EXHIBIT 4.5
RECAPITALIZATION AGREEMENT
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This recapitalization agreement (the "Agreement") is made and entered into
effective as of February ___, 1999, by and among Pinnacle Holdings Inc. (the
"Company") and the persons and entities listed on the signature pages hereto
(collectively referred to herein as the "Stockholders"). Terms not otherwise
defined herein shall have the meanings given in the Company's Amended and
Restated Certificate of Incorporation in effect on the date of this Agreement.
Recitals
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A. The Company recently began negotiating a proposal with certain
underwriters to commence a public offering of common stock of the Company (the
"Proposed Offering").
B. The Company and the Stockholders are parties to (or have agreed to be
bound by) either a Second Amended and Restated Subscription and Stockholders
Agreement dated as of May 16, 1996, as amended effective July 1, 1997, or
certain Employee Subscription Agreements (the "Stockholders Agreements").
C. As of the date of this Agreement, the Company's outstanding common
stock consists of: (i) 202,500 shares of Class A Common Stock, par value $0.001
per share ("Class A Common"); (ii) 12,000 shares of Class B Common Stock, par
value $0.001 per share ("Class B Common"); (iii) 40,000 shares of Class D Common
Stock, par value $0.001 per share ("Class D Common"); and (iv) 174,766 shares of
Class E Common Stock, par value $0.001 per share ("Class E Common"). The
beneficial ownership of the Company's outstanding capital stock is set forth in
Schedule I hereto.
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D. In connection with the Proposed Offering, the Stockholders (holders of
a majority of the issued and outstanding shares of capital stock of the Company)
desire to cause a recapitalization of the Company pursuant to which (i) the
Company will have a single class of common stock authorized and outstanding,
(ii) the outstanding shares of Class D Common shall be converted into shares of
Class C Common Stock, par value $0.001 per share ("Class C Common"), and (iii)
the outstanding shares of Class A Common, Class B Common, Class C Common and
Class E Common shall be converted into shares of a single class of common stock
and, in certain cases, the right to receive payments from the Company upon the
consummation of the Public Offering.
Accordingly, for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, each party hereto agrees as follows:
1. Certificate of Amendment. The Stockholders will vote or act by written
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consent to approve, and Company will cause to be filed, an amendment and
restatement of the Company's amended and restated certificate of incorporation
substantially in the
form of Exhibit A hereto (the "Certificate of Amendment") with the Secretary of
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State of the State of Delaware prior to the consummation of the Public Offering,
which shall cause the following to occur:
(a) Capitalization. Effective immediately prior to the consummation of
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the closing of a firm underwritten public offering (the "IPO") pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of shares of the Company's common stock (the "IPO
Effective Time"), the authorized capital stock of the Company shall consist of
100,000,000 shares of common stock, $0.001 per share ("Common Stock"), and
5,000,000 shares of preferred stock, $0.001 per share.
(b) Class A Common. At the IPO Effective Time, each outstanding share of
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Class A Common shall be converted into (i) 22.0191567 shares of Common Stock and
(ii) the right to receive from the Company out of its proceeds from the IPO cash
in an amount equal to the Unpaid Yield on such share of Class A Common as of
such date (which is set forth by holder of Class A Common in Schedule I hereto),
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and $100.00, the Unpaid Preference Amount on such share of Class A Common as of
such date.
(c) Class B Common. At the IPO Effective Time, each outstanding share of
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Class B Common shall be converted into (i) 22.0191567 shares of Common Stock and
(ii) the right to receive from the Company out of its proceeds from the IPO
$100.00, the Unpaid Preference Amount on such share of Class B Common as of such
date.
(d) Class C Common and Class D Common. At the IPO Effective Time, each
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outstanding share of Class D Common shall be converted into 1.6221 shares of
Class C Common and, simultaneously therewith, each such share of Class C Common
shall be converted into 22.0191567 shares of Common Stock.
(e) Class E Common. At the IPO Effective Time, each outstanding share of
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Class E Common shall be converted into (i) 22.0191567 shares of Common Stock and
(ii) the right to receive from the Company out of its proceeds from the IPO
$100.00, the Unpaid Preference Amount on such share of Class E Common as of such
date.
2. Termination. If the Proposed Offering shall not have been consummated
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on or before March 31, 1999, this Agreement shall automatically terminate,
provided, however, that in the event the Proposed Offering shall not have been
consummated on or before March 31, 1999, but the Certificate of Amendment shall
have been filed with the Secretary of State of the State of Delaware on or
before March 31, 1999, the parties shall cooperate and take such actions as may
be reasonably required, including the adoption and filing of an additional
amendment to the Company's certificate of
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incorporation, to return the capital structure of the Company to the capital
structure in effect on the date of this Agreement.
3. Representations and Warranties of the Company to each of the
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Stockholders. The Company represents and warrants to each of the Stockholders
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as follows: (i) the Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, (ii) the execution and delivery
of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
(including all stockholder approvals and other action), and (iii) this Agreement
has been duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the availability of
equitable remedies).
4. Representations and Warranties of each Stockholder. Each Stockholder,
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severally and not jointly, and with respect to itself only and not with respect
to any other Stockholder, represents and warrants to the Company and each other
Stockholder that (i) this Agreement has been duly executed and delivered by such
Stockholder; (ii) the execution, delivery and performance by such Stockholder
of, and the consummation by such Stockholder of the transactions contemplated
by, this Agreement have been duly and validly authorized by all necessary
partnership action on the part of such Stockholder, if such Stockholder is a
partnership, or by all necessary corporate action on the part of such
Stockholder, if such Stockholder is a corporation; and (iii) this Agreement
constitutes a legal, valid and binding obligation of such Stockholder
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, or by principles governing
the availability of equitable remedies).
5. No Joint Obligations of Stockholders and Company. Each Stockholder and
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the Company shall be (i) obligated hereunder only with respect to those
covenants and agreements which by their terms are applicable to such party, and
no such party shall have any liability with respect to any other party's
obligations hereunder and (ii) separately and independently entitled to rely on
the representations and warranties of each other party made to each party in
this Agreement, and to the benefit of all agreements, covenants, obligations and
commitments of each other party made with or to such party herein. Without
limiting the generality of the preceding sentence, no provision of this
Agreement shall be construed as creating any concept of "group" liability.
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6. Miscellaneous.
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(a) Survival of Provisions. The representations and warranties of the
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parties made in or pursuant to this Agreement shall survive the consummation of
any of the transactions contemplated hereby, in each case regardless of any
investigation that may have been or may be made by or on behalf of any other
party.
(b) Communications. All notices and other communications required or
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permitted by this Agreement shall be in writing, and, (i) if to any Stockholder,
addressed to such Stockholder at such Stockholder's address specified in the
Company's books and records or at such other address as such Stockholder may
designate in a written notice to the Company and (ii) if to the Company, to
Pinnacle Holdings Inc., 0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxx
00000 or to such other address as the Company may designate in a written notice
to each Stockholder. All notices and other communications required or permitted
by this Agreement shall be deemed to have been duly given if personally
delivered to the intended recipient at the proper address determined pursuant to
this Section or sent to such recipient at such address by registered or
certified mail, return receipt requested, Express Mail, Federal Express or
similar overnight delivery service for next business day delivery or by telegram
and will be deemed given, unless earlier received: (1) if sent by certified or
registered mail, return receipt requested, five calendar days after being
deposited in the United States mail, postage prepaid; (2) if sent by Express
Mail, Federal Express or similar overnight delivery service for next Business
Day delivery, the next Business Day after being entrusted to such service, with
delivery charges prepaid or charged to the sender's account; (3) if sent by
telegram, on the date sent; and (4) if delivered by hand, on the date of
delivery.
(c) Binding Effect; Successors and Assigns; Entire Agreement. Except as
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expressly provided in this Agreement, nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon or give any person
other than the parties hereto any remedy or claim under or by reason of this
Agreement or any term, covenant or condition hereof, all of which shall be for
the sole and exclusive benefit of the parties. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors, heirs, executors, legal representatives and
permitted assigns. This Agreement sets forth the entire agreement and
understanding among the parties hereto as to the specific subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them with respect to such subject matter.
(d) Amendments and Waivers. The provisions of this Agreement, including
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the provision of this sentence, may not be amended, modified or supplemented
unless approved in writing by the Company and the Stockholders holding a
majority in voting interest of the capital stock of the Company.
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(e) Governing Law. This Agreement will be governed by, and will be
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construed in accordance with, the laws of the state of Delaware, without regard
to conflict or choice of law principles of the state of Delaware which might
otherwise cause the internal laws of any other jurisdiction to be applied.
(f) Interpretation. The headings of the sections contained in this
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Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
(g) No Implied Waivers. No action taken pursuant to this Agreement,
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including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, agreements, covenants,
obligations or commitments contained herein or made pursuant hereto. The waiver
by any party of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any preceding or succeeding breach and no failure by
any party to exercise any right, privilege or remedy hereunder shall be deemed a
waiver of such party's rights, privileges or remedies hereunder or shall be
deemed a waiver of such party's rights to exercise the same at any subsequent
time or times hereunder.
(h) Counterparts. This instrument may be executed in two or more
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
(i) Further Assurances. Each party shall cooperate and take such actions
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as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as provided herein.
Company:
PINNACLE HOLDINGS INC.
By:
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Name:
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Title:
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Stockholders:
ABRY BROADCAST PARTNERS II, L.P.
By ABRY Capital, L.P.
Its General Partner
By ABRY Holdings, Inc.
Its General Partner
By:
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Name:
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Title:
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Xxxxxx X. Xxxxxx
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Xxxxx X. Dell'Apa
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Xxxxxx Xxx
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Xxxxxxxx X. Day
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Xxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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Xxxxx Xxxxxxx
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Xxx Xxxxxxx
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Xxxxx Xxxx
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Xxxxxx Xxxxxxx
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Schedule I
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Unpaid
Yield for
Class A Class A Class B Class D Class E
Common Common Common Common Common
Name Shares Shares Shares Shares Shares
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ABRY Broadcast 200,000 $4,761,122 - - 172,266
Partners II, L.P.
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Xxxxxx X. Xxxxxx - - 4,900 5,900 -
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Pantera, Inc. - - 100 100 -
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Pantera Partnership, Ltd. - - 5,000 5,000 -
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Xxxxx X. Dell'Apa - - 1,500 8,975 2,500
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P. Dell'Apa - - - 300 -
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F. Dell'Apa Sr. - - - 150 -
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F. Dell'Apa Jr. - - - 100 -
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Xxxxxxx Xxxxxxxx - - - 50 -
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Xxxx Xxxxxxxx - - - 425 -
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Xxxxxx Xxx - - 500 1,900 -
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Xxxxxxxx X. Day - - - 1,900 -
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South Creek, Inc. - - - 200 -
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South Creek Partnership, - - - 6,000 -
Ltd.
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Xxxxx Xxxxxx - - - 1,000 -
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Xxxxxxx Xxxxxx - - - 1,000 -
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Xxxxx Xxxxxxx 25 590 - 296.46 -
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Lindsay Investments, L.P. - - - 3,703.54 -
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Xxx Xxxxxxx - - - 1,000 -
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Xxxxx Xxxx - - - 1,000 -
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Xxxxxx Xxxxxxx - - - 1,000 -
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Other Stockholders 2,475 $ 58,422 - - -
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Total: 202,500 $4,821,134 12,000 40,000 174,766
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