--------------------------------------------------------------------------------
Exhibit 10.1
PURCHASE AGREEMENT
Among
SPECTRASITE HOLDINGS, INC.
and
THE SEVERAL PURCHASERS
NAMED IN SCHEDULE I HERETO
Relating to
4,000,000 Shares of Common Stock
and
Warrants to Purchase 1,500,000 Shares of Common Stock
Dated as of November 20, 2000
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF COMMON
STOCK AND ISSUANCE OF WARRANTS
SECTION 1.01. Issuance and Sale of the Shares and Warrants to the
Purchasers............................................2
SECTION 1.02. Closing Date..........................................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 2.01. Organization and Qualification; Power and Authority...3
SECTION 2.02. Subsidiaries..........................................3
SECTION 2.03. Capitalization........................................4
SECTION 2.04. Authorization of Agreements. Etc......................4
SECTION 2.05. Validity..............................................5
SECTION 2.06. Governmental Approvals................................6
SECTION 2.07. Financial Statements, Etc.............................6
SECTION 2.08. Absence of Certain Changes or Events..................7
SECTION 2.09. Actions Pending.......................................8
SECTION 2.10. Intellectual Property Rights..........................9
SECTION 2.11. Taxes.................................................9
SECTION 2.12. Compliance with Law...................................9
SECTION 2.13. Employee Matters.....................................10
SECTION 2.14. Environmental Matters................................11
SECTION 2.15. Contracts............................................12
SECTION 2.16. Offering of the Securities...........................13
SECTION 2.17. Related Party Transactions...........................13
SECTION 2.18. Accuracy of Representations and Warranties in the
Agreement to Sublease...............................13
SECTION 2.19. Brokers..............................................14
SECTION 2.20. Condition of Assets..................................14
SECTION 2.21. Title to Properties..................................14
SECTION 2.22. Investment Company Act...............................14
SECTION 2.23. Adequate Insurance...................................14
-i-
SECTION 2.24. Shelf Registration Statement.........................14
SECTION 2.25. Knowledge of the Company.............................15
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 3.01. Authorization........................................15
SECTION 3.02. Validity.............................................15
SECTION 3.03. Investment Representations...........................15
SECTION 3.04. Governmental Approvals...............................16
SECTION 3.05. Brokers..............................................16
SECTION 3.06. Actions Pending......................................16
SECTION 3.07. Confidentiality......................................17
ARTICLE IV
COVENANTS
SECTION 4.01. Use of Proceeds......................................17
SECTION 4.02. Further Assurances...................................17
SECTION 4.03. Lock-up..............................................18
SECTION 4.04. Shelf Registration...................................18
SECTION 4.05. Confidentiality......................................18
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Obligations of the
Purchasers...........................................19
SECTION 5.02. Conditions Precedent to the Obligations of the
Company..............................................21
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Expenses, Indemnification............................21
SECTION 6.02. Survival of Agreements...............................22
SECTION 6.03. Parties in Interest..................................22
-ii-
SECTION 6.04. Notices..............................................22
SECTION 6.05. Entire Agreement; Assignment.........................23
SECTION 6.06. Counterparts.........................................24
SECTION 6.07. Governing Law........................................24
SECTION 6.08. Headings.............................................24
SECTION 6.09. Jurisdiction.........................................24
SECTION 6.10. Severability.........................................24
-iii-
INDEX TO EXHIBITS AND SCHEDULES
Exhibit Description
A Form of Warrant Agreement
B Form of Amendment to the Third Amended and
Restated Stockholders' Agreement
C Form of Registration Rights Agreement
D Form of Opinion of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
E Form of Opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
Schedules Description
I Purchasers
-iv-
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November 20, 2000, among
SpectraSite Holdings, Inc., a Delaware corporation (the "Company"), and the
several Purchasers named in Schedule I hereto (each a "Purchaser" and
collectively, the "Purchasers").
WHEREAS, the Company desires to sell to the Purchasers, and
the several Purchasers desire to purchase from the Company, on the terms and
subject to the conditions set forth herein, (i) an aggregate of 4,000,000 shares
(the "Shares") of Common Stock, par value $0.001 per share ("Common Stock"), of
the Company, (ii) warrants (the "Series I Warrants") to purchase an aggregate of
600,000 shares of Common Stock, subject to adjustment (the "Series I Warrant
Shares"), at an exercise price equal to $21.56 per share, (iii) warrants (the
"Series II Warrants") to purchase an aggregate of 450,000 shares of Common
Stock, subject to adjustment (the "Series II Warrant Shares"), at an exercise
price of $23.86 per share and (iv) warrants (the "Series III Warrants" and,
collectively with the Series I Warrants and the Series II Warrants, the
"Warrants") to purchase an aggregate of 450,000 shares of Common Stock, subject
to adjustment (the "Series III Warrant Shares" and, collectively with the Series
I Warrant Shares and the Series II Warrant Shares, the "Warrant Shares"; the
Shares, the Warrants and the Warrant Shares are collectively referred to as the
"Securities"), at an exercise price of $28.00 per share.
WHEREAS, contemporaneously with the closing of the purchase
and sale of the Shares, the Company will issue and sell $200 million aggregate
principal amount of its % Senior Convertible Notes due 2010 pursuant to a
purchase agreement and related agreements and instruments (the "Debt
Documents"); and
WHEREAS, the Company has entered into the Agreement to
Sublease, dated as of August 25, 2000 (the "Agreement to Sublease"), among the
Company, SBC Wireless, Inc. and Southern Towers, Inc. ("Towers");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
-2-
ARTICLE I
PURCHASE AND SALE OF COMMON
STOCK AND ISSUANCE OF WARRANTS
SECTION 1.01. Issuance and Sale of the Shares and
Warrants to the Purchasers.
(a)......Subject to the terms and conditions set forth herein,
on the Closing Date (as hereinafter defined) the Company shall issue, sell and
deliver to the Purchasers, and each such Purchaser, acting severally and not
jointly, shall purchase from the Company, (i) the number of shares of Common
Stock set forth opposite the name of such Purchaser on Schedule I under the
heading "Number of Shares of Common Stock" (subject to reallocation among the
Purchasers as they shall determine) and (ii) Warrants to purchase the number of
Warrant Shares set forth opposite the name of such Purchaser on Schedule I under
the heading "Number of Warrant Shares" (subject to reallocation among the
Purchasers as they shall determine). The aggregate purchase price of the Shares
and Warrant Shares shall be $75,000,000. On the Closing Date, the Company shall
issue certificates in definitive form, registered in the name of each Purchaser,
representing the number of Shares and Warrants issued to such Purchaser.
(b)......As payment in full for the shares of Common Stock and
the Warrants being purchased by it hereunder, and against delivery of the
certificate or certificates therefor as aforesaid, on the Closing Date each
Purchaser, acting severally and not jointly, shall transfer, by wire transfer of
immediately available funds to an account designated by the Company, the amount
set forth opposite the name of such Purchaser on Schedule I under the heading
"Aggregate Purchase Price."
SECTION 1.02. Closing Date. The issuance, sale and delivery of
the Shares contemplated by Section 1.01 (the "Closing") shall take place at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, New York, New York, on November 20, 2000 at
10:00 a.m., New York time, or at such other place, date and time as may be
mutually agreed upon among the parties hereto (such date and time of the Closing
being herein called the "Closing Date").
-3-
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as
follows:
SECTION 2.01. Organization and Qualification; Power and
Authority. The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to own or lease and operate its properties and assets and to carry
on its business as it is now being conducted. The Company is duly qualified as a
foreign corporation to do business, and is in good standing, in each
jurisdiction in which the character of its properties owned or leased or the
nature of its activities makes such qualification necessary, except where the
failure to be so qualified would not have a material adverse effect on the
rights or remedies of the Purchasers, or on the ability of the Company to
perform its obligations to the Purchasers, under this Agreement and the
Ancillary Agreements (as defined in Section 2.04 below) or on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"). The Company has the corporate power and authority to
execute, deliver and perform all of its obligations hereunder and under each of
the Ancillary Agreements.
SECTION 2.02. Subsidiaries. Each Significant Subsidiary (as
such term is defined in Rule 1-02(w) of Regulation S-X promulgated under the
Securities Act of 1933, as amended (the "Securities Act")) of the Company is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite corporate or other
organizational power and authority to own or lease and operate its properties
and assets and to carry on its business as it is now being conducted. Each
Significant Subsidiary of the Company is duly qualified as a foreign entity to
do business and is in good standing in each jurisdiction in which the character
of its properties owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
have a Material Adverse Effect. All the outstanding shares of capital stock of
the Significant Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable and are owned by the Company or by a wholly-owned subsidiary of
the Company free and clear of any liens, claims, charges, rights of others,
security interests, prior assignments or other encumbrances of any nature
whatsoever (collectively, "Claims"), other than Claims existing pursuant to the
existing bank credit agreement of SpectraSite Communications, Inc., dated as of
April 20, 1999, as amended through the date hereof (the "Credit Agreement").
-4-
SECTION 2.03. Capitalization.
(a)......As of the date hereof, after giving effect to the
transactions contemplated hereby, the authorized capital stock of the Company
consists of 300,000,000 shares of Common Stock. As of October 31, 2000,
138,343,490 of Common Stock were issued and outstanding, all of which shares
were duly authorized and validly issued and are fully paid and nonassessable.
The Company has not issued any shares of Common Stock since November 15, 2000,
except for shares issued in the ordinary course upon exercise of options and an
immaterial number of shares issued as consideration in connection with
acquisitions by the Company.
(b)......As of September 30, 2000, options (the "Employee
Stock Options") to purchase an aggregate 8,964,040 of Common Stock are
outstanding under the Company's employee stock option plan (the "Company Stock
Plan").
(c)......Except as set forth in this Agreement or the
Company's Third Amended and Restated Stockholders' Agreement (the "Stockholders'
Agreement"), as amended on the date hereof, the Company is not a party to any
voting trust, voting agreement, proxy or similar agreement with respect to
shares of capital stock of the Company.
(d)......Except for employment obligations and contracts,
neither the Company nor any of its subsidiaries has any obligation (contingent
or other) to purchase, redeem or otherwise acquire any shares of its capital
stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof which purchase, redemption or acquisition would
have a Material Adverse Effect.
(e)......Immediately after the Closing, all outstanding shares
of Common Stock (i) will have been duly authorized and validly issued and (ii)
will be fully paid and nonassessable and, in the case of the shares of Common
Stock issued hereunder, held of record by the Purchasers in the amounts set
forth opposite the name of such Purchasers on Schedule I hereto under the
heading "Number of Shares of Common Stock." In addition, immediately after the
Closing there will be 1,500,000 shares of Common Stock reserved for issuance by
the Company upon exercise of the Warrants held by the Purchasers (subject to
adjustment pursuant to the Warrant Agreement).
SECTION 2.04. Authorization of Agreements. Etc.
(a)......Each of (i) the execution and delivery by the Company
of this Agreement, the Warrant Agreement in substantially the form attached
hereto as Exhibit A, Amendment No. 1 to the Stockholders' Agreement in
substantially the form attached hereto as Exhibit B (the "Stockholders'
Agreement Amendment") and the Registration Rights Agreement
-5-
in substantially the form attached hereto as Exhibit C (the "Registration
Rights Agreement," and collectively with the Warrant Agreement, the
Warrants and the Stockholders' Agreement Amendment, the "Ancillary
Agreements"), (ii) the performance by the Company of its obligations
hereunder and under each of the Ancillary Agreements, (iii) the issuance,
sale and delivery by the Company of the Shares, (iv) the issuance and
delivery of the Warrants and the shares of Common Stock of the Company
issuable upon exercise of the Warrants, and (v) the performance by the
Company of the transactions contemplated by the Agreement to Sublease have
been duly authorized by all requisite corporate action and will not (w)
violate the Certificate of Incorporation or Bylaws of the Company, (x)
violate any provision of law, any order of any court or other agency of
government or any provision of any material indenture, agreement or other
instrument to which the Company or any of its properties or assets is
bound; (y) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such material
indenture, agreement or other instrument; or (z) result in the creation or
imposition of any Claims in favor of any third person upon any of the
assets of the Company, except as contemplated by the Ancillary Agreements
or the Agreement to Sublease, other than, in the cases of clauses (x)
through (z), any violations, conflicts, creations or impositions that would
not, individually or in the aggregate, have a Material Adverse Effect.
(b)......The issuance, sale and delivery of the Shares and the
issuance and delivery of the Warrants to the Purchasers hereunder are not
subject to any preemptive rights of stockholders of the Company (or any such
preemptive rights have been validly waived) or to any right of first refusal or
other similar right in favor of any person.
(c)......The Warrant Shares have been duly authorized by the
Company and, when issued upon exercise of the Warrants in accordance with the
Warrant Agreement, will be validly issued, fully paid and nonassessable shares
of Common Stock. The issuance and delivery of the Warrant Shares to the
Purchasers upon exercise of the Warrants are not subject to any preemptive
rights of stockholders of the Company (or any such preemptive rights have been
validly waived) or to any right of first refusal or other similar right in favor
of any person.
SECTION 2.05. Validity. This Agreement has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights generally or by general principles of equity. Each of the
Ancillary Agreements, when executed and delivered by the Company as provided in
this Agreement, will constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforcement may
-6-
be limited by bankruptcy, insolvency, reorganization or other laws relating
to or affecting the enforcement of creditors' rights generally or by
general principles of equity.
SECTION 2.06. Governmental Approvals. Subject to the accuracy
of the representations and warranties of the Purchasers set forth in Article III
hereof, no registration or filing with, or consent or approval of, or other
action by, any Federal, state or other governmental agency or instrumentality is
or will be necessary for the valid execution, delivery and performance by the
Company of this Agreement and the Ancillary Agreements, the issuance, sale and
delivery of the Shares, the issuance and delivery of the Warrants or, upon
exercise thereof, the issuance and delivery by the Company of the Warrant
Shares, or the consummation by the Company of the transactions contemplated
thereby or by the Agreement to Sublease, other than (i) compliance with the
requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) such filings with and approvals of the FCC and the
FAA and any other Federal or state office, agency or regulatory body as may be
necessary in connection with the consummation of the SBC Transactions and (iii)
with respect to the Agreement to Sublease, those that the failure to obtain or
make would not have a Material Adverse Effect.
SECTION 2.07. Financial Statements, Etc.
(a)......The Company has furnished to the Purchasers: (i) the
audited consolidated balance sheet of the Company and its subsidiaries as of
December 31, 1999 and the related consolidated statements of operations,
stockholders' equity and cash flows for the fiscal year then ended, certified by
Ernst & Young LLP, the independent certified public accountants retained by the
Company and (ii) the unaudited consolidated balance sheet of the Company and its
subsidiaries as of September 30, 2000, and the related consolidated statements
of operations and cash flows for the nine months then ended, certified by the
principal financial officer of the Company. All such financial statements
(including any related schedules and/or notes) have been prepared in accordance
with generally accepted accounting principles in the United States ("GAAP")
consistently applied and consistent with prior periods, (i) except that such
interim statements are subject to year-end audit adjustments (which consist of
normal recurring accruals) and do not contain certain footnote disclosures, and
(ii) except as otherwise disclosed in such financial statements (including the
schedules or footnotes thereto). Such balance sheets fairly present in all
material respects the consolidated financial position of the Company and its
subsidiaries as of their respective dates, and such statements of operations,
stockholders' equity and cash flows fairly present in all material respects the
consolidated results of operations of the Company and its subsidiaries for the
respective periods then ended.
(b)......Since September 30, 2000 through the date hereof,
neither the Company nor any of its subsidiaries has suffered any adverse change
in its properties, assets,
-7-
financial condition, operating results or business that has had, or would
reasonably be expected to have, a Material Adverse Effect.
(c)......All financial projections (the "Projections")
concerning the Company and the lease from SBC that have been provided to the
Purchasers by the Company or its representatives, advisors or affiliates have
been prepared in good faith based upon reasonable assumptions at the time made
(it being understood that such projections are subject to significant
uncertainties and contingencies, many of which are beyond the Company's control,
and that no assurance can be given that such projections will be realized.)
SECTION 2.08. Absence of Certain Changes or Events. Except as
set forth in any SEC filings or press releases made by the Company and except as
otherwise expressly contemplated by this Agreement or in connection with the
transactions contemplated by the Agreement to Sublease or the Debt Documents,
since September 30, 2000 through the date hereof, neither the Company nor any of
its subsidiaries has:
(i) borrowed or refinanced any material amount or incurred
any material liabilities for money borrowed (absolute or contingent),
other than revolving credit facility borrowings and trade payables
incurred in the ordinary course of business consistent with past
practice;
(ii) discharged or satisfied any material Claim or incurred
or paid any obligation or liability (absolute or contingent) other than
liabilities the discharge, satisfaction or incurrence of which would
not have, individually or in the aggregate, a Material Adverse Effect;
(iii) declared or made any payment or distribution to
stockholders, or purchased or redeemed any shares of its capital stock
or other securities (other than repurchases from former employees) in
excess of $2,000,000;
(iv) except in the ordinary course of business or as required
or permitted by the Credit Agreement, mortgaged, pledged or subjected
to lien any of its assets, tangible or intangible, other than liens for
current real property taxes not yet due and payable;
(v) sold, assigned or transferred any of its material
tangible assets, or canceled any material debts or Claim, except in the
ordinary course of business consistent with past practice;
-8-
(vi) sold, assigned or transferred any material Intellectual
Property Rights (as hereinafter defined) or other intangible assets,
except in the ordinary course of business consistent with past
practice,
(vii) waived any rights of substantial value, other than in
the ordinary course of business consistent with past practice,
(viii) other than in the ordinary course of business consistent
with past practice or as required by the terms of any written
agreements disclosed to the Purchasers, made any increase in the
compensation (including, without limitation, the rate of commissions)
payable to, or any payment of a cash bonus to, any director, officer,
employee of, or consultant or agent to, the Company or any of its
subsidiaries or any other change in the terms or conditions of any
employment relationship other than such increases or such changes that
would not, individually or in the aggregate, have a Material Adverse
Effect;
(ix) other than in the ordinary course of business consistent
with past practice or as required by the terms of any written
agreements disclosed to the Purchasers, announced any plan or legally
binding commitment to create any employee benefit plan, program or
arrangement or to amend or modify in any material respect any existing
employee benefit plan, program or arrangement except for such benefit
plans, programs or arrangements that would not, individually or in the
aggregate, have a Material Adverse Effect;
(x) (A) utilized accounting principles different from those
used in the preparation of the financial statements referred to in
Section 2.07(a), (B) changed in any manner its method of maintaining
its books of account and records from such methods as in effect on
September 30, 2000 or (C) accelerated the booking of revenues or
deferred the booking of expenses, except in any such case to the extent
required by GAAP; or
(xi) except in connection with this Agreement, the Agreement
to Sublease, and the Debt Documents and the transactions contemplated
hereby and thereby, entered into any agreement, letter of intent or
similar undertaking to take any of the actions listed in clauses (i)
through (x) above.
SECTION 2.09. Actions Pending. There is no action, suit,
investigation or proceeding pending or, to the Knowledge of the Company,
threatened against the Company or any of its subsidiaries, or any of their
respective properties or rights, before any court or by or before any
governmental body or arbitration board or tribunal that would reasonably be
expected to have a Material Adverse Effect or that in any manner challenges or
seeks to prevent,
-9-
enjoin, alter or materially delay the consummation of the transactions
contemplated hereby or by the Agreement to Sublease or any of the Ancillary
Agreements.
SECTION 2.10. Intellectual Property Rights. The Company and
its subsidiaries own, free and clear of all Claims, and have the right to use,
sell, license or dispose of, or otherwise have sufficient rights to use, such
material patents, copyrights, trademarks, service marks, and applications and
registrations therefor, and trade names, trade secrets, customer lists,
proprietary technology processes and formulae, source code, object code, data
bases, know-how, inventions, other confidential and proprietary information, and
other intellectual property rights as are necessary to permit the Company and
its subsidiaries to carry on their business as currently conducted, except for
failures to own free and clear or have the exclusive rights to use or otherwise
have sufficient rights to use as would not have, individually or in the
aggregate, a Material Adverse Effect (collectively, the "Intellectual Property
Rights"). To the Knowledge of the Company, there exists no infringement by any
third party of any of the Intellectual Property Rights that would have a
Material Adverse Effect and there is no pending or, to the Knowledge of the
Company, threatened claim or litigation against the Company or any of its
subsidiaries contesting its use of any of the Intellectual Property Rights,
asserting the misuse of any of the Intellectual Property Rights or asserting the
violation of any rights of a third party, nor, to the Knowledge of the Company,
is there any reasonable basis for any such claim, where, in any such case, such
infringement, claim or litigation would have a Material Adverse Effect.
SECTION 2.11. Taxes.
(a)......The Company and each of its subsidiaries have duly
filed or caused to be filed all material federal, state and local and foreign
tax returns, reports, estimates and information and other statements and returns
(collectively, "Tax Returns") required to be filed by or on behalf of the
Company or any such subsidiary. All such Tax Returns were correct in all
material respects as filed and all amounts shown as owing on such Tax Returns
have been paid.
(b)......Except as would not, individually or in the
aggregate, have a Material Adverse Effect, no deficiency or adjustment for any
taxes has been proposed, asserted or assessed against the Company or any of its
subsidiaries and no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are pending with regard to any
such taxes.
SECTION 2.12. Compliance with Law. Neither the Company nor any
of its subsidiaries is in default under any order of any court, governmental
authority or arbitration board or tribunal or under any laws, ordinances,
governmental rules or regulations to which the Company or any of such
subsidiaries is subject, except for such defaults that would not
-10-
have,individually or in the aggregate, a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its properties or to the conduct of its business, except where the failure to
obtain such license, permit, franchise or other governmental authorization would
not reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries will be required, as a result of the
consummation of the SBC Transactions, to obtain or renew any licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
the properties of the Company or any of its subsidiaries or to the conduct of
their business after the Closing Date, other than where the failure to obtain or
renew any such license, permit, franchise or other government authorization
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
SECTION 2.13. Employee Matters.
(a)......Each Employee Plan and Compensation Arrangement has
been administered in compliance with its own terms and in compliance with the
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"), and any
other applicable Federal or state laws, except where any such failure to comply
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. For purposes of this Section 2.13: (i) "Employee Plan"
shall mean any retirement or welfare plan or arrangement or any other employee
benefit plan as defined in Section 3(3) of ERISA which the Company or its
subsidiaries contribute to, sponsor, maintain or otherwise may have liability
to; and (ii) "Compensation Arrangement" shall mean any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten, which
provides to employees, former employees, officers, directors and shareholders of
the Company any compensation or other benefits, whether deferred or not, in
excess of base salary or wages, including, but not limited to, any bonus or
incentive plan, stock rights plan, deferred compensation arrangement, life
insurance, stock purchase plan, severance pay plan and any other employee fringe
benefit plan.
(b)......The Company and its subsidiaries are in compliance
with all laws and regulations or other legal or contractual requirements
regarding the terms and conditions of employment of employees, former employees
or prospective employees or other labor related matters, including, without
limitation, laws, rules, regulations, orders, rulings, conciliation agreements,
decrees, judgments and awards relating to wages, hours, the payment of social
security and similar taxes, equal employment opportunity, employment
discrimination, fair labor standards, occupational health and safety, wrongful
discharge or violation of the personal rights of employees, former employees or
prospective employees, except for any of the foregoing that would not have,
individually or in the aggregate, a Material Adverse Effect.
-11-
(c)......Neither the Company, nor any of its subsidiaries, nor
any entity that is aggregated with the Company or its subsidiaries under Section
414(b), (c), (m), (o) or (t) of the Code ("Controlled Group Entity") has, within
the last six years, maintained, adopted, participated in or contributed to any
employee benefit plan subject to Title IV of ERISA, and neither the Company, nor
any of its subsidiaries, nor any Controlled Group Entity has incurred or is
reasonably likely to incur material liability under Title IV of ERISA.
(d)......The transactions contemplated hereby and by the
Agreement to Sublease will not (i) result in or satisfy a condition to the
payment of compensation that would, in combination with any other payment,
result in an "excess parachute payment" within the meaning of Section 280G(b)(1)
of the Code, (ii) result in an increase in the amount of compensation or
benefits or accelerate the vesting or timing of payment of any benefits or
compensation payable to or in respect of any employee of the Company or any of
its subsidiaries, or (iii) result in any prohibited transaction described in
Section 406 of ERISA or Section 4975 of the Code for which an exemption is not
available.
(e)......The Company, each Significant Subsidiary and each of
the Foreign Plans (as hereinafter defined) are in compliance with applicable
laws and all required contributions have been made to the Foreign Plans, except
where the failure to comply or make contributions would not, individually and in
the aggregate, have a Material Adverse Effect. Each of the Foreign Plans that is
a funded defined benefit plan has a fair market value of plan assets that is
greater than the plan's liabilities, as determined in accordance with applicable
laws. For purposes hereof, the term "Foreign Plan" shall mean any plan, program,
policy, arrangement or agreement maintained or contributed to by, or entered
into with, the Company or any Significant Subsidiary with respect to employees
(or former employees) employed outside the United States.
SECTION 2.14. Environmental Matters. The Company and its
subsidiaries have complied with all applicable Federal, state, local or foreign
statutes, ordinances, orders, judgments, rulings or regulations relating to
environmental pollution or to environmental regulation or control, except where
any such failure to so comply would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Neither the Company
or any of its subsidiaries, nor any of their respective officers, employees,
representatives or agents, nor, to the Knowledge of the Company, any other
person, has treated, stored, processed, discharged, spilled, or otherwise
disposed of any substance defined as hazardous or toxic by any applicable
Federal, state, local or foreign law, rule, regulation, order or directive, or
any waste or by-product thereof, at any real property or any other facility
owned, leased or used by the Company or any of its subsidiaries, in violation of
any applicable statutes, regulations, ordinances or directives of any
governmental authority or court, except for any such violations that would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. To the Knowledge of the Company, no employee or other person has
-12-
ever made a claim or demand against the Company or any of its subsidiaries based
on alleged damage to health caused by any such hazardous or toxic substance or
by any waste or by-product thereof, except for any such claims or demands that
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither the Company nor any of its subsidiaries has
been charged by any governmental authority with improperly using, handling,
storing, discharging or disposing of any such hazardous or toxic substance or
waste or by-product thereof or with causing or permitting any pollution of any
body of water, except for any such instances that would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 2.15. Contracts.
(a)......All outstanding contracts, intellectual property
licenses, leases, agreements and arrangements or forms thereof the termination
or adverse modification of which would have a Material Adverse Effect ("Material
Contracts") have been filed with the Securities and Exchange Commission (the
"SEC"). The Company has filed with the SEC and thereby made available to the
Purchasers copies of the Material Contracts. To the Knowledge of the Company,
all of such Material Contracts are valid, binding and enforceable in accordance
with their terms (assuming the other parties thereto are bound) and are in full
force and effect, except where any such invalidity or failure to be binding,
enforceable or in full force and effect would not have, individually or in the
aggregate, a Material Adverse Effect. The Company is not and, to the Knowledge
of the Company, no other party to any such Material Contract is in material
default thereunder, and no event has occurred which, with or without the lapse
of time or the giving of notice or both, would constitute a material default
thereunder, except for defaults as would not have, individually, or in the
aggregate, a Material Adverse Effect. Since June 30, 2000 neither the Company
nor any of its subsidiaries has had any Material Contracts terminated prior to
the expiration date thereof or has been notified in writing by any third party
of its intention to terminate a Material Contract prior to the expiration date
thereof (and, to the Knowledge of the Company, no third party has notified the
Company or any of its subsidiaries in writing that it would, in the event of the
consummation of the transactions contemplated hereby or by the Agreement to
Sublease, terminate such Material Contract).
(b)......Except for contracts that may be canceled by the
Company or any of its subsidiaries within 30 days without any material penalty
and, in the case of clause (i), except for contracts governing obligations for
borrowed money filed with the Securities and Exchange Commission, there are no
contracts to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound which: (i) contain change of
control provisions granting to another party or other parties thereto the right
to terminate such agreements or take other action adverse to the Company or such
subsidiary upon or following a change of control, which termination or adverse
action would have, individually
or in the aggregate, a Material Adverse Effect,(ii) grant to any third party a
right of first refusal or any other similar right to acquire any subsidiary or
division of the Company or any material segment of its business or assets; or
(iii) purport to limit the Company from providing any service in any
jurisdiction, whether under the Company name or otherwise, or grant any
exclusive geographic, segment or rights to any third party, except where the
existence of which would not have, either individually or in the aggregate, a
Material Adverse Effect.
SECTION 2.16. Offering of the Securities. Neither the Company
nor any person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Shares or, since July
30, 2000, any similar securities of the Company, has offered any such securities
for sale to, or solicited any offers to buy any such securities from, or
otherwise approached or negotiated with respect thereto with, any person or
persons under circumstances that involved the use of any form of general
advertising or solicitation as such terms are defined in Regulation D of the
Securities Act; and, assuming the accuracy of the representations and warranties
of the Purchasers set forth in Article III hereof, neither the Company nor any
person acting on the Company's behalf has taken or will take any action
(including, without limitation, any offer, issuance or sale of any securities of
the Company under circumstances that might require the integration of such
transactions with the sale of the Shares under the Securities Act or the rules
and regulations of the SEC thereunder) that would subject the offering, issuance
or sale of the Shares to the Purchasers to the registration provisions of the
Securities Act.
SECTION 2.17. Related Party Transactions. Except as described
in the Company's SEC filings or except as contemplated hereby or by the
Agreement to Sublease, there are no existing material arrangements or proposed
material transactions between the Company or any of its subsidiaries and (i) any
officer, director or stockholder of the Company or any member of the immediate
family of any of the foregoing persons (such officers, directors and family
members being hereinafter individually referred to as a "Related Party") or (ii)
any business (corporate or otherwise) which a Related Party owns, directly or
indirectly, or in which a Related Party has an ownership interest.
SECTION 2.18. Accuracy of Representations and Warranties in
the Agreement to Sublease. The representations and warranties of the Company and
Towers contained in the Agreement to Sublease are true and correct in all
material respects.
SECTION 2.19. Brokers. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Company directly with the Purchasers without the intervention of any other
person on behalf of the Company in such manner as to give rise to any valid
claim by any other person against the Purchasers for a finder's fee, brokerage
commission or similar payment.
-14-
SECTION 2.20. Condition of Assets. The tangible personal
property, real property, fixtures and equipment used by the Company and its
subsidiaries in the conduct of their business are in good operating condition
(reasonable wear and tear excepted) and are suitable for the purposes for which
they are currently being used, with such exceptions as would not, individually
or in the aggregate, have a Material Adverse Effect.
SECTION 2.21. Title to Properties. The Company and/or each of
its subsidiaries has good record title in fee simple to, or holds interests as
lessee under leases in full force and effect in, all real property, real
property fixtures and towers reflected on the financial statements referred to
in Section 2.07 or used in connection with its business, with such exceptions as
would not, individually or in the aggregate, have a Material Adverse Effect.
SECTION 2.22. Investment Company Act. The Company is not and,
after giving effect to the transactions contemplated hereby and the application
of the proceeds from the sale of the Shares, will not be required to register as
an "investment company" as such term is defined in the Investment Company Act of
1940, as amended.
SECTION 2.23. Adequate Insurance. The Company and its
subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as they believe are reasonable
for the businesses in which they engage; and the Company and its subsidiaries
believe that they will be able to renew their existing insurance coverage as and
when such coverage expires or to obtain similar coverage from financially
responsible insurers as may be necessary to continue their business at a cost
that would not have a Material Adverse Effect.
SECTION 2.24. Shelf Registration Statement. The Company has
filed a shelf registration statement (the "Shelf Registration Statement") for an
offering to be made on a continuous basis pursuant to Rule 415 to which the
Shares and the Warrant Shares may be added on or prior to the 91st day after the
date hereof.
SECTION 2.25. Knowledge of the Company. For purposes of this
Agreement, "Knowledge of the Company" shall mean the actual knowledge of the
executive officers of the Company after due inquiry.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and
warrants to the Company as follows:
-15-
SECTION 3.01. Authorization.The execution, delivery and
performance by such Purchaser of this Agreement and each of the Ancillary
Agreements to which such Purchaser is a party, and the purchase and receipt by
such Purchaser of the Shares and Warrants being acquired by it hereunder, have
been duly authorized by all requisite action on the part of such Purchaser, and
will not (w) violate the charter or other governing documents of such Purchaser,
(x) violate any provision of law, any order of any court or other agency of
government or any provision of any indenture, agreement or other instrument by
which such Purchaser or any of such Purchaser's properties or assets are bound,
(y) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any such indenture, agreement or other
instrument or (z) result in any Claim upon any of the properties or assets of
such Purchaser, other than, in the cases of clauses (x), (y) or (z), any
violations, conflicts or Claims that would not, individually or in the
aggregate, have a Material Adverse Effect.
SECTION 3.02. Validity. This Agreement has been duly executed
and delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms. Each of the Ancillary Agreements to which such Purchaser is a
party, when executed and delivered in accordance with this Agreement, will
constitute the legal, valid and binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms.
SECTION 3.03. Investment Representations.
(a)......Such Purchaser is acquiring the Securities being
purchased by such Purchaser hereunder for such Purchaser's own account, for
investment, and not with a view toward the resale or distribution thereof in
violation of applicable securities laws.
(b)......Such Purchaser understands that the Securities are
not registered under the Securities Act, or any applicable state securities
laws, and may not be resold unless subsequently registered under the Securities
Act and such other laws or unless an exemption from such registration is
available. Such Purchaser understands and agrees that, subject to the terms and
conditions contained in the Registration Rights Agreement, it may only pledge,
transfer, convey or otherwise dispose of any of the Securities in compliance
with the Securities Act and applicable state securities laws, as then in effect.
(c)......Such Purchaser is able to fend for itself in the
transactions contemplated by this Agreement and such Purchaser has the ability
to bear the economic risks of the investment in the Securities being purchased
hereunder and, upon exercise of the Warrants, the Warrant Shares, for an
indefinite period of time. Such Purchaser further acknowledges that such
Purchaser has had the opportunity to ask questions of, and receive answers from,
officers of the Company with respect to the business and financial condition of
the Company
-16-
and the terms and conditions of the offering of the Securities and to obtain
additional information necessary to verify such information or can acquire it
without unreasonable effort or expense.
(d)......Such Purchaser has such knowledge and experience in
financial and business matters that such Purchaser is capable of evaluating the
merits and risks of its investment in the Securities. Such Purchaser further
represents that such Purchaser is a "qualified institutional buyer" as such term
is defined in Rule 144A under the Securities Act with respect to its purchase of
the Shares, and that any such Purchaser that is a limited partnership has not
been formed solely for the purpose of purchasing the Shares.
SECTION 3.04. Governmental Approvals. Except for any required
filings pursuant to Federal or state banking laws, no registration or filing
with, or consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary by the Purchasers
for the valid execution, delivery and performance of this Agreement and each of
the Ancillary Agreements to which such Purchaser is a party.
SECTION 3.05. Brokers. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by such
Purchaser directly with the Company, without the intervention of any other
person on behalf of such Purchaser in such manner as to give rise to any valid
claim by any other person against the Company or the other Purchasers for a
finder's fee, brokerage commission or similar payment.
SECTION 3.06. Actions Pending. There is no action, suit,
investigation or proceeding pending or, to the knowledge of such Purchaser,
threatened against such Purchaser that in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the consummation of the transactions
contemplated hereby or any of the Ancillary Agreements or that could reasonably
be expected to have a material adverse effect on such Purchaser's ability to
perform its obligations hereunder.
SECTION 3.07. Confidentiality. Each Purchaser acknowledges
that any all information, including, but not limited to, the financial
information, furnished to each Purchaser pursuant to Section 2.07(c) herein is
material non-public information ("Confidential Information") and it has been
maintained and held in strict confidentiality. Each Purchaser represents that
only the employees of such Purchaser who have an active role in the purchase of
the Securities under this Agreement have had access to the Confidential
Information and that the Confidential Information has not been presented to,
shared with or shown to any affiliates of such Purchaser or to employees of such
Purchaser who do not have an active role in the purchase of the Securities under
this Agreement. Each Purchaser only has used Confidential Information received
from the Company solely in connection with the performance of such Purchaser's
obligations under this Agreement. Each Purchaser has promptly advised the
-17-
Company in writing of any unauthorized misappropriation, disclosure or use by
any person of the Confidential Information that has come to its attention and
has taken all steps reasonably requested by the Company, at such Purchaser's
expense, to limit, restrict or otherwise remedy such misappropriation,
disclosure or use. Each Purchaser has protected the Confidential Information
from disclosure to any unauthorized party.
ARTICLE IV
COVENANTS
SECTION 4.01. Use of Proceeds. The proceeds arising from the
sale of the Securities shall be used to partially fund the initial closing of
the transactions contemplated by the Agreement to Sublease the fees and expenses
incurred in connection therewith and to provide for ongoing working capital
requirements of the Company.
SECTION 4.02. Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement and the Ancillary Agreements.
SECTION 4.03. Lock-up. Each Purchaser agrees that, without the
prior written consent of the Company, it will not, during the period ending on
the 90th day after the Closing Date, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to any transfer to (i) any
affiliate of such Purchaser, (ii) any other Purchaser or affiliate of any other
Purchaser, (iii) Caravelle Investment Fund, L.L.C., (iv) Caravelle Investment
Fund II, L.L.C., (v) any investment fund controlled by at least two of Messrs.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇ or (vi) any person (a) managed by CIBC
World Markets Corp. ("CIBC") or Trimaran Fund II, L.L.C. ("Trimaran") (including
any affiliates thereof) or at least two of Messrs. Bloom, ▇▇▇▇▇ or ▇▇▇▇▇▇ and
(b) substantially all the equity interests of which are owned, directly or
indirectly, by (1) members in Trimaran, (2) employees of CIBC or any affiliate
thereof, (3) any investor in the Trimaran investment program that has
co-investment rights or
-18-
(4) any combination of the persons named in the immediately preceding clauses
(1), (2) or (3), or to any of their respective successors, it being understood
that such transferee shall be subject to the restrictions set forth in this
Section 4.04.
SECTION 4.04. Shelf Registration. The Company shall comply
with its obligations under the Registration Rights Agreement. In addition, on or
prior to the 91st day after the date of this Agreement, the Company shall
deliver to the Purchasers an opinion of counsel reasonably satisfactory to the
Purchasers and their counsel to the effect that to the knowledge of such counsel
after due inquiry a shelf registration statement covering the Shares and the
Warrant Shares has become effective under the Securities Act, no stop order has
been issued or threatened and the Shares are and, when issued in return for full
payment of the exercise price, the Warrant Shares will be, eligible for sale
thereunder.
SECTION 4.05. Confidentiality. Each Purchaser agrees to use
Confidential Information received from the Company solely in connection with the
performance of such Purchaser's obligations under this Agreement. Each Purchaser
further agrees to use its reasonable efforts to advise the Company in writing of
any unauthorized misappropriation, disclosure or use by any person of the
Confidential Information that may come to its attention and to take all steps
reasonably requested by the Company, at such Purchaser's expense, to limit,
restrict or otherwise remedy such misappropriation, disclosure or use. Each
Purchaser agrees to protect the Confidential Information from disclosure to any
unauthorized party.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Obligations of the
Purchasers. The obligations of the Purchasers hereunder are, at their option,
subject to the satisfaction, on or before the Closing Date, of the following
conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on the
Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of such date,
except to the extent any such representation or warranty is expressly
stated as of a specified earlier date or dates, in which case such
representation or warranty shall be true and correct in all material
respects as of such earlier specified date or dates and except for
changes resulting from the consummation of the transactions
contemplated by this Agreement and the Company shall have so certified
to the Purchasers in writing.
-19-
(b) Performance. The Company shall have performed and complied
in all material respects with all agreements and conditions contained
herein required to be performed or complied with by it prior to or on
the Closing Date, and the Company shall have so certified to the
Purchasers in writing.
(c) Supporting Documents. On or prior to the Closing Date the
Purchasers and their counsel shall have received copies of the
following supporting documents:
(i) copies of (1) the Amended and Restated
Certificate of Incorporation of the Company, including all
amendments thereto, certified as of a recent date by the
Secretary of State of the State of Delaware and (2) a
certificate of said Secretary, dated as of a recent date, as
to the due incorporation and good standing of the Company, and
listing all documents relating to the Company on file with
said official; and
(ii) a certificate of the Secretary or an Assistant
Secretary of the Company, dated the Closing Date and
certifying (1) that attached thereto is a true and complete
copy of the Amended and Restated Certificate of Incorporation
of the Company as in effect on the date of such certification;
(2) that attached thereto is a true and complete copy of the
By-laws of the Company as in effect on the date of such
certification and at all times since December 22, 1999; (3)
that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Company
authorizing the execution, delivery and performance of this
Agreement and the Ancillary Agreements, the issuance, sale and
delivery of the Shares, the issuance and delivery of the
Warrants and the reservation, issuance and delivery of the
Warrant Shares and the performance of the transactions
contemplated by the Agreement to Sublease, and that all such
resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions
contemplated by this Agreement; and (4) as to the incumbency
and specimen signature of each officer of the Company
executing this Agreement, the Ancillary Agreements, the stock
certificates representing the Shares, the Warrant certificates
and any other certificate or instrument furnished pursuant
hereto, and a certification by another officer of the Company
as to the incumbency and signature of the officer signing the
certificate referred to in this paragraph (ii).
All such documents shall be reasonably satisfactory in form and
substance to the Purchasers and their counsel.
(d) Opinions of Counsel. The Purchasers shall have received
from Dow ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ counsel for the
-20-
Company, opinions dated the Closing Date, substantially in the forms of
Exhibits D and E, respectively, attached hereto. In addition, the
Purchasers shall have received from their special counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, an opinion dated the Closing Date in a form reasonably
satisfactory to the Purchasers.
(e) Legal Proceedings. No preliminary or permanent injunction
or other order, decree or ruling issued by any court of competent
jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any governmental, regulatory or
administrative agency or authority, or national securities exchange
shall be in effect that would prevent the consummation of the
transactions contemplated by this Agreement.
(f) Ancillary Agreements. Each of the Ancillary Agreements
shall have been executed and delivered by each party thereto, and the
same shall be in full force and effect.
(g) Amendment to Second Amended and Restated Registration
Rights Agreement. The Company and the holders of at least sixty percent
(60%) of the shares subject to the Company's Second Amended and
Restated Registration Rights Agreement dated as of April 20, 1999 shall
have executed an amendment thereto reasonably satisfactory to the
Purchasers to permit the terms of the Registration Rights Agreement.
SECTION 5.02. Conditions Precedent to the Obligations of the
Company. The obligations of the Company hereunder are, at its option, subject to
the satisfaction, on or before the Closing Date, of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Purchasers contained in this
Agreement shall be true and correct in all material respects on the
Closing Date, with the same effect as though such representations and
warranties had been made on and as of such date.
(b) Performance. The Purchasers shall have performed and
complied in all material respects with all agreements and conditions
contained herein required to be performed or complied with by them
prior to or on the Closing Date.
(c) Legal Proceedings. No preliminary or permanent injunction
or other order, decree or ruling issued by any court of competent
jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any governmental, regulatory or
administrative agency or authority, or national securities exchange
shall be in
-21-
effect that would prevent the consummation of the transactions contemplated
by this Agreement.
(d) Ancillary Agreements. Each of the Ancillary Agreements
shall have been executed and delivered by each Purchaser party thereto,
and the same shall be in full force and effect.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Expenses, Indemnification.
(a)......In the event that the transactions contemplated
hereby are consummated, on the Closing Date the Company shall reimburse the
Purchasers or pay on their behalf all reasonable fees and expenses incurred by
them in connection with the negotiation and preparation of this Agreement and
the related documents and agreements (including subsequent amendments and
waivers relating hereto or to the Ancillary Agreements) contemplated hereby,
including (without limitation) reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, accountants and consultants, filing fees payable pursuant to the HSR
Act (which filing fees shall be advanced by the Company whether or not the
transactions contemplated hereby are consummated) and stamp, stock issuance and
other similar taxes payable in respect of the issuance of the Securities.
(b)......The Company agrees to indemnify and hold harmless (i)
each Purchaser, (ii) each person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934) any such person referred to in clause (i) (any of the persons referred to
in this clause (ii) being referred to herein as a "Controlling Person") and
(iii) the respective officers, directors, managing directors, stockholders,
partners, employees, representatives, trustees, fiduciaries and agents of any
person referred to in clause (i) or any such Controlling Person (any such person
referred to in clause (i), (ii) or (iii), an "Indemnified Person") against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) in whole or in part any inaccuracy
in any of the representations and warranties of the Company contained herein or
(ii) in whole or in part any failure of the Company to perform its obligations
hereunder and will reimburse each such Indemnified Person for any legal and any
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claims as such expenses are
incurred.
-22-
The indemnity agreement set forth in this Section 6.01(b) shall be in
addition to any liabilities that the Company may otherwise have.
SECTION 6.02. Survival of Agreements. All covenants,
agreements, representations and warranties made herein shall survive for a
period of 2 years 9 months from the Closing, notwithstanding any investigation
made at any time by or on behalf of any party hereto. All statements contained
in any certificate or other instrument delivered by the Company hereunder shall
be deemed to constitute representations and warranties made by the Company.
SECTION 6.03. Parties in Interest. All covenants and
agreements contained in this Agreement by or on behalf of any party hereto shall
bind and inure to the benefit of the respective successors and assigns of such
party hereto whether so expressed or not.
SECTION 6.04. Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained in
a written instrument delivered in person or duly sent by nationally recognized
overnight courier, or by telecopy addressed to such party at the address or
telecopy number set forth below or such other address or telecopy number as may
hereafter be designated in writing by the addressee to the addressor listing all
parties:
if to the Company, to:
SpectraSite Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-23-
if to any Purchaser, to it at the address set forth on Schedule I hereto,
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of mailing, on the fifth business day following the date of such
mailing, (c) in the case of delivery by overnight courier, on the business day
following the date of delivery to such courier, and (d) in the case of telecopy,
when received.
SECTION 6.05. Entire Agreement; Assignment. This Agreement
(including the Schedules and Exhibits hereto) constitutes the entire agreement
of the parties with respect to the subject matter hereof and may not be amended
or modified nor any provisions waived except in a writing signed by the Company
and a majority in interest (determined on the basis of amounts to be invested in
the Company pursuant to this Agreement) of each of the Purchasers. This
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of the other parties hereto (other than, in the case of
any Purchaser, to (i) an affiliate of such Purchaser, (ii) any other Purchaser
or affiliate of any other Purchaser, (iii) Caravelle Investment Fund, L.L.C.,
(iv) Caravelle Investment Fund II, L.L.C., (v) any investment fund controlled by
at least two of Messrs. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇ or (vi) any
person (a) managed by CIBC or Trimaran (including any affiliates thereof) or at
least two of Messrs. Bloom, ▇▇▇▇▇ or ▇▇▇▇▇▇ and (b) substantially all the equity
interests of which are owned, directly or indirectly, by (1) members in
Trimaran, (2) employees of CIBC or any affiliate thereof, (3) any investor in
the Trimaran investment program that has co-investment rights or (4) any
combination of the persons named in the immediately preceding clause (1), (2) or
(3), or to any of their respective successors, it being understood that such
assignee shall be subject to the restrictions set forth in this Section 6.05).
SECTION 6.06. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 6.07. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the principles of conflicts law of such state.
-24-
SECTION 6.08. Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 6.09. Jurisdiction. Each party to this Agreement
hereby irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or the transactions contemplated herein may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York and hereby expressly submits to
the personal jurisdiction and venue of such courts for the purposes therein and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to its address as provided in Section 6.04, such service to be
effective 10 days after mailing.
SECTION 6.10. Severability. If any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
-25-
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Agreement as of the day and year first above written.
SPECTRASITE HOLDINGS, INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:Chief Developement Officer
TRIMARAN FUND II, L.L.C.
By:/s/ ▇▇▇▇▇▇ ▇. Flyer
--------------------------
Name: ▇▇▇▇▇▇ ▇. Flyer
Title:Attorney-in-Fact
TRIMARAN CAPITAL, L.L.C.
By:/s/ ▇▇▇▇▇▇ ▇. Flyer
--------------------------
Name: ▇▇▇▇▇▇ ▇. Flyer
Title:Attorney-in-Fact
TRIMARAN PARALLEL FUND II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. Flyer
----------------------------
Name: ▇▇▇▇▇▇ ▇. Flyer
Title:Attorney-in-Fact
CIBC EMPLOYEE PRIVATE EQUITY FUND
(TRIMARAN) PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. Flyer
-----------------------------
Name: ▇▇▇▇▇▇ ▇. Flyer
Title:Attorney-in-Fact
-26-
CIBC WORLD MARKETS IRELAND LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. Flyer
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Flyer
Title:Attorney-in-Fact
SCHEDULE I
Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Number of Warrant Shares Purchase Price
Trimaran Fund II, L.L.C. 1,402,960 series 1--210,444 $26,305,500
series 2--157,833
series 3--157,833
------------------------------------------
Trimaran Capital, L.L.C. 90,920 series 1--13,638 $1,704,750
series 2--10,229
series 3--10,229
------------------------------------------
Trimaran Parallel Fund II, L.P. 591,440 series 1--88,716 $11,089,500
series 2--66,537
series 3--66,537
------------------------------------------
CIBC Employee Private Equity Fund 914,680 series 1--137,202 $17,150,250
(Trimaran) Partners series 2--102,901
series 3--102,901
------------------------------------------
CIBC World Markets Ireland Limited 1,000,000 series 1--150,000 $18,750,000
series 2--112,500
series 3--112,500
------------------------------------------
c/o CIBC World Markets Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Flyer