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EXHIBIT 10.31
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FIRST AMENDMENT TO PREFERRED STOCK PURCHASE AGREEMENT
among
SPECTRASITE HOLDINGS,INC.
and
THE SEVERAL PURCHASERS NAMED IN SCHEDULES I, II,
III AND IV HERETO
Dated as of April 20, 1999
Amending the Preferred Stock Purchase Agreement
Dated as of February 10, 1999 Among
SpectraSite Holdings, Inc. and
Certain of the Purchasers Named in Said
Schedules I, II, III and IV
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FIRST AMENDMENT TO PREFERRED STOCK PURCHASE AGREEMENT
FIRST AMENDMENT TO PREFERRED STOCK PURCHASE AGREEMENT dated as of
April 20, 1999 (the "Amendment") among SpectraSite Holdings, Inc., a Delaware
corporation (the "Company"), and the several purchasers named in Schedules I,
II, III and IV hereto (such purchasers being sometimes hereinafter called
individually a "Purchaser" and collectively the "Purchasers"), amending the
Preferred Stock Purchase Agreement dated as of February 10, 1999 (the "Original
Agreement") among the Company and the several purchasers named in Schedules I,
II, III and IV thereto (collectively, the "Original Purchasers"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Original Agreement.
WHEREAS pursuant to the terms of the Original Agreement, the
Company agreed to issue and sell to the Original Purchasers an aggregate
46,136,795 shares of Series C Convertible Preferred Stock, $.001 par value (the
"Series C Preferred Stock"), of the Company; and
WHEREAS the Company and the Original Purchasers desire to increase
the number of shares of Series C Preferred Stock being sold on the Closing Date
to 46,286,795 shares of Series C Preferred Stock and to add certain Purchasers
as parties to the Purchase Agreement; and
WHEREAS the Purchasers, severally, wish to purchase the shares of
Series C Preferred Stock being purchased by them hereunder, all on the terms
and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
I.
PURCHASE AND SALE OF PREFERRED STOCK
SECTION 1.01 Issuance, Sale and Delivery of the Shares to the
Purchasers. (a) As provided in Section 1.01 of the Original Agreement, subject
to the terms and conditions set forth in the Original Agreement, on the Closing
Date the Company shall issue, sell and deliver to the Purchasers, and each such
Purchaser, acting severally and not jointly, shall purchase from the Company,
the number of shares of Series C Preferred Stock set forth opposite the name of
such Purchaser on Schedule I, Schedule II, Schedule III or Schedule IV hereto,
as the case may be, under the heading "Number of Shares of Series C Preferred
Stock," for a purchase price of $5.00 per share. On the Closing Date, the
Company shall issue a certificate or certificates in definitive form,
registered in the name of each Purchaser, representing the number of Shares
purchased by
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such Purchaser.
(b) As payment in full for the shares of Series C Preferred Stock
being purchased by each Purchaser 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, Schedule
II, Schedule III or Schedule IV hereto, as the case may be, under the caption
"Aggregate Purchase Price".
SECTION 1.02 Consents and Acknowledgments. (a) Each Original
Purchaser hereby (i) consents to the increase in the number of shares of Series
C Preferred Stock being sold on the Closing Date from 46,136,795 shares of
Series C Preferred Stock to 46,286,795 shares of Series C Preferred Stock, (ii)
acknowledges and agrees to the allocation of the shares of Series C Preferred
Stock among the Purchasers as set forth in Schedules I, II, III and IV hereto
and (iii) agrees that each Purchaser other than the Original Purchasers (each a
"New Purchaser" and collectively the "New Purchasers") shall, upon execution of
this Amendment, become a party to the Original Agreement, as modified and
amended by this Amendment. Each New Purchaser hereby agrees that such New
Purchaser shall become a party to the Original Agreement, as modified and
amended by this Amendment, upon execution of this Agreement as aforesaid.
(b) Each Purchaser hereby waives any preemptive rights it may have,
whether under the existing Amended and Restated Certificate of Incorporation of
the Company, the Second Amended and Restated Stockholders Agreement, or
otherwise, to purchase any shares of the Company's capital stock (other than
its right to purchase the shares of Series C Preferred Stock that it is
purchasing pursuant to the Original Agreement as amended hereby) that it may
have as a result of the issuance and sale of Series C Preferred Stock pursuant
to the Original Agreement as amended hereby or pursuant to the Merger Agreement
or as a result of the conversion of any such shares to shares of Common Stock
of the Company.
(c) The Company and each Original Purchaser agree that the
Stockholders Agreement, Registration Rights Agreement and the Amended and
Restated Certificate of Incorporation of the Company, each in the form attached
to the Original Agreement, be amended as necessary to reflect the increase in
the number of shares of Series C Preferred Stock and the addition of the New
Purchasers. On the Closing Date, each of the Purchasers will execute and deliver
the Stockholders Agreement and the Registration Rights Agreement as so amended.
(d) The Company and each Original Purchaser hereby agree that the
Original Agreement shall be deemed modified and amended to the extent required
to give effect to the matters described in Section 1.02(a) and (b) above.
SECTION 1.03 Additional Amendment. Section 7.01(c) of the Original
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Agreement is hereby amended to read in its entirety as follows:
"(c) On the Closing Date, the Company shall pay transaction fees
of $3,975,000 to WCA Management Corporation, $675,000 to ▇. ▇. ▇▇▇▇▇▇▇ & Co.,
$1,012,500 to CIBC WG Argosy Merchant Fund 2, L.L.C. and $112,500 to
Co-Investment Merchant Fund 3, LLC by wire transfer of immediately available
funds to the account designated by such entities."
II.
CERTAIN REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Changes to the Company's Representations and Warranties
in Article II of the Original Agreement. Section 2.03(e) of the Original
Agreement is hereby amended to read in its entirety as follows:
"(e) Immediately after the Closing, the authorized capital stock of
the Company will consist of 165,749,625 shares, consisting of 95,000,000 shares
of Common Stock, and 70,749,625 shares of Preferred Stock, $0.001 par value,
consisting of 3,462,830 shares of Series A Convertible Preferred Stock ("Series
A Preferred Stock"), 7,000,000 shares of Series B Convertible Preferred Stock
("Series B Preferred Stock") and 60,286,795 shares of Series C Preferred Stock.
Immediately after the Closing, after giving effect to the Nextel Transactions
and assuming (y) no conversion of such shares prior to the Closing Date, and (z)
the purchase by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of 225,000 shares of Common Stock, 3,436,135
shares of Common Stock (plus any shares issued pursuant to the exercise of
options and warrants), 3,462,830 shares of Series A Preferred Stock, 7,000,000
shares of Series B Preferred Stock and 60,286,795 shares of Series C Preferred
Stock will be issued and outstanding, all of which shares (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 Series C Preferred Stock issued hereunder,
held of record by the Purchasers in the amounts set forth opposite the name of
such Purchasers on Schedule I, Schedule II, Schedule III and Schedule IV hereto,
as applicable, under the heading "Number of Shares of Series C Preferred Stock."
In addition, immediately after the Closing there will be (i) 3,462,830 shares of
Common Stock reserved for issuance by the Company upon the conversion of Series
A Preferred Stock, (ii) 7,000,000 shares of Common Stock reserved for issuance
by the Company upon the conversion of Series B Preferred Stock, (iii) 60,286,795
shares of Common Stock reserved for issuance by the Company upon the conversion
of Series C Preferred Stock (subject, in the case of clauses (i), (ii) and
(iii), to adjustment pursuant to the Amended and Restated Certificate of
Incorporation), and (iv) 4,100,000 shares of Common Stock reserved for issuance
pursuant to the exercise of stock options issuable in accordance with the terms
of the Company Stock Plan. Schedule 2.03 hereto sets forth a list of options
proposed to be granted on or following the Closing, to certain executives of the
Company pursuant to the Company Stock Plan, which plan will be amended prior to
the Closing."
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III.
MISCELLANEOUS
SECTION 3.01 Entire Agreement; Modifications. This Amendment and the
Original Agreement, as modified and amended hereby, constitute 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 the Original Agreement, as amended by this
Amendment) of each of the WCAS Purchasers, the Whitney Purchasers and the CIBC
Purchasers. This Agreement shall not be assigned by operation of law or
otherwise without the consent of the other parties hereto.
SECTION 3.02 Effect of Amendment. Except as expressly provided in
this Amendment, nothing herein shall affect or be deemed to affect any
provisions of the Original Agreement, and except only to the extent that they
may be varied hereby, all of the terms of the Original Agreement shall remain
unchanged and in full force and effect.
SECTION 3.03 Counterparts. This Amendment 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 3.04 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Company and the Purchasers have executed
this Amendment as of the day and year first above written.
SPECTRASITE HOLDINGS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII, L.P.
By WCAS VIII Associates, L.L.C.,
General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Managing Member
WCAS INFORMATION PARTNERS, L.P.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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General Partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Individually and
as Attorney-in-Fact
TRUST U/A DATED 11/26/84
FBO ▇▇▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Trustee
TRUST U/A DATED 11/26/84
FBO ▇▇▇▇▇▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Trustee
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TRUST U/A DATED 11/26/84
FBO ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Trustee
▇. ▇. ▇▇▇▇▇▇▇ III, L.P.
By: ▇. ▇. ▇▇▇▇▇▇▇ Equity Partners III, L.L.C., its
General Partner
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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A Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: ▇. ▇. ▇▇▇▇▇▇▇ Equity Partners III, L.L.C., its
General Partner
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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A Managing Member
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Director
CO-INVESTMENT MERCHANT FUND 3, LLC
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Director
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THE NORTH CAROLINA ENTERPRISE FUND, L.P.
By: The North Carolina Enterprise Corporation,
Its General Partner
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇-▇▇▇▇▇▇ MEDIA PARTNERS, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Media Partners, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV
By: Kitty Hawk Partners LLC, IV
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By /s/ ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Title: Managing General Partner
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EAGLE CREEK CAPITAL, L.L.C.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE PRICE FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Partner
▇▇▇▇▇▇ ▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
General Partner
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