bureau, agency or instrumentality of
the United States of America or any state, province, commonwealth, nation,
territory, possession, county, parish, town, township, village, municipality or
other Government Entity, in each case having jurisdiction over the matter in
question, whether now or hereafter constituted and/or existing.
"TRUSTEE" has the meaning set forth in Section 2.1(c).
-------
* * * * *
-26-
EXHIBIT C
FORM OF PLEDGE AGREEMENT
------------------------
(ATTACHED)
-27-
