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EXHIBIT 10.1
SECURITYHOLDERS AGREEMENT
This Securityholders Agreement ("Agreement"), dated as of October 12,
1994, is among American Tower Corporation, a Delaware corporation (the
"Corporation"), the persons and entities whose signatures appear on the
signature pages hereof (referred to herein individually as a "Securityholder"
and collectively as the "Securityholders") and, where applicable, the
respective spouses of the Securityholders.
1. Introduction. The Corporation and the Securityholders believe
that it is in the best interests of each, to restrict transfers of the Common
Stock and Warrants and to agree upon certain voting matters with respect
thereto with a view to, among other things, (i) minimizing the likelihood of
discord and deadlocks; (ii) maximizing the likelihood that the ownership of
Common Stock and Warrants will remain with those who are active in the
Corporation's affairs, thus enhancing motivation and incentive of such owners;
(iii) avoiding defaults in or accelerations of payment obligations under
material agreements to which the Corporation is or may be a party; and (iv)
otherwise assuring the orderly continuity of management, the non-attainment of
any of which would result in adverse consequences to the Corporation.
Accordingly, in consideration of the mutual promises contained herein, and
subject to the terms and conditions herein set forth, the parties have entered
into this Agreement.
2. Certain Definitions. As used in this Agreement:
2.1 The term "Acquisition Proposal" means a bona fide written
proposal for the acquisition of Common Stock or Warrants by the person
or entity making such proposal.
2.2 The term "Affiliate" of a Securityholder shall mean (i) an
entity or person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Securityholder or (ii) an entity or person that owns
beneficially at least 5% of the equity of such Securityholder. As used
in this definition, the term "control", including the correlative terms
"controlling", "controlled by" and "under common control with" shall
mean possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of
securities or any partnership or other ownership interest, by contract
or otherwise) of a person, corporation or other entity. If the
Securityholder is an individual person, then the term "Affiliate" shall
also mean, solely for purposes of Section 5, (a) any member of the
immediate family of an individual Securityholder, including parents,
siblings, spouse and children (including those by adoption); the
parents, siblings, spouse or children (including those by adoption) of
such immediate family member; and in any such case any trust whose
primary beneficiary is such individual Securityholder or one or more
members of such immediate family and/or such Securityholder's lineal
descendants, and (b) the legal representative or guardian of such
individual Securityholder or of any such immediate family member in the
event such individual Securityholder or any such immediate family member
becomes mentally incompetent.
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2.3 The term "BOCP" means Banc One Capital Partners II,
Limited Partnership, a Delaware limited partnership.
2.4 The term "Board" means the Board of Directors of the
Corporation and any duly authorized committee thereof. All
determinations made in good faith by the Board required pursuant to the
terms of this Agreement to be made by the Board shall be binding and
conclusive.
2.5 The term "▇▇▇▇▇" means ▇▇▇ ▇▇▇▇▇ Enterprises, a Texas
general partnership.
2.6 The term "▇▇▇▇▇ Sub Debt" shall mean the indebtedness of the
Corporation to ▇▇▇▇▇ evidenced by that certain promissory note of even
date herewith in the original principal amount of $3 million.
2.7 The term "Change of Control Proposal" shall have the
meaning given such term in Section mean 13.2.
2.8 The term "Chase" means Chase Manhattan Capital
Corporation, a subsidiary of The Chase Manhattan Bank, N.A.
2.9 The term "Common Stock" means (a) all shares of common
stock of the Corporation owned by each of the Securityholders on the
date hereof, (b) all shares of common stock hereafter issued by the
Corporation to or acquired by any Securityholder, whether in connection
with a purchase, issuance, grant, stock split, stock dividend,
reorganization, warrant, option, convertible security, right to acquire
or otherwise, and (c) all securities of the Corporation or any other
corporation or entity which any Securityholder acquires in respect of
the shares described in clause (a) or (b) above in connection with any
exchange, merger, recapitalization, consolidation, reorganization or
other transaction to which the Corporation is a party. All references
herein to Common Stock owned by a Securityholder include the community
interest or similar marital property interest, if any, of the spouse of
such Securityholder in such Common Stock. The term "common stock" as
used in clauses (a) and (b) above shall mean any stock of any class of
the Corporation which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and which is
not subject to redemption by the Corporation (whether or not shares of
such class have voting rights).
2.10 The term "Disposition" means, with respect to Common Stock
or Warrants, any direct or indirect transfer, assignment, sale, gift,
pledge, hypothecation or other encumbrance, or any other disposition,
thereof (or any interest therein or right thereto), of all or part of
the voting power associated therewith (or any interest therein)
whatsoever, or any other transfer of beneficial ownership thereof
whether voluntary or involuntary, including, without limitation (a) as a
part of any liquidation of the Securityholder's assets
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or (b) as a part of any reorganization of a Securityholder pursuant to
the United States or other bankruptcy law or other similar debtor relief
laws; provided, that the participation by Securityholders in a proposed
underwritten public offering of common stock of the Corporation
(including the entry into an underwriting agreement, a custody agreement
and other agreements ordinarily executed by selling stockholders in
connection therewith), which public offering, if consummated, would
constitute an Initial Public Offering (as defined below) or pursuant to
the exercise of registration rights granted under Section 14, and the
consummation thereof, shall not constitute a Disposition, it being
understood that, if such proposed underwritten public offering is
terminated or abandoned prior to consummation or is not consummated in a
manner which constitutes an Initial Public Offering, the Common Stock
and the Warrants of such participating Securityholders shall remain
subject to this Agreement and no Disposition thereof (whether pursuant
to agreements entered into in connection with such proposed underwritten
public offering or otherwise) shall be permitted hereunder without
compliance with the terms of this Agreement.
2.11 The term "Exercise Price" shall mean, with respect to each
Warrant, the exercise price for such Warrant as adjusted from time to
time pursuant to the terms of the relevant Warrant Purchase Agreement
pursuant to which such Warrant was purchased.
2.12 The term "Initial Public Offering" shall mean the
consummation of an underwritten public offering of common stock of the
Corporation pursuant to a registration statement filed under the
Securities Act after the date hereof (other than any registration
statement relating to warrants, options or shares of capital stock
granted or to be granted or sold primarily to employees, directors, or
officers of the Corporation, a registration statement filed pursuant to
Rule 145 under the Securities Act or any successor rule, a registration
statement relating to employee benefit plans or interests therein and
any registration statement covering preferred stock or securities issued
in connection with any debt or preferred stock financing of the
Corporation) wherein the aggregate net proceeds (after deducting all
costs, discounts, commissions and other expenses of the offering) to the
Corporation, the selling stockholders or the Corporation and the selling
stockholders are at least $20 million.
2.13 The term "Offer" shall mean a Section 3.1 Offer, a Section
3.2 Offer, a Section 3.3 Offer or a Section 3.4 Offer, as applicable.
2.14 The term "Offerees" shall mean the Corporation and (i)
with respect to a Section 3.1 Offer, all Securityholders other than the
Section 3.1 Offeror, (ii) with respect to a Section 3.2 Offer, all
Securityholders other than the Divorced Securityholder, (iii) with
respect to a Section 3.3 Offer, all Securityholders other than the
Surviving Securityholder and (iv) with respect to a Section 3.4 Offer,
all Securityholders other than the Securityholder affected by the events
described in Section 3.4.
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2.15 The term "Purchase Price" shall mean, except with respect
to an Acquisition Proposal or Change of Control Proposal, (i) with
respect to each share of Common Stock, shall mean the per share fair
market value of the outstanding common stock of the Corporation as
determined in good faith by the Board, (ii) with respect to each
Warrant, the Purchase Price for each share of Common Stock covered by
such Warrant less the Exercise Price for each share of Common Stock
issuable upon the exercise of such Warrant. If the transferor of the
Common Stock or the Warrant shall disagree with the Purchase Price as so
determined by the Board pursuant to clause (i) preceding, such
transferor may give written notice of such disagreement to the
Corporation and the Corporation shall promptly cause an independent
third party appraiser (who shall be satisfactory to the Corporation and
such transferor) to determine the per share value of the outstanding
common stock as of the most recent practicable date prior to the Offer.
The determination by such appraiser shall be deemed the Purchase Price
for such transaction and shall be final and binding on the Corporation
and such transferor. All fees and expenses of such appraisers shall be
borne equally by the transferor and the Corporation unless (x) the
appraiser's determination exceeds the Board's determination by more than
10% in which case the Corporation shall bear 75% and the transferor
shall bear 25% of such fees or (y) the appraiser's determination is
lower than the Board's determination by more than 10% in which case the
transferor shall bear 75% and the Corporation shall bear 25% of such
fees. Neither the Corporation nor any officer, director, employee or
agent thereof shall have any liability with respect to valuation of
shares of Common Stock or Warrants bought or sold at the Purchase Price,
as determined pursuant to this Section, even though the Purchase Price
as so determined may be more or less than actual fair market value, and
shall be fully protected in relying in good faith upon the records of
the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any person as to matters
which the Corporation or such director, officer, employee or agent
reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or
on behalf of the Corporation. As used in this Section, the term "per
share fair market value" for purposes of clause (i) above shall mean (a)
the value of the common equity of the Corporation, taken as a whole,
based on the Corporation continuing as a going concern divided by (b)
the number of shares of common equity of the Corporation outstanding on
the date of the Offer. For purposes of determining the "per share fair
market value" for purposes of clause (i) above, the number of shares of
Common Stock outstanding at the time of determination shall be deemed to
include the shares issuable upon the exercise of any outstanding
Warrants. The per share fair market value shall not be discounted for
minority shareholder interests or for reasons of illiquidity. The term
"Purchase Price" shall mean, with respect to an Acquisition Proposal or
Change of Control Proposal, the per share consideration (whether cash,
stock or other property) and other payment and credit terms offered
pursuant to the terms of such proposal or the reasonably equivalent
value, as determined by the Board in good faith.
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2.16 The term "Required Voting Percentage" shall mean the
holders of at least 66-2/3% of the then outstanding Common Stock and
Common Stock issuable upon exercise of the Warrants.
2.17 The term "Section 3.1 Offer" shall have the meaning given
such term in Section 3.1.
2.18 The term "Section 3.2 Offer" shall have the meaning given
such term in Section 3.2.
2.19 The term "Section 3.3 Offer" shall have the meaning given
such term in Section 3.3.
2.20 The term "Section 3.4 Offer" shall have the meaning given
such term in Section 3.4.
2.21 The term "Section 3.1 Offeror" shall have the meaning
given such term in Section 3.1.
2.22 The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations thereunder.
2.23 The term "Securities Subject to the Offer" shall mean (a)
with respect to a Section 3.1 Offer, all shares of Common Stock and/or
Warrants subject to such Acquisition Proposal, and no others, (b) with
respect to a Section 3.2 Offer, all shares of Common Stock and/or
Warrants transferred to or retained by or vested in the Divorced
Securityholder's Spouse (as defined in Section 3.2) and not elected to
be purchased by the Divorced Securityholder (as defined in Section 3.2)
within the time limits specified therein, and no others, (c) with
respect to a Section 3.3 Offer, all shares of Common Stock and/or
Warrants vesting in or transferable to any heir or legatee of the
deceased spouse other than the Surviving Securityholder (as defined in
Section 3.3) and not elected to be purchased by the Surviving
Securityholder within the time limits specified therein, and no others
and (d) with respect to a Section 3.4 Offer, all shares of Common Stock
and Warrants owned by the Securityholder affected by the events
described in Section 3.4, and no others.
2.24 The term "▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an
individual residing in Roswell, Georgia.
2.25 The term "Warrant" shall mean (i) all warrants or options
of BOCP to acquire common stock of the Corporation pursuant to the terms
of the Warrant Purchase Agreement of even date herewith between BOCP and
the Corporation and (ii) all warrants or options of ▇▇▇▇▇ to acquire
common stock of the Corporation pursuant to the terms of the Warrant
Purchase Agreement of even date herewith between ▇▇▇▇▇ and the
Corporation.
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3. General Rule. No Securityholder shall make any Disposition,
directly or indirectly, through an Affiliate or otherwise (regardless of the
manner in which such Securityholder initially acquired Common Stock or
Warrants), without compliance with all applicable provisions of this Agreement
including, without limitation, those set forth in this Section 3, Section 4 and
Section 6.
3.1 Acquisition Proposal. In the event any Securityholder
desires, and is permitted under Section 7, to make a Disposition
involving any Common Stock or Warrants, such Disposition may only be
made if an Acquisition Proposal is received by the Securityholder with
respect thereto, and then only in compliance with this Agreement. Upon
receipt of an Acquisition Proposal (other than a Change of Control
Proposal accepted by the Required Voting Percentage in accordance with
Section 13.2) which such Securityholder is permitted hereunder to accept
and desires to accept, the Securityholder desiring to accept the
Acquisition Proposal (the "Section 3.1 Offeror") shall offer (the
"Section 3.1 Offer") by written notice to the Corporation, to sell the
Securities Subject to the Offer to the Offerees for the Purchase Price.
An offer under this Section 3.1 shall (i) be irrevocable for so long as
the Offerees have the right to purchase any Securities Subject to the
Offer, (ii) be sent by the Section 3.1 Offeror to the Corporation, (iii)
state the consideration for and the number of Securities Subject to the
Offer, and (iv) contain a description of and a copy of the Acquisition
Proposal. In addition, the Section 3.1 Offeror shall provide to the
Corporation all other information with respect to the Acquisition
Proposal and the proposed transferee reasonably requested by the
Corporation in order to enable it to evaluate the Acquisition Proposal
and verify the bona fide nature thereof. The Corporation shall promptly
(but in no event more than 5 days after receipt thereof) deliver to each
of the other Offerees copies of the notice conveying the Section 3.1
Offer and any additional information received by the Corporation with
respect to the Acquisition Proposal and the proposed transferee. The
date of such Section 3.1 Offer shall be deemed to be the date such
written notice satisfying the provisions of this Section 3.1 is
delivered to the Corporation.
3.2 Divorce of Securityholder. If the marital relationship of
a Securityholder is terminated by divorce, and pursuant to such divorce
or any property settlement in connection with such divorce, Common Stock
or Warrants (or any interest therein) previously registered in the name
of such Securityholder (the "Divorced Securityholder") is transferred
to, or a community property interest or similar marital property
interest is retained by or vested in, the spouse of the Divorced
Securityholder (the "Divorced Securityholder's Spouse"), the Divorced
Securityholder shall promptly notify the Corporation of such event. The
Divorced Securityholder shall have the option to purchase all of the
Divorced Securityholder's Common Stock and Warrants (and all interests
therein) which has been transferred to or which is retained by or vested
in the Divorced Securityholder's Spouse by virtue of the divorce decree,
property settlement, or by operation of the community property or
similar marital property laws for the Purchase Price, and the Divorced
Securityholder's Spouse shall be obligated to sell such Common Stock and
Warrants (and all interests therein) to the Divorced Securityholder for
the
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Purchase Price. Such option must be exercised, and the purchase
consummated, within thirty (30) days after the Common Stock or Warrants
are transferred to or allowed to be retained by or vested in the
Divorced Securityholder's Spouse. The option shall be exercised by the
giving of written notice of exercise to the Divorced Securityholder's
Spouse. The Divorced Securityholder shall, within five days after the
expiration of such 30 day period, deliver written notice to the
Corporation as to whether the Divorced Securityholder has purchased all
of the Common Stock or Warrants (and all interests therein) so
transferred to or otherwise vested in or retained by the Divorced
Securityholder's Spouse. In the event such written notice states that
the Divorced Securityholder has not purchased all such Common Stock or
Warrants (and all interests therein), or no such notice is delivered to
the Corporation within the time required, the Divorced Securityholder's
Spouse shall be deemed to have made an irrevocable offer (the "Section
3.2 Offer") to sell for the Purchase Price all of such Common Stock and
Warrants (and all interests therein) to the Offerees as of (i) the date
of receipt of such notice by the Corporation if delivered within the
time required or (ii) if such notice is not delivered within the time
required, the date of the receipt by the Corporation of evidence
satisfactory to it that all such Common Stock and Warrants (and all
interests therein) was not purchased by the Divorced Securityholder
within such 30 day period. The Corporation shall promptly (but in no
event more than 5 days after the date referred to in the preceding
sentence) notify the other Offerees of any Section 3.2 Offer.
3.3 Death of Spouse. If the spouse of a Securityholder dies,
and all or any portion of the Common Stock or Warrants registered in the
name of such Securityholder (the "Surviving Securityholder") vests in or
is transferable to any heir or legatee other than the Surviving
Securityholder, the Surviving Securityholder shall promptly notify the
Corporation of such event. The Surviving Securityholder shall have the
option to purchase all of the Common Stock and Warrants vesting in or
transferable to such heir or legatee for the Purchase Price, and the
estate of the deceased spouse or such heir or legatee, as applicable,
shall be obligated to sell such Common Stock and Warrants to the
Surviving Securityholder for the Purchase Price. Such option must be
exercised by the Surviving Securityholder, and the purchase consummated,
within thirty (30) days after the last to occur of (i) the entry of an
order of a probate or similar court (having jurisdiction over the estate
of the deceased spouse) (a) admitting to probate the will of the
deceased spouse, or (b) determining the heirs of the deceased spouse if
the deceased spouse is determined to have died intestate, or (ii) the
appointment of the executor, administrator or legal representative of
the estate of the deceased spouse. The option shall be exercised by the
giving of written notice of exercise to the executor, administrator or
legal representative of the deceased spouse's estate or such heir or
legatee, as applicable. The Surviving Securityholder shall, within five
days after the expiration of such 30 day period, deliver written notice
to the Corporation as to whether the Surviving Securityholder has
purchased all of the Common Stock and Warrants vesting in or
transferable to any such heir or legatee. In the event such written
notice states that the Surviving Securityholder has not purchased all
such Common Stock or Warrants, or no such notice is delivered to the
Corporation within the time required, the estate and all such heirs and
legatees shall be
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deemed to have made an irrevocable offer (the "Section 3.3 Offer") to
sell for the Purchase Price all of such Common Stock or Warrants to the
Offerees as of (A) the date of the receipt of such notice by the
Corporation, if delivered within the time required, or (B) if such
notice is not given within the time required, the date of the receipt by
the Corporation of evidence satisfactory to it that all such Common
Stock or Warrants were not purchased by the Surviving Securityholder
within such 30 day period. The Corporation shall promptly (but in no
event more than 5 days after the date referred to in the preceding
sentence) notify the other Offerees of any Section 3.3 Offer.
3.4 Bankruptcy. If any of the following occur:
(i) any Securityholder or the spouse thereof (a) is voluntarily
adjudicated bankrupt or insolvent, (b) consents to or does not contest
the appointment of a receiver or trustee for himself, herself or itself
or for all or any part of his, her or its property, (c) files a petition
seeking relief under the bankruptcy, rearrangement, reorganization or
other debtor relief laws of the United States or any state or any other
competent jurisdiction, (d) makes a general assignment for the benefit
of his, her or its creditors, or (e) becomes insolvent, or
(ii) a petition is filed against a Securityholder or such
Securityholder's spouse seeking relief under the bankruptcy,
rearrangement, reorganization or other debtor relief laws of the United
States or any state or other competent jurisdiction, or a court of
competent jurisdiction enters an order, judgment or decree appointing a
receiver or trustee for a Securityholder or such Securityholder's
spouse, or for any part of his, her or its property, and such petition,
order, judgment or decree is not discharged or stayed within a period of
60 days after its entry,
then, any such event described in (i) or (ii) above shall be deemed an
irrevocable offer to sell the Securities Subject to the Offer for the
Purchase Price to the Offerees (the "Section 3.4 Offer"), and such
Securityholder or such Securityholder's spouse, as applicable, shall
promptly notify the Corporation of such event and the date of such
Section 3.4 Offer shall be the date such Securityholder or such
Securityholder's spouse, as applicable, so notifies the Corporation (or,
if no such notice is delivered to the Corporation by the Securityholder
or such Securityholder's spouse, as applicable, the Section 3.4 Offer
will be deemed to be made on the date of the Corporation's receipt of
evidence, satisfactory to it, of the occurrence of any of the foregoing
events). The Corporation shall promptly (but in no event more than 5
days after the date of the Section 3.4 Offer) notify the other Offerees
of any offer made hereunder. Notwithstanding the preceding provisions
of this Section 3.4, if the Section 3.4 Offer first arises because of
the above described events occurring to a Securityholder's spouse (the
"Bankrupt Spouse"), such Securityholder shall have the option (and such
option shall be prior to the option in favor of the Offerees) to
purchase all of the Bankrupt Spouse's Common Stock and Warrants (and all
interests therein) which has been transferred to or which is retained by
or invested in the Bankrupt Spouse or any receiver, trustee or estate
formed to administer such Bankrupt Spouse's properties and assets. Such
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Securityholder may exercise such option by giving written notice of
exercise to the Bankrupt Spouse or such spouse's receiver, trustee,
estate or other administrator, as applicable, with a copy to the
Corporation. Such Securityholder may exercise the option granted hereby
within the 30-day period following the date such Securityholder becomes
aware of the occurrence of the events set forth in Section 3.4(i) or
(ii), as applicable. In the event such written notice states that the
Securityholder has not purchased all such Common Stock or Warrants (and
all interests therein), or no such notice is delivered to the
Corporation within the time required, the Bankrupt Spouse shall be
deemed to have made an irrevocable offer to sell to the Offerees for the
Purchase Price all of such Common Stock and Warrants (and all interests
therein) in accordance with this Section 3.4 (but disregarding the
option of the Securityholder).
4. Procedures: Price.
4.1 Corporation. The Corporation shall have the right, for
thirty (30) days following the date of an Offer, to accept the Offer as
to all or any Securities Subject to the Offer. If the Corporation shall
not have sufficient surplus to permit it lawfully to purchase the
Securities Subject to the Offer which the Corporation has accepted in
whole or in part, the Securityholders shall, promptly upon the request
of the Corporation, take such action to vote their respective shares to
reduce the stated capital of the Corporation to the extent permitted by
law or to authorize such other steps as may be appropriate or necessary
in order to enable the Corporation, if possible, lawfully to purchase
such Securities Subject to the Offer.
4.2 Offerees. If the Corporation does not accept an Offer
with respect to all Securities Subject to the Offer within the 30 day
period specified in Section 4.1 above, the Corporation shall notify the
other Offerees of such fact and furnish each of the other Offerees with
all material information in the Corporation's possession (including a
copy of any Acquisition Proposal, if applicable). Each of the other
Offerees shall have the right, for 30 days following the later of (x)
the expiration of the 30-day period described in Section 4.1 or (y) the
date such Offeree receives the notice from the Corporation described
above, to accept the Offer with respect to (i) a number of shares
unanimously agreed upon by all Securityholders, or (ii) in the absence
of any such agreement, a fraction of the Securities Subject to the Offer
equal to the number of shares of Common Stock held by such Offeree
electing to purchase shares pursuant to the Offer divided by the number
of shares of Common Stock held by all Securityholders electing to
purchase shares pursuant to the Offer. For purposes of determining each
Securityholder's proportionate rights under Section 4.2(ii), the number
of shares of Common Stock held by any Securityholder shall be deemed to
include the number of shares of Common Stock to which such
Securityholder would be entitled upon the exercise thereby of any
Warrants owned by such Securityholder. In the event less than all of the
Securities Subject to the Offer are purchased according to the
allocation set forth above in this Section 4.2, such allocation
methodology shall be repeated as many times as is necessary until all
Securities Subject to the Offer have been allocated.
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4.3 Certain Effects of Offers. If the Offerees do not accept
an Offer for all of the Securities Subject to the Offer, and such Offer
is a Section 3.1 Offer, the Section 3.1 Offeror shall be permitted at
any time or times within, but not after, 45 days after the expiration of
all rights to accept such Offer, to make a Disposition of all or a part
of the Securities Subject to the Offer that were not accepted by the
Offerees; provided, however, that no such Disposition shall be made at a
lower price or on more favorable terms or to any person other than
specified in the Acquisition Proposal. Any Securities Subject to the
Offer remaining unsold after application of the procedures set forth
above and after expiration of the time periods set forth above shall
again be subject to the right of first refusal granted in Section 3.1.
4.4 Acceptance: Closing. Offerees who accept an Offer as to
all or any portion of the Securities Subject to the Offer shall evidence
their acceptance by delivering to the transferor and the Corporation a
written notice of intent to purchase such Securities Subject to the
Offer or portion thereof (the "Acceptance Notice"). The Corporation
shall furnish all of the Offerees with a list of those Securityholders
that have delivered an Acceptance Notice. The closing of the
acquisitions of Securities Subject to the Offer by Offerees shall be
consummated within thirty (30) days following the Corporation's receipt
of the last Acceptance Notice delivered in accordance with this
Agreement. In the case of all acquisitions of Securities Subject to the
Offer by Offerees, such acquisitions shall be consummated at a closing
held at the principal offices of the Corporation (unless otherwise
mutually agreed), at which time the Purchase Price (in the form of a
cashier's check or wire transfer) shall be delivered to the transferor
of the Common Stock or Warrants or such transferor's representative, and
the transferor or the transferor's representative shall deliver to the
Offeree(s) purchasing such securities certificates representing all of
the securities so purchased, duly endorsed for transfer or accompanied
by duly executed stock powers, and evidence of good title to the
Securities Subject to the Offer and the absence of liens, encumbrances
and adverse claims with respect thereto and such other matters as are
necessary for the proper transfer of the Securities Subject to the Offer
to the acquiring Offeree(s) on the books of the Corporation.
5. Permitted Dispositions. The following Dispositions shall be
permitted without compliance with the provisions of Sections 3, 4, or 12 (but
the other provisions of this Agreement, including Sections 6 and 7, shall apply
to each of the following Dispositions):
5.1 by such Securityholder to any Affiliate of such
Securityholder, or from an Affiliate of any Securityholder to such
Securityholder;
5.2 upon the death of any Securityholder, to the estate,
heirs, beneficiaries or legatees of such Securityholder;
5.3 by any Securityholder to a bank or other financial
institution for purposes of securing a loan to such Securityholder to
purchase Common Stock and the transfer of title to any such bank or
financial institution required in connection therewith; provided,
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that such bank or financial institution shall have first delivered to
the Corporation its written agreement, in form and substance
satisfactory to the Corporation, that upon any foreclosure or any
transaction in lieu of foreclosure with respect to such Common Stock
such bank or financial institution shall assume and be bound by all the
terms of this Agreement;
5.4 by any Securityholder during his lifetime to (a) a
guardian of the estate of such Securityholder, (b) an inter-vivos trust
for the benefit of such Securityholder or whose primary beneficiary is
one or more of such Securityholder's lineal descendants (including
lineal descendants by adoption), (c) the spouse of such Securityholder
during marriage and not incident to divorce, or (d) such
Securityholder's lineal descendants (including lineal descendants by
adoption); and
5.5 to a Securityholder by (a) a guardian of the estate of
such Securityholder, (b) an inter-vivos trust for the benefit of such
Securityholder or whose primary beneficiary is one or more of such
Securityholder's lineal descendants (including lineal descendants by
adoption), (c) the spouse of such Securityholder during marriage and not
incident to divorce, or (d) such Securityholder's lineal descendants
(including lineal descendants by adoption).
6. Conditions; Additional Parties.
6.1 Conditions To Permitted Transfers. As a condition to the
Corporation's obligation to effect a transfer permitted under any
Section of this Agreement, any transferee of Common Stock or Warrants
(except as specifically provided in Section 6.2) shall be required to
become a party to this Agreement, and shall have all the rights and
obligations of a Securityholder hereunder, by executing an Adoption
Agreement in the form of Exhibit "A" attached hereto or in such other
form that is satisfactory to the Corporation.
6.2 Additional Parties. Any person who acquires common stock
of the Corporation in connection with his employment by the Corporation
or any of its subsidiaries and is approved by the Corporation, and any
other person or entity which acquires any shares of common stock of the
Corporation subsequent to the execution of this Agreement, unless waived
by the Company, shall become a party to this Agreement, with all the
rights and obligations of a Securityholder hereunder, upon executing
(together with such person's spouse, if applicable) an Adoption
Agreement in the form of Exhibit "A" attached hereto or in such other
form that is satisfactory to the Corporation.
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7. Standstill Agreement; Securities Matters.
7.1 Standstill Agreement. At any time that the Corporation is
engaged in an underwritten public offering of its securities, each
Securityholder agrees that he will make no Disposition of Common Stock
or Warrants on any securities exchange or in the over-the-counter or any
other public trading market for whatever period of time the Corporation
(upon the recommendation of its underwriters) requests by written notice
to each Securityholder; provided, however, (i) that such request shall
not be for a period extending longer than 120 days following the later
of (a) the effectiveness of the registration statement to which the
public offering relates or (b) the date of the underwriting agreement.
If a public offering giving rise to the obligations set forth under this
Section 7.1 will terminate this Agreement pursuant to the provisions of
Section 18.5, then the obligations in this Section 7.1 shall survive the
termination of this Agreement for 120 days after the Initial Public
Offering, after which time the obligations in this Section 7.1 shall
terminate.
7.2 Securities Laws. No Securityholder shall make any
Disposition of Common Stock or Warrants at any time if such action would
constitute a violation of any federal or state securities or blue sky
laws or a breach of the conditions to any exemption from registration of
the Common Stock or Warrants under any such laws or a breach of any
undertaking or agreement of a Securityholder entered into pursuant to
such laws or in connection with obtaining an exemption thereunder, and
the Corporation shall not transfer upon its books any shares of Common
Stock or Warrants unless prior thereto the Corporation shall have
received an opinion of counsel in form and substance satisfactory to the
Corporation that such transaction is in compliance with this Section
7.2. Each Securityholder agrees that any certificates representing
shares of Common Stock and Warrants shall bear appropriate legends
restricting the sale or other transfer of such Common Stock and Warrants
in accordance with applicable federal or state securities or blue sky
laws and in accordance with the provisions of this Agreement. This
Section 7.2 shall survive termination of this Agreement for the maximum
period permitted by applicable law.
8. Voting Arrangements.
8.1 (i) With respect to each election or removal of members of
the Board (including, without limitation, any replacement members), the
Securityholders agree to vote their respective interests in the
Corporation and to take such further actions (including, without
limitation, amendments to the Corporation's charter documents) in their
respective powers as may be necessary or appropriate to ensure that the
Board consists of not more than 9 directors to include the following:
(a) So long as Summit Capital and its Affiliates, in
the aggregate, hold beneficially and of record not less than 50%
the number of shares of Common
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Stock issued to Summit Capital as reflected on the signature page
hereto, 2 directors of the Board shall be individuals nominated
by Summit Capital;
(b) So long as Chase holds beneficially and of record
not less than 50% of the number of shares of Common Stock
reflected on the signature page hereto, 2 directors of the Board
shall be individuals nominated by Chase;
(c) So long as (i) any principal or interest remains
outstanding on the ▇▇▇▇▇ Sub Debt, and (ii) ▇▇▇▇▇ owns the ▇▇▇▇▇
Sub Debt, ▇▇▇ ▇▇▇▇▇ or a designee of ▇▇▇ ▇▇▇▇▇ approved of by a
majority of the other members of the Board shall serve as a
director of the Board;
(d) So long as ▇▇▇▇▇▇▇ holds beneficially and of record
not less than 50% of the number of shares of Common Stock
reflected on the signature page hereto, ▇▇▇▇▇▇▇ shall serve as a
director of the Board; and
(ii) Except as expressly provided in Section 8.1(i), the
composition of the Board shall be determined in accordance with the
bylaws of the Corporation.
9. Endorsement of Stock Certificates. All certificates of Common Stock
and Warrants of the Corporation now owned or that may hereafter be acquired by
the Securityholders or any transferee (which transferee is subject to the terms
of this Agreement) shall be endorsed on the reverse side thereof substantially
as follows:
BY THE TERMS OF A SECURITYHOLDERS AGREEMENT, CERTAIN RESTRICTIONS HAVE
BEEN PLACED UPON THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE. THE CORPORATION WILL FURNISH A COPY OF SUCH AGREEMENT TO THE
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
The foregoing legend shall be in addition to any and all other legends required
by applicable law or contract to be placed on certificates representing Common
Stock or Warrants, including those referred to in Section 7.
10. Business Opportunities.
10.1 Each of the Securityholders agrees and confirms that the
scope of the Corporation's intended activities shall be to, directly or
indirectly, engage in, continue in or carry on the business of renting
or leasing space on, and to own or manage, radio or other communications
towers and to, directly or indirectly, manage communication facilities
on building tops in the continental United States and activities related
thereto (collectively, the "Intended Activities"). During the term of
this Agreement, each Securityholder (other than BOCP, ▇▇▇▇▇ (to the
extent set forth in Section 10.3), ▇▇▇▇▇▇▇ and his Affiliates (to the
extent set forth in Section 10.2) and Chase (to the extent set forth in
Section 10.4)) agrees that it will not, and will cause its Affiliates
not to, engage in any
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activity similar or related to an Intended Activity without first making
any such opportunity available to the Corporation and agrees not to
engage in any activity in conflict with the Corporation's Intended
Activities. To the extent any opportunity does not fall within the
description of an Intended Activity or if the Corporation rejects an
opportunity that is an Intended Activity, the Corporation and each
Securityholder acknowledges and agrees that any Securityholder and its
Affiliates shall be permitted to pursue any such opportunity without
liability, duty, or obligation to the Corporation or any Securityholder.
10.2 Securityholders acknowledge and affirm that ▇▇▇▇▇▇▇, a
beneficial Securityholder and director of the Corporation is a
shareholder, officer and director in Grid-Sites Services, Inc. ("Grid
Site") and Grid Towers, L.L.C. ("Grid Towers") both of which are engaged
in activities that are herein above described as Intended Activities of
the Corporation. Securityholders specifically acknowledge that
▇▇▇▇▇▇▇'▇ participation in the business activities of Grid Site and Grid
Towers shall be excluded activities for which ▇▇▇▇▇▇▇ shall not be
obligated to provide notice of, or opportunity for participation in, any
such Intended Activities to the extent such Activities are conducted
within any part of the states of Georgia, Alabama or South Carolina; any
part of the State of Florida north of the 28th latitude; any part of the
State of North Carolina west of the 76th longitude; and any part of the
State of Tennessee east of the 88th longitude. Securityholders hereby
waive any conflict or potential claim of Corporate Opportunity related
to the activities of ▇▇▇▇▇▇▇, Grid Site or Grid Towers within the areas
listed in this Section 10.2.
10.3 The Securityholders acknowledge and agree that ▇▇▇▇▇ or
its Affiliates shall be permitted to continue the business of
constructing and servicing towers through Allied Tower Company, Inc. as
conducted by Allied Tower Company, Inc. on the date hereof.
10.4 Notwithstanding anything to the contrary contained in this
Section 10, it is understood that the provisions of this Section 10
shall not require any of Chase's Affiliates to offer to the Corporation
the opportunity to participate in, or prevent Chase or any such
Affiliate from offering to any entity engaged in Intended Activities,
investment or commercial banking or other products or services offered
by Chase's Affiliates in the ordinary conduct of their respective
businesses. Chase's Affiliates shall be permitted to offer any such
products or services to any entity whatsoever without restriction by the
terms of this Agreement, whether such products or services are presently
offered by such Affiliates or are developed after the date hereof. In
addition, this Section 10 shall not prevent Chase from providing, or
require Chase to offer, the Corporation the opportunity to participate
in, any debt financing for any entity engaged in Intended Activities,
regardless of whether such debt financing takes the form of debt
securities convertible into or exchangeable for equity securities, or
debt financing accompanied by warrants, options or other rights to
purchase equity securities of an entity engaged in Intended Activities.
11. Right to Participate in Certain Stock Issuances. With respect to
any issuance or portion thereof (other than an Excluded Issuance, as defined
below in this Section) by the
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Corporation of shares of its common stock or securities convertible into common
stock or other equity securities or rights to acquire such common stock or
other equity securities, each Securityholder may elect (but shall not be
obligated) to subscribe for and purchase for the issuance price offered by the
Corporation a pro rata portion of such issuance based on the proportion that
the number of shares of Common Stock then owned by such Securityholder bears to
all of the outstanding shares of Common Stock of the Corporation. For purposes
of determining a Securityholder's proportionate rights under this Section 11,
the number of shares of Common Stock held by any Securityholder shall be deemed
to include the number of shares of Common Stock to which such Securityholder
would be entitled upon the exercise thereby of any Warrants owned by such
Securityholder, and the number of outstanding shares of Common Stock of the
Corporation shall be deemed to be increased by the number of shares of Common
Stock to which all Securityholders would be entitled upon exercise of all
Warrants. For purposes of this Section 11, the term "Excluded Issuance" shall
mean (i) shares issued as stock dividends or pursuant to stock splits,
recapitalization or other similar events that do not adversely affect the
relative rights of the Securityholders, (ii) securities issued pursuant to an
Initial Public Offering, (iii) common stock issuable upon exercise of any of
the Warrants, (iv) shares of common stock issued upon exercise or conversion of
warrants, options or convertible securities issued to full-time key employees
as incentive compensation and (v) securities issued by the Corporation as
consideration in a merger, stock purchase, asset acquisition or similar
transaction with an unaffiliated party.
12. Notices. In the event a notice or other document is required to be
sent hereunder to the Corporation or to any Securityholder or the spouse or
legal representative of a Securityholder, such notice or other document, if
sent by mail, shall be sent by registered mail, return receipt requested (and
by air mail in the event the addressee is not in the continental United
States), to the party entitled to receive such notice or other document at (i)
American Tower Corporation, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, in the case of the Corporation, (ii) at the addresses
shown on the stock transfer records of the Corporation in the case of the
Securityholders, their spouses and their respective legal representatives, or
(iii) at such other address as any such party shall request as to such party in
a written notice sent to the Corporation. Any such notice shall be effective
and deemed received three (3) days after proper deposit in the mails, but
actual notice shall be effective however and whenever received. The
Corporation or any Securityholder or spouse or their respective legal
representatives may effect a change of address for purposes of this Agreement
by giving notice of such change to the Corporation, and the Corporation shall,
upon the request of any party hereto, notify such party of such change in the
manner provided herein. Until such notice of change of address is properly
given, the addresses set forth herein shall be effective for all purposes.
13. Rights and Obligations to Participate in Certain Transactions.
The Securityholders shall be entitled to the following "tag along" rights and
be obligated with respect to the following "drag along" rights:
13.1 If any Securityholder (the "Selling Securityholder")
receives an Acquisition Proposal for the purchase of any shares of
Common Stock or Warrants (other than pursuant to (i) a Disposition
permitted under Section 5, (ii) an Initial Public Offering, or
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(iii) an exercise of the registration rights under Section 14), and
desires to accept such Acquisition Proposal (such desire to be evidenced
in writing together with a copy of such Acquisition Proposal), the
Selling Securityholder shall notify the Corporation and all of the other
Securityholders of such Acquisition Proposal (the "Acquisition Proposal
Notice") and furnish a copy of the Acquisition Proposal thereto, and
thereafter each of the Securityholders shall have the right and option
to elect, by giving written notice to the Corporation within 10 Business
Days following receipt of the Acquisition Proposal Notice (and the
Corporation shall promptly notify the other Securityholders of such
Acquisition Proposal Notice and of each Securityholder's election
pursuant to this paragraph) to sell, pursuant to the terms of the
Acquisition Proposal, a portion of such Securityholder's shares of
Common Stock and Warrants (or, if the Securities Acquisition Proposal
only offers to acquire Common Stock or Warrants, up to a percentage of
each such Securityholder's shares of Common Stock or Warrants, as the
case may be) equal to (or, at each such Securityholder's election, less
than) the fraction (not to exceed 1) obtained by dividing the total
number of outstanding shares of Common Stock or Warrants to be sold
pursuant to the Acquisition Proposal by the total number of shares of
Common Stock held by all Securityholders electing to sell pursuant to
the Acquisition Proposal. If less than all of the shares of common
Stock or Warrants to be sold pursuant to such Acquisition Proposal are
accounted for pursuant to the pro ration described in the preceding
sentence, such procedures shall be repeated as many times as necessary
until all securities subject to the Acquisition Proposal have been
accounted for. For purposes of determining each Securityholders'
proportionate rights under this Section 13.1 the number of shares of
Common Stock held by any Securityholder shall be deemed to include the
number of shares of Common Stock to which such Securityholder would be
entitled upon the exercise thereby of any Warrants owned by such
Securityholder. The provisions of this Section 13.1 and Section 3.1
shall apply to each Acquisition Proposal; provided the provisions set
forth in Section 3.1 shall first apply after which those set forth in
this Section 13.1 shall apply.
13.2 In the event (a) the Corporation or any Securityholder
receives a bona fide written proposal for the purchase of at least 51%
of all of the outstanding shares of Common Stock and Warrants (a "Change
of Control Proposal") (other than pursuant to (i) an Initial Public
Offering, (ii) a Disposition permitted by Section 5 or (iii) an exercise
of registration rights under Section 14) and (b) the purchaser, pursuant
to such Change of Control Proposal, proposes to purchase a greater
number of shares of Common Stock or Warrants than held by the Person
receiving such Acquisition Proposal, such Securityholder shall promptly
notify the Corporation of such fact (which notice shall include a copy
of such Change of Control Proposal) and the Corporation shall send a
copy of such notice (which notice shall include a copy of such Change of
Control Proposal) to every other Securityholder. If such Change of
Control Proposal is acceptable to the Required Voting Percentage, taken
as a whole, (the "Approving Group"; and the Securityholders that do not
accept the proposal in the foregoing manner are referred to herein as
the "Non-Approving Group"), and such acceptance is evidenced in writing
to the Board, then each Securityholder shall be obligated to sell to the
purchaser pursuant to the terms of the
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Change of Control Proposal, a number of shares of Common Stock and
Warrants unanimously agreed upon by all of the Securityholders or, in
the absence of any such agreement, up to a percentage of such
Securityholder's shares of Common Stock and Warrants equal to the
percentage of the total outstanding shares of Common Stock and/or
Warrants, as the case may be, to be sold pursuant to the terms of the
Securities Acquisition Proposal. The provisions set forth in this
Section 13.2 shall apply in lieu of the provisions set forth in Section
3.1 with respect to a Change of Control Proposal that is approved by a
Required Voting Percentage. Notwithstanding the foregoing in this
Section 13.2, BOCP shall not be required to participate in any
transaction unless, in connection with such transaction, all amounts
payable on any loan from BOCP to the Corporation or ▇▇▇▇▇-▇▇▇▇▇ Corp.
shall be paid in full.
14. Registration Rights.
14.1 Definitions. As used in this Section 14, the following
terms have the meanings indicated:
"Business Day" shall mean any day other than a Saturday, Sunday or legal
holiday for banks in the States of Texas and Delaware.
"Commission" shall mean the Securities and Exchange Commission.
"Demand Notice" shall have the meaning given it in Section 14.3(a)(i).
"Demand Registration" shall have the meaning given it in Section
14.3(a)(i).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Holder" shall mean any Person holding Registrable Securities.
"Piggy-back Registration" shall have the meaning given it in Section
14.2(a).
"Registrable Securities" shall mean (i) the Common Stock and (ii) any
other securities issued or issuable with respect to any of the Common
Stock or the Warrants by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise; provided, however,
that to the extent such securities to be received are convertible or
exercisable into other shares of the issuer thereof, then any shares as
are issued or issuable upon conversion or exercise of said convertible
or exercisable securities shall constitute Registrable Securities, and
said convertible or exercisable securities shall not constitute
Registrable Securities. Registrable Securities shall include the Common
Stock issuable upon exercise of a Warrant, even if the exercise of the
Warrant is conditioned upon the effectiveness of the registration
statement. As to any particular Registrable Securities, once issued to
a Secur-
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ityholder, such securities shall cease to be Registrable Securities when
(a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities
shall have been disposed of by such Securityholder in accordance with
such registration statement, (b) such securities shall have been
distributed by such Securityholder pursuant to Rule 144 of the
Securities Act or (c) such securities shall have ceased to be
outstanding.
"Registration Expenses" shall have the meaning given it in Section 14.4.
14.2 Piggy-back Registration. (a) If the Corporation proposes
to file a registration statement under the Securities Act with respect
to an offering by the Corporation for the account of any other Person of
any class of equity security, including any security convertible into or
exchangeable for any equity security (other than a registration
statement on Forms S-4 or S-8 (or their successor forms) or filed in
connection with an exchange offer or an offering of securities solely to
the Corporation's existing stockholders, and other than as set forth in
Section 14.2(b) below), then the Corporation shall in each case give
written notice of such proposed filing to the Holders at least twenty
days before the anticipated filing date, and such notice shall offer
such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request (a "Piggy-back
Registration"). The Corporation shall use reasonable efforts to cause
the managing underwriter or underwriters of a proposed underwritten
offering to permit the Holders of Registrable Securities requested to be
included in the registration for such offering to include such
securities in such offering on the same terms and conditions as any
similar securities of the Corporation included therein. Notwithstanding
the foregoing, if the managing underwriter or underwriters of such
offering deliver an opinion to the Holders that the total amount of
securities which they and any other Persons (other than the Corporation)
intend to include in such offering is sufficiently large to materially
and adversely affect the success of such offering, then the amount of
Registrable Securities to be offered for the accounts of Holders shall
be reduced in inverse order of the priority of registration rights
specified in this Agreement held by holders of securities requesting
inclusion therein to the extent necessary, in the opinion of such
managing underwriter, to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing
underwriter; provided, that the reduction imposed upon Holders shall not
be greater, on a percentage basis with respect to the Registrable
Securities requested to be included, than the reduction imposed upon
other Persons whose piggy-back registration rights are pari passu with
those granted hereby with respect to the amount of securities requested
for inclusion in such registration.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Corporation shall not be required to include Registrable
Securities in any registration statement if the proposed registration is
(i) a registration of a stock option or other employee incentive
compensation or employee benefit plan or of securities issued or
issuable pursuant to any such plan, or a registration statement relating
to warrants, options or shares of capital stock granted or to be granted
or sold primarily as incentive
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19
compensation to employees and officers of the Corporation, (ii) a
registration of securities issued or issuable pursuant to a stockholder
reinvestment plan or other similar plan, (iii) a registration of
securities issued in exchange for any securities or any assets of, or in
connection with a merger or consolidation with, an unaffiliated company,
(iv) a registration of securities pursuant to a "rights" or other
similar plan designed to protect the Corporation's stockholders from a
coercive or other attempt to cause a change in control of the
Corporation, (v) a registration of securities filed pursuant to Rule 145
under the Securities Act or any successor rule, or (vi) a registration
of preferred stock or securities issued in connection with any debt or
preferred stock financing of the Corporation.
(c) The Corporation may withdraw any registration statement
and abandon any proposed offering initiated by the Corporation without
the consent of any Holder, notwithstanding the request of any such
Holder to participate therein in accordance with this provision, if the
Corporation determines in its sole discretion that such action is in the
best interests of the Corporation and its stockholders (for this
purpose, the interest of the Holders shall not be considered).
14.3 Demand Registration Rights. (a) Right to Demand.
(i) Subject to the conditions stated hereinafter in this
Section 14.3(a)(i), at any time after a registration statement with
respect to a class of equity securities has been filed with the
Commission and become effective and subject to Section 7.1, BOCP may
make a written request to the Corporation for registration with the
Commission of the offer and sale of all or part of the Registrable
Securities held thereby under and in accordance with the provisions of
the Securities Act (a "Demand Registration"); provided, that the
Corporation may if necessary delay the filing of any registration
statement relating to any such Demand Registration for such reasonable
period of time, not to exceed 90 days, as is necessary to prepare the
financial statements of the Corporation for the fiscal period most
recently ended prior to such written request. Within 10 Business Days
after receipt of such request, the Corporation will serve written notice
(the "Demand Notice") of such registration request to all Holders (other
than BOCP) and the Corporation will include in such registration all
Registrable Securities of such other Holders with respect to which the
Corporation has received written requests for inclusion therein within
15 Business Days after the receipt by the applicable Holder of the
Demand Notice; provided, BOCP's right to include Registrable Securities
shall be senior to the other Holders with respect to each Demand
Registration.
(ii) All requests made pursuant to this Section 14.3(a) will
specify the amount and kind of securities to be registered and will also
specify the intended methods of disposition thereof.
(b) Number and Size of Demand Registrations; Payment of
Expenses. Subject to the provisions of Section 14.3(b), BOCP shall be
entitled to three Demand Registrations (which must become effective
under the Securities Act to count as having occurred);
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provided, however, that in no event shall the Corporation be required to
effect (i) more than one Demand Registration in any twelve month period,
or (ii) any Demand Registration wherein the aggregate net proceeds
(after deducting all costs, discounts, commissions and other expenses to
be incurred by the Persons selling securities therein) will be less than
$5 million. Registration Expenses (as hereinafter defined) of each such
Demand Registration, whether or not it becomes effective, shall be paid
as set forth in Section 14.4.
(c) Certain Limitations. If the managing underwriter or
underwriters of a Demand Registration advise the Corporation in writing
that in its or their opinion the number of Registrable Securities
proposed to be sold in such Demand Registration exceeds the number that
can be sold in such offering at the desired price, the Corporation will
include in such registration only the number of Registrable Securities
that, in the opinion of such underwriter or underwriters can be sold;
provided, BOCP shall have the relative rights set forth in Section
14.3(a)(i) in determining those shares to be included.
(d) Selection of Underwriters. The Corporation shall have the
right to select a managing underwriter or underwriters reasonably
acceptable to BOCP to administer the offering.
(e) Corporation Registration. Notwithstanding the provisions
of Sections 14.3(a) through 14.3(d), the Corporation shall not be
obligated to effect a registration requested pursuant to Sections
14.3(a) through 14.3(d) if (i) within 30 days after receiving the notice
provided under Sections 14.3(a) through 14.3(d), the Corporation
notifies BOCP and the other Holders of its intention to file a
registration statement for an underwritten public offering of Common
Stock for the sole account of the Corporation and within ninety days
after providing such notice, the Corporation files a registration
statement for such offering and (ii) the Corporation has never before
exercised its rights under this Section 14.3(e). In such case, BOCP and
the other Holders shall have all the piggy-back registration rights
provided under Section 14.2. If at any time the Corporation fails to
diligently pursue any such registration statement or offering, the
provisions of the first sentence of this Section 14.3(e) shall not
apply, and the Corporation shall be obligated to satisfy its obligations
under Sections 14.3(a) through 14.3(d). With respect to such
Corporation registration, the Corporation shall have the sole authority
to select or terminate the employment of underwriters, and to make all
decisions in connection with the filing, effectiveness and consummation
of the proposed offering, subject to the express provisions hereof.
(f) Assignability. BOCP may assign its rights under this
Section 14.3 with respect to its Registrable Securities to any
transferee acquiring such Registrable Securities in accordance with the
other provisions of this Agreement; provided, the demand registration
rights granted under this Section 14.3 may only be exercised by the
owner of a majority of the Registrable Securities attributable to the
Warrant owned by BOCP on the date of this Agreement.
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14.4 Registration Expenses. (a) All expenses incident to the
Corporation's performance of or compliance with this Agreement,
including without limitation, all Commission and securities exchange or
National Association of Securities Dealers, Inc. registration and filing
fees, fees and expenses (other than the pro rata portion of filing fees
attributable, as required by state law, to the securities to be sold) of
compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), rating agency fees, printing expenses,
messenger and delivery expenses, internal expenses of the Corporation
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the fees
and expenses incurred in connection with the listing of the securities
to be registered on each securities exchange on which similar securities
issued by the Corporation are then listed and fees and disbursements of
counsel for the Corporation and its independent certified public
accountants (including the expenses of any special audit or "cold
comfort" letters required by or incident to such performance),
securities act liability insurance (if the Corporation elects to obtain
such insurance), and the fees and expenses of any special experts
retained by the Corporation in connection with such registration, and
any reasonable out-of-pocket expenses of the Holders incurred in
connection with the registration of Registrable Securities, excluding
any underwriting fees, discounts or commissions attributable to the sale
of Registrable Securities (all such expenses being herein called
"Registration Expenses"), will be borne by the Corporation; provided,
that, (i) with respect to the fees and expenses of legal counsel for the
Holders, the Corporation shall only be obligated to pay the fees and
expenses of one firm of legal counsel retained by Holders of a majority
of the Registrable Securities to be covered by each registration
statement (unless pursuant to a demand registration under Section 14.3,
in which event BOCP shall be entitled to select counsel if the counsel
selected by the majority of Holders is not reasonably satisfactory to
BOCP) and (ii) the Corporation shall not be required to pay any expenses
of BOCP in connection with its exercise of its demand rights under
Section 14.3 except in connection with its first Demand Registration.
The Holders to be covered by the registration statement agree to
cooperate and use reasonable procedures to select such legal counsel.
All such Registration Expenses will be paid by the Corporation whether
or not the related registration statement is declared effective. All
expenses of Holders incident to this Agreement which are not required to
be paid for by the Corporation pursuant to this Section 14.4 shall be
paid by Holders included or to be included in a registration statement,
with such Holders each paying their own expenses and a pro-rata part
(based on the same proportion that the number of a Holder's Registrable
Securities included or to be included in the registration statement
bears to the total number of all Holders' Registrable Securities
included or to be included in the registration statement) of the common
expenses of such Holders.
(b) Notwithstanding anything herein to the contrary, each
seller of Registrable Securities shall pay such portion of the
Registration Expenses as may be required by applicable law.
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14.5 Participation in Underwritten Registrations. No Holder
may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's securities on the terms of and
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements (which shall be
the Corporation in the case of an offering of securities by the
Corporation) and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
15. Approval of Incentive Compensation Plan. The Securityholders
hereby approve and authorize the Board to adopt on behalf of the Corporation
without any further action required by the Securityholders an incentive
compensation plan or plans providing for the Corporation's issuance of stock
options, phantom stock, restricted stock, stock appreciation rights and other
items to key, full-time management employees of either the Corporation or its
subsidiaries (other than (i) the members of the Board of Directors of any such
entities, (ii) employees of Summit and (iii) employees of Chase) in such form
as the Board determines to be in the best interests of the Corporation
(including, without limitation, incentive stock options and non-statutory
stock options); provided, the aggregate shares of Common Stock issuable
(whether directly or indirectly through the exercise of options) pursuant to
the authority herein given shall not exceed 10% of all of the shares of Common
Stock (including Common Stock issuable upon exercise of the Warrants)
outstanding from time to time.
16. Certain Information. The Corporation shall furnish to each
Securityholder (i) as soon as available, and in any event within 45 days after
each calendar quarter, a copy of an unaudited financial report of the
Corporation as of the end of such calendar quarter and for the portion of the
fiscal year then ended, containing, on a consolidated and consolidating basis,
a balance sheet, a statement of income, and a statement of cash flows, all in
reasonable detail certified by the chief financial officer to have been
prepared in accordance with generally accepted accounting principles (except
with respect to footnotes) and to fairly and accurately present in all material
respects (subject to the year-end audit adjustments) the financial condition
and results of operations of the Corporation on a consolidated and
consolidating basis, at the date and for the periods indicated therein, (ii) as
soon as available, and in any event within 120 days after the end of each
fiscal year of the Corporation beginning with the fiscal year ending December
31, 1994, a copy of the annual audit report of the Corporation for such fiscal
year containing, on a consolidated and consolidating basis, balance sheets,
statements of income, statements of retained earnings and cash flows (and any
other statements then routinely prepared and provided in connection with the
conduct of an audit) as of the end of such fiscal year and for the 12-month
period then ended (or for such shorter period as such party was in existence
for fiscal year 1994), in each case setting forth in comparative form the
figures for the preceding year, all in reasonable detail and audited and
certified by a "Big 6" accounting firm or other independent certified public
accounting firm of recognized national standing, to the effect that such report
has been prepared in accordance with generally accepted accounting principles
and generally accepted auditing standards and (iii) as soon as practicable, any
written notice received or given by the Corporation to the effect that the
Corporation is in default under any credit agreement to which it or any of its
subsidiaries is a party
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including, without limitation, (a) the Credit Agreement of even date herewith
by and between ▇▇▇▇▇-▇▇▇▇▇ Corp., as borrower, and First Interstate Bank of
Texas, N.A., as agent, (b) the Senior Subordinate Loan Agreement of even date
herewith by and among Banc One Partners II, Limited Partnership and ▇▇▇▇▇-▇▇▇▇▇
Corp. and (c) the Seller Loan Agreement of even date herewith between the
Corporation and ▇▇▇▇▇.
17. SBIC Provisions.
17.1 Definitions. The following terms, as used in this Section
17, shall have the meanings given in this Section 17.1:
"Closing" means issuance of the shares of Common Stock by the
Corporation to the SBIC Holder and the payment by the SBIC Holder for
such shares.
"Financing" means the purchase of 26,225 shares of Common Stock
by the SBIC Holder hereunder.
"SBA" means the United States Small Business Administration, and
any successor agency performing the functions thereof.
"SBIC" means a Small Business Investment Corporation licensed by
an SBA under the SBIC Act.
"SBIC Act" means the Small Business Investment Act of 1958, as
amended.
"SBIC Holder" means Chase.
"SBIC Regulations" means the SBIC Act and the regulations issued
by the SBA thereunder, codified at Title 13 of the Code of Federal
Regulations ("13 CFR"), Parts 107 and 121.
17.2 Representations and Warranties of the Corporation. The
Corporation, together with its "affiliates" (as that term is defined in
13 CFR Section 121.401), is a "small business concern" within the
meaning of the SBIC Regulations, including 13 CFR Section 121.802. The
information regarding the Corporation and its affiliates set forth in
SBA Form 480, Form 652 and Section A of Form 1031 delivered at the
Closing will be accurate and complete. Neither the Corporation nor any
subsidiary presently engages in, or shall hereafter engage in, any
activities, nor shall the Corporation or any subsidiary use the proceeds
of the Financing directly or indirectly for any purpose, for which an
SBIC is prohibited from providing funds by SBIC Regulations (including
13 CFR Section 107.804 and Section 107.901).
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17.3 SBIC Regulatory Provisions.
(i) Number of Stockholders. As long as the SBIC Holder holds
any shares of Common Stock, the Corporation shall notify the SBIC Holder
(a) least 15 days prior to taking any action after which the number of
record holders of the Corporation's voting stock would be increased from
fewer than 50 to 50 or more, and (b) of any other action or occurrence
after which the number of record holders of the Corporation's voting
stock was increased (or would increase) from fewer than 50 to 50 or
more, as soon as practicable after the Corporation becomes aware that
such other action or occurrence has occurred or is proposed to occur.
(ii) Regulatory Violation. Upon the occurrence of a Regulatory
Violation (as defined below) or in the event that the SBIC Holder
determines in its reasonable good faith judgment that a Regulatory
Violation has occurred, in addition to any other rights and remedies to
which it may be entitled (whether under this Agreement or any other
agreement, the Corporation's Certificate of Incorporation or otherwise),
the SBIC holder shall have the right, to the extent required under SBIC
Regulations, to demand the immediate repurchase of all of the shares of
Common Stock owned by the SBIC Holder at a price equal to the purchase
price paid for such shares hereunder plus accrued dividends by
delivering written notice of such demand to the Corporation. The
Corporation shall pay the purchase price for such securities by a
cashier's or certified check or by wire transfer of immediately
available funds to such SBIC Holder within 90 days after the
Corporation's receipt of the demand notice, and, upon such payment, such
SBIC Holder shall deliver the certificates evidencing the shares being
repurchased duly endorsed for transfer or accompanied by duly executed
forms of assignment.
For purposes of this Agreement, "Regulatory Violation" means (a)
a diversion of the proceeds of the Financing from the reported use
thereof described on the use of proceeds statement delivered by the
Corporation at the Closing, if such diversion was effected without
obtaining the prior written consent of the SBIC Holder (which consent
may be withheld in the SBIC Holder's sole discretion) or (b) a change in
the principal business activity of the Corporation and its subsidiaries
to an ineligible business activity (within the meaning of the SBIC
Regulations), if such change occurs within one year after the date of
the initial Financing hereunder.
(iii) Economic Impact Information. Promptly after the end of
each fiscal year (but in any event prior to February 28 of each year)
the Corporation shall deliver to the SBIC Holder a written assessment of
the economic impact of the SBIC Holder's investment in the Corporation,
specifying the full-time equivalent jobs created or retained in
connection with the investment, the impact of the investment on the
businesses of the Corporation in terms of expanded revenue and taxes,
and other economic benefits resulting from the investment, including but
not limited to, technology development or commercialization, minority
business development, urban or rural business development, expansion of
exports.
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17.4 Regulatory Compliance Cooperation.
(i) If and to the extent (x) the SBIC Holder determines that
it has a Regulatory Problem (as defined below) and (y) pursuant to the
provisions of Section 3.1 and Section 4, the shares of Common Stock of
the SBIC Holder have not been fully subscribed for within 45 days after
the date the SBIC Holder notifies the Corporation of the occurrence of a
Regulatory Problem and the related closing of such subscriptions have
not occurred within 90 days following the SBIC Holder's notice to the
Corporation, the SBIC Holder shall have the right to transfer without
regard to any restriction on transfer set forth in this Agreement (other
than the securities laws restrictions set forth in Section 7 and the
requirement that the transferee agrees to become a party to this
Agreement) any of its shares of Common Stock that either (I) remain
unsubscribed for following the 45 day period described above or (II)
remain unpurchased following the expiration of the 90 day period
described above. If the SBIC Holder determines that it has a Regulatory
Problem (as defined below), the SBIC Holder shall have the right to
transfer without regard to any restriction on transfer set forth in this
Agreement (other than the securities laws restrictions set forth in
Section 7 and the requirement that the transferee become a party to this
Agreement) those shares of Common Stock of the SBIC shareholder that,
following the application of Section 3.1 and Section 4, have either been
unsubscribed for before 45 days after the SBIC Holder notifies the
Corporation of the occurrence of the Regulatory Problem or have not been
purchased within 90 days following such notice from the SBIC Holder to
the Corporation. The Corporation shall take all such actions as are
reasonably requested by the SBIC Holder in order to (a) effectuate and
facilitate any transfer by the SBIC Holder to any Person designated by
the SBIC Holder, (b) permit the SBIC Holder (or any of its affiliates)
to exchange all or any portion of any voting security then held by it on
a share-for-share basis of shares of a nonvoting security of the
Corporation, which nonvoting security shall be identical in all respects
to the voting security exchanged for it, except that it shall be
nonvoting and shall be convertible into a voting security on such terms
as are requested by the SBIC Holder in light of regulatory
considerations then prevailing, (c) continue and preserve the respective
allocations of the voting interests with respect to the Corporation
arising out of the SBIC's ownership of voting securities and/or provided
in this Agreement before the transfers and amendments referred to above
(including entering into such additional agreements as are requested by
the SBIC Holder to permit any Person(s) designated by the SBIC Holder
reasonably acceptable to the Corporation to exercise any voting power
which is relinquished by the SBIC Holder and (d) amend this Agreement,
the Certificate of Incorporation, the Bylaws and related agreements and
instruments to effectuate and reflect the foregoing. The parties to
this Agreement agree to vote their shares of Common Stock in favor of
such amendments and actions.
(ii) For purposes of this Agreement, a "Regulatory Problem"
means any set of facts of circumstances wherein it has been asserted by
any governmental regulatory agency under SBIC Regulations (or the SBIC
Holder believes that there is a substantial risk of such assertion) that
the SBIC Holder is not entitled to hold, or exercise any significant
right with respect to, its shares of Common Stock.
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18. Miscellaneous Provisions.
18.1 This Agreement shall be subject to and governed by the
laws of the State of Delaware.
18.2 Whenever the context requires, the gender of all words
used herein shall include the masculine, feminine and neuter, and the
number of all words shall include the singular and plural.
18.3 This Agreement shall be binding upon the Corporation, the
Securityholders, any spouses of the Securityholders, and their
respective heirs, executors, administrators and permitted successors and
assigns.
18.4 This Agreement may be amended or waived from time to time
by an instrument in writing signed by the Corporation and the holders of
at least the Required Voting Percentage at the time of such amendment
and such instrument shall be designated on its face as an "Amendment" to
this Agreement; provided, no amendment that adversely affects the
Warrant held by BOCP on the date hereof or other securities attributable
thereto or rights under this Agreement with respect thereto shall be
effective against BOCP or such securities unless the consent of BOCP to
such amendment is obtained; provided further, any amendment that applies
discriminately to any Securityholder shall, prior to its effectiveness
against such Securityholder, require such Securityholder's consent.
18.5 This Agreement shall terminate automatically upon (a) the
dissolution of the Corporation or (b) the completion of an Initial
Public Offering, provided, however, that Section 7 of this Agreement
shall survive any such termination to the extent and for the periods set
forth in such Section.
18.6 Any Securityholder who disposes of all such
Securityholder's Common Stock or Warrants in conformity with the terms
hereof shall cease to be a party to this Agreement, shall cease to be a
"Securityholder" and shall have no further rights hereunder.
18.7 The spouses of the individual Securityholders are fully
aware of, understand and fully consent and agree to each of the
provisions of this Agreement, including specifically the provisions of
Sections 3.2 through 3.4, 18.8 and 18.9, and the binding effect of the
Agreement and of each of these provisions upon any community property
interests or similar marital property interests in the Common Stock or
Warrants they may now or hereafter own, and agree that the termination
of their marital relationship with any Securityholder for any reason
shall not have the effect of removing any Common Stock or Warrants of
the Corporation otherwise subject to this Agreement from the coverage
hereof and that their careful review, awareness, understanding, consent
and agreement of and to each provision of this Agreement are evidenced
by their signing this Agreement. Furthermore, the spouse (and any
subsequent spouse) of each individual Securityholder shall execute and
deliver, upon the request of the Corporation, a counterpart of this
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Agreement, or an Adoption Agreement in the form attached hereto as
Exhibit "A" or in a form satisfactory to the Corporation. By signing
this Agreement the spouse of each individual Securityholder acknowledges
(i) that he or she has been fully and completely informed as to the
facts related to this Agreement and as to his or her rights in and to
the property that is the subject of this Agreement and (ii) that he or
she enters into this Agreement voluntarily after receiving advice of
independent legal counsel.
18.8 Any Disposition or attempted Disposition in breach of this
Agreement shall be void and of no effect and shall be deemed to be a
Section 3.1 Offer, and the date of such deemed Offer shall be the date
the Corporation, after receipt of evidence satisfactory to it that such
Disposition or attempted Disposition has occurred, gives written notice
of such Disposition or attempted Disposition to the Offerees.
Additionally, Section 7 shall apply to such attempted Disposition. In
connection with any attempted Disposition in breach of this Agreement,
the Corporation may hold and refuse to transfer any Common Stock and
Warrants or any certificate therefor tendered to it for transfer, in
addition to and without prejudice to any and all other rights or
remedies which may be available to it or the Securityholders. Each
party hereto acknowledges that a remedy at law for any breach or
attempted breach hereof will be inadequate, agrees that each other party
hereto shall be entitled to specific performance and injunctive and
other equitable relief in case of any such breach or attempted breach
and further agrees to waive any requirement for the obtaining of any
such injunctive or other equitable relief.
18.9 Each Securityholder and his or her spouse, if any, hereby
appoint the Corporation as their agent and attorney to make the Offers
required and take all actions necessary under Sections 3.2 through 3.4
(other than accepting Offers) and 18.8 on their behalf and to execute
the agreement attached hereto as Exhibit A (the "Adoption Agreement") on
their behalf, and expressly bind themselves to such Offers and to the
Corporation's execution of any such Adoption Agreement without further
action on their part, and such powers of attorney granted herein are
deemed to be coupled with an interest in the Common Stock or Warrants
and shall survive the death, disability, bankruptcy or dissolution of
such Securityholder or his or her spouse, if any.
18.10 If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such declaration
shall not affect the validity of the remaining provisions.
18.11 This Agreement sets forth the entire agreement of the
parties hereto as to the subject matter hereof and supersedes all
previous agreements among all or some of the parties hereto, whether
written, oral or otherwise. This Agreement may be executed in multiple
counterparts, any one of which may contain the signature of one or more
than one party, but all of which counterparts together shall constitute
one and the same instrument.
18.12 No person or entity not a party to this Agreement shall
have rights under this Agreement as a third party beneficiary or
otherwise.
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18.13 If any Common Stock or Warrants are pledged to a bank or
other financial institution as permitted by Section 5.3 and such shares
are to be sold to the Offeree(s), the Securityholders and their spouses,
if the transferor of such shares, hereby authorize any such bank or
financial institution to deliver certificates representing such shares
to the Corporation against receipt of the Purchase Price therefor, and
authorize the Offeree(s) to make payment of the Purchase Price to such
bank or financial institution for application to any indebtedness
secured by any such shares, and such bank or financial institution is
hereby authorized to apply such Purchase Price so received to any such
indebtedness.
18.14 If, and as often as, there are any changes in the Common
Stock or the Warrants 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,
privileges, duties and obligations hereunder shall continue with respect
to the Common Stock and the Warrants as so changed.
This Agreement is executed by the Corporation and by each Securityholder
and spouse of a Securityholder to be effective as of the date first above
written.
CORPORATION:
AMERICAN TOWER CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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