<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): MAY 15, 1999
-----------------------
WESTOWER CORPORATION
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(Exact name of registrant as specified in its charter)
WASHINGTON 1-132963 91-1825860
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
7001 N.E. 40TH AVENUE, VANCOUVER, WASHINGTON 98661
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(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (360) 750-9355
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NOT APPLICABLE
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
ITEM 5. OTHER EVENTS.
------------
Agreement and Plan Merger. On May 15, 1999, Westower Corporation, a Washington
corporation (the "Company"), SpectraSite Holdings, Inc., a Delaware corporation
("SpectraSite"), and W Acquisition Corp., a Washington corporation and wholly-
owned subsidiary of SpectraSite ("Acquisition Sub"), entered into an Agreement
and Plan of Merger (the "Merger Agreement"). A copy of the Merger Agreement is
attached hereto as Exhibit 2.1.
The Merger. The Merger Agreement provides for the Merger of Acquisition Sub
with and into the Company (the "Merger"). The Company will survive the Merger
and become a wholly-owned subsidiary of SpectraSite. A copy of the Joint Press
Release, dated May 17, 1999 issued by the Company and SpectraSite is attached as
Exhibit 99.1.
Exchange Ratio. In the Merger, each issued and outstanding share of common
stock of the Company will be converted into 1.81 shares of common stock of
SpectraSite. As a result, upon consumation of the Merger, the shareholders of
the Company would own approximately 20% of SpectraSite.
Termination Fee. The Company will be required to pay SpectraSite a termination
fee of $12 million plus expenses if the Merger Agreement is terminated due to
certain events described in the Merger Agreement.
Stockholder Agreements. Certain directors, officers and major stockholders of
the Company who own approximately 49% of the outstanding shares of common stock
of the Company have agreed to vote in favor of the Merger and against any matter
that would impede or be inconsistent with the Merger pursuant to Stockholder
Agreements dated as of May 15, 1999 between SpectraSite and such persons (the
"Stockholder Agreements"). The Stockholder Agreements terminate upon
termination of the Merger Agreement, except for two stockholders, who together
hold approximately 25% of the outstanding common stock of the Company, whose
agreements extend for an additional nine months. Stockholders may not sell or
dispose their shares during the term of the Stockholder Agreements. Copies of
the Stockholder Agreements are attached hereto as Exhibits 2.2 through 2.9.
ITEM 7. EXHIBITS.
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2.1 Agreement and Plan of Merger, dated as of May 15, 1999, among Westower
Corporation, SpectraSite Holdings, Inc. and W Acquisition Corp.
2.2 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Calvin J. Payne, Patricia Boris and the Calvin J.
Payne Family Trust.
2.3 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and S. Roy Jeffrey, L. Sharleen Jeffrey and the S. Roy
Jeffrey Family Trust.
2.4 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Michael J. Anderson and Constance S. Anderson.
2.5 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Mark Buechley.
2.6 Stockholder Agreement, dated as of May 15, 1999, between the
SpectraSite Holdings, Inc. and Seth Buechley.
2.7 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc, and Tom T. Cunningham.
2.8 Stockholder Agreement, dated as of May 15, 1999, among SpectraSite
Holdings, Inc. and Peter Jeffrey and the Peter Jeffrey Family Trust.
1
<PAGE>
2.9 Stockholder Agreement dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Bruce E. Toll.
2.10 Agreement of Sale and Amendment to Purchase Agreement, dated May 15,
1999, between Westower Corporation and BET Associates, L.P.
99.1 Joint Press Release, dated May 17, 1999, issued by SpectraSite
Holdings, Inc and Westower Corporation.
2
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WESTOWER CORPORATION
Date: May 18, 1999 By: /s/ Peter Lucas
--------------------------------
Peter Lucas, Senior Vice President,
Chief Financial Officer, Treasurer
and Secretary
<PAGE>
Exhibit Index
-------------
Exhibit
- -------
2.1 Agreement and Plan of Merger, dated as of May 15, 1999, among Westower
Corporation, SpectraSite Holdings, Inc. and W Acquisition Corp.
2.2 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Calvin J. Payne, Patricia Boris and the Calvin J. Payne
Family Trust.
2.3 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. And S. Roy Jeffrey, L. Sharleen Jeffrey and the S. Roy
Jeffrey Family Trust.
2.4 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Michael J. Anderson and Constance S. Anderson.
2.5 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Mark Buechley.
2.6 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Seth Buechley.
2.7 Stockholder Agreement, dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Tom T. Cunningham.
2.8 Stockholder Agreement, dated as of May 15, 1999, among SpectraSite
Holdings, Inc. and Peter Jeffrey and the Peter Jeffrey Family Trust.
2.9 Stockholder Agreement dated as of May 15, 1999, between SpectraSite
Holdings, Inc. and Bruce E. Toll.
2.10 Agrement of Sale and Amendment to Purchase Agreement, dated as of May 15,
1999, between Westower Corporation and BET Associates, L.P.
99.1 Joint Press Release, dated May 17, 1999, issued by SpectraSite Holdings,
Inc. and Westower Corporation.
<PAGE>
EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
among
WESTOWER CORPORATION,
SPECTRASITE HOLDINGS, INC.
and
W ACQUISITION CORP.
Dated as of May 15, 1999
================================================================================
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TABLE OF CONTENTS
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RECITALS............................................................................................... 1
ARTICLE 1
THE MERGER............................................................................................. 2
Section 1.1 The Merger......................................................................... 2
Section 1.2 Closing............................................................................ 2
Section 1.3 Effective Time..................................................................... 2
Section 1.4 The Articles of Incorporation...................................................... 2
Section 1.5 The By-Laws........................................................................ 2
Section 1.6 Directors of Surviving Corporation................................................. 3
Section 1.7 Officers of Surviving Corporation.................................................. 3
ARTICLE 2
EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES........................................ 3
Section 2.1 Effect on Capital Stock............................................................ 3
Section 2.2 Exchange of Certificates for Shares................................................ 4
Section 2.3 Appraisal Rights................................................................... 8
Section 2.4 Adjustments to Prevent Dilution.................................................... 8
Section 2.5 Treatment of Stock Options......................................................... 8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................... 9
Section 3.1 Organization and Qualification; Subsidiaries....................................... 9
Section 3.2 Articles of Incorporation and By-Laws.............................................. 10
Section 3.3 Capitalization..................................................................... 10
Section 3.4 Authority.......................................................................... 11
Section 3.5 No Conflict........................................................................ 12
Section 3.6 Required Filings and Consents...................................................... 13
Section 3.7 Permits; Compliance with Law....................................................... 13
Section 3.8 SEC Filings; Financial Statements.................................................. 14
Section 3.9 Absence of Certain Changes or Events............................................... 15
Section 3.10 Employee Benefit Plans; Labor Matters.............................................. 15
Section 3.11 Tax Matters........................................................................ 17
Section 3.12 Contracts; Debt Instruments........................................................ 17
Section 3.13 Litigation......................................................................... 17
Section 3.14 Environmental Matters.............................................................. 18
Section 3.15 Intellectual Property.............................................................. 18
Section 3.16 Taxes.............................................................................. 19
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Section 3.18 Opinion of Financial Advisor...................................................... 19
Section 3.19 Title to Properties; Leases....................................................... 20
Section 3.20 Brokers........................................................................... 21
Section 3.21 Certain Statutes.................................................................. 21
Section 3.22 Information....................................................................... 21
Section 3.23 Vote Required..................................................................... 22
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGER SUB........................................... 22
Section 4.1 Organization and Qualification; Subsidiaries...................................... 22
Section 4.2 Certificate of Incorporation and By-Laws.......................................... 23
Section 4.3 Capitalization.................................................................... 23
Section 4.4 Authority......................................................................... 24
Section 4.5 No Conflict....................................................................... 25
Section 4.6 Required Filings and Consents..................................................... 25
Section 4.7 Permits; Compliance with Law...................................................... 26
Section 4.8 2008 Prospectus; Financial Statements............................................. 26
Section 4.9 Nextel Tower Acquisition.......................................................... 27
Section 4.10 Employee Benefit Plans; Labor Matters............................................. 27
Section 4.11 Tax Matters....................................................................... 28
Section 4.12 Contracts; Debt Instruments....................................................... 28
Section 4.13 Litigation........................................................................ 28
Section 4.14 Environmental Matters............................................................. 28
Section 4.15 Taxes............................................................................. 29
Section 4.16 Brokers........................................................................... 29
Section 4.17 Information....................................................................... 29
Section 4.18 Interim Operations of Merger Sub.................................................. 30
Section 4.19 Title to Properties; Leases....................................................... 30
ARTICLE 5
COVENANTS............................................................................................. 31
Section 5.1 Conduct of Business of the Company................................................ 31
Section 5.2 Certain Interim Operations of the Parent.......................................... 34
Section 5.3 Other Actions..................................................................... 34
Section 5.4 Notification of Certain Matters................................................... 34
Section 5.5 Proxy Statement................................................................... 34
Section 5.6 Stockholders' Meeting............................................................. 36
Section 5.7 Access to Information; Confidentiality............................................ 37
Section 5.8 No Solicitation................................................................... 37
Section 5.9 Employee Benefits Matters......................................................... 39
Section 5.10 Directors' and Officers' Indemnification and Insurance............................ 40
</TABLE>
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Section 5.11 Letters of Accountants............................................................. 40
Section 5.12 Reasonable Best Efforts............................................................ 40
Section 5.13 Consents; Filings; Further Action.................................................. 41
Section 5.14 Plan of Reorganization............................................................. 42
Section 5.15 Public Announcements............................................................... 42
Section 5.16 Obligations of Merger Sub.......................................................... 42
Section 5.17 Stock Exchange Listings and De-Listings............................................ 42
Section 5.18 Expenses........................................................................... 43
Section 5.19 Takeover Statutes.................................................................. 43
Section 5.20 Control of the Company's and Parent's Operations................................... 43
Section 5.21 Affiliates......................................................................... 43
Section 5.22 Merger Sub Charter Documents....................................................... 43
Section 5.23 Corporate Matters.................................................................. 43
Section 5.24 Jovin.............................................................................. 44
ARTICLE 6
CONDITIONS............................................................................................. 44
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger......................... 44
(a) Stockholder Approval...................................................................... 44
(b) Listing................................................................................... 44
(c) HSR Act................................................................................... 44
(d) Litigation................................................................................ 44
(e) Registration Statement.................................................................... 45
(f) Accountants' Letters...................................................................... 45
Section 6.2 Conditions to Obligations of the Parent and Merger Sub............................. 45
(a) Representations and Warranties............................................................ 45
(b) Performance of Obligations of the Company................................................. 45
(c) Material Adverse Effect................................................................... 45
(d) Consents Under Agreements................................................................. 46
(e) Tax Opinion............................................................................... 46
(f) Exercise of Warrants...................................................................... 46
(g) Bank Consent.............................................................................. 46
(h) Governmental Consents..................................................................... 46
(i) Senior Subordinated Notes................................................................. 46
(j) Stockholder Loans......................................................................... 47
(k) Cunningham................................................................................ 47
(l) Cord Earn-Out............................................................................. 47
(m) Summit Earn-Out........................................................................... 47
(n) Dissenting Shares......................................................................... 47
(o) Post-Closing Lock-Ups..................................................................... 47
(p) Indentures................................................................................ 48
Section 6.3 Conditions to Obligation of the Company............................................ 48
(a) Representations and Warranties............................................................ 48
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(b) Performance of Obligations of the Parent and Merger Sub................................... 48
(c) Material Adverse Effect................................................................... 48
(d) Tax Opinion............................................................................... 49
ARTICLE 7
TERMINATION............................................................................................ 49
Section 7.1 Termination........................................................................ 49
Section 7.2 Effect of Termination.............................................................. 50
Section 7.3 Amendment.......................................................................... 51
Section 7.4 Waiver............................................................................. 51
Section 7.5 Expenses Following Termination..................................................... 51
ARTICLE 8
MISCELLANEOUS.......................................................................................... 53
Section 8.1 Certain Definitions................................................................ 53
Section 8.2 Non-Survival of Representations, Warranties and Agreements......................... 55
Section 8.3 Counterparts....................................................................... 55
Section 8.4 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL...................................... 55
Section 8.5 Notices............................................................................ 56
Section 8.6 Entire Agreement................................................................... 57
Section 8.7 No Third Party Beneficiaries....................................................... 57
Section 8.8 Obligations of the Parent and of the Company....................................... 58
Section 8.9 Severability....................................................................... 58
Section 8.10 Interpretation..................................................................... 58
Section 8.11 Assignment......................................................................... 58
Section 8.12 Specific Performance............................................................... 58
</TABLE>
EXHIBITS
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Exhibit A Forms of Company Voting Agreements
Exhibit B Form of Rule 145 Affiliate Agreement
Exhibit C Form of Employment Agreement of Calvin J. Payne
Exhibit D Form of Employment Agreement of S. Roy Jeffrey
Exhibit E-1 Form of Post-Closing Lock-up -- Calvin J. Payne
Exhibit E-2 Form of Post-Closing Lock-up -- S. Roy Jeffrey
Exhibit F-1 Additional Persons executing Post-Closing Lock-ups
Exhibit F-2 Form of Post-Closing Lock-up -- Others
Exhibit G Form of Letter re: Board Seat/Visitation Rights
iv
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INDEX OF DEFINED TERMS
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<TABLE>
<CAPTION>
Term.......................................................................Section
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<S> <C>
2008 Indenture.............................................................6.2p
2009 Indenture.............................................................6.2p
2008 Prospectus............................................................4.8(a)
Acquisition Proposal.......................................................5.8(a)
Acquisitions Canada........................................................5.24
affiliate..................................................................8.1(a)
Agreement..................................................................Title
Amex.......................................................................3.6
Articles of Merger.........................................................1.3
Assets.....................................................................3.19(a)
BCA........................................................................Recital (a)
Benefit Plans..............................................................3.10(a)
Blue Sky Laws..............................................................3.6
business day...............................................................8.1(b)
Call Right.................................................................5.24
Certificate................................................................2.1(a)
Change of Control..........................................................8.1(c)
Claims.....................................................................3.13
Closing....................................................................1.2
Closing Date...............................................................1.2
Code.......................................................................Recital (b)
Communications Act.........................................................3.6
Company....................................................................Title
Company Charter Documents..................................................3.2
Company Common Stock.......................................................2.1(a)
Company Disclosure Letter..................................................3.1(b)
Company Financial Advisor..................................................3.18
Company Permits............................................................3.7
Company Principals.........................................................Recital (c)
Company SEC Reports........................................................3.8(a)
Company Share..............................................................2.1(a)
Company Shares.............................................................2.1(a)
Company Stock Options......................................................3.3(b)
Company Stockholders Meeting...............................................5.5(a)
Company Subsidiaries.......................................................3.1(a)
Company's Option Plans.....................................................3.3(b)
Confidentiality Agreement..................................................5.7(b)
Contracts..................................................................3.5(a)(iii)
control....................................................................8.1(a)
controlled by..............................................................8.1(a)
controlling................................................................8.1(a)
Converted Stock Option.....................................................2.5
</TABLE>
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<TABLE>
<CAPTION>
Term Section
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<S> <C>
Dissenting Shares..........................................................2.3
Effective Time.............................................................1.3
Employment Agreements......................................................5.23
Environmental Claim........................................................3.14(a)
Environmental Laws.........................................................3.14(a)
ERISA......................................................................3.10(a)
Excess Parent Shares.......................................................2.2(d)(i)
Exchange Act...............................................................3.6
Exchangeable Holders.......................................................5.24
Exchangeable Shares........................................................5.24
Exchange Agent.............................................................2.2(a)(i)
Exchange Ratio.............................................................2.1(a)
Exchange Trust.............................................................2.2(d)(i)
Excluded Company Shares....................................................2.1(a)
Expenses...................................................................7.5(a)
Form 10-KSB................................................................3.8(b)
GAAP.......................................................................3.8(b)
Governmental Entity........................................................3.6
group......................................................................8.1(h)
HSR Act....................................................................3.6
including..................................................................8.1(d)
IPO Registration Statement.................................................3.8(b)
knowledge..................................................................8.1(e)
Law........................................................................3.5(a)(ii)
Lease......................................................................8.1(f)
Liens......................................................................3.3(c)
Material Adverse Effect on the Company.....................................3.1(a)
Material Adverse Effect on the Parent......................................4.1(a)
Merger.....................................................................Recital (a)
Merger Consideration.......................................................2.1(a)
Merger Sub.................................................................Title
Nasdaq.....................................................................2.2(d)(i)
Parent.....................................................................Title
Parent Benefit Plans.......................................................4.10(a)
Parent Charter Documents...................................................4.2
Parent Common Stock........................................................2.1(a)
Parent Disclosure Letter...................................................4.1(b)
Parent Permits.............................................................4.7
Parent Stock Options.......................................................4.3(b)
Parent Subsidiaries........................................................4.1(a)
Parent's Option Plan.......................................................4.3(b)
Pending Transactions.......................................................8.1(g)
Permitted Liens............................................................8.1(h)
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Term Section
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person.....................................................................8.1(i)
Proxy Materials............................................................5.5(a)
Proxy Statement............................................................5.5(a)
Real Property..............................................................8.1(j)
Registration Statement.....................................................5.5(a)
Registration Statement Effective Date......................................5.5(a)
Representatives............................................................5.7(a)(i)
Requisite Company Vote.....................................................3.4(a)
Rule 145 Affiliate Agreement...............................................5.21
Rule 145 Affiliates........................................................5.21
SEC........................................................................3.8(a)
Securities Act.............................................................3.6
Series A Preferred Stock...................................................4.3(a)
Series B Preferred Stock...................................................4.3(a)
Series C Preferred Stock...................................................4.3(a)
Stockholder Agreements.....................................................Recital (c)
Sub Common Stock...........................................................4.3(d)
subsidiary.................................................................8.1(k)
subsidiaries...............................................................8.1(k)
Superior Proposal..........................................................5.8(a)
Surviving By-Laws..........................................................1.5
Surviving Charter..........................................................1.4
Surviving Corporation......................................................1.1
Systems....................................................................3.15(b)
Takeover Statute...........................................................3.21
Taxes......................................................................3.16
Terminating Company Breach.................................................7.1(f)
Terminating Parent Breach..................................................7.1(g)
Termination Amount.........................................................7.5(b)
Title IV Plan..............................................................3.10(a)
under common control with..................................................8.1(a)
Year 2000 Compliant........................................................3.15(b)
</TABLE>
<PAGE>
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 15,
---------
1999, among WESTOWER CORPORATION, a Washington corporation (the "Company"),
-------
SPECTRASITE HOLDINGS, INC., a Delaware corporation (the "Parent"), and W
------
ACQUISITION CORP., a Washington corporation and a wholly owned subsidiary of the
Parent ("Merger Sub").
----------
RECITALS
(a) The respective boards of directors of each of the Parent, Merger
Sub and the Company have determined that it is in the best interests of their
respective stockholders to combine the respective businesses of the Parent and
the Company, and consequently have approved the merger of Merger Sub with and
into the Company (the "Merger") and approved and adopted the Merger, in
------
accordance with the Washington Business Corporation Act (the "BCA") and upon the
---
terms and subject to the conditions set forth in this Agreement.
(b) It is intended that, for federal income tax purposes, the Merger
shall qualify as a reorganization under the provisions of Section 368(a) of
Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
----
regulations promulgated under the Code.
(c) Concurrently with the execution of this Agreement, as a condition
to the willingness of the Parent to enter into this Agreement, certain holders
of Company Shares (the "Company Principals") are entering into one or more
------------------
Stockholder Agreements with the Parent and the Company, each of which is
substantially in the form attached to this Agreement as Exhibit A (the
"Stockholder Agreements"), providing for, among other things, the agreement of
----------------------
the Company Principals to vote their respective Company Shares, and an
irrevocable proxy to vote their respective Company Shares, in each case in favor
of approval and adoption of this Agreement and the Merger at the Company
Stockholders Meeting.
(d) Certain terms used in this Agreement which are not capitalized
have the meanings specified in Section 8.1.
(e) The Company, the Parent and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement.
<PAGE>
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained in this
Agreement, the parties agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time, Merger Sub shall
be merged with and into the Company and the separate corporate existence of
Merger Sub shall cease. The Company shall be the surviving corporation in the
Merger (sometimes referred to as the "Surviving Corporation") and shall continue
---------------------
to be governed by the laws of the State of Washington, and the separate
corporate existence of the Company with all its rights, privileges, immunities,
powers and franchises shall continue unaffected by the Merger. The Merger shall
have the effects set forth in Section 23B.11.060 of the BCA.
Section 1.2 Closing. The closing of the Merger (the "Closing")
-------
shall take place (a) at the offices of Paul, Weiss, Rifkind, Wharton & Garrison,
New York, New York at 10:00 A.M. on the third business day after the last to be
fulfilled or waived of the conditions set forth in Article 6 (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the fulfillment or waiver of those conditions) shall be satisfied or waived
in accordance with this Agreement or (b) at such other place and time and/or on
such other date as the Company and the Parent may agree in writing (the "Closing
-------
Date").
- ----
Section 1.3 Effective Time. As soon as practicable following the
Closing, the Company and the Parent will cause Articles of Merger (the "Articles
--------
Of Merger") to be signed, acknowledged and delivered for filing with the
- ---------
Secretary of State of the State of Washington as provided in Section 23B.11.050
of the BCA. The Merger shall become effective at the time when the Articles of
Merger have been duly filed with the Secretary of State of the State of
Washington or such other time as shall be agreed upon by the parties and set
forth in the Articles of Merger and in accordance with the BCA (the "Effective
---------
Time").
- ----
Section 1.4 The Articles Of Incorporation. The articles of
incorporation of the Merger Sub in effect immediately prior to the Effective
shall, from and after the Effective Time, be the articles of incorporation of
the Surviving Corporation (the "Surviving Charter"), until duly amended as
-----------------
provided in the Surviving Charter or by applicable law.
Section 1.5 The By-Laws. The by-laws of the Merger Sub in effect
at the Effective Time shall, from and after the Effective time, be the by-laws
of the
<PAGE>
3
Surviving Corporation (the "Surviving By-Laws"), until duly amended as provided
-----------------
in the Surviving By-Laws or by applicable law.
Section 1.6 Directors Of Surviving Corporation. From and after the
Effective Time, the directors of the Surviving Corporation shall be Calvin J.
Payne, Stephen H. Clark and David P. Tomick until their successors have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Charter and the
Surviving By-Laws.
Section 1.7 Officers Of Surviving Corporation. The officers of
the Company at the Effective Time shall, from and after the Effective Time, be
the officers of the Surviving Corporation until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Charter and the Surviving By-Laws.
ARTICLE 2
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
Section 2.1 Effect on Capital Stock. At the Effective Time, as a
result of the Merger and without any action on the part of the holder of any
capital stock of the Company:
(a) Merger Consideration. Each share (each a "Company Share"
-------------
and together the "Company Shares") of the common stock, par value $.01 per
--------------
share, of the Company (the "Company Common Stock") issued and outstanding
--------------------
immediately prior to the Effective Time (other than (x) Dissenting Shares and
(y)(i) Company Shares that are owned by the Parent, Merger Sub or any other
Parent Subsidiary or (ii) Company Shares that are owned by the Company or any
Company Subsidiary and in each case not held on behalf of third parties (the
shares in clause (y) being collectively referred to as "Excluded Company
----------------
Shares")) shall be converted into the right to receive and become exchangeable
- ------
for 1.81 shares (the "Exchange Ratio") of common stock, par value $0.001 per
--------------
share, of the Parent ("Parent Common Stock"), subject to adjustment as provided
-------------------
in Section 2.4 and subject to cash in lieu of fractional shares of Parent Common
Stock, if any, pursuant to Section 2.2(d) (collectively, the "Merger
------
Consideration"). At the Effective Time, all Company Shares shall no longer be
- -------------
outstanding, shall be canceled and retired and shall cease to exist, and each
certificate (a "Certificate") formerly representing any Company Shares (other
-----------
than Dissenting Shares and Excluded Company Shares) shall thereafter represent
only the right to receive the Merger Consideration and any distribution or
dividend under Section 2.2(b).
<PAGE>
4
(b) Cancellation of Excluded Company Shares. Each Excluded
Company Share issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
of that Excluded Company Share, no longer be outstanding, shall be canceled and
retired without payment of any consideration therefor and shall cease to exist.
(c) Merger Sub. At the Effective Time, each share of common
stock, par value $.01 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into one validly
issued, fully paid and nonassessable share of common stock, par value $.01 per
share, of the Surviving Corporation, and the Surviving Corporation shall be a
wholly owned subsidiary of the Parent.
Section 2.2 Exchange of Certificates for Shares.
(a) Exchange Procedures.
(i) Letter of Transmittal. Promptly after the
Effective Time, the Surviving Corporation shall cause an exchange agent
selected by the Parent and reasonably acceptable to the Company (the
"Exchange Agent") to mail to each holder of record of a Certificate (other
--------------
than Certificates in respect of Excluded Company Shares) (A) a letter of
transmittal specifying that delivery shall be effected, and that risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates (or affidavits of loss in lieu of Certificates) to the
Exchange Agent, in a form and with other provisions reasonably acceptable
to both the Parent and the Company, and (B) instructions for exchanging the
Certificates for (1) certificates representing shares of Parent Common
Stock, (2) cash in lieu of fractional shares, and (3) any unpaid dividends
and other distributions.
(ii) Surrender of Certificates. Upon surrender of a
Certificate for cancellation to the Exchange Agent together with such
letter of transmittal, duly executed, the holder of that Certificate shall
be entitled to receive in exchange (A) a certificate representing that
number of whole shares of Parent Common Stock that the holder is entitled
to receive under this Article 2, (B) a check in the amount (after giving
effect to any required tax withholding) of (1) any cash in lieu of
fractional shares plus (2) any unpaid dividends (other than stock
dividends) and any other dividends or other distributions that such holder
has the right to receive under the provisions of this Article 2, and the
Certificate so surrendered shall immediately be canceled. No interest will
be paid or accrued on any amount payable upon due surrender of the
Certificates.
(iii) Unregistered Transferees. In the event of a
transfer of ownership of Company Shares that are not registered in the
transfer
<PAGE>
5
records of the Company, a certificate representing the proper number of
shares of Parent Common Stock, together with a check for any cash to be
paid upon the surrender of the Certificate and any other dividends or
distributions in respect of those shares, may be issued or paid to such a
transferee if the Certificate formerly representing such Company Shares is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect the transfer and to evidence that any applicable stock
transfer taxes have been paid. If any certificate for shares of Parent
Common Stock is to be issued in a name other than that in which the
surrendered Certificate is registered, it shall be a condition of such
exchange that the person requesting such exchange shall pay any transfer or
other taxes required by reason of the issuance of certificates for shares
of Parent Common Stock in a name other than that of the registered holder
of the surrendered Certificate, or shall establish to the satisfaction of
the Parent or the Exchange Agent that such tax has been paid or is not
applicable.
(iv) No Other Rights. Until surrendered as contemplated by
this Section 2.2(a), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive the certificate
representing shares of Parent Common Stock and any other dividend or
distribution in respect of those shares and cash in lieu of any fractional
shares of Parent Common Stock, as contemplated by this Section 2.2(a). All
shares of Parent Common Stock, together with any cash paid under Section
2.2(b) or Section 2.2(d) issued upon the surrender for or exchange of
Certificates in accordance with the terms of this Agreement, shall be
deemed to have been issued in full satisfaction of all rights pertaining to
the Company Shares formerly represented by such Certificates.
(b) Distributions With Respect to Unexchanged Shares. Whenever a
dividend or other distribution is declared by the Parent in respect of Parent
Common Stock and the record date for that dividend or other distribution is at
or after the Effective Time, that declaration shall include dividends or other
distributions in respect of all shares issuable under this Agreement. No
dividends or other distributions in respect of the Parent Common Stock shall be
paid to any holder of any unsurrendered Certificate until that Certificate is
surrendered for exchange in accordance with this Article 2. Subject to the
effect of applicable laws, following surrender of any such Certificate, there
shall be issued or paid to the holder of the certificates representing whole
shares of Parent Common Stock issued in exchange therefor, without interest, (i)
at the time of such surrender, the dividends or other distributions with a
record date after the Effective Time and a payment date on or prior to the date
of issuance of such whole shares of Parent Common Stock and not previously paid,
and (ii) at the appropriate payment date, the dividends or other distributions
payable with respect to such whole shares of Parent Common Stock with a record
date after the Effective Time but with a payment date subsequent to surrender.
For purposes of dividends or other distributions in respect of shares of
<PAGE>
6
Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to
the Merger shall be deemed issued and outstanding as of the Effective Time.
(c) No Further Transfers. After the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no further
registration of transfers on the records of the Company of the Company Shares
that were outstanding immediately prior to the Effective Time.
(d) Fractional Shares.
(i) No certificates or scrip representing fractional shares of
Parent Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests will not entitle its owner to
vote, to receive dividends or to any other rights of a stockholder of the
Parent. Notwithstanding any other provision of this Agreement, each holder of
Company Shares exchanged pursuant to the Merger who would otherwise have been
entitled to receive a fraction of a share of Parent Common Stock (after taking
into account all Certificates delivered by such holder) shall receive from the
Exchange Agent, in accordance with the provisions of this Article 2, a cash
payment in lieu of such fractional shares of Parent Common Stock, as applicable,
representing such holder's proportionate interest, if any, in the net proceeds
from the sale by the Exchange Agent in one or more transactions (which sale
transactions shall be made at such times, in such manner and on such terms as
the Exchange Agent shall determine in its reasonable discretion) on behalf of
all such holders of the aggregate of the fractional shares of Parent Common
Stock, as applicable, which would otherwise have been issued (the "Excess Parent
-------------
Shares"). The sale of the Excess Parent Shares by the Exchange Agent shall be
- ------
executed on the National Market System of the Nasdaq Stock Market (the "Nasdaq")
------
and shall be executed in round lots to the extent practicable. Until the net
proceeds of such sale or sales have been distributed to the holders of
Certificates, the Exchange Agent will hold such proceeds in trust (the "Exchange
--------
Trust") for the holders of Certificates. All commissions, transfer taxes and
- -----
other out-of-pocket transaction costs, including the expenses and compensation
of the Exchange Agent, incurred in connection with this sale of the Excess
Parent Shares shall be paid by the Parent. As soon as practicable after the
determination of the amount of cash, if any, to be paid to holders of
Certificates in lieu of any fractional shares of Parent Common Stock, the
Exchange Agent shall make available such amounts to such holders of Certificates
without interest. The Exchange Agent shall determine the portion of such net
proceeds to which each holder of Company Shares shall be entitled, if any, by
multiplying the amount of the aggregate net proceeds by a fraction the numerator
of which is the amount of the fractional share interest to which such holder of
Company Shares is entitled (after taking into account all Company Shares then
held by such holder) and the denominator of which is the aggregate amount of
fractional share interests to which all holders of Certificates representing
Company Shares are entitled.
<PAGE>
7
(ii) Notwithstanding the provisions of subsection (i) of this
Section 2.2(d), the Parent may elect, at its option exercised prior to the
Effective Time and in lieu of the issuance and sale of Excess Parent Shares and
the making of the payments contemplated in such subsection, to pay to the
Exchange Agent an amount in cash sufficient for the Exchange Agent to pay each
holder of Company Shares an amount in cash equal to the product obtained by
multiplying (A) the fractional share interest to which such holder would
otherwise be entitled (after taking into account all Company Shares held at the
Effective Time by such holder) by (B) the closing price for a share of Parent
Common Stock on the Nasdaq on the first business day immediately following the
Effective Time and, in such case, the Exchange Fund, all references in this
Agreement to the cash proceeds of the sale of the Excess Shares and similar
references shall be deemed to mean and refer to the payments calculated as set
forth in this Section 2.2(d)(ii).
(e) Termination of Exchange Period; Unclaimed Stock. Any shares of
Parent Common Stock and any portion of the Exchange Fund or of dividends or
other distributions with respect to the Parent Common Stock deposited by the
Parent with the Exchange Agent (including the proceeds of any investments of
those funds) that remain unclaimed by the stockholders of the Company 180 days
after the Effective Time shall be paid to the Parent. Any former stockholders of
the Company who have not theretofore complied with this Article 2 shall
thereafter look only to the Parent for payment of their Merger Consideration and
any dividends and other distributions issuable or payable pursuant to Section
2.1 and Section 2.2(b) upon due surrender of their Certificates (or affidavits
of loss in lieu of Certificates), in each case, without any interest.
Notwithstanding the foregoing, none of the Parent, the Surviving Corporation,
the Exchange Agent or any other person shall be liable to any former holder of
Company Shares for any amount properly delivered to a public official under
applicable abandoned property, escheat or similar laws. If any Certificates
shall not have been surrendered prior to five years after the Effective Time (or
immediately prior to such earlier date on which any Merger Consideration in
respect of such Certificate would otherwise escheat to or become the property of
any Governmental Entity), any amounts payable in respect of such Certificate
shall, to the extent permitted by applicable law, become the property of the
Surviving Corporation, free and clear of all claims or interests of any person
previously entitled to those amounts.
(f) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed and the posting by such person of a bond in the form
reasonably required by the Parent as indemnity against any claim that may be
made against it with respect to such Certificate, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed Certificate the shares of Parent
Common Stock, any unpaid dividends or other distributions and any cash payment
in lieu of a fractional share in respect of that Certificate issuable or payable
under this Article 2 upon due surrender of and
<PAGE>
8
deliverable in respect of the Company Shares represented by such Certificate
under this Agreement, in each case, without interest.
Section 2.3 Appraisal Rights. Notwithstanding anything in this
Agreement to the contrary, each Company Share that is issued and outstanding
immediately prior to the Effective Time and that is held by a stockholder who
has properly exercised and perfected dissenters' rights under Chapter 23B.13 of
the BCA (the "Dissenting Shares"), shall not be converted into or exchangeable
-----------------
for the right to receive the Merger Consideration, but shall be entitled to
receive such consideration as shall be determined pursuant to Chapter 23B.13 of
the BCA; provided, however, that if such holder shall have failed to perfect or
-------- -------
shall have effectively withdrawn or lost its right to dissent and obtain payment
under the BCA, each Company Share of such holder shall thereupon be deemed to
have been converted into and to have become exchangeable for, as of the
Effective Time, the right to receive the Merger Consideration, without any
interest thereon, in accordance with Section 2.1(a), and such shares shall no
longer be Dissenting Shares. The Company shall give Parent (i) prompt notice of
any written demands to assert dissenters' rights with respect to Company Shares
received by the Company and (ii) the right to direct all negotiations and
proceedings with respect to any such demands. The Company shall not, without the
prior written consent of Parent, voluntarily make any payment with respect to,
or settle, offer to settle or otherwise negotiate, any such demands.
Section 2.4 Adjustments to Prevent Dilution. In the event that
prior to the Effective Time there is a change in the number of Company Shares or
of Parent Common Stock or securities convertible or exchangeable into or
exercisable for Company Shares or shares of Parent Common Stock issued and
outstanding as a result of a distribution, reclassification, stock split
(including a reverse stock split), stock dividend or distribution or other
similar transaction, the Exchange Ratio shall be equitably adjusted to eliminate
the effects of that event.
Section 2.5 Treatment of Stock Options.
(a) As of the Effective Time of the Merger, each Company
Stock Option exercisable for shares of Company Common Stock under the Company
Option Plans will be converted (as converted, a "Converted Stock Option") by
----------------------
virtue of the Merger and without any action on the part of the holder thereof,
to an option exercisable for that number of shares of Parent Common Stock equal
to the product of (x) the aggregate number of shares of Company Common Stock for
which such Company Stock Option was exercisable and (y) the Exchange Ratio,
rounded, in the case of any Company Stock Options other than an "incentive stock
option" (within the meaning of Section 422 of the Code) up, and in the case of
any incentive stock option, down, to the nearest whole share, if necessary, and
the exercise price per share of such Converted Stock Option shall be equal to
the aggregate exercise price of such Company Stock Option immediately prior to
the Effective Time divided by the number of shares of Parent Common Stock for
which such Converted Stock Option
<PAGE>
9
shall be exercisable, as determined above rounded to the nearest cent, if
necessary. Prior to the Effective Time, the Company shall make such amendments
and take such other actions, if necessary, with respect to the Company Option
Plans as shall be necessary to permit the adjustment referred to in this Section
2.5, including notifying all participants in the Company Option Plans of such
adjustment.
(b) All Company Stock Options which were granted under either
the 1997 Stock Compensation Plan or a Non-Qualified Stock Option Letter
Agreement which are outstanding immediately prior to the Effective Time shall,
to the extent not fully vested and exercisable, become fully vested and
exercisable and continue to be exercisable in accordance with the terms of the
1997 Stock Compensation Plan or the Non-Qualified Stock Option Letter Agreement,
as applicable. In all other respects all Company Stock Options (including
Company Stock Options under the 1997 Stock Compensation Plan, the 1998 Stock
Incentive Compensation Plan or the Non-Qualified Stock Option Letter Agreements)
shall continue to have, and be subject to, the same terms and conditions set
forth in the Company Option Plans (or any other agreement to which such Company
Stock Option was subject immediately prior to the Effective Time) except as ot
herwise provided for herein.
(c) It is the intention of the parties that, to the extent that
any Company Stock Option constituted an incentive stock option immediately prior
to the Effective Time, such option continue to qualify as an incentive stock
option to the maximum extent permitted by Section 422 of the Code, and that the
adjustment of the Company Stock Options provided by this Section 2.5 satisfy the
conditions of Section 424(a) of the Code.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Parent and Merger Sub that:
Section 3.1 Organization and Qualification; Subsidiaries.
(a) Each of the Company and each subsidiary of the Company
(collectively, the "Company Subsidiaries") has been duly organized and is
--------------------
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has the requisite power
and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals, individually or in the
aggregate, have not
<PAGE>
10
resulted and would not reasonably be expected to result in a Material Adverse
Effect on the Company. Each of the Company and each Company Subsidiary is duly
qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except for such failures to be so qualified or licensed and in good
standing that, individually or in the aggregate, have not resulted and would not
reasonably be expected to result in a Material Adverse Effect on the Company.
For purposes of this Agreement, "Material Adverse Effect on the Company" means
--------------------------------------
any change in or effect on the business, assets, properties, results of
operations or condition (financial or otherwise) of the Company or any Company
Subsidiaries that is or would reasonably be expected to be materially adverse to
the Company and the Company Subsidiaries, taken as a whole, or that would
reasonably be expected to materially impair the ability of the Company to
perform its obligations under this Agreement or consummate the Merger and the
other transactions contemplated hereby.
(b) Section 3.1(b) of the letter from the Company, dated the
date hereof, addressed to the Parent (the "Company Disclosure Letter") sets a
-------------------------
complete and correct list of all of the Company Subsidiaries. Neither the
Company nor any Company Subsidiary holds any interest in any person other than
the Company Subsidiaries so listed.
Section 3.2 Articles of Incorporation and By-laws. The copies of
the Company's articles of incorporation and by-laws, each as amended through the
date of this Agreement (collectively, the "Company Charter Documents") that have
-------------------------
heretofore been made available to Parent are complete and correct copies of
those documents. The Company Charter Documents are in full force and effect. The
Company is not in violation of any of the provisions of the Company Charter
Documents.
Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of
25,000,000 shares of Company Common Stock. As of May 13, 1999, (i) 8,529,514
shares of Company Common Stock were issued and outstanding, all of which were
validly issued and are fully paid, nonassessable and not subject to preemptive
rights, (ii) no shares of Company Common Stock were held in the treasury of the
Company or by the Company Subsidiaries, (iii) 1,110,974 shares of Company Common
Stock were reserved for issuance upon exercise of outstanding Company Stock
Options and (iv) 98,500 shares of Company Common Stock were reserved for
issuance upon exercise of outstanding stock purchase warrants.
(b) Between September 30, 1998 and the date of this
Agreement, an aggregate of 429,438 options to purchase shares of Company Common
Stock ("Company Stock Options") have been granted by the Company under the
---------------------
<PAGE>
11
1997 Stock Compensation Plan, the 1998 Stock Incentive Compensation Plan and
Non-Qualifying Stock Option Letter Agreements (collectively, the "Company's
---------
Option Plans"). Except (i) for Company Stock Options to purchase an aggregate of
- ------------
1,110,974 shares of Company Common Stock outstanding under the Company's Option
Plans or (ii) under agreements or arrangements set forth in Section 3.3(b) of
the Company Disclosure Letter, there are no options, warrants, conversion
rights, stock appreciation rights, redemption rights, repurchase rights or other
rights, agreements, arrangements or commitments of any character to which the
Company is a party or by which the Company is bound relating to the issued or
unissued capital stock of the Company or any Company Subsidiary or obligating
the Company or any Company Subsidiary to issue or sell any shares of capital
stock of, or other equity interests in, the Company or any Company Subsidiary.
Section 3.3(b) of the Company Disclosure Letter sets forth, as of the date of
this Agreement, (x) the persons to whom Company Stock Options have been granted,
(y) the exercise price for the Company Stock Options held by each such person
and (z) whether such Company Stock Options are subject to vesting and, if
subject to vesting, the dates on which each of those Company Stock Options vest.
Except as set forth in Section 3.3(b) of the Company Disclosure Letter, none of
the Company Stock Options which are subject to vesting will vest as a result of
the consummation of the Merger.
(c) All shares of Company Common Stock subject to issuance,
upon issuance prior to the Effective Time on the terms and conditions specified
in the instruments under which they are issuable, will be duly authorized,
validly issued, fully paid, nonassessable and will not be subject to preemptive
rights. There are no outstanding contractual obligations of the Company or any
Company Subsidiary to repurchase, redeem or otherwise acquire any shares of
Company Common Stock or any capital stock of any Company Subsidiary. Except as
set forth in Section 3.3(c) of the Company Disclosure Letter, each outstanding
share of capital stock of each Company Subsidiary is duly authorized, validly
issued, fully paid, nonassessable and not subject to preemptive rights and each
such share owned by the Company or a Company Subsidiary is free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Company's or such other Company Subsidiary's
voting rights, charges and other encumbrances or any nature whatsoever
(collectively, "Liens"). There are no outstanding material contractual
-----
obligations of the Company or any Company Subsidiary to provide funds to, or
make any investment (in the form of a loan, capital contribution or otherwise)
in, any Company Subsidiary that is not wholly owned by the Company or in any
other person.
Section 3.4 Authority.
(a) The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
under this Agreement and to consummate the Merger and the other transactions
contemplated by this Agreement to be consummated by the Company. The execution
and delivery of
<PAGE>
12
this Agreement by the Company and the consummation by the Company of such
transactions have been duly and validly authorized by all necessary corporate
action and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate such transactions, other
than, with respect to the Merger, the adoption of this Agreement by the
affirmative vote of the holders of two-thirds of the outstanding shares of
Company Common Stock entitled to vote (the "Requisite Company Vote"). This
----------------------
Agreement has been duly authorized and validly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(b) The Board of Directors of the Company (i) has unanimously
adopted the plan of merger set forth in this Agreement and approved this
Agreement and the other transactions contemplated by this Agreement and (ii) has
declared that the Merger and this Agreement and the other transactions
contemplated by this Agreement are advisable.
Section 3.5 No Conflict.
(a) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the Company will not:
(i) conflict with or violate any provision of any
Company Charter Document or any equivalent organizational documents of any
Company Subsidiary;
(ii) assuming that all consents, approvals,
authorizations and other actions described in Section 3.6 have been
obtained and all filings and obligations described in Section 3.6 have been
made, conflict with or violate any foreign or domestic law, statute,
ordinance, rule, regulation, order, judgment or decree ("Law") applicable
---
to the Company or any Company Subsidiary or by which any property or asset
of the Company or any Company Subsidiary is or may be bound or affected,
except for any such conflicts or violations which, individually or in the
aggregate, have not resulted and would not reasonably be expected to result
in a Material Adverse Effect on the Company; or
(iii) except as set forth in Section 3.5(a)(iii) of the
Company Disclosure Letter, result in any breach of or constitute a default
(or an event which with or without notice or lapse of time or both would
become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a
Lien on any property or asset of the Company or any Company Subsidiary
under any note, bond, mortgage, indenture, contract, agreement, commitment,
lease, license, permit, franchise or other instrument or obligation
(collectively, "Contracts")
---------
<PAGE>
13
that is material to the conduct of the business of the Company and the
Company Subsidiaries taken as a whole and to which the Company or any
Company Subsidiary is a party or by which any of them or their assets or
properties is or may be bound or affected.
(b) Section 3.5(b) of the Company Disclosure Letter sets
forth a correct and complete list in all material respects of Contracts to which
the or any Company Subsidiaries are a party or by which they or their assets or
properties are or may be bound or affected under which consents or waivers are
or may be required prior to consummation of the transactions contemplated by
this Agreement.
Section 3.6 Required Filings and Consents. The execution and delivery
of this Agreement by the Company do not, and the performance of this Agreement
by the Company will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any domestic or foreign national,
federal, state, provincial or local governmental, regulatory or administrative
authority, agency, commission, court, tribunal or arbitral body or self-
regulated entity (each, a "Governmental Entity"), except for applicable
-------------------
requirements of the Securities Exchange Act of 1934, as amended (together with
the rules and regulations promulgated thereunder, the "Exchange Act"),
------------
applicable requirements of the Securities Act of 1933, as amended (together with
the rules and regulations promulgated thereunder, the "Securities Act"),
--------------
applicable requirements of state securities or "blue sky" laws ("Blue Sky
--------
Laws"), the rules and regulations of the American Stock Exchange (the "Amex"),
- ---- ----
applicable requirements of Takeover Statutes, the pre-merger 13 notification
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
-------
applicable requirements of the Communications Act of 1934, as amended (together
with the rules and regulations promulgated thereunder, the "Communications
--------------
Act"), notices required to be sent to the Bureau of Land Management and for the
- ---
filing of the Articles of Merger as required by the BCA.
Section 3.7 Permits; Compliance with Law.
(a) Each of the Company and the Company Subsidiaries has all
franchises, grants, registrations, determinations, authorizations, licenses,
permits, easements, variances, exceptions, consents, certificates, approvals and
orders of any Governmental Entity (collectively, the "Company Permits") that are
---------------
material to the conduct of the business of the Company and the Company
Subsidiaries taken as a whole, and no suspension or cancellation or material
modification of any of the Company Permits that are material to the conduct of
the business of the Company and the Company Subsidiaries taken as a whole is
pending or, to the knowledge of the Company, threatened. Neither the Company nor
any Company Subsidiary is in conflict with, or in default or violation of, (i)
any Law applicable to the Company or any Company Subsidiary or by which any
property or asset of the Company or any Company Subsidiary is or may be bound or
affected or (ii) any Company Permits,
<PAGE>
14
except for any such conflicts, defaults or violations that, individually or in
the aggregate, have not resulted and would not reasonably be expected to result
in a Material Adverse Effect on the Company.
(b) Section 3.7(b) of the Company Disclosure Letter sets
forth all Company Permits issued by the Federal Communications Commission or
state public utilities commissions.
Section 3.8 SEC Filings; Financial Statements.
(a) Except as set forth in Section 3.8(a) of the Company
Disclosure Letter, the Company has filed all forms, reports, statements and
other documents required to be filed with the United States Securities and
Exchange Commission (the "SEC") under the Exchange Act and the Securities Act
---
since the date of its initial public offering (collectively, including any such
documents filed subsequent to the date of this Agreement, the "Company SEC
-----------
Reports"), and the Company SEC Reports, including any financial statements or
- -------
schedules included or incorporated by reference, (i) comply in all material
respects with the requirements of the Exchange Act or the Securities Act or
both, as the case may be, applicable to those Company SEC Reports and (ii) did
not at the time they were filed contain any untrue statement of a material fact
or omit to state a material fact required to be stated or necessary in order to
make the statements made in those Company SEC Reports, in the light of the
circumstances under which they were made, not misleading. No Company Subsidiary
is subject to the periodic reporting requirements of the Exchange Act or is
otherwise required to file any documents with the SEC or any national securities
exchange or quotation service or comparable Governmental Entity.
(b) As of the date of the filing of the relevant Company SEC
Report, each of the consolidated balance sheets included in the Company's Form
SB-2 Registration Statement (File No. 333-32963) (the "IPO Registration
----------------
Statement"), the Company's Report on Form 10-K for the fiscal year ended
- ---------
February 28, 1998, the Company's Transition Report on Form 10-KSB, dated January
-----------
25, 1999 and amended on January 28, 1999 and February 9, 1999 (the "FORM 10-
KSB") or in the Company SEC Reports filed or to be filed subsequent to February
9, 1999 (including the related notes and schedules) fairly presented or will
fairly present, in all material respects, the consolidated financial position of
the Company as of the dates set forth in those consolidated balance sheets. Each
of the consolidated statements of income and of cash flows included in the IPO
Registration Statement, the Company's Report on Form 10-K for the fiscal year
ended February 28, 1998, the Form 10-KSB or in the Company SEC Reports filed or
to be filed subsequent to February 9, 1999 (including any related notes and
schedules), fairly presented or will fairly present, in all material respects,
the consolidated results of operations and cash flows, as the case may be, of
the Company and the consolidated Company Subsidiaries for the periods set forth
in those consolidated statements of income and of cash flows (subject, in the
case of unaudited quarterly statements, to notes and normal year-end audit
adjustments that will not be material in amount or effect), in each case in
conformity with United
<PAGE>
15
States generally accepted accounting principles ("GAAP") (except, in the case of
----
unaudited quarterly statements, as permitted by Form 10-Q of the SEC)
consistently applied throughout the periods indicated.
(c) Except as and to the extent set forth on the consolidated
balance sheet of the Company and the consolidated Company Subsidiaries as of
September 30, 1998, including the related notes, or as set forth in Section
3.8(c) of the Company Disclosure Letter or in the Company SEC Reports filed
subsequent to September 30, 1998 and prior to the date hereof, as of the date of
this Agreement, neither the Company nor any Company Subsidiary has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) that would be required to be reflected on a balance sheet or in
the related notes prepared in accordance with GAAP, except for liabilities or
obligations incurred since September 30, 1998 in the ordinary course of business
and consistent with past practices.
Section 3.9 Absence of Certain Changes or Events. Since September 30,
1998, the Company and the Company Subsidiaries have, except as set forth in
Section 3.9 of the Company Disclosure Letter, conducted their businesses only in
the ordinary course and in a manner consistent with past practice and, since
such date, there has not been: (a) any Material Adverse Effect on the Company;
(b) any damage, destruction or other casualty loss with respect to any asset or
property owned, leased or otherwise used by the Company or any of the Company
Subsidiaries, whether or not covered by insurance, which damage, destruction or
loss, individually or in the aggregate, has resulted or would reasonably be
expected to result in a Material Adverse Effect on the Company; (c) any material
change by the Company in its or any Company Subsidiary's accounting methods,
principles or practices; (d) any declaration, setting aside or payment of any
dividend or distribution in respect of Company Shares or any redemption,
purchase or other acquisition of any of the Company's securities; or (e) except
as set forth in Section 3.9(e) of the Company Disclosure Letter, any increase in
the compensation or benefits or establishment of any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing, stock
option (including, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or other employee
benefit plan, or any other increase in the compensation payable or to become
payable to any executive officers of the Company or any Company Subsidiary
except in the ordinary course of business consistent with past practice or
except as required by applicable Law.
Section 3.10 Employee Benefit Plans; Labor Matters.
(a) Section 3.10(a) of the Company Disclosure Letter
identifies each material employment, severance or similar contract or
arrangement and each material plan, policy, fund, program or contract or
arrangement (whether or not written) providing for compensation, bonus, profit-
sharing, stock option, or other stock related rights or other forms of incentive
or deferred compensation, vacation
<PAGE>
16
benefits, insurance coverage (including any self-insured arrangements) health or
medical benefits, disability benefits, worker's compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life insurance or
other benefits) under which the Company or any Company Subsidiary has or in the
future could have any material liability, including any material liability as a
result of being a single employer under Section 414 of the Code ("Benefit
-------
Plans"). There is no Benefit Plan which (i) is a multiemployer plan (within the
- -----
meaning of Section 3(37) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or (ii) is a plan, other than a multiemployer plan,
-----
subject to Title IV of ERISA (a "Title IV Plan").
-------------
(b) The Company has made available to the Parent copies of the
Benefit Plans (and, if applicable, related trust agreements) and all amendments
thereto and written interpretations thereof together with the most recent annual
report (Form 5500 including, if applicable, Schedule B thereto), the most recent
actuarial valuation report prepared in connection with any Benefit Plan, and the
most recent determination letter received from any taxation authority with
respect to any Benefit Plan.
(c) Each Benefit Plan that is intended to be qualified under
an applicable statute or regulation, including Section 401(a) of the Code, is so
qualified and has been so qualified during the period since its adoption; each
trust created under any such Plan is exempt from tax and has been so exempt
since its creation and nothing has occurred with respect to the operation of any
Benefit Plan which would cause the loss of such qualification or exemption. Each
Benefit Plan has been maintained in substantial compliance with its terms and
with the requirements prescribed by any and all applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Code and no
transaction prohibited by any applicable statute or regulation, including
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any Benefit Plan that will or would reasonably be expected to result in a
material liability to the Company and the Company Subsidiaries taken as a whole.
(d) Neither the Company nor any Company Subsidiary has any
material current or projected liability in respect of post-employment or post-
retirement health or medical or life insurance benefits for retired, former or
current employees of the Company or any Company Subsidiary, except as required
under applicable law.
(e) There is no contract, plan or arrangement (written or
otherwise) covering any employee or former employee of the Company or any
Company Subsidiary that, individually or collectively, could give rise to the
payment of any amount that would not be deductible pursuant to the terms of
Section 280G or Section 162(m)of the Code.
<PAGE>
17
(f) Except as set forth in Section 3.10(f) of the Company
Disclosure Letter, no employee or former employee of the Company or any Company
Subsidiary will become entitled to any bonus, retirement, severance, job
security or similar benefit or enhancement of such benefit (including
acceleration of vesting or exercise of an incentive award) as a result of the
transactions contemplated hereby.
(g) There are no unfunded obligations under any Benefit Plan
which are not fully reflected on the most recent financial statements of the
Company.
(h) Neither the Company nor any Company Subsidiary is party
to any collective bargaining agreements. There are no unfair labor practices
complaint or other proceeding pending and there is no strike pending or
threatened against the Company or any Company Subsidiary.
Section 3.11 Tax Matters. Neither the Company nor, to the knowledge
of the Company, any of its affiliates has taken or agreed to take any action,
nor is the Company aware of any agreement, plan or other circumstance that would
prevent the Merger from constituting a transaction qualifying as a
reorganization under Section 368(a) of the Code.
Section 3.12 Contracts; Debt Instruments. Except as disclosed in
Section 3.12 of the Company Disclosure Letter or filed as an exhibit to, or as
incorporated by reference in, the Form 10-KSB, there is no Contract that is
material to the business, financial condition or results of operations of the
Company and the Company Subsidiaries taken as a whole. Neither the Company nor
any Company Subsidiary is in violation of or in default under (nor does there
exist any condition which with the passage of time or the giving of notice would
cause such a violation of or default under) any material Contract to which it is
a party or by which it or any of its properties or assets is or may be bound or
affected. Set forth in Section 3.12 of the Company Disclosure Letter is a
description of any material changes to the amount and terms of the indebtedness
of the Company and the consolidated Company Subsidiaries as described in the
notes to the financial statements set forth in the Form 10-KSB.
Section 3.13 Litigation. Except as disclosed in Section 3.13 of the
Company Disclosure Letter, there is no suit, claim, action, proceeding or
investigation (collectively, "Claims") pending or, to the knowledge of the
------
Company, threatened against the Company or any Company Subsidiary before any
Governmental Entity that, individually or in the aggregate, has resulted or
would reasonably be expected to result in a Material Adverse Effect on the
Company. Neither the Company nor any Company Subsidiary is subject to any
outstanding order, writ, injunction or decree which, individually or in the
aggregate, has resulted or would reasonably be expected to result in a Material
Adverse Effect on the Company.
<PAGE>
18
Section 3.14 Environmental Matters.
(a) Except as set forth in Section 3.14(a) of the Company
Disclosure Letter, (i) each of the Company and the Company Subsidiaries is in
compliance with all Laws relating to pollution or protection of human health or
the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) (collectively, "Environmental
-------------
Laws"), except for instances of non-compliance that would not, individually or
- ----
in the aggregate, reasonably be expected to result in a liability in excess of
$1,000,000, which compliance includes, but is not limited to, the possession by
the Company and the Company Subsidiaries of all material permits and other
governmental authorizations required under applicable Environmental Laws for the
conduct of the Company's business, and compliance with the terms and conditions
thereof; (ii) none of the Company or the Company Subsidiaries has received
written notice of, or, to the knowledge of the Company, is threatened with or
the subject of, any material action, cause of action, claim, investigation,
demand or notice by any person or entity alleging liability under or non-
compliance with any Environmental Law (an "Environmental Claim"), except with
-------------------
respect to Environmental Claims which would not reasonably be expected to,
individually or in the aggregate, result in a liability in excess of $1,000,000;
and (iii) to the knowledge of the Company, there are no circumstances that are
reasonably likely to prevent or interfere with such material compliance or lead
to such an Environmental Claim in the future.
(b) To the knowledge of the Company, there is no condition
on, in or under any property currently or formerly owned, leased or operated by
the Company or any Company Subsidiary in violation of, or for which there is an
obligation under, Environmental Laws where such violation or obligation is
reasonably likely to result in a liability in excess of $1,000,000.
Section 3.15 Intellectual Property.
(a) Disclosure, Ownership and Claims. The Company and the
Company Subsidiaries own or have valid rights to use the trademarks, trade
names, copyrights, patents, logos, logo types, type styles, licenses and
computer software programs (including without limitation, the source codes
thereto) that are necessary for the conduct of their respective businesses as
now being conducted; provided, however, that the Company and the Company
-------- -------
Subsidiaries do not have access to the source codes relating to certain computer
software programs with respect to which they are the licensee. Each material
trademark, trade name, copyright and patent owned by the Company or a Company
Subsidiary and necessary for the conduct of their business on the date hereof,
and each material license to use any trademark, trade name, copyright, patent or
computer software program necessary for the conduct of their business on the
date hereof, except computer software licenses that are commercially available,
is listed in Section 3.15(a) of the Company Disclosure Letter. To the knowledge
of the Company, neither the Company nor any of the Company Subsidiaries has
received written notice that the Company or any of
<PAGE>
19
the Company Subsidiaries is infringing on any trademark, trade name, copyright,
patent or other intangible property right or any registration thereof or
application pending therefor which is necessary for the conduct of their
business on the date hereof.
(b) Year 2000 Compliance. All computer software programs,
including all source code, object code and documentation related thereto,
hardware, databases, and embedded control systems (collectively, the "Systems")
-------
used by the Company or a Company Subsidiary are Year 2000 Compliant, except
where the failure to be Year 2000 Compliant would not reasonably be expected to
have a Material Adverse Effect on the Company. For purposes of this Agreement,
"Year 2000 Compliant" means that the Systems (i) accurately process date and
-------------------
time data (including calculating, comparing, and sequencing) from, into, and
between the twentieth and twenty-first centuries, the years 1999 and 2000, and
leap year calculations and (ii) operate accurately with other software and
hardware that use standard date format (4 digits) for representation of the
year.
Section 3.16 Taxes. The Company and the Company Subsidiaries have
filed all material Tax returns and reports to be filed by them and have paid, or
established adequate reserves for, all Taxes required to be paid by them. No
deficiencies for any material Taxes have been proposed, asserted or assessed
against the Company or any Company Subsidiaries, and no requests for waivers of
the time to assess any such Taxes are pending. As used in this Agreement,
"Taxes" shall mean all federal, state, local and foreign income, property,
-----
sales, excise and other taxes, tariffs or governmental charges of any nature
whatsoever.
Section 3.17 Non-competition Agreements. Except as set forth in
Section 3.17 of the Company Disclosure Letter, neither the Company nor any
Company Subsidiary is a party to any agreement which purports to restrict or
prohibit in any material respect the Company and the Company Subsidiaries
collectively from, directly or indirectly, engaging in any business involving
communications tower ownership, antenna site leasing, communications site
services or any other business currently engaged in by the Company or any
Company Subsidiary. To the knowledge of the Company, none of the Company's
officers, directors or key employees is a party to any agreement which, by
virtue of such person's relationship with the Company, restricts the Company or
any Company Subsidiary from, directly or indirectly, engaging in any of the
businesses described above, except for those restrictions which would not
reasonably be expected to have a Material Adverse Effect on the Company.
Section 3.18 Opinion of Financial Advisor. BancBoston Robertson
Stephens, Inc. (the "Company Financial Advisor") has delivered to the Board of
-------------------------
Directors of the Company its oral opinion to the effect that, as of the date of
this Agreement, the Exchange Ratio is fair to the Company's stockholders from a
financial point of view, which opinion was or will promptly after the date of
this Agreement be confirmed in writing and accompanied by an authorization to
include a copy of that
<PAGE>
20
opinion in the Proxy Materials. The Company has delivered or will, promptly
after receipt of such written opinion, deliver a signed copy of that written
opinion to the Parent.
Section 3.19 Title to Properties; Leases.
(a) Section 3.19(a) of the Company Disclosure Letter sets
forth a list of all Real Property owned by the Company and the Company
Subsidiaries and indicates the entity that owns the Real Property. The Company
and the Company Subsidiaries have good indefeasible, marketable and insurable
title to all such Real Property (other than leasehold real property) and good
title to all of its other owned property and assets, tangible and intangible
(collectively, the "Assets") that are material to the business of the Company
------
and the Company Subsidiaries taken as a whole; all of the Assets are so owned,
in each case, free and clear of all Liens, except (i) Permitted Liens, (ii)
Liens set forth in Section 3.19(a) of the Company Disclosure Letter and (iii)
Liens which, individually or in the aggregate, have not resulted and would not
reasonably be expected to result in a Material Adverse Effect on the Company.
Except as disclosed in Section 3.19(a) of the Company Disclosure Letter, all
improvements on the real property owned or leased by the Company and the Company
Subsidiaries are in compliance with applicable zoning, building, wetlands and
land use laws, ordinances and regulations and applicable title covenants,
conditions, restrictions and reservations in all respects necessary to conduct
the business of the Company and the Company Subsidiaries as presently conducted
or proposed to be conducted on or prior to the Closing Date, except for any
instances of non-compliance which, individually or in the aggregate, have not
resulted and would not reasonably be expected to result in a Material Adverse
Effect on the Company. Except as disclosed in Section 3.19(a) of the Company
Disclosure Letter, all such improvements comply with all Laws and Company
Permits, except for any instances of non-compliance which, individually or in
the aggregate, have not resulted and would not reasonably be expected to result
in a Material Adverse Effect on the Company. Except as disclosed in Section
3.19(a) of the Company Disclosure Letter, all of the transmitting towers, ground
radials, guy anchors, transmitting buildings and related improvements, if any,
located on the real property owned or leased by the Company and the Company
Subsidiaries are located entirely on such real property or in areas where a
Company Subsidiary has a valid easement to locate such items, except for any
instances of non-compliance which, individually or in the aggregate, have not
resulted and would not reasonably be expected to result in a Material Adverse
Effect on the Company. Except as set forth in Section 3.19(a) of the Company
Disclosure Letter, such transmitting towers, ground radials, guy anchors,
transmitting buildings and related improvements and other material items of
personal property, including equipment, are in a state of repair and maintenance
and operating condition so as to permit the business of the Company and the
Company Subsidiaries to be operated in accordance with the terms and conditions
of all applicable Laws and Company Permits, except where the failure to be in
such repair or condition or to be so usable, individually or in the aggregate,
has not resulted and would not reasonably be expected to result in a Material
Adverse Effect on the Company.
<PAGE>
21
(b) Section 3.19(b) of the Company Disclosure Letter contains a
list of all Leases under which any real property used in the business of the
Company and the Company Subsidiaries is leased to the Company or any Company
Subsidiary by any person and indicates the entity that leases the real property.
Except as otherwise set forth in Section 3.19(b) of the Company Disclosure
Letter or as would not result in a Material Adverse Effect on the Company, each
Lease under which the Company or any Company Subsidiary holds real property
constituting a part of the Assets is in full force and effect, and the Company
or a Company Subsidiary has a valid leasehold interest in and enjoys peaceful
and undisturbed possession or a valid easement right under all Leases pursuant
to which it holds any such real property, subject to the terms of each Lease and
applicable Law and except for Permitted Liens and such other Liens as,
individually or in the aggregate, have not resulted and would not reasonably be
expected to result in a Material Adverse Effect on the Company. Neither the
Company nor, to the Company's knowledge, any other party thereto, has failed to
duly comply with all of the material terms and conditions of each such Lease or
has done or performed, or failed to do or perform (and no Claim is pending or,
to the knowledge of the Company, threatened to the effect that the Company has
not so complied, done and performed or failed to do and perform) any act which
would invalidate or provide grounds for the other party thereto to terminate
(with or without notice, passage of time or both) such Leases or impair the
rights or benefits, or increase the costs, of the Company under any of such
Leases in any material respect except, in each case, for such exceptions which
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect on the Company.
SECTION 3.20 BROKERS. No broker, finder or investment banker other
than the Company Financial Advisor is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger or the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Company. Prior to the date of this Agreement, the Company has made available
to the Parent a complete and correct copy of all agreements between the Company
and the Company Financial Advisor under which the Company Financial Advisor
would be entitled to any payment relating to the Merger or any other
transactions.
SECTION 3.21 CERTAIN STATUTES. The Board of Directors of the Company
has taken or will take all appropriate and necessary actions to ensure that the
restrictions on business combinations in Section 23B.19.040 of the BCA will not
have any effect on the Merger or the other transactions contemplated by this
Agreement. To the knowledge of the Company, no "fair price," "moratorium,"
"control share acquisition" or other similar state or federal anti-takeover
statute or regulation (each a "TAKEOVER STATUTE") is, as of the date of this
----------------
Agreement, applicable to the Merger or any other transactions contemplated by
this Agreement.
SECTION 3.22 INFORMATION. None of the information to be supplied by
the Company for inclusion or incorporation by reference in the Proxy Statement
or the Registration Statement will, in the case of the Registration Statement,
at the time
<PAGE>
22
it becomes effective and at the Effective Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated in that
Registration Statement or necessary to make the statements in that Registration
Statement not misleading, or, in the case of the Proxy Statement or any
amendments or supplements of the Proxy Statement, at the time of the mailing of
the Proxy Statement and any amendments or supplements of the Proxy Statement and
at the time of the Company Stockholders Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be stated in that
Proxy Statement or necessary in order to make the statements in that Proxy
Statement, in light of the circumstances under which they are made, not
misleading; provided, however, that no representation or warranty is made by the
Company with respect to statements made therein based on information supplied by
the Parent or the Merger Sub. The Proxy Statement (except for those portions of
the Proxy Statement that relate only to Parent or subsidiaries or affiliates of
the Parent) will comply as to form in all material respects with the provisions
of the Exchange Act.
SECTION 3.23 VOTE REQUIRED. The Requisite Company Vote is the only
vote of the holders of any class or series of the Company's capital stock
necessary (under the Company Charter Documents, the BCA, other applicable Law or
otherwise) to approve this Agreement, the Merger or the other transactions
contemplated by this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE PARENT AND MERGER SUB
Each of the Parent and Merger Sub represents and warrants to the
Company that:
SECTION 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
(a) Each of the Parent, Merger Sub, and each other
subsidiary of the Parent (collectively, the "PARENT SUBSIDIARIES") has been duly
-------------------
organized and is validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, and has
the requisite power and authority and all necessary governmental approvals to
own, lease and operate its properties and to carry on its business as it is now
being conducted, except where the failure to be so organized, existing or in
good standing or to have such power, authority and governmental approvals,
individually or in the aggregate, have not resulted and would not reasonably be
expected to result in a Material Adverse Effect on the Parent. Each of the
Parent, Merger Sub and each other Parent Subsidiary is duly qualified or
licensed to do business, and is in good standing, in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing
<PAGE>
23
necessary, except for such failures to be so qualified or licensed and in good
standing that, individually or in the aggregate, have not resulted and would not
reasonably be expected to result in a Material Adverse Effect on the Parent. For
purposes of this Agreement, "MATERIAL ADVERSE EFFECT ON THE PARENT" means any
-------------------------------------
change in or effect on the business, assets, properties, results of operations
or condition (financial or otherwise) of the Parent or any Parent Subsidiaries
that is or would reasonably be expected to be materially adverse to the Parent
and the Parent Subsidiaries, taken as a whole, or that would reasonably be
expected to materially impair the ability of the Parent or Merger Sub to perform
its obligations under this Agreement or to consummate transactions contemplated
hereby.
(b) Section 4.1(b) of the letter from the Parent, dated the
date hereof, addressed to the Company (the "PARENT DISCLOSURE LETTER") sets
------------------------
forth a complete and correct list of all of the Parent Subsidiaries. Neither the
Parent nor any Parent Subsidiary holds any interest in any other person other
than the Parent Subsidiaries so listed.
SECTION 4.2 CERTIFICATE OF INCORPORATION AND BY-LAWS. The copies of
the Parent's certificate of incorporation and by-laws, each as amended through
the date of this Agreement (collectively, the "PARENT CHARTER DOCUMENTS") that
------------------------
have heretofore been made available to the Company are complete and correct
copies of those documents. The Parent Charter Documents are in full force and
effect. The Parent is not in violation of any of the provisions of the Parent
Charter Documents.
SECTION 4.3 CAPITALIZATION.
(a) As of the date of this Agreement, the authorized
capital stock of the Parent consists of (i) 95,000,000 shares of Parent Common
Stock and (ii) 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 Convertible
------------------------
Preferred Stock ("SERIES C PREFERRED STOCK"). As of the Closing Date, the
------------------------
authorized capital stock of the Parent will consist of (i) 120,000,000 shares of
Parent Common Stock and (ii) 70,749,625 shares of preferred stock $0.001 par
value, consisting of 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. As of May 13, 1999, (A) 3,536,135 shares of Parent Common Stock,
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 were issued
and outstanding, all of which were validly issued and are fully paid,
nonassessable and not subject to preemptive rights, (B) no shares of Parent
Common Stock, Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock were held in the treasury of the Parent or by the Parent
Subsidiaries, (C) 4,100,000 shares of Company Common Stock were reserved for
issuance upon exercise of outstanding Company Stock Options and (D) an aggregate
of 70,749,625 shares of Parent Common Stock were reserved for issuance in
connection with the
<PAGE>
24
conversion of the Series A Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock. As of the date hereof, each share of Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock is convertible into
one share of Parent Common Stock. No adjustment to the conversion ratio of the
Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock
will occur as a result of the consummation of the Merger.
(b) Between December 31, 1998 and the date of this
Agreement, an aggregate of 1,578,500 options to purchase shares of Parent Common
Stock ("PARENT STOCK OPTIONS") have been granted by the Parent under the Parent
--------------------
Stock Option Plan (collectively, the "PARENT'S OPTION PLAN"). Except (i) for
--------------------
Parent Stock Options to purchase an aggregate of 4,100,000 shares of Parent
Common Stock outstanding or available for grant under the Parent's Option Plan
or (ii) under agreements or arrangements set forth in Section 4.3(b) of the
Parent Disclosure Letter, there are no options, warrants, conversion rights,
stock appreciation rights, redemption rights, repurchase rights or other rights,
agreements, arrangements or commitments of any character to which the Parent is
a party or by which the Parent is bound relating to the issued or unissued
capital stock of the Parent or any Parent Subsidiary or obligating the Parent or
any Parent Subsidiary to issue or sell any shares of capital stock of, or other
equity interests in, the Parent or any Parent Subsidiary.
(c) There are no outstanding contractual obligations of the
Parent or any Parent Subsidiary to repurchase, redeem or otherwise acquire any
shares of Parent Common Stock or any capital stock of any Parent Subsidiary.
Except as set forth in Section 4.3(c) of the Parent Disclosure Letter, each
outstanding share of capital stock of each Parent Subsidiary is duly authorized,
validly issued, fully paid, nonassessable and not subject to preemptive rights
and each such share owned by the Parent or a Parent Subsidiary is free and clear
of all Liens. There are no material outstanding contractual obligations of the
Parent or any Parent Subsidiary to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any Parent Subsidiary
that is not wholly owned by the Parent or in any other person.
(d) The authorized capital stock of Merger Sub consists of
1,000 shares of common stock, no par value ("SUB COMMON STOCK"). All of the
----------------
issued and outstanding shares of Sub Common Stock are (A) owned by the Parent or
another Parent Subsidiary wholly owned by the Parent and (B) duly authorized,
validly issued, fully paid and nonassessable.
SECTION 4.4 AUTHORITY. Each of the Parent and Merger Sub has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby to be consummated by it. The execution and delivery of this
Agreement by each of the Parent and Merger Sub and the consummation by each of
the Parent and Merger Sub of such transactions have been duly and validly
authorized by all
<PAGE>
25
necessary corporate action and no other corporate proceedings on the part of the
Parent or Merger Sub are necessary to authorize this Agreement or to consummate
such transactions; provided, however, that a filing to amend the certificate of
-------- -------
incorporation of the Parent prior to the Effective Time to increase the
authorized number of shares of Parent Common Stock as required in order to
effect the Merger will be made. This Agreement has been duly authorized and
validly executed and delivered by each of the Parent and Merger Sub and
constitutes a legal, valid and binding obligation of each of the Parent and
Merger Sub, enforceable against each of the Parent and Merger Sub in accordance
with its terms.
SECTION 4.5 NO CONFLICT. The execution and delivery of this
Agreement by the Parent and Merger Sub do not, and the performance of this
Agreement by each of the Parent and Merger Sub will not:
(a) conflict with or violate any provision of any Parent
Charter Document or any equivalent organizational documents of any Parent
Subsidiary;
(b) assuming that all consents, approvals, authorizations
and other actions described in Section 4.6 have been obtained and all filings
and obligations described in Section 4.6 have been made, conflict with or
violate any foreign or domestic Law applicable to the Parent, Merger Sub or any
other Parent Subsidiary or by which any property or asset of the Parent or any
Parent Subsidiary is or may be bound or affected, except for any such conflicts
or violations which, individually or in the aggregate, have not resulted and
would not reasonably be expected to result in a Material Adverse Effect on the
Parent; or
(c) result in any breach of or constitute a default (or an
event which with or without notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Parent, Merger Sub, or any other
Parent Subsidiary under, any Contract to which the Parent, Merger Sub or any
other Parent Subsidiary is a party or by which any of them or their assets or
Properties is or may be bound or affected, except for those which, individually
or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect on the Parent.
SECTION 4.6 REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by the Parent and Merger Sub do not, and the
performance of this Agreement by the Parent and Merger Sub will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Government Entity except (i) for applicable requirements of the Exchange
Act, applicable requirements of the Securities Act, applicable requirements of
Blue Sky Laws, the rules and regulations of the Nasdaq, applicable requirements
of Takeover Statutes, the obtaining of rulings or orders exempting the
distribution of Parent Common Stock in the Merger under applicable Canadian
securities laws, the
<PAGE>
26
pre-merger notification requirements of the HSR Act and the Competition Act
(Canada), the filing of a notice under the Investment Canada (Act) and for the
filing of the Articles of Merger as required by the BCA and the filing of an
amendment to the certificate of incorporation of the Parent to increase the
authorized number of shares of Parent Common Stock and (ii) where failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, individually or in the aggregate, have not resulted
and would not reasonably be expected to result in a Material Adverse Effect on
the Parent.
SECTION 4.7 PERMITS; COMPLIANCE WITH LAW. Each of the Parent and
the Parent Subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders of any Governmental Entity (collectively, the
"PARENT PERMITS") that are material to the conduct of the business of the Parent
--------------
and the Parent Subsidiaries taken as a whole, and no suspension or cancellation
of any of the Parent Permits that are material to the conduct of the business of
the Parent and the Parent Subsidiaries taken as a whole is pending or, to the
knowledge of the Parent, threatened. Neither the Parent nor any Parent
Subsidiary is in conflict with, or in default or violation of, (i) any Law
applicable to the Parent or any Parent Subsidiary or by which any property or
asset of the Parent or any Parent Subsidiary is or may be bound or affected or
(ii) any Parent Permits, except for any such conflicts, defaults or violations
that, individually or in the aggregate, have not resulted and would not
reasonably be expected to result in a Material Adverse Effect on the Parent.
SECTION 4.8 2008 PROSPECTUS; FINANCIAL STATEMENTS.
(a) The prospectus (the "2008 PROSPECTUS") contained in
Amendment No. 3 to the Parent's Registration Statement on Form S-4 covering the
Parent's 12% Senior Discount Notes due 2008, as filed with the SEC on April 29,
1999, including any financial statements or schedules included therein, did not,
at such date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated or necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading.
(b) Each of the audited consolidated balance sheets
(including the related notes and schedules) of the Parent as of December 31,
1998 and December 31, 1997, copies of which are included in the 2008 Prospectus,
fairly presented, in all material respects, the consolidated financial position
of the Parent as of the dates set forth in those consolidated balance sheets.
Each of the consolidated statements of operations, redeemable convertible
preferred stock and shareholders' deficiency and cash flows (including any
related notes and schedules), copies of which are included in the 2008
Prospectus, for the year ended December 31, 1998 and for the period from April
25, 1997 (inception) to December 31, 1997 presented the consolidated results of
operations and cash flows, as the case may be, of the Parent and the
consolidated Parent Subsidiaries for the periods set forth in those consolidated
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27
statements of income and of cash flows, in each case in conformity with GAAP
consistently applied throughout the periods indicated.
SECTION 4.9 NEXTEL TOWER ACQUISITION. As described in the 2008
Prospectus, the Parent completed the "Nextel Tower Acquisition" on April 20,
1999. Since April 20, 1999, there has not been (a) any Material Adverse Effect
on the Parent; or (b) any damage, destruction or other casualty loss with
respect to any asset or property owned, leased or otherwise used by the Parent
or any of the Parent Subsidiaries, whether or not covered by insurance, which
damage, destruction or loss, individually or in the aggregate, has resulted or
would reasonably be expected to result in a Material Adverse Effect on the
Parent.
SECTION 4.10 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.
(a) Section 4.10(a) of the Parent Disclosure Letter
identifies each material plan, policy, fund, program or contract or arrangement
(whether or not written) providing for compensation, bonus, profit-sharing,
stock option, or other stock related rights or other forms of incentive or
deferred compensation, vacation benefits, insurance coverage (including any
self-insured arrangements) health or medical benefits, disability benefits,
worker's compensation, supplemental unemployment benefits, severance benefits
and post-employment or retirement benefits (including compensation, pension,
health, medical or life insurance or other benefits) under which the Parent or
any Parent Subsidiary has or in the future could have any material liability,
including any material liability as a result of being a single employer under
Section 414 of the Code ("PARENT BENEFIT PLANS"). There is no Parent Benefit
--------------------
Plan which (i) is a multiemployer plan (within the meaning of Section 3(37) of
ERISA) or (ii) is a Title IV Plan.
(b) The Parent has made available to the Company copies
of the Parent Benefit Plans (and, if applicable, related trust agreements) and
all amendments thereto and written interpretations thereof together with the
most recent annual report (Form 5500 including, if applicable, Schedule B
thereto), the most recent actuarial valuation report prepared in connection with
any Parent Benefit Plan, and the most recent Internal Revenue Service
determination letter received with respect to any Parent Benefit Plan.
(c) Each Parent Benefit Plan that is intended to be
qualified under Section 401(a) of the Code is so qualified and has been so
qualified during the period since its adoption; each trust created under any
such Plan is exempt from tax under Section 501(a) of the Code and has been so
exempt since its creation and nothing has occurred with respect to the operation
of any Parent Benefit Plan which would cause the loss of such qualification or
exemption. Each Parent Benefit Plan has been maintained in substantial
compliance with its terms and with the requirements prescribed by any and all
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Code and no transaction
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28
prohibited by Section 406 of ERISA or Section 4975 of the Code, has occurred
with respect to any Benefit Plan except as has not resulted or could not
reasonably expected to result, individually or in the aggregate, in a Material
Adverse Effect on the Parent.
(d) Neither the Parent nor any Parent Subsidiary has any
material current or projected liability in respect of post-employment or post-
retirement health or medical or life insurance benefits for retired, former or
current employees of the Parent or any Parent Subsidiary, except as required
under applicable law.
(e) There are no unfunded obligations under any Benefit
Plan which are not fully reflected on the most recent financial statements of
the Parent.
SECTION 4.11 TAX MATTERS. Neither the Parent nor Merger Sub, nor to
the knowledge of the Parent, any of Parent's affiliates has taken or agreed to
take any action, nor is the Parent aware of any agreement, plan or other
circumstance, that would prevent the Merger from constituting a transaction
qualifying as a reorganization under Section 368(a) of the Code.
SECTION 4.12 CONTRACTS; DEBT INSTRUMENTS. Neither the Parent nor
any Parent Subsidiary is in violation of or in default under (nor does there
exist any condition which with the passage of time or the giving of notice would
cause such a violation of or default under) any Contract to which it is a party
or by which it or any of its properties or assets is or may be bound or
affected, except for violations or defaults that, individually or in the
aggregate, have not resulted and would not reasonably be expected to result in a
Material Adverse Effect on the Parent.
SECTION 4.13 LITIGATION. There is no Claim pending or, to the
knowledge of the Parent, threatened against the Parent or any Parent Subsidiary
before any Governmental Entity that, individually or in the aggregate, has
resulted or would reasonably be expected to result in a Material Adverse Effect
on the Parent. Neither the Parent nor any Parent Subsidiary is subject to any
outstanding order, writ, injunction or decree which, individually or in the
aggregate, has resulted or would reasonably be expected to result in a Material
Adverse Effect on the Parent.
SECTION 4.14 ENVIRONMENTAL MATTERS.
(a) Except as set forth in Section 4.14(a) of the Parent
Disclosure Letter, (i) each of the Parent and the Parent Subsidiaries is in
compliance with all Environmental Laws, except for instances of non-compliance
that could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect on the Parent, which compliance includes,
but is not limited to, the possession by the Parent and the Parent Subsidiaries
of all material permits and other governmental authorizations required under
applicable Environmental Laws for the
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29
conduct of the Parent's business, and compliance with the terms and conditions
thereof; (ii) none of the Parent or the Parent Subsidiaries has received written
notice of, or, to the knowledge of the Parent, is threatened with or the subject
of, any Environmental Claim except with respect to Environmental Claims which
would not reasonably be expected to, individually or in the aggregate, result in
a Material Adverse Effect on the Parent; and (iii) to the knowledge of the
Parent, there are no circumstances that are reasonably likely to prevent or
interfere with such material compliance or lead to such an Environmental Claim
in the future.
(b) There is no condition on, in or under any property
currently or formerly owned, leased or operated by the Parent or any Parent
Subsidiary in violation of, or for which there is an obligation under,
Environmental Laws where such violation or obligation is reasonably likely to
result in a Material Adverse Effect on the Parent.
SECTION 4.15 TAXES. The Parent and the Parent Subsidiaries have
filed all material Tax returns and reports to be filed by them and have paid, or
established adequate reserves for, all Taxes required to be paid by them. No
deficiencies for any material Taxes have been proposed, asserted or assessed
against the Parent or any Parent Subsidiaries, and no requests for waivers of
the time to assess any such Taxes are pending.
SECTION 4.16 BROKERS. No broker, finder or investment banker
other than Goldman, Sachs & Co. is entitled to any brokerage, finder's or other
fee or commission in connection with the Merger or the other transactions
contemplated hereby based upon arrangements made by or on behalf of the Parent
or Merger Sub.
SECTION 4.17 INFORMATION. None of the information to be supplied
by the Parent or Merger Sub for inclusion or incorporation by reference in the
Registration Statement or the Proxy Statement will, in the case of the
Registration Statement, at the time it becomes effective and at the Effective
Time, contain any untrue statement of a material fact or omit to state any
material fact required to be stated in that Registration Statement or necessary
to make the statements in that Registration Statement not misleading, or, in the
case of the Proxy Statement or any amendments thereof or supplements thereto, at
the time of the mailing of the Proxy Statement and any amendments or supplements
thereto and at the time of the Company Stockholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated in that Proxy Statement or necessary in order to make the statements in
that Proxy Statement, in light of the circumstances under which they are made,
not misleading; provided, however, that no representation or warranty is made by
the Parent or the Merger Sub with respect to statements made therein based on
information supplied by the Company. The Registration Statement will comply as
to form in all material respects with the provisions of the Securities Act.
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30
SECTION 4.18 INTERIM OPERATIONS OF MERGER SUB. Merger Sub was
formed solely for the purpose of engaging in the transactions contemplated by
this Agreement and has not engaged in any business activities or conducted any
operations other than in connection with the transactions contemplated by this
Agreement.
SECTION 4.19 TITLE TO PROPERTIES; LEASES.
(a) The Parent and the Parent Subsidiaries have good
indefeasible, marketable and insurable title to all of their Real Property
(other than leasehold real property) and good title to all of its other Assets
that are material to the business of the Parent and the Parent Subsidiaries
taken as a whole; all of the Assets are so owned, in each case, free and clear
of all Liens, except (i) Permitted Liens, (ii) Liens set forth in Section
4.19(a) of the Parent Disclosure Letter and (iii) Liens which, individually or
in the aggregate, have not resulted and would not be expected to result in a
Material Adverse Effect on the Parent. Except as disclosed in Section 4.19(a) of
the Parent Disclosure Letter, all improvements on the real property owned or
leased by the Parent and the Parent Subsidiaries are in compliance with
applicable zoning, building, wetlands and land use laws, ordinances and
regulations and applicable title covenants, conditions, restrictions and
reservations in all respects necessary to conduct the business of the Parent and
the Parent Subsidiaries as presently conducted or proposed to be conducted on or
prior to the Closing Date, except for any instances of non-compliance which,
individually or in the aggregate, have not resulted and would not reasonably be
expected to result in a Material Adverse Effect on the Parent. Except as
disclosed in Section 4.19(a) of the Parent Disclosure Letter, all such
improvements comply with all Laws and Parent Permits, except for any instances
of non-compliance which, individually or in the aggregate, have not resulted and
would not reasonably be expected to result in a Material Adverse Effect on the
Parent. Except as disclosed in Section 4.19(a) of the Parent Disclosure Letter,
all of the transmitting towers, ground radials, guy anchors, transmitting
buildings and related improvements, if any, located on the real property owned
or leased by the Parent and the Parent Subsidiaries are located entirely on such
real property or in areas where a Parent Subsidiary has a valid easement to
locate such items, except for any instances of non-compliance which,
individually or in the aggregate, have not resulted and would not reasonably be
expected to result in a Material Adverse Effect on the Parent. Except as set
forth in Section 4.19(a) of the Parent Disclosure Letter, such transmitting
towers, ground radials, guy anchors, transmitting buildings and related
improvements and other material items of personal property, including equipment,
are in a state of repair and maintenance and operating condition so as to permit
the business of the Parent and the Parent Subsidiaries to be operated in
accordance with the terms and conditions of all applicable Laws and Parent
Permits, except where the failure to be in such repair or condition or to be so
usable, individually or in the aggregate, has not resulted and would not
reasonably be expected to result in a Material Adverse Effect on the Parent.
(b) Except as otherwise set forth in Section 4.19(b) of
the Parent Disclosure Letter or as would not result in a Material Adverse Effect
on the
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31
Parent, each Lease under which the Parent or any Parent Subsidiary holds real
property constituting a part of the Assets is in full force and effect and the
Parent or a Parent Subsidiary has a valid leasehold interest in and enjoys
peaceful and undisturbed possession or a valid easement right under all Leases
pursuant to which it holds any such real property, subject to the terms of each
Lease and applicable Law and except for Permitted Liens and such other Liens as,
individually or in the aggregate, have not resulted and would not reasonably be
expected to result in a Material Adverse Effect on the Parent. Neither the
Parent nor, to the Parent's knowledge, any other party thereto, has failed to
duly comply with all of the material terms and conditions of each such Lease or
has done or performed, or failed to do or perform (and no Claim is pending or,
to the knowledge of the Parent, threatened to the effect that the Parent has not
so complied, done and performed or failed to do and perform) any act which would
invalidate or provide grounds for the other party thereto to terminate (with or
without notice, passage of time or both) such Leases or impair the rights or
benefits, or increase the costs, of the Parent under any of such Leases in any
material respect except, in each case, for such exceptions which individually or
in the aggregate, have not had and would not reasonably be expected to have a
Material Adverse Effect on the Parent.
ARTICLE 5
COVENANTS
SECTION 5.1 Conduct Of Business Of The Company. Except as
contemplated by this Agreement or with the prior written consent of the Parent,
during the period from the date of this Agreement to the Effective Time, the
Company will, and will cause each of the Company Subsidiaries to, conduct its
operations only in the ordinary course of business consistent with past practice
and will use its reasonable best efforts to, and to cause each Company
Subsidiary to, preserve intact the business organization of the Company and each
of the Company Subsidiaries, to keep available the services of the present
officers and key employees of the Company and the Company Subsidiaries, and to
preserve the good will of customers, suppliers and all other persons having
business relationships with the Company and the Company Subsidiaries. Without
limiting the generality of the foregoing, and except as otherwise contemplated
by this Agreement or disclosed in the Company Disclosure Letter, prior to the
Effective Time, the Company will not, and will not permit any Company Subsidiary
to, without the prior written consent of the Parent:
(a) adopt any amendment to the Company Charter Documents
or the comparable organizational documents of any Company Subsidiary;
(b) except for issuances of capital stock of Company
Subsidiaries to the Company or a wholly owned Company Subsidiary, issue, reissue
or sell, or authorize the issuance, reissuance or sale of (i) additional shares
of capital
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32
stock of any class, or securities convertible into capital stock of any class,
or any rights, warrants or options to acquire any convertible securities or
capital stock, other than the issue of Company Shares, in accordance with the
terms of the instruments governing such issuance as in effect on the date hereof
and described in Section 3.3(b) of the Company Disclosure Letter, and pursuant
to the exercise of Company Stock Options outstanding on the date hereof, or (ii)
any other securities in respect of, in lieu of, or in substitution for, Company
Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other
distribution (whether in cash, securities or property or any combination
thereof) in respect of any class or series of its capital stock other than
between the Company and any wholly owned Company Subsidiary;
(d) split, combine, subdivide, reclassify or redeem,
purchase or otherwise acquire, or propose to redeem or purchase or otherwise
acquire, any shares of its capital stock, or any of its other securities;
(e) except for increases in salary, wages and benefits of
officers or employees of the Company or the Company Subsidiaries in the ordinary
course of business and consistent with past practice, increase the compensation
or fringe benefits payable or to become payable to its directors, officers or
employees (whether from the Company or any Company Subsidiaries), or pay any
benefit not required by any existing plan or arrangement (including the granting
of stock options, stock appreciation rights, shares of restricted stock or
performance units) or grant any severance or termination pay to (except pursuant
to existing agreements, plans or policies), or enter into any employment or
severance agreement with, any director, officer or other employee of the Company
or any Company Subsidiaries or establish, adopt, enter into, or amend any
collective bargaining, bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, savings, welfare, deferred
compensation, employment, termination, severance or other employee benefit plan,
agreement, trust, fund, policy or arrangement for the benefit or welfare of any
directors, officers or current or former employees, except in each case to the
extent required by applicable Law; provided, however, that nothing in this
Agreement will be deemed to prohibit the payment of benefits as they become
payable;
(f) except in connection with the Pending Transactions,
acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of
(whether by merger, consolidation, purchase, sale or otherwise) any assets,
including capital stock of Company Subsidiaries (other than the acquisition and
sale of inventory or the disposition of used or excess equipment and the
purchase of raw materials, supplies and equipment, in either case in the
ordinary course of business consistent with past practice), or enter into any
material commitment or transaction outside the ordinary course of business,
other than transactions between a wholly owned Company Subsidiary and the
Company or another wholly owned Company Subsidiary;
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33
(g) (i) incur, assume or prepay any long-term indebtedness
or incur or assume any short-term indebtedness (including, in either case, by
issuance of debt securities), except that the Company and the Company
Subsidiaries may (x) incur or prepay indebtedness in the ordinary course of
business consistent with past practice under existing lines of credit and (y)
assume or incur indebtedness in connection with the consummation of the Pending
Transactions (so long as such assumed indebtedness was not created in
contemplation of such Pending Transaction and such incurred or assumed
indebtedness is repayable at any time without penalty or premium and is
consented to by Parent), (ii) assume, guarantee, endorse or otherwise become
liable or responsible (whether directly, contingently or otherwise) for the
obligations of any other person except in the ordinary course of business, or
(iii) make any loans, advances or capital contributions to, or investments in,
any other person except in the ordinary course of business and except for loans,
advances, capital contributions or investments between any wholly owned Company
Subsidiary; or
(h) terminate, cancel or request any material change in, or
agree to any material change in any Contract which is material to the Company
and the Company Subsidiaries taken as a whole, or enter into any Contract which
would be material to the Company and the Company Subsidiaries taken as a whole,
in either case other than in connection with Pending Transactions or in the
ordinary course of business consistent with past practice; or make any capital
expenditure, other than capital expenditures in connection with the Pending
Transactions or that are made in the ordinary course of business consistent with
past practice;
(i) take any action with respect to accounting policies or
procedures, other than actions in the ordinary course of business and
consistent with past practice or as required pursuant to applicable Law or
GAAP;
(j) waive, release, assign, settle or compromise any
material rights, claims or litigation;
(k) make any Tax election (except elections under Section
85(1) of the Income Tax Act (Canada) with respect to transfers of assets among
Company Subsidiaries) or settle or compromise any material federal, state, local
or foreign income Tax liability;
(l) amend or waive or agree to amend or waive any provision
of that certain agreement, dated the date of this Agreement, between BET
Associates, L.P. and the Company, referred to in Section 6.2(i) of this
Agreement; or
(m) authorize or enter into any formal or informal binding
written or other agreement or otherwise make any binding commitment to do any
of the foregoing.
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Section 5.2 Certain Interim Operations Of The Parent. The Parent
covenants and agrees that, except as expressly provided in this Agreement,
during the term of this Agreement, without the prior written consent of the
Company, the Parent will not, and will cause the Parent Subsidiaries not to:
(a) unless an appropriate adjustment is concurrently made
to the Exchange Ratio in accordance with Section 2.4 of this Agreement directly
or indirectly, split, combine or reclassify the outstanding the Parent Common
Stock; or
(b) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to its capital
stock other than dividends or other distributions paid by any Parent Subsidiary
to the Parent or other Parent Subsidiaries.
Section 5.3 Other Actions. During the period from the date hereof
to the Effective Time, the Company and the Parent shall not, and shall not
permit any of their respective subsidiaries to, take any action that would, or
that would reasonably be expected to, result in any of the conditions to the
Merger set forth in Article 6 hereof not being satisfied or satisfaction thereof
being delayed.
Section 5.4 Notification Of Certain Matters. The Parent and the
Company shall promptly notify each other of (a) the occurrence or non-occurrence
of any fact or event which would reasonably be expected (i) to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Effective Time, (ii) to cause any covenant, condition or agreement hereunder not
to be complied with or satisfied in all material respects or (iii) to result in,
in the case of Parent, a Material Adverse Effect on the Parent; and, in the case
of the Company, a Material Adverse Effect on the Company, (b) any failure of the
Company or the Parent, as the case may be, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder in any material respect; provided, however, that no such notification
shall affect the representations or warranties of any party or the conditions to
the obligations of any party hereunder, (c) any notice or other material
communications from any Governmental Entity in connection with the transactions
contemplated by this Agreement and (d) the commencement of any suit, action or
proceeding that seeks to prevent or seek damages in respect of, or otherwise
relates to, the consummation of the transactions contemplated by this Agreement.
Section 5.5 Proxy Statement .
(a) As promptly as practicable after the execution of this
Agreement, the Parent and the Company shall jointly prepare and file with the
SEC a single document that will constitute (i) the proxy statement of the
Company relating to the special meeting of the Company's stockholders (the
"COMPANY STOCKHOLDERS MEETING") to be held to consider approval and adoption
- ----------------------------
of this Agreement and the Merger and (ii) the registration statement on Form S-4
of the Parent (together with all
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35
amendments thereto, the "REGISTRATION STATEMENT"), in connection with the
----------------------
registration under the Securities Act of the Parent Common Stock to be issued to
the stockholders of the Company in connection with the Merger and the prospectus
included in the Registration Statement (such single document, together with any
amendments thereof or supplements thereto, the "PROXY STATEMENT").
----------------
Substantially contemporaneously with the filing of thedefinitive Proxy Statement
with the SEC, copies of the definitive Proxy Statement shall be provided to the
Amex and the Nasdaq. The Parent and the Company each shall use its reasonable
best efforts to cause the Registration Statement to become effective as promptly
as practicable, and, prior to the effective date of the Registration Statement
(the "REGISTRATION STATEMENT EFFECTIVE DATE"), the Parent shall take all or any
--------------------------------------
action required under any applicable Law in connection with the issuance of
Parent Common Stock pursuant to the Merger. The Parent or the Company, as the
case may be, shall furnish all information concerning the Parent or the Company
as the other party may reasonably request in connection with such actions and
the preparation of the Proxy Statement. As promptly as practicable after the
Registration Statement Effective Date, the proxy statement[s] and prospectus
included in the Proxy Statement (collectively, the "PROXY MATERIALS") will be
---------------
mailed to the stockholders of the Company. The Parent and the Company shall
cause the Proxy Statement to comply as to form and substance in all material
respects with the applicable requirements of (i) the Exchange Act, including
Sections 14(a) and 14(d) thereof and the respective regulations promulgated
thereunder, (ii) the Securities Act, (iii) the rules and regulations of the Amex
and the Nasdaq and (iv) the BCA.
(b) The Proxy Statement shall include the unanimous and
unconditional recommendation of the Board of Directors of the Company to the
stockholders of the Company that they vote in favor of the adoption of this
Agreement and the Merger, except to the extent that the Board of Directors of
the Company shall have withdrawn or modified its approval or recommendation of
this Agreement or the Merger and terminated this Agreement in accordance with
Sections 5.8(c) and 7.1(g).
(c) No amendment or supplement to the Proxy Statement will be
made without the approval of each of the Parent and the Company, which approval
shall not be unreasonably withheld or delayed. Each of the Parent and the
Company will advise the other, promptly after it receives notice thereof, of the
time when the Registration Statement has become effective or any supplement or
amendment has been filed, of the issuance of any stop order, of the suspension
of the qualification of Parent Common Stock issuable in connection with the
Merger for offering or sale in any jurisdiction, or of any request by the SEC or
the Amex or the Nasdaq for amendment of the Proxy Statement or comments thereon
and responses thereto or requests by the SEC for additional information.
(d) The information supplied by the Company for inclusion in
the Proxy Statement shall not, at (i) the time the Registration Statement is
declared effective, (ii) the time the Proxy Materials (or any amendment thereof
or supplement thereto) is first mailed to the stockholders of the Company, (iii)
the time of the
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36
Company Stockholders' Meeting, and (iv) the Effective Time, contain any untrue
statement of a material fact or fail to state any material fact required to be
stated in the Proxy Statement or necessary in order to make the statements in
the Proxy Statement not misleading. If at any time prior to the Effective Time
any event or circumstance relating to the Company or any Company Subsidiary, or
their respective officers or directors, should be discovered by the Company that
should be set forth in an amendment or a supplement to the Proxy Statement, the
Company shall promptly inform the Parent. All documents that the Company is
responsible for filing with the SEC in connection with the transactions
contemplated hereby will comply as to form and substance in all material
respects with the applicable requirements of the BCA, the Securities Act and the
Exchange Act.
(e) The information supplied by the Parent for inclusion in
the Proxy Statement shall not, at (i) the time the Registration Statement is
declared effective, (ii) the time the Proxy Materials (or any amendment of or
supplement to the Proxy Materials) are first mailed to the stockholders of the
Company, (iii) the time of the Company Stockholders Meeting, and (iv) the
Effective Time, contain any untrue statement of a material fact or fail to state
any material fact required to be stated in the Proxy Statement or necessary in
order to make the statements in the Proxy Statement not misleading. If, at any
time prior to the Effective Time, any event or circumstance relating to the
Parent or any Parent Subsidiary, or their respective officers or directors,
should be discovered by the Parent that should be set forth in an amendment or a
supplement to the Proxy Statement, the Parent shall promptly inform the Company.
All documents that the Parent is responsible for filing in connection with the
transactions contemplated by this Agreement will comply as to form and substance
in all material aspects with the applicable requirements of the BCA, the
Securities Act and the Exchange Act.
Section 5.6 Stockholders' Meeting.
The Company shall call and hold the Company Stockholders Meeting as
promptly as practicable after the Registration Statement Effective Date for the
purpose of voting upon the adoption of this Agreement and the Parent and the
Company will cooperate with each other to cause the Company Stockholders Meeting
to be held as soon as practicable following the mailing of the Proxy Materials
to the stockholders of the Company. The Company shall use its reasonable best
efforts (through its agents or otherwise) to solicit from its stockholders
proxies in favor of the adoption of this Agreement, and shall take all other
action necessary or advisable to secure the Requisite Company Vote, except to
the extent that the Board of Directors of the Company determines in good faith
that doing so would cause the Board of Directors of the Company to breach its
fiduciary duties to the Company's Stockholders under applicable Law after
receipt of advice from independent legal counsel (which may be the Company's
regularly engaged independent legal counsel).
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37
Section 5.7 Access To Information; Confidentiality.
(a) Except as required under any confidentiality agreement
or similar agreement or arrangement to which the Parent or the Company or any of
their respective subsidiaries is a party or under applicable Law or the
regulations or requirements of any securities exchange or quotation service or
other self regulatory organization with whose rules the parties are required to
comply, from the date of this Agreement to the Effective Time, the Parent and
the Company shall (and shall cause their respective subsidiaries to): (i)
provide to the other (and its officers, directors, employees, accountants,
consultants, legal counsel, financial advisors, investment bankers, agents and
other representatives (collectively, "REPRESENTATIVES")) access at reasonable
times upon prior notice to the officers, employees, agents, properties, offices
and other facilities of the other and its subsidiaries and to the books and
records thereof; and (ii) furnish promptly such information concerning the
business, properties, Contracts, assets, liabilities, personnel and other
aspects of the other party and its subsidiaries as the other party or its
Representatives may reasonably request. No investigation conducted under this
Section 5.7 shall affect or be deemed to modify any representation or warranty
made in this Agreement.
(b) The parties shall comply with, and shall cause their
respective Representatives to comply with, all of their respective obligations
under the Confidentiality Agreement, dated March 26, 1999 (the "CONFIDENTIALITY
---------------
AGREEMENT"), between Spectrasite Communications, Inc. and the Company with
- ---------
respect to the information disclosed under this Section 5.7.
Section 5.8 No Solicitation.
(a) From the date hereof until the termination of this
Agreement, except as permitted hereby, the Company shall not, nor shall it
permit any Company Subsidiary, or any officer, director, employee, agent or
representative of the Company or a Company Subsidiary (including, without
limitation, any investment banker, attorney or accountant retained by the
Company or a Company Subsidiary), to, directly or indirectly, (i) initiate,
solicit or knowingly encourage any inquiries, offers or proposals that
constitute, or would reasonably be expected to lead to, a proposal or offer for
(x) any merger, consolidation, share exchange, recapitalization, business
combination or similar transaction, (y) any sale, lease, exchange, mortgage,
transfer or other disposition, in a single transaction or series of related
transactions, of assets representing 20% or more of the assets of the Company
and the Company Subsidiaries, taken as a whole, or (z) sale of shares of capital
stock representing, individually or in the aggregate, 20% or more of the voting
power of the Company other than to the Company or a Company Subsidiary,
including, without limitation, by way of a tender offer or exchange offer by any
person (other than the Company or a Company Subsidiary) for shares of capital
stock representing 20% or more of the voting power of the Company (any of the
foregoing inquiries, offers or proposals being referred to in this Agreement as
an "ACQUISITION PROPOSAL"), (ii) engage in negotiations or discussions
--------------------
concerning, or provide to any person or
<PAGE>
38
entity any information or data relating to the Company or any Company
Subsidiary for the purposes of making, or take any other action to facilitate,
any Acquisition Proposal, (iii) agree to, approve or recommend any Acquisition
Proposal or (iv) take any other action materially inconsistent with the
obligations and commitments assumed by the Company pursuant to this Section 5.8;
provided, however, that, subject to the Company's compliance with this Section
5.8, nothing contained in this Agreement shall prevent the Company or its Board
of Directors from, prior to receipt of the Requisite Company Vote, (A) entering
into a definitive agreement providing for the implementation of a Superior
Proposal (as defined below) if the Company or the Board of Directors is
simultaneously terminating this Agreement pursuant to Section 7.1(g), (B)
furnishing non-public information to, entering into customary confidentiality
agreements with, or entering into discussions or negotiations with, any person
or entity in connection with an unsolicited bona fide written Acquisition
Proposal to the Company or its stockholders, if the Board of Directors of the
Company, by action of a majority of the entire Board of Directors of the
Company, determines in good faith after consultation with the Company Financial
Advisor or other nationally-recognized independent financial advisors that such
Acquisition Proposal, if accepted, constitutes, or is reasonably likely to lead
to, a Superior Proposal or (C) taking and disclosing to its stockholders a
position with respect to such Acquisition Proposal contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or making any other public disclosure that,
in the opinion of the Company's counsel, is required by or advisable under
applicable Law, provided, further, that except as otherwise permitted in this
Section 5.8, the Company does not withdraw or modify, or propose to withdraw or
modify, its position with respect to the Merger or approve or recommend, or
propose to approve or recommend, an Acquisition Proposal. For purposes of this
Agreement, "SUPERIOR PROPOSAL" means a bona fide written Acquisition Proposal on
-----------------
terms which a majority of the members of the Board of Directors of the Company
determine in their good faith judgment (after consultation with the Company
Financial Advisor or other nationally-recognized independent financial advisors)
and after taking into account all legal, financial, regulatory and other
material aspects of the Acquisition Proposal, and the person making the
proposal, to be more favorable from a financial point of view to the Company's
stockholders than the Merger, and for which the Board of Directors of the
Company determines in their good faith judgment (after such consultation) that
financing, to the extent required, is then committed or reasonably likely to be
available. The Company will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing, and will promptly inform the
individuals or entities referred to in the first sentence of this Section 5.8(a)
of the obligations undertaken in this Section 5.8(a). For purposes of this
Agreement, an Acquisition Proposal shall not be deemed to exist solely as a
result of a person filing a report on Schedule 13G to report ownership of the
Company Common Stock.
(b) The Company shall (i) promptly notify the Parent orally
and in writing after receipt by the Company (or its advisors) of any Acquisition
Proposal or any inquiries indicating that any person is considering making or
wishes
<PAGE>
39
to make, or which would reasonably be expected to lead to, an Acquisition
Proposal, including the material terms and conditions thereof and, subject to
the fiduciary duties of the Board of Directors of the Company under applicable
law, the identity of the person making it, (ii) promptly notify the Parent
orally and in writing after receipt of any request for non-public information
relating to it or any of the Company Subsidiaries or for access to its or any of
the Company Subsidiaries' properties, books or records by any person that, to
the Company's knowledge, may be considering making, or has made, an Acquisition
Proposal, (iii) receive from any person who may make or has made an Acquisition
Proposal and that requests non-public information relating to the Company and/or
any Company Subsidiary, an executed confidentiality letter in reasonably
customary form and containing terms that are as stringent in all material
respects as those contained in the Confidentiality Agreement prior to delivery
of any such non-public information, and (iv) keep the Parent advised on a prompt
basis of the status of any such Acquisition Proposal, indication or request
(including any material changes to the terms and conditions of any Acquisition
Proposal).
(c) The Company Board will not withdraw or modify, or propose
to withdraw or modify, in any manner adverse to Parent, its approval or
recommendation of this Agreement or the Merger except in connection with a
Superior Proposal and then only upon or after the termination of this Agreement
pursuant to Section 7.1(g).
Section 5.9 Employee Benefits Matters.
(a) In the event that any employee of the Company or a Company
Subsidiary is at any time after the Effective Time transferred to the Parent or
any affiliate of the Parent or becomes a participant in an employee benefit
plan, program or a arrangement maintained by or contributed to by the Parent or
any affiliate of the Parent, the Parent shall cause such plan, program or
arrangement to treat the prior service of such employee with the Company and the
Company Subsidiaries, to the extent prior service is generally recognized, as
service rendered to the Parent or such affiliates for purposes of eligibility
and vesting. The Parent shall cause to be waived any pre-existing condition
limitation under its welfare plans that might otherwise apply to such employee.
The Parent agrees to recognize (or cause to be recognized) the dollar amount of
all expenses incurred by such employees during the calendar year in which the
Effective Time occurs for purposes of satisfying the calendar year deductibles
and co-payment limitations for such year under the relevant benefit plans of the
Parent and the Parent Subsidiaries.
(b) Promptly following the Effective Time, Parent shall take all
actions reasonably necessary to cause the shares of Parent Common Stock issuable
upon exercise of the Converted Stock Options to be registered under the
Securities Act.
<PAGE>
40
Section 5.10 Directors' And Officers' Indemnification And Insurance.
(a) The Parent agrees that all rights to indemnification
now existing in favor of any employee, agent, director or officer of the Company
and the Company Subsidiaries as provided in their respective charters or by-laws
as in effect on the date hereof shall survive the Merger and shall continue in
full force and effect for a period of not less than six years from the Effective
Time; provided that in the event any claim or claims are asserted or made within
such six-year period, all rights to indemnification in respect of any such claim
or claims shall continue until final disposition of any and all such claims.
(b) The Parent agrees that the Company and, from and after
the Effective Time, the Surviving Corporation shall cause to be maintained in
effect for not less than three years from the Effective Time the current
policies of the directors' and officers' liability insurance maintained by the
Company; provided that the Surviving Corporation may substitute therefor
policies of at least the same coverage containing terms and conditions which are
no less advantageous; and provided, further, that the Surviving Corporation
shall not be required to pay an annual premium in excess of 125% of the last
annual premium paid by the Company prior to the date hereof and if the Surviving
Corporation is unable to obtain the insurance required by this Section 5.10(b)
it shall obtain as much comparable insurance as possible for an annual premium
equal to such maximum amount.
Section 5.11 Letters Of Accountants.
(a) The Company shall use its reasonable best efforts to
cause to be delivered to the Parent "comfort" letters of PricewaterhouseCoopers
LLP, the Company's independent public accountants, dated and delivered on the
Registration Statement Effective Date and as of the Effective Time, and
addressed to the Parent and reasonably customary in scope and substance for
letters delivered by independent public accountants in connection with
transactions contemplated hereby.
(b) The Parent shall use its reasonable best efforts to
cause to be delivered to the Company "comfort" letters of Ernst & Young LLP, the
Parent's independent public accountants, dated and delivered the Registration
Statement Effective Date and as of the Effective Time, and addressed to the
Company and reasonably customary in scope and substance for letters delivered by
independent public accountants in connection with transactions contemplated
hereby.
Section 5.12 Reasonable Best Efforts. Subject to the terms and
conditions provided in this Agreement and to applicable legal requirements, 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, in the case of
the Company, consistent with the fiduciary duties of the Company's Board of
Directors, and to assist and cooperate with the other parties hereto in doing,
as promptly as practicable, all
<PAGE>
41
things necessary, proper or advisable under applicable laws and regulations to
ensure that the conditions set forth in Article 6 are satisfied and to
consummate and make effective the transactions contemplated by this Agreement.
If at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, including the execution
of additional instruments, the proper officers and directors of each party to
this Agreement shall take all such necessary action.
Section 5.13 Consents; Filings; Further Action.
(a) Upon the terms and subject to the conditions hereof, each of
the parties hereto shall use its reasonable best efforts to (i) take, or cause
to be taken, all appropriate action, and do, or cause to be done, all things
necessary, proper or advisable under applicable Law or otherwise to consummate
and make effective the Merger and the other transactions contemplated hereby,
(ii) obtain from Governmental Entities any consents, licenses, permits, waivers,
approvals, authorizations or orders required to be obtained or made by the
Parent or the Company or any of their subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the Merger and the other transactions contemplated hereby, (iii) make all
necessary filings, and thereafter make any other submissions either required or
deemed appropriate by each of the parties, with respect to this Agreement and
the Merger and the other transactions contemplated hereby required under (A) the
Securities Act, the Exchange Act, any other applicable federal or Blue Sky Laws
and applicable Canadian securities laws, (B) the HSR Act and Competition Act
(Canada), (C) the BCA, (D) any other applicable Law, (E) the Communications Act
and (F) the rules and regulations of the Amex, the Nasdaq and the Bureau of Land
Management. The parties hereto shall cooperate and consult with each other in
connection with the making of all such filings, including by providing copies of
all such documents to the nonfiling party and its advisors prior to filing, and
none of the parties will file any such document if any of the other parties
shall have reasonably objected to the filing of such document. No party to this
Agreement shall consent to any voluntary extension of any statutory deadline or
waiting period or to any voluntary delay of the consummation of the Merger and
the other transactions contemplated hereby at the behest of any Governmental
Entity without the consent and agreement of the other parties to this Agreement,
which consent shall not be unreasonably withheld or delayed.
(b) Without limiting the generality of Section 5.13(a), each
party hereto shall promptly inform the others of any material communication from
the Federal Trade Commission, the Department of Justice or any other domestic or
foreign government or governmental or multinational authority regarding any of
the transactions contemplated by this Agreement. If any party or any affiliate
thereof receives a request for additional information or documentary material
from any such government or authority with respect to the transactions
contemplated by this Agreement, then such party will endeavor in good faith to
make, or cause to be made, as soon as reasonably practicable and after
consultation with the other party, an
<PAGE>
42
appropriate response in compliance with such request. Nothing in this Section
5.13 shall require, or be construed to require, the Parent or the Company, in
connection with the receipt of any regulatory approval, to proffer to, or agree
to (A) sell or hold separate and agree to sell, divest or to discontinue to or
limit, before or after the Effective Time, any assets, businesses, or interest
in any assets or businesses of the Parent, the Company or any of their
respective affiliates (or to the consent to any sale, or agreement to sell, or
discontinuance or limitation by the Parent or the Company, as the case may be,
of any of its assets or businesses) or (B) agree to any conditions relating to,
or changes or restriction in, the operations of any such asset or businesses
which, in either case, would reasonably be expected to result in a Material
Adverse Effect on the Parent or a Material Adverse Effect on the Company or to
materially and adversely impact the economic or business benefits to such party
of the transactions contemplated by this Agreement.
Section 5.14 Plan of Reorganization. This Agreement is intended to
constitute a "plan of reorganization" within the meaning of Section 1.368-2(g)
of the income tax regulations promulgated under the Code. From and after the
date of this Agreement and until the Effective Time, each party hereto shall use
its reasonable best efforts to cause the Merger to qualify, and will not,
without the prior written consent of the parties hereto, knowingly take any
actions or cause any actions to be taken which could prevent the Merger from
qualifying, as a reorganization under the provisions of Section 368(a) of the
Code. Following the Effective Time, and consistent with any such consent, none
of the Surviving Corporation, the Parent or any of their affiliates shall
knowingly take any action or knowingly cause any action to be taken which would
cause the Merger to fail to so qualify as a reorganization under Section 368(a)
of the Code.
Section 5.15 Public Announcements. The initial press release
concerning the Merger shall be a joint press release and, thereafter, the Parent
and Merger Sub and the Company shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement or any of the transactions contemplated hereby and shall not issue any
such press release or make any such public statement prior to such consultation,
except to the extent required by applicable Law or the requirements of the Amex
or the Nasdaq, in which case the issuing party shall use its reasonable best
efforts to consult with the other parties before issuing any such release or
making any such public statement.
Section 5.16 Obligations of Merger Sub. The Parent shall take all
actions necessary to cause Merger Sub to perform its obligations under this
Agreement and to consummate the Merger on the terms and subject to the
conditions set forth in this Agreement.
Section 5.17 Stock Exchange Listings And De-listings. The Parent
shall use its reasonable best efforts to cause the shares of Parent Common Stock
to be issued in the Merger to be approved for listing on the Nasdaq, subject to
official notice of issuance, prior to the Effective Time. The parties shall use
their reasonable
<PAGE>
43
best efforts to cause the Surviving Corporation to cause the Company Common
Stock to be de-listed from the Amex and de-registered under the Exchange Act as
soon as practicable following the Effective Time.
Section 5.18 Expenses. Except as otherwise provided in Section 7.5(b),
whether or not the Merger is consummated, all Expenses incurred in connection
with this Agreement and the Merger and the other transactions contemplated
hereby shall be paid by the party incurring such Expense, except that Expenses
incurred in connection with the filing fee for the Proxy Statement and printing
and mailing the Proxy Materials and the filing fee under the HSR Act shall be
shared equally by the Parent and the Company.
Section 5.19 Takeover Statutes. If any Takeover Statute is or may
become applicable to the Merger or the other transactions contemplated hereby,
each of the Parent and the Company and its board of directors shall, subject to
their fiduciary duty under applicable law, grant such approvals and take such
actions as are necessary so that such transactions may be consummated as
promptly as practicable on the terms contemplated by this Agreement and
otherwise act to eliminate or minimize the effects of such statute or regulation
on such transactions.
Section 5.20 Control of the Company's and Parent's Operations. Nothing
contained in this Agreement shall give the Parent or the Company, directly or
indirectly, rights to control or direct the other party's operations prior to
the Effective Time.
Section 5.21 Affiliates. Within 30 days after the date of this
Agreement, (a) the Company shall deliver to the Parent a letter identifying all
persons who may be deemed to be affiliates of the Company under Rule 145 of the
Securities Act as of the record date for the Company Stockholders Meeting,
including, without limitation, all of its directors and executive officers (the
"Rule 145 Affiliates") and (b) the Company shall advise the persons identified
-------------------
in such letter of the resale restrictions imposed by applicable securities laws
and shall use commercially reasonable efforts to obtain from each person
identified in such letter a written agreement, substantially in the form of
Exhibit B hereto (a "Rule 145 Affiliate Agreement").
----------------------------
Section 5.22 Merger Sub Charter Documents. The Parent shall not,
without the prior written consent of the Company (which consent shall not be
unreasonably withheld), amend the articles of incorporation or by-laws of the
Merger Sub prior to the Closing.
SECTION 5.23 Corporate Matters. At the Effective Time, Parent shall
enter into employment agreements with Calvin J. Payne and S. Roy Jeffrey in the
forms attached hereto as Exhibit C and D (the "Employment agreements"). Pursuant
---------------------
to the terms of the Employment Agreements, Calvin Payne shall hold the position
of Executive Vice President -- Construction Operations and S. Roy Jeffrey
<PAGE>
44
shall hold the position of Vice President -- Canadian Region, respectively, of
the Parent. The authority, duties and responsibilities of Messrs. Payne and
Jeffrey shall be as set forth in the Employment Agreements.
Section 5.24 Jovin. The Company will (i) use its reasonable best
efforts to enter into agreements prior to the Effective Time with each of the
holders (the "Exchangeable holders") of Class B Shares (the "Exchangeable
----------------------- -----------
Shares") of Westower Acquisitions Canada Inc. ("Acquisitions Canada"), in form
- ------ --------------------
and substance reasonably satisfactory to the Parent, pursuant to which each
Exchangeable Holder shall have agreed that a Canadian subsidiary of the Company
other than Acquisitions Canada shall have the right (the "call right") to
----------
purchase any Exchangeable Shares tendered for conversion or redemption by
delivering to the holder of such shares the same number and class of securities
which would otherwise have been exchangeable by Acquisitions Canada for such
Exchangeable Shares on conversion or exchange, as the case may be, and (ii)
cause the Call Right to be exercised in the event that any Exchangeable Shares
are tendered for conversion prior to the Effective Time.
ARTICLE 6
CONDITIONS
Section 6.1 COnditions To Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger and
consummate the other transactions contemplated hereby to be consummated on the
Closing Date is subject to the satisfaction or waiver at or prior to the
Effective Time of each of the following conditions:
(a) Stockholder Approval. This Agreement and consummation of
the Merger shall have been duly approved by holders of outstanding Company
Shares by the Requisite Company Vote.
(b) Listing. The shares of Parent Common Stock issuable to
the Company's stockholders pursuant to this Agreement shall have been authorized
for listing on the Nasdaq upon official notice of issuance.
(c) HSR Act. The waiting period applicable to the consummation
of the Merger under the HSR Act and, if applicable, the Competition Act (Canada)
shall have expired or been terminated.
(d) Litigation. No court or Governmental Entity of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
Law, order injunction or decree (whether temporary, preliminary or permanent)
that is in effect and restrains, enjoins or otherwise prohibits consummation of
the Merger or the other transactions contemplated hereby or that, individually
or in the aggregate with all other such Laws, orders injunctions or decrees,
would reasonably be expected to result in a Material Adverse Effect on the
Parent or a Material
<PAGE>
45
Adverse Effect on the Company, and no Governmental Entity shall have instituted
any proceeding or threatened to institute any proceeding seeking any such Law,
order injunction or decree.
(e) Registration Statement. The Registration Statement shall
have become effective under the Securities Act. No stop order suspending the
effectiveness of the Registration Statement shall have been issued, and no
proceedings for that purpose shall have been initiated or be threatened by the
SEC.
(f) Accountants' Letters. The Parent and the Company shall
have received the "comfort" letters described in Section 5.11.
(g) Blue Sky Approvals. The Parent shall have received all
state securities and "blue sky" permits and approvals necessary to consummate
the transactions contemplated hereby.
Section 6.2 Conditions To Obligations Of The Parent And Merger
Sub. The obligations of each of the Parent and Merger Sub to effect the Merger
and consummate the other transactions contemplated hereby to be consummated on
the Closing Date are also subject to the satisfaction or waiver by the Parent at
or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations
and warranties of the Company set forth in this Agreement that are qualified as
to materiality shall be true and correct, and the representations and warranties
of the Company set forth in this Agreement that are not so qualified shall be
true and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing Date, as though made on and as of the Closing
Date, except to the extent the representation or warranty is expressly limited
by its terms to another date, and the Parent shall have received a certificate
(which certificate may be qualified by knowledge to the same extent as the
representations and warranties of the Company contained in this Agreement are so
qualified) signed on behalf of the Company by an executive officer of the
Company to such effect.
(b) Performance of Obligations of the Company. The Company
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and the
Parent shall have received a certificate signed on behalf of the Company by an
executive officer of the Company to such effect.
(c) Material Adverse Effect. Since the date of this
Agreement, there shall have been no Material Adverse Effect on the Company and
the Parent shall have received a certificate signed on behalf of the Company by
an executive officer of the Company to such effect.
<PAGE>
46
(d) Consents Under Agreements. The Company shall have obtained
the consent, approval or waiver of each person whose consent, approval or waiver
shall be required in order to consummate the transactions contemplated by this
Agreement, except those for which the failure to obtain such consent, approval
or waiver, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect on the Company.
(e) Tax Opinion. The Parent shall have received the opinion
of Paul, Weiss, Rifkind, Wharton & Garrison, special counsel to the Parent,
dated the Closing Date, based upon representation letters and certificates
substantially in the form previously agreed upon by the Parent and the Company,
to the effect that the Merger will be treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the Code.
(f) Exercise of Warrants. Each of (x) the stock purchase
warrant, dated as of May 11, 1998, issued to BET Associates, L.P. and (y) any
remaining unexercised stock purchase warrants issued pursuant to that certain
Underwriters' Warrant Agreement, dated as of October 20, 1997, by and among the
Company and National Securities Corporation, as representative for several
underwriters, shall have been exercised in full by the holders thereof to
purchase shares of Company Common Stock prior to the Effective Time or through
cashless exercise, and the Parent shall have received evidence of such exercise
reasonably satisfactory in form and substance to Parent.
(g) Bank Consent. All required authorizations, consents or
approvals of the lenders required by the Credit Agreement, dated as of April 20,
1999, among Parent, Spectrasite Communications, Inc., CIBC Oppenheimer Corp.,
Credit Suisse First Boston and the other parties thereto to permit the
consummation of the Merger shall have been obtained.
(h) Governmental Consents. Other than the filing provided for
in Section 1.3, all notices, reports and other filings required to be made prior
to the Effective Time by the Company or the Parent or any of their respective
subsidiaries with, and all consents, registrations, approvals, permits and
authorizations required to be obtained prior to the Effective Time by, the
Company or the Parent or any of their respective subsidiaries from, any
Governmental Entity in connection with the execution and delivery of this
Agreement and the consummation of the Merger and the other transactions
contemplated hereby shall have been made or obtained (as the case may be).
(i) Senior Subordinated Notes. The Company's $15,000,000
principal amount 7% Convertible Senior Subordinated Notes due April 30, 2007
shall have been surrendered for prepayment and cancellation in accordance with
the terms and conditions set forth in that certain agreement, dated the date of
this Agreement, between BET Associates, L.P. and the Company.
<PAGE>
47
(j) Stockholder Loans. All loans and other advances made to
stockholders, employees, officers or directors of the Company or any Company
Subsidiary (excluding (x) loans between the Company and any Company Subsidiary
or between two Company Subsidiaries and (y) loans and advances to employees for
reasonable, travel, business and moving expenses in the ordinary course of
business) shall have been repaid, and the Parent shall have received evidence of
such repayment satisfactory in form and substance to Parent in its sole
discretion.
(k) Cunningham. Tom T. Cunningham shall have waived, in form
and substance reasonably satisfactory to Parent, his rights under Section 11 of
that certain Employment Agreement, dated August 31, 1998, between Tom T.
Cunningham and Standby Services, Inc., to terminate his employment with Standby
Services, Inc. and receive certain severance benefits upon consummation of the
Merger.
(l) Cord Earn-Out. The terms and provisions of Sections 2.1(c)
and 2.3 of that certain Agreement and Plan of Merger, dated as of August 31,
1998, among the Company, Cord Communications, Incorporated, Cord Acquisition
Co., Mark Beuchley, Seth Beuchley and Mark Reed shall have been amended, in form
and substance reasonably satisfactory to Parent, to provide (x) that any
additional shares of capital stock to be issued thereunder shall be shares of
Parent Common Stock instead of shares of Company Common Stock and (y) for an
appropriate adjustment to the number of additional shares of capital stock to be
issued thereunder to give effect to the Exchange Ratio contemplated by this
Agreement.
(m) Summit Earn-Out. The terms and provisions of Sections
2.1(a)(iii) and 2.1(b) of that certain Agreement and Plan of Merger, dated as of
November 10, 1998, by and among the Company, Westower Summit Acquisition, LLC,
Summit Communications, LLC and the Members of Summit Communications, LLC shall
have been amended, in form and substance reasonably satisfactory to Parent, to
provide (x) that any additional shares of capital stock to be issued thereunder
shall be shares of Parent Common Stock instead of shares of Company Common Stock
and (y) for an appropriate adjustment to the number of additional shares of
capital stock to be issued thereunder to give effect to the Exchange Ratio
contemplated by this Agreement.
(n) Dissenting Shares. Holders of not more than 5% of the
outstanding shares of Company Common Stock shall have properly demanded
appraisal rights for their shares under the BCA.
(o) Post-Closing Lock-Ups. Each of Calvin J. Payne and S. Roy
Jeffrey shall have executed and delivered to the Parent lock-up agreements in
the forms attached hereto as Exhibit E-1 and Exhibit E-2, respectively. Each of
the persons listed on Exhibit F-1 hereto shall have executed and delivered to
the Parent lock-up agreements in the form attached hereto as Exhibit F-2.
<PAGE>
48
(p) Indentures. The Parent shall have obtained, if and to the
extent required, all consents or approvals from the holders of notes issued by
Parent pursuant to (x) the Indenture, dated as of June 26, 1998, as amended,
between the Parent and United States Trust Company of New York, as trustee (the
"2008 Indenture") and (y) the Indenture, dated as of April 20, 1999, between the
--------------
Parent and United States Trust Company of New York, as trustee (the "2009
----
Indenture"), including, without limitation, the consent to any amendments to, or
- ---------
waivers of the provisions of, the 2008 Indenture and/or the 2009 Indenture to
permit the transactions contemplated by this Agreement.
(q) Affiliates. The Parent shall have received from each Rule
145 Affiliate of the Company an executed copy of a Rule 145 Affiliate Agreement
as contemplated by Section 5.21.
Section 6.3 Conditions to Obligation of the Company. The obligation of
the Company to effect the Merger and consummate the other transactions
contemplated hereby to be consummated on the Closing Date is also subject to the
satisfaction or waiver by the Company at or prior to the Effective Time of the
following conditions:
(a) Representations and Warranties. The representations and
warranties of each of the Parent and Merger Sub set forth in this Agreement that
are qualified as to materiality shall be true and correct, and the
representations and warranties of the Parent and Merger Sub set forth in this
Agreement that are not so qualified shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date, as though made on and as of the Closing Date, except to the extent the
representation or warranty is expressly limited by its terms to another date,
and the Company shall have received a certificate (which certificate may be
qualified by knowledge to the same extent as the representations and warranties
of each of the Parent and Merger Sub contained in this Agreement are so
qualified) signed on behalf of each of the Parent and Merger Sub by an executive
officer of the Parent to such effect.
(b) Performance of Obligations of the Parent and Merger Sub.
Each of the Parent and Merger Sub shall have performed in all material respects
all obligations required to be performed by it under this Agreement at or prior
to the Closing Date, and the Company shall have received a certificate signed on
behalf of the Parent and Merger Sub by an executive officer of the Parent to
such effect.
(c) Material Adverse Effect. Since the date of this Agreement,
there shall have been no Material Adverse Effect on the Parent and the Company
shall have received a certificate signed on behalf of the Parent by an executive
officer of the Parent to such effect.
<PAGE>
49
(d) Tax Opinion. The Company shall have received the opinion
of Morgan, Lewis & Bockius LLP, counsel to the Company, dated the Closing Date,
based upon representation letters and certificates substantially in the form
previously agreed upon by the Parent and the Company, to the effect that the
Merger will be treated for federal income tax purposes as a reorganization
within the meaning of Section 368(a) of the Code.
(e) Board Seat. The Parent shall have executed and delivered to
Calvin J. Payne and S. Roy Jeffrey the letter agreement in the form attached
hereto as Exhibit G regarding the Parent's Board of Directors.
ARTICLE 7
TERMINATION
SECTION 7.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, notwithstanding
any requisite approval and adoption of this Agreement, as follows:
(a) by mutual written consent of the Parent and the Company
duly authorized by their respective boards of directors;
(b) by either the Parent or the Company, if the Effective Time
shall not have occurred on or before December 31, 1999; provided, however, that
the right to terminate this Agreement under this Section 7.1(b) shall not be
available to the party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or resulted in, the failure of the
Effective Time to occur on or before such date;
(c) by either the Parent or the Company, if any order,
injunction or decree preventing the consummation of the Merger shall have been
entered by any court of competent jurisdiction or Governmental Entity and shall
have become final and nonappealable;
(d) by the Parent or the Company, if this Agreement shall fail
to receive the requisite vote for adoption at the Company Stockholders Meeting
or any adjournment or postponement thereof;
(e) by the Parent, upon a breach of any material
representation, warranty, covenant or agreement on the part of the Company set
forth in this Agreement, or if any representation or warranty of the Company
shall have become untrue, in either case such that the conditions set forth in
either of Section 6.2(a) or 6.2(c) would not be satisfied (a "TERMINATING
COMPANY BREACH"); provided, however, that, if such Terminating Company Breach is
curable by the Company through the exercise of its reasonable best efforts and
for so long as the
<PAGE>
50
Company continues to exercise such reasonable best efforts, the Parent may not
terminate this Agreement under this Section 7.1(e);
(f) by the Company, upon breach of any material
representation, warranty, covenant or agreement on the part of the Parent set
forth in this Agreement, or if any representation or warranty of the Parent
shall have become untrue, in either case such that the conditions set forth in
either of Section 6.3(a) or 6.3(c) would not be satisfied (a "Terminating Parent
------------------
Breach"); provided, however, that, if such Terminating Parent Breach is curable
- ------
by the Parent through its reasonable best efforts and for so long as the Parent
continues to exercise such reasonable best efforts, the Company may not
terminate this Agreement under this Section 7.1(f); or
(g) by the Company, if prior to the Requisite Company Vote the
Board of Directors of the Company shall have approved, and the Company shall
concurrently enter into, a definitive agreement providing for the implementation
of a Superior Proposal; provided, however, that (i) the Company is not then in
breach of Section 5.8, (ii) the Company's Board of Directors shall have
authorized the Company, subject to complying with the terms of this Agreement,
to enter into a binding written agreement concerning a transaction that
constitutes a Superior Proposal and the Company shall have notified the Parent
in writing that it intends to enter into such an agreement, attaching the most
current version of such agreement to such notice, (iii) during the two-business
day period after the Company's notice, (A) the Company shall have offered to
negotiate with (and, if accepted, negotiate with), and shall have caused its
respective financial and legal advisors to have offered to negotiate with (and,
if accepted, negotiate with) Parent to attempt to make such commercially
reasonable adjustments in the terms and conditions of this Agreement as would
enable the Company to proceed with the Merger and (B) the Board of Directors of
the Company shall have concluded, after considering the results of such
negotiations and the revised proposals made by the Parent, if any, that any
Superior Proposal giving rise to the Company's notice continues to be a Superior
Proposal; (iv) such termination is within five (5) business days following the
two (2) business day period referred to above, and (v) no termination pursuant
to this Section 7.1(g) shall be effective unless the Company shall
simultaneously make the payment of the termination fee portion of the
Termination Amount required by Section 7.5(b); provided, however, that such
-------- -------
termination of this Agreement shall not relieve the Company of its obligation to
pay the remainder of the Termination Amount.
SEction 7.2 Effect of Termination. Except as provided in Section 8.2,
in the event of termination of this Agreement pursuant to Section 7.1, this
Agreement shall forthwith become void, there shall be no liability under this
Agreement on the part of the Parent, Merger Sub or the Company or any of their
respective Representatives, and all rights and obligations of each party hereto
shall cease, subject to the remedies of the parties set forth in Sections 7.5(b)
and (c); provided, however, that nothing in this Agreement shall relieve any
party from
<PAGE>
liability for the wilful breach of any of its representations and warranties or
the breach of any of its covenants or agreements set forth in this Agreement.
SECTION 7.3 AMENDMENT. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; provided that, after the
approval of this Agreement by the stockholders of the Company, no amendment may
be made that would reduce the amount or change the type of consideration into
which each Company Share shall be converted upon consummation of the Merger.
This Agreement may not be amended except by an instrument in writing signed by
the parties hereto.
SECTION 7.4 WAIVER. At any time prior to the Effective Time, any
party hereto may (a) extend the time for the performance of any obligation or
other act of any other party hereto, (b) waive any inaccuracy in the
representations and warranties contained in this Agreement of any other party
hereto or in any document delivered pursuant hereto, and (c) waive compliance
with any agreement or condition of any other party hereto contained in this
Agreement. Any waiver of a condition set forth in Section 6.1, or any
determination that such a condition has been satisfied, will be effective only
if made in writing by each of the Company and the Parent and, unless otherwise
specified in such writing, shall thereafter operate as a waiver (or
satisfaction) of such conditions for any and all purposes of this Agreement. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 7.5 EXPENSES FOLLOWING TERMINATION.
(a) Except as set forth in this Section 7.5, all Expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid in accordance with the provisions of Section 5.18. For
purposes of this Agreement, "EXPENSES" consist of all reasonable out-of-pocket
expenses (including, all reasonable fees and expenses of counsel, accountants,
investment bankers, experts and consultants to a party hereto and its
affiliates) incurred by a party or on its behalf in connection with or related
to the authorization, preparation, negotiation, execution and performance of
this Agreement, the preparation, printing, filing and mailing of the Proxy
Statement and/or the Proxy Materials (as the case may be), the solicitation of
stockholder approvals and all other matters related to the closing of the
transactions contemplated hereby.
(b) The Company agrees that, if (i) the Company shall
terminate this Agreement pursuant to Section 7.1(g) or (ii) the Parent or the
Company shall terminate this Agreement pursuant to Section 7.1(d) due to the
failure to obtain the approval of the Company's stockholders at the Company
Stockholders' Meeting, the Company shall pay to Parent (x) within 5 business
days after receipt of evidence of Parent's documented expenses following such
termination if pursuant to Section 7.1(g), or on the date specified in the
sentence before the penultimate sentence of this
<PAGE>
Section 7.5(b) if pursuant to Section 7.1(d), an amount equal to Parent's
documented Expenses in connection with this Agreement and the transactions
contemplated hereby and (y) concurrently with such termination, if pursuant to
Section 7.1(g), or on the date specified in the sentence before the penultimate
sentence of this Section 7.5(b) if pursuant to Section 7.1(d), a termination fee
in the amount of $12 million (collectively, such Expenses and such fee, the
Termination Amount"); provided, however, that the Company shall not be obligated
to pay such Termination Amount to the Parent if this Agreement is terminated
pursuant to Section 7.1(d) unless (i) at the time of the Company Stockholders
Meeting in the case of termination pursuant to Section 7.1(d), the Company has
received a bona fide alternative Acquisition Proposal from a third party or a
third party has made or publicly announced its intention to make a bona fide
Acquisition Proposal, in each case which has not been withdrawn prior to the
Company Stockholders' Meeting, and (ii) within twelve months after the
termination of this Agreement, the Company enters into a definitive agreement
providing for an alternative Acquisition Proposal with any third party that will
constitute a Change of Control or an alternative Acquisition Proposal that
constitutes a Change of Control is consummated with any third party. If the
Termination Amount becomes payable as a result of a termination pursuant to
Section 7.1(d), such Termination Amount shall be paid promptly (and in any event
within five (5) days of receipt by Company of a written notice from Parent)
following the earlier of the execution of such definitive agreement providing
for an alternative Acquisition Proposal that will constitute a Change of Control
or the consummation of an alternative Acquisition Proposal that constitutes a
Change of Control, as the case may be. In addition, in the event the Company
terminates this Agreement pursuant to Section 7.1(d) and at the time of the
Company Stockholders Meeting the Company has received a bona fide alternative
Acquisition Proposal from a third party or a third party has made or publicly
announced its intention to make a bona fide Acquisition Proposal, in each case
which has not been withdrawn prior to the Company Stockholders' Meeting, the
Company shall promptly on demand reimburse all of the portion of the Termination
Amount that constitutes Expenses and thereafter be obligated to pay the balance
of the Termination Amount in the event such fee is payable pursuant to this
Section 7.5(b). Any payment required to be made pursuant to this Section 7.5(b)
shall be made by wire transfer of immediately available funds to an account
designated by Parent or by check if Parent fails to designate an account.
(c) Each of the Parent and the Company agrees that the
payments provided for in Section 7.5(b) shall be the sole and exclusive remedy
of the parties upon a termination of this Agreement pursuant to Section 7.1, and
such remedy shall be limited to the payment stipulated in Section 7.5(b);
provided, however, that nothing in this Agreement shall relieve any party from
liability for the wilful breach of any of its representations and warranties or
the breach of any of its covenants or agreements set forth in this Agreement.
(d) The Company acknowledges that the agreements contained
in this Section 7.5 are an integral part of the transactions contemplated by
this Agreement, and that, without these agreements, the Parent would not enter
into
<PAGE>
this Agreement; accordingly, if the Company fails to pay promptly the
Termination Amount, and, in order to obtain such payment, the Parent commences a
suit which results in a judgment against the Company for the Termination Amount,
the Company shall pay the Parent's Expenses in connection with such suit,
together with interest on the amount of the Termination Amount at the prime rate
of the Canadian Imperial Bank of Commerce in effect on the date such payment was
required to be made. If the Parent commences such suit, and it results in a
judgment for the Company, the Parent will pay the Company's expenses in
connection with such suit.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Certain Definitions. For purposes of this Agreement:
(a) The term "affiliate," as applied to any person, means
---------
any other person directly or indirectly controlling, controlled by, or under
common control with, that person. For the purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "controlling," "controlled by"
----------- -------------
and "under common control with"), as applied to any person, means the
-------------------------
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that person, whether through the
ownership of voting securities, by contract or otherwise.
(b) The term "business day" means any day, other than
------------
Saturday, Sunday or a federal holiday, and shall consist of the time period from
12:01 a.m. through 12:00 midnight Eastern time. In computing any time period
under this Agreement, the date of the event which begins the running of such
time period shall be included except that if such event occurs on other than a
business day such period shall begin to run on and shall include the first
business day thereafter.
(c) The term "Change of control" of the Company shall mean
-----------------
such time as: (i) any person or "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) is or becomes the beneficial owner, directly or indirectly,
of outstanding shares of capital stock of the Company, entitling such person or
persons to exercise 30% or more of the total votes entitled to be cast at a
regular or special meeting, or by action by written consent, of stockholders of
the Company (the term "beneficial owner" shall be determined in accordance with
Rule 13d-3, promulgated by the Securities Commission under the Exchange Act);
(ii) a majority of the Board of Directors of the Company shall consist of
Persons other than Continuing Directors. The term "Continuing Director" shall
mean any member of the Board of Directors of the Company on the date of this
Agreement and any other member of the Board of Directors who shall be
recommended or elected to succeed or become a Continuing Director by a majority
of Continuing Directors who are then members of the Board of Directors of the
Company; (iii) a recapitalization, reorganization, merger,
<PAGE>
consolidation or similar transaction, in each case, with respect to which all or
substantially all the persons who were the respective beneficial owners of the
outstanding shares of capital stock of the Company immediately prior to such
recapitalization, reorganization, merger or consolidation, beneficially own,
directly or indirectly, less than 50% of the combined voting power of the then
outstanding shares of capital stock of the company resulting from such
recapitalization, reorganization, merger, consolidation or similar transaction;
or (iv) the sale or other disposition of all or substantially all the assets of
the Company in one transaction or in a series of related transactions.
(d) The term "including" means, unless the context clearly
---------
requires otherwise, including but not limited to the things or matters named or
listed after that term.
(e) The term "knowledge," as applied to the Company or the
---------
Parent, means the actual knowledge of any executive officer or director of the
Company or the Parent, as the case may be.
(f) The term "Lease" shall mean any lease of property,
-----
whether real, personal or mixed, and all amendments thereto, and shall include
without limitation all use or occupancy agreements.
(g) The term "Pending Transactions" shall mean the pending
--------------------
acquisitions and other transactions set forth in Section 8.1(f) of the Company
Disclosure Letter.
(h) The term "Permitted Liens" shall mean (a) Liens for
---------------
current Taxes not yet due and payable, (b) such imperfections of title,
easements, encumbrances and mortgages or other Liens, if any, as are not,
individually or in the aggregate, material in character, amount or extent and do
not materially detract from the value, or materially interfere with the present
use, of the property subject thereto or affected thereby, (c) Liens securing
debt for borrowed money of the underlying fee owner where the Company or a
Company Subsidiary or the Parent or a Parent Subsidiary, as the case may be, is
a lessee, (d) levies not at the time due or which are being contested or good
faith by appropriate proceedings and (e) mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days.
(i) The term "person" shall include individuals,
------
corporations, limited and general partnerships, trusts, limited liability
companies, associations, joint ventures, Governmental Entities and other
entities and groups (which term shall include a "Group" as such term is defined
-----
in Section 13(d)(3) of the Exchange Act).
(j) The term "Real Property" shall mean all of the fee
-------------
estates and buildings and other fixtures and improvements thereon, leasehold
interests,
<PAGE>
easements, licenses, rights to access, rights-of-way, and other real property
interests which are owned or used by the Company or any Company Subsidiary or
the Parent or any Parent Subsidiary, as the case may be, as of the date hereof,
in the operations of the business of the Company and the Company Subsidiaries,
plus such additions thereto and deletions therefrom arising in the ordinary
course of business between the date hereof and the Closing Date.
(k) The term "subsidiary" or "subsidiaries" means, with
---------- ------------
respect to the Parent, the Company or any other person, any entity of which the
Parent, the Company or such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
stock or other equity interests constituting 50% or more of the voting or
economic interest in such entity.
Section 8.2 Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement and
in any certificate delivered under this Agreement shall terminate at the
Effective Time or upon the termination of this Agreement under Section 7.1, as
the case may be, except that the agreements set forth in Articles 1 and 2 and
Sections 5.9, 5.10, 5.14 and 5.17 and this Article 8 shall survive the Effective
Time, those set forth in Sections 5.7(b), 5.18, 7.2 and 7.5 and this Article 8
shall survive termination of this Agreement and those set forth in Section 5.15
shall survive for a period of one year after termination of this Agreement. Each
party agrees that, except for the representations and warranties contained in
this Agreement, the Company Disclosure Letter and the Parent Disclosure Letter,
no party to this Agreement has made any other representations and warranties,
and each party disclaims any other representations and warranties, made by
itself or any of its officers, directors, employees, agents, financial and legal
advisors or other Representatives with respect to the execution and delivery of
this Agreement or the transactions contemplated by this Agreement,
notwithstanding the delivery of disclosure to any other party or any party's
representatives of any documentation or other information with respect to any
one or more of the foregoing.
Section 8.3 Counterparts. This Agreement may be executed in any
number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
Section 8.4 Governing Law and Venue; Waiver of
Jury Trial.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES, EXCEPT THAT WASHINGTON LAW SHALL APPLY TO THE EXTENT
REQUIRED IN CONNECTION WITH THE EFFECTUATION OF THE
<PAGE>
MERGER. The parties irrevocably submit to the jurisdiction of the federal courts
of the United States of America located in the State of New York solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated by this Agreement and by those documents, and
hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement of this Agreement or of any
such document, that it is not subject to this Agreement or that such action,
suit or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a federal court. The parties hereby
consent to and grant any such court jurisdiction over the person of such parties
and over the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 8.5 or in such other manner as may be permitted by law,
shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDI-
TIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 8.4.
Section 8.5 NOTICES. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, or by facsimile:
<PAGE>
if to the Parent or Merger Sub:
Spectrasite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, NC 27511
Attention: Stephen H. Clark
Fax: (919) 468-8522
with copies to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Bruce A. Gutenplan, Esq.
Fax: (212) 757-3990
if to the Company:
Westower Corporation
17886 55th Avenue
Surrey, BC V3S 6C8
Canada
Attention: Calvin J. Payne
Fax: (604) 576-4855
with copies to:
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103-2921
Attention: Peter S. Sartorius, Esq.
Fax: (215) 963-5299
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
Section 8.6 Entire Agreement. This Agreement (including any
exhibits and annexes to this Agreement), the Company Disclosure Letter and the
Parent Disclosure Letter constitute the entire agreement and supersede all other
prior agreements, understandings, representations and warranties, both written
and oral, among the parties, with respect to the subject matter of this
Agreement.
Section 8.7 No Third Party Beneficiaries. Except as provided in Sec-
tion 5.10 this Agreement is not intended to confer upon any person other than
the parties to this Agreement any rights or remedies under this Agreement.
<PAGE>
Section 8.8 Obligations of the Parent and of the Company.
Whenever this Agreement requires a Parent Subsidiary to take any action, that
requirement shall be deemed to include an undertaking on the part of the Parent
to cause that Parent Subsidiary to take that action. Whenever this Agreement
requires a Company Subsidiary to take any action, that requirement shall be
deemed to include an undertaking on the part of the Company to cause that
Company Subsidiary to take that action and, after the Effective Time, on the
part of the Surviving Corporation to cause that Company Subsidiary to take that
action.
Section 8.9 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability or the other provisions of this
Agreement. If any provision of this Agreement, or the application of that
provision to any person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted for that provision in
order to carry out, so far as may be valid and enforceable, the intent and
purpose of the invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of the provision to other persons or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of the
provision, or the application of that provision, in any other jurisdiction.
Section 8.10 Interpretation. The table of contents and headings in
this Agreement are for convenience of reference only, do not constitute part of
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions of this Agreement. Where a reference in this Agreement is made to a
section, exhibit or annex, that reference shall be to a section of or exhibit or
annex to this Agreement unless otherwise indicated. Wherever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 8.11 Assignment. This Agreement shall not be assignable by
operation of law or otherwise, except that the Parent may designate, by written
notice to the Company, another Parent Subsidiary that is wholly owned directly
or indirectly by the Parent to be merged with and into the Company in lieu of
Merger Sub, in which event all references in this Agreement to Merger Sub shall
be deemed references to such other Parent Subsidiary, and in that case, all
representations and warranties made in this Agreement with respect to Merger Sub
as of the date of this Agreement shall be deemed representations and warranties
made with respect to such other Parent Subsidiary as of the date of such
designation.
Section 8.12 Specific Performance. The parties to this Agreement agree
that irreparable damage would occur in the event that any of the of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court of
the United
<PAGE>
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties to this Agreement as
of the date first written above.
WESTOWER CORPORATION
By: /s/ Calvin J. Payne
------------------------
Name: Calvin J. Payne
Title: Chairman of the Board, President
and Chief Executive Officer
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-------------------------
Name: Stephen H. Clark
Title: President and Chief
Executive Officer
W ACQUISITION CORP
By: /s/ Stephen H. Clark
-------------------------
Name: Stephen H. Clark
Title: President
<PAGE>
EXHIBIT 2.2
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
<PAGE>
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial
---------
owner of the number of outstanding Company Shares set forth on Schedule A hereto
and has full and unrestricted power to dispose of and to vote or direct the vote
of such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time, (ii) the termination of the Merger Agreement pursuant to
Sections 7.1(a), (b), (c), (e) and/or (f), and (iii) the nine month anniversary
of the termination of the Merger Agreement pursuant to Sections 7.1(d) and/or
(g). In addition, this Agreement may be terminated at any time by mutual
written consent of Parent and the Stockholder. In the event of termination of
this Agreement pursuant to this Section 4.2, this Agreement shall become null
and void and of no effect with no liability on the part of any party hereto and
all proxies granted hereby shall be automatically revoked; provided, however,
that no such termination shall relieve any party hereto from any liability for
any breach of this Agreement occurring prior to such termination, and provided
further that the representations and warranties set forth in Sections 2.1 and
2.2 and covenants set forth in Section 4.1 shall survive the termination of this
Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be
5
<PAGE>
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the
6
<PAGE>
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns (including without limitation any person to whom any Subject Shares are
sold, transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
---------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ Calvin J. Payne
-------------------------------
Name: Calvin J. Payne
Address: 5264 Drayton Harbour Road
Blaine, WA 98230
/s/ Patricia Boris
-------------------------------
Name: Patricia Boris
Address: 5264 Drayton Harbour Road
Blaine, WA 98230
/s/ Calvin J. Payne
-------------------------------
Name: Calvin J. Payne Family Trust
Address: 5264 Drayton Harbour Road
Blaine, WA 98230
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- -------------------- ---------------------
Calvin J. Payne 66,250
Patricia Boris 66,250
Calvin J. Payne Family Trust 925,000
<PAGE>
EXHIBIT 2.3
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
<PAGE>
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of stockholders of Company,
the Stockholder shall vote or cause to be voted (including by written consent,
if applicable) all of the Stockholder's Subject Shares in favor of the approval
and adoption of the Merger Agreement and in favor of any other matter necessary
for the consummation of the transactions contemplated by the Merger Agreement
and considered and voted upon at any such meeting or made the subject of any
such written consent, as applicable. At any meeting of the stockholders of the
Company called to consider and vote upon any Adverse Proposal (as hereinafter
defined) (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of stockholders of Company, the Stockholder shall vote or cause
to be voted (including by written consent, if applicable) all of the
Stockholder's Subject Shares against such Adverse Proposal. For purposes of
this Agreement, the term "Adverse Proposal" means any (a) Acquisition Proposal,
(b) proposal or action that would reasonably be expected to result in a breach
of any covenant, representation or warranty of Company set forth in the Merger
Agreement, or (c) proposal or action that is intended or would reasonably be
expected to impede, interfere with, delay or materially and adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement or
this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
2
<PAGE>
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults,
3
<PAGE>
obligations, rights or losses that individually or in the aggregate would not
(i) impair the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or (ii) prevent or delay the consummation of
any of the transactions contemplated hereby.
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance,
4
<PAGE>
assignment or other disposition of, any or all of the Stockholder's Subject
Shares; (B) except pursuant to the terms of this Agreement, grant any proxies or
powers of attorney, deposit any of the Stockholder's Subject Shares into a
voting trust or enter into a voting agreement with respect to any of the
Stockholder's Subject Shares; or (C) take any action that would reasonably be
expected to make any representation or warranty contained herein untrue or
incorrect or have the effect of impairing the ability of the Stockholder to
perform the Stockholder's obligations under this Agreement or preventing or
delaying the consummation of any of the transactions contemplated hereby.
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time, (ii) the
5
<PAGE>
termination of the Merger Agreement pursuant to Sections 7.1(a), (b), (c), (e)
and/or (f), and (iii) the nine month anniversary of the termination of the
Merger Agreement pursuant to Sections 7.1(d) and/or (g). In addition, this
Agreement may be terminated at any time by mutual written consent of Parent and
the Stockholder. In the event of termination of this Agreement pursuant to this
Section 4.2, this Agreement shall become null and void and of no effect with no
liability on the part of any party hereto and all proxies granted hereby shall
be automatically revoked; provided, however, that no such termination shall
relieve any party hereto from any liability for any breach of this Agreement
occurring prior to such termination, and provided further that the
representations and warranties set forth in Sections 2.1 and 2.2 and covenants
set forth in Section 4.1 shall survive the termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
6
<PAGE>
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns (including without limitation any person to
whom any Subject Shares are sold, transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
7
<PAGE>
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
8
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-----------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ S. Roy Jeffrey
-----------------------------
Name: S. Roy Jeffrey
Address: 18375-67 Avenue
Surrey, BC
Canada V3S 8E7
/s/ L. Sharleen Jeffrey
-----------------------------
Name: L. Sharleen Jeffrey
Address: 18375-67 Avenue
Surrey, BC
Canada V3S 8E7
/s/ S. Roy Jeffrey
-----------------------------
Name: S. Roy Jeffrey Family Trust
Address: 18375-67 Avenue
Surrey, BC
Canada V3S 8E7
9
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- ---------------------
S. Roy Jeffrey 66,250
L. Sharleen Jeffrey 66,250
S. Roy Jeffrey Family Trust 925,000
<PAGE>
EXHIBIT 2.4
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
<PAGE>
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of
5
<PAGE>
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
6
<PAGE>
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-----------------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ Michael J. Anderson
--------------------------------------
Name: Michael J. Anderson
Address: c/o Michael V. Mitrione, Esq.
777 South Flagler Drive
Suite 500 East
West Palm Beach, FL 33401
/s/ Constance S. Anderson
--------------------------------------
Name: Constance S. Anderson
Address: c/o Michael V. Mitrione, Esq.
777 South Flagler Drive
Suite 500 East
West Palm Beach, FL 33401
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- ---------------------
Michael J. Anderson 337,470
Constance S. Anderson
(Joint Tenants)
<PAGE>
EXHIBIT 2.5
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
<PAGE>
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of
5
<PAGE>
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
6
<PAGE>
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
---------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ Mark Buechley
-------------------------------
Name: Mark Buechley
Address: 371 Flat Rock
Glide, OR 97422
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- ---------------------
Mark Buechley 141,303
<PAGE>
EXHIBIT 2.6
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
<PAGE>
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of
5
<PAGE>
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
6
<PAGE>
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
--------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ Seth Buechley
-----------------------------
Name: Seth Buechley
Address: 17626 S.W. Chippewa Trail
Tualatin, OR 97062
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- ---------------------
Seth Buechley 70,651
<PAGE>
EXHIBIT 2.7
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholder listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
<PAGE>
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of stockholders of Company,
the Stockholder shall vote or cause to be voted (including by written consent,
if applicable) all of the Stockholder's Subject Shares in favor of the approval
and adoption of the Merger Agreement and in favor of any other matter necessary
for the consummation of the transactions contemplated by the Merger Agreement
and considered and voted upon at any such meeting or made the subject of any
such written consent, as applicable. At any meeting of the stockholders of the
Company called to consider and vote upon any Adverse Proposal (as hereinafter
defined) (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of stockholders of Company, the Stockholder shall vote or cause
to be voted (including by written consent, if applicable) all of the
Stockholder's Subject Shares against such Adverse Proposal. For purposes of
this Agreement, the term "Adverse Proposal" means any (a) Acquisition Proposal,
(b) proposal or action that would reasonably be expected to result in a breach
of any covenant, representation or warranty of Company set forth in the Merger
Agreement, or (c) proposal or action that is intended or would reasonably be
expected to impede, interfere with, delay or materially and adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement or
this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of (any of the foregoing being herein called a "Disposition"), any
or all of the Stockholder's Subject Shares; (B) except pursuant to the terms of
this Agreement, grant any proxies or powers of attorney, deposit any of the
Stockholder's Subject Shares into a voting trust or enter into a voting
agreement with respect to any of the Stockholder's Subject Shares; or (C) take
any action that would reasonably be expected to make any representation or
warranty contained herein untrue or incorrect or have the effect of impairing
the ability of the Stockholder to perform the Stockholder's obligations under
this Agreement or preventing or delaying the consummation of any of the
transactions contemplated hereby; provided, however,
-------- -------
4
<PAGE>
that during the term of this Agreement, the Stockholder shall be permitted to
effect a Disposition of up to 200,000 Company Shares so long as the Stockholder
uses his reasonable best efforts to retain the right to vote such Company Shares
in matters referred to in Section 1.1 hereof.
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully
-----------
with Parent and Company in connection with their respective reasonable best
efforts to fulfill the conditions to the Merger set forth in Article 6 of the
Merger Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
5
<PAGE>
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
6
<PAGE>
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns (including without limitation any person to
whom any Subject Shares are sold, transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
------------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/Tom T. Cunningham
----------------------------------
Name: Tom T. Cunningham
Address: 1818 Kersten
Houston, TX 77043
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- ---------------------
Tom T. Cunningham 543,590
<PAGE>
EXHIBIT 2.8
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholders listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of
<PAGE>
stockholders of Company, the Stockholder shall vote or cause to be voted
(including by written consent, if applicable) all of the Stockholder's Subject
Shares in favor of the approval and adoption of the Merger Agreement and in
favor of any other matter necessary for the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon at any such
meeting or made the subject of any such written consent, as applicable. At any
meeting of the stockholders of the Company called to consider and vote upon any
Adverse Proposal (as hereinafter defined) (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of any Adverse Proposal by written consent of stockholders of Company, the
Stockholder shall vote or cause to be voted (including by written consent, if
applicable) all of the Stockholder's Subject Shares against such Adverse
Proposal. For purposes of this Agreement, the term "Adverse Proposal" means any
(a) Acquisition Proposal, (b) proposal or action that would reasonably be
expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
arising hereunder or set forth under applicable securities laws. Except as set
forth in Schedule A hereto, the Stockholder does not beneficially own any
outstanding shares of the capital stock of Company on the date hereof other than
such Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Cooperation. The Stockholder shall cooperate fully with
-----------
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article 6 of the Merger
Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time and (ii) the termination of the Merger Agreement pursuant
to Article VII thereof. In addition, this Agreement may be terminated at any
time by mutual written consent of Parent and the Stockholder. In the event of
termination of this Agreement pursuant to this Section 4.2, this Agreement shall
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby shall be automatically revoked; provided,
however, that no such termination shall relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination,
and provided further that the representations and warranties set forth in
Sections 2.1 and 2.2 and covenants set forth in Section 4.1 shall survive the
termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of
5
<PAGE>
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
6
<PAGE>
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-----------------------------
Name: Stephen H. Clark
Title: CEO
STOCKHOLDER:
/s/ Peter Jeffrey
---------------------------------
Name: Peter Jeffrey
Address: Box 390
Thorsby, AB T0C 2P0
PETER JEFFREY FAMILY TRUST:
/s/ Peter Jeffrey
---------------------------------
Name: Peter Jeffrey Family Trust
Address: Box 390
Thorsby, AB T0C 2P0
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- -------------------- ---------------------
Peter Jeffrey 80,000
Peter Jeffrey Family Trust 755,000
<PAGE>
EXHIBIT 2.9
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 15, 1999 (this "Agreement"), is
made and entered into between SpectraSite Holdings, Inc., a Delaware corporation
("Parent"), and the stockholder listed on the signature page hereto (the
"Stockholder").
RECITALS:
A. Parent, W Acquisition Corp, a Washington corporation and wholly-owned
subsidiary of Parent ("Merger Sub"), and Westower Corporation, a Washington
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, the Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of outstanding Company Shares set forth on
Schedule A hereto (such Company Shares, together with any other outstanding
Company Shares the beneficial ownership of which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated pursuant to Section 4.2 hereof, are
collectively referred to herein as the Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that the Stockholder
agree, and the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
<PAGE>
ARTICLE I
VOTING OF COMPANY SHARES
Section 1.1 Agreement to Vote Company Shares. At any meeting of
--------------------------------
the stockholders of the Company called to consider and vote upon the adoption of
the Merger Agreement (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of the
adoption of the Merger Agreement by written consent of stockholders of Company,
the Stockholder shall vote or cause to be voted (including by written consent,
if applicable) all of the Stockholder's Subject Shares in favor of the approval
and adoption of the Merger Agreement and in favor of any other matter necessary
for the consummation of the transactions contemplated by the Merger Agreement
and considered and voted upon at any such meeting or made the subject of any
such written consent, as applicable. At any meeting of the stockholders of the
Company called to consider and vote upon any Adverse Proposal (as hereinafter
defined) (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of stockholders of Company, the Stockholder shall vote or cause
to be voted (including by written consent, if applicable) all of the
Stockholder's Subject Shares against such Adverse Proposal. For purposes of
this Agreement, the term "Adverse Proposal" means any (a) Acquisition Proposal,
(b) proposal or action that would reasonably be expected to result in a breach
of any covenant, representation or warranty of Company set forth in the Merger
Agreement, or (c) proposal or action that is intended or would reasonably be
expected to impede, interfere with, delay or materially and adversely affect the
Merger or any of the other transactions contemplated by the Merger Agreement or
this Agreement.
Section 1.2 Irrevocable Proxy.
-----------------
(a) Grant of Proxy. The Stockholder hereby appoints Parent
--------------
and any designee of Parent, each of them individually, the Stockholder's proxy
and attorney-in-fact pursuant to the provisions of Section 23B.07.220 of the BCA
with full power of substitution and resubstitution, to vote and act on the
Stockholder's behalf and in the Stockholder's name, place and stead with respect
to the Stockholder's Subject Shares, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment of any such meeting,
held during the term of this Agreement and to act by written consent with
respect to the Stockholder's Subject Shares, at all times during the term of
this Agreement with respect to the matters referred to in, and in accordance
with, Section 1.1 hereof. This proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder affirms that
this proxy is coupled with an interest and shall be irrevocable. The Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(b) Other Proxies Revoked. The Stockholder represents that
---------------------
any proxies heretofore given in respect of the Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
2
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Certain Representations and Warranties of the
---------------------------------------------
Stockholders. The Stockholder represents and warrants to Parent as follows:
- ------------
(a) Ownership. The Stockholder is the sole beneficial owner
---------
of the number of outstanding Company Shares set forth on Schedule A hereto and
has full and unrestricted power to dispose of and to vote or direct the vote of
such Company Shares. Such Company Shares are now, and at all times during the
term hereof will be, held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all Liens, voting trusts or
agreements, powers of attorney, proxies or any other arrangement or agreement
with any person or entity limiting or affecting the Stockholder's legal power or
authority to vote or sell the Company Shares, except for those restrictions
resulting from the Company Shares being held in a margin account, arising
hereunder or set forth under applicable securities laws. Except as set forth in
Schedule A hereto, the Stockholder does not beneficially own any outstanding
shares of the capital stock of Company on the date hereof other than such
Company Shares.
(b) Power and Authority: Execution and Delivery. The
-------------------------------------------
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. If the Stockholder is
not a natural person, the execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder.
(c) No Conflicts. The execution and delivery of this
------------
Agreement do not, and compliance with the provisions hereof will not, conflict
with, result in a breach or violation of or default (with or without notice or
lapse of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, judgment, order, injunction, decree,
determination or award binding on the Stockholder, other than any such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Stockholder to perform the Stockholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
3
<PAGE>
Section 2.2 Representations and Warranties of Parent. Parent
----------------------------------------
hereby represents and warrants to the Stockholder that:
(a) Power and Authority, Execution and Delivery. Parent has
-------------------------------------------
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent. This Agreement has been duly executed and delivered by
Parent.
(b) No Conflicts. The execution and delivery of this
------------
Agreement do not, and, subject to appropriate filings under securities laws
(which Parent agrees to make promptly), to the extent applicable, the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or give rise to
a material obligation, right of termination, cancellation, or acceleration of
any obligation or a loss of a material benefit under, or require notice to or
the consent of any person under any agreement, instrument, undertaking,
judgment, order, injunction, decree, determination or award binding on Parent,
other than any such conflicts, breaches, violations, defaults, obligations,
rights or losses that individually or in the aggregate would not (i) impair the
ability of Parent to perform its obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Stockholder.
--------------------------------
(a) Restriction on Transfer of Subject Shares, Proxies and
------------------------------------------------------
Noninterference. The Stockholder shall not, directly or indirectly: (A) except
- ---------------
pursuant to the terms of this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's Subject Shares; (B) except
pursuant to the terms of this Agreement, grant any proxies or powers of
attorney, deposit any of the Stockholder's Subject Shares into a voting trust or
enter into a voting agreement with respect to any of the Stockholder's Subject
Shares; or (C) take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or incorrect or have the
effect of impairing the ability of the Stockholder to perform the Stockholder's
obligations under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
4
<PAGE>
(b) No Solicitation. The Stockholder shall not take, or
---------------
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant) to take, any action that Company would be prohibited from taking
under the first sentence of Section 5.8(a) of the Merger Agreement (disregarding
for purposes of this Section 3.1(b) the provisos to such sentence). By executing
this Agreement, the Stockholder, if he or she is or becomes during the term
hereof a director or officer of the Company, does not make any agreement or
understanding in his or her capacity as a director or officer. The Stockholder
signs solely in his or her capacity as the beneficial owner of the Stockholder's
Subject Shares, and nothing herein shall limit or affect any actions taken by
the Stockholder in his or her capacity as a director or officer of the Company.
(c) Waiver of Appraisal Rights. The Stockholder hereby
--------------------------
waives any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Fees and Expenses. Each party hereto shall pay its own
-----------------
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
Section 4.2 Amendment, Termination. This Agreement may not be
----------------------
amended except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement shall terminate immediately upon the earlier of
(i) the Effective Time, (ii) the termination of the Merger Agreement pursuant to
Article VII thereof and (iii) December 31, 1999. In addition, this Agreement
may be terminated at any time by mutual written consent of Parent and the
Stockholder. In the event of termination of this Agreement pursuant to this
Section 4.2, this Agreement shall become null and void and of no effect with no
liability on the part of any party hereto and all proxies granted hereby shall
be automatically revoked; provided, however, that no such termination shall
relieve any party hereto from any liability for any breach of this Agreement
occurring prior to such termination, and provided further that the
representations and warranties set forth in Sections 2.1 and 2.2 and covenants
set forth in Section 4.1 shall survive the termination of this Agreement.
Section 4.3 Extension, Waiver. Any agreement on the part of a
-----------------
party to waive any provision of this Agreement, or to extend the time for any
performance hereunder, shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
5
<PAGE>
Section 4.4 Entire Agreement: No Third-Party Beneficiaries. This
----------------------------------------------
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 4.5 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof.
Section 4.6 Notices. All notices, requests, claims, demands and
-------
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, or sent by overnight courier (providing
proof of delivery), in the case of the Stockholder, to the address set forth on
the signature page hereto with a copy (which shall not constitute notice) to
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania
19103-2921, Attention: Peter Sartorius, Esq., Telecopy: 215-913-5299 and to
Wolf, Block, Schorr and Solis-Cohen LLP, 111 South 15th Street, Philadelphia, PA
19102, Attention: Jason M. Shargel, Esq., Telecopy: 215-977-2740, or, in the
case of Parent, to the address set forth below (or, in each case, at such other
address as shall be specified by like notice).
SpectraSite Holdings, Inc.
8000 Regency Parkway, Suite 570
Cary, North Carolina 27511
Attention: Stephen H. Clark
Telecopy: 919-468-8522
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Bruce A. Gutenplan, Esq.
Telecopy: 212-757-3990
Section 4.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Parent, and any such assignment
or delegation that is not consented to shall be null and void. This Agreement,
together with any rights, interests or obligations of Parent hereunder, may be
assigned or delegated, in whole or in part, by Parent without the consent of or
any action by the Stockholder upon notice by Parent to the Stockholder as herein
provided. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be
6
<PAGE>
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Subject Shares are sold,
transferred or assigned).
Section 4.8 Further Assurances. The Stockholder shall execute and
------------------
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement.
Section 4.9 Enforcement. Irreparable damage would occur in the
-----------
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the federal court of the United States located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties hereto (i) shall submit itself
to the jurisdiction of the federal courts of the United States of America
located in the State of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) shall not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the federal courts of the United States of America located in the State of New
York.
Section 4.10 Severability. Whenever possible, each provision or
------------
portion of any provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
Section 4.11 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
[signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed as of the day and year first written above.
SPECTRASITE HOLDINGS, INC.
By:/s/ Stephen H Clark
---------------
Name: Stephen H Clark
Title: CEO
STOCKHOLDER:
/s/ Bruce E. Toll
-------------------
Name: Bruce E. Toll
Address: 3103 Philmont Avenue
Huntingdon Valley, PA 19006
8
<PAGE>
SCHEDULE A
Total Number of Company
Shares
Name of Stockholder of Common Stock Owned
- ------------------- -----------------------
Bruce E. Toll 156,000
(excludes 10,000 shares owned by The Bruce E. and Robbi S. Toll Foundation,
which shall not be subject to this Agreement)
<PAGE>
EXHIBIT 2.10
AGREEMENT OF SALE AND
AMENDMENT TO PURCHASE AGREEMENT
AGREEMENT OF SALE AND AMENDMENT TO PURCHASE AGREEMENT dated as of May
15, 1999 (this "Agreement") by and between Westower Corporation, a Washington
corporation (the "Company"), and BET Associates L.P., a Delaware limited
partnership (the "Purchaser").
BACKGROUND:
----------
A. Pursuant to the Purchase Agreement dated as of May 11, 1998 (the
"Original Purchase Agreement"), the Company heretofore issued its 7% Convertible
Senior Subordinated Notes due April 30, 2007 in the aggregate principal amount
of $15,000,000 (the "Notes") and its warrants to purchase 40,000 shares of
common stock of the Company (the "Warrants"). The Purchaser is the holder of
all the outstanding Notes and Warrants.
B. The Company is party to an Agreement and Plan of Merger dated the
date hereof (the "Merger Agreement") among the Company, SpectraSite Holdings,
Inc., a Delaware corporation ("Parent"), and W Acquisition Corp., a Washington
corporation ("Merger Sub") pursuant to which Merger Sub will merge with and into
the Company and the Company will become a wholly-owned subsidiary of Parent (the
"Merger").
C. In order to fulfill the conditions set forth in the Merger
Agreement, the Company and the Purchaser wish to enter into this Agreement.
D. Capitalized terms used but not defined herein have the meaning
specified in the Original Purchase Agreement.
AGREEMENT:
---------
1. Sale and Purchase of Notes.
--------------------------
(a) At or immediately prior to the time of the consummation of the Merger
(the "Merger Closing Time"), but no earlier than June 4, 1999, the
Purchaser agrees to sell, assign, transfer and deliver to the Company,
and the Company agrees to purchase or cause to be purchased from the
Purchaser, the Notes. The time of such sale and purchase is referred
to herein as the "Closing Time." Neither party shall have any
obligation hereunder with respect to the sale or purchase of the Notes
if the Merger does not occur.
<PAGE>
(b) The purchase price to be paid for the Notes shall be $19,483,444 plus
accrued and unpaid interest on the Notes to the date of purchase,
payable in cash to be delivered by wire transfer of immediately
available funds for credit to such account as the Purchaser shall
direct against surrender of the Notes.
(c) The Company and the Purchaser hereby agree that the "current
conversion price" as defined in the Original Purchase Agreement, as
adjusted pursuant to Section 6.4 of the Original Purchase Agreement,
as of the date hereof is $24.6363.
2. Exercise of Warrants.
--------------------
(a) At or immediately prior to the Merger Closing Time, the Purchaser
hereby agrees to exercise the Warrants via cashless exercise in
exchange for 11,702 shares of Common Stock of the Company. Neither
party shall have any obligation under this Agreement with respect to
the exercise of the Warrants unless the Merger occurs.
(b) The Company and the Purchaser agree that the Exercise Price under the
Warrants as of the date hereof is $22.6382 per share, and that such
price reflects all of the adjustments provided for in Section 6 of the
Warrant up to the date hereof.
3. Waiver of Claims. From and after the Closing Time, the Purchaser hereby
----------------
irrevocably waives its right to bring a claim against the Company or any
affiliate thereof for the breach of any representation, warranty or covenant
contained in the Original Purchase Agreement.
4. Restrictions on Conversion and Disposition. During the term of this
------------------------------------------
Agreement, the Purchaser shall not, directly or indirectly, without the prior
written consent of the Company:
(a) convert the Notes or any portion thereof or exercise the Warrants; or
(b) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract or other arrangement
or understanding with respect to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of the
Notes or the Warrants.
5. Representations. This Company represents and warrants to Purchaser that
---------------
(a) all material facts relating to the value of the Notes and the Warrants are
disclosed in the Company's filings with the U.S. Securities and Exchange
Commission or have been discussed at meetings of the Board of Directors of the
Company at which Bruce E. Toll and/or Leonard M. Tannenbaum has been present;
(b) the execution, delivery and performance of this Agreement have been duly
authorized by the Company; and (c) the execution, delivery and performance of
this Agreement
-2-
<PAGE>
by the Company will not violate any law, regulation or agreement by which it is
bound or to which it is subject.
6. Representations of the Purchaser. The Purchaser represents and warrants to
--------------------------------
the Company that (a) the execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser; and (b) the execution, delivery and
performance of this Agreement by the Purchaser will not violate any law,
regulation or agreement by which it is bound or to which it is subject.
7. Indemnification. Each party shall indemnify and hold harmless the other
---------------
party from any losses or damages (including without limitation reasonable
attorneys' fees and expenses) resulting from any breach of this Agreement by
such party.
8. Termination. This Agreement (except Sections 1(c) and 2(b)) shall
-----------
terminate immediately upon the earliest of (i) any termination of the Merger
Agreement (whether as a result of the execution of a Superior Proposal (as
defined in the Merger Agreement) or otherwise); (ii) the Merger Closing Time if
the Closing Time has not occurred; or (iii) December 31, 1999.
9. Full Force and Effect. Except as specifically provided herein, the
---------------------
Original Purchase Agreement shall remain in full force and effect, and no party
hereto waives any of its rights under the Original Purchase Agreement. In the
event of any conflict between the Original Purchase Agreement and this
Agreement, this Agreement shall control.
10. Assignment. The Company may assign the right to purchase the Notes to
----------
Parent or any affiliate of Parent, provided that no such assignment shall
relieve the Company of any liability under this Agreement. The Company agrees
to disclose all material facts relating to the Company and the Notes and
Warrants to any assignee of its rights under this Agreement. Except as provided
in the second preceding sentence, this Agreement may not be assigned or
transferred in whole or in part by either party without the prior written
consent of the other.
11. Entire Agreement. This Agreement contains the entire Agreement between the
----------------
parties with respect to the subject matter hereof, and there are no agreements,
understandings, representations or warranties between the parties other than
those set forth or referred to herein.
12. Counterparts. This Agreement may be executed by the parties hereto in
------------
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts together shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
13. Headings. The headings and captions in this Amendment are for convenience
--------
of reference only and shall not define, limit or otherwise affect any terms or
provisions hereof.
-3-
<PAGE>
14. Expenses. The Company agrees to pay the reasonable fees and expenses of
--------
counsel for the Purchaser incurred in connection with the negotiation, execution
and performance of this Agreement.
15. Governing Law. This Amendment shall be governed by, and construed in
-------------
accordance with, the laws of the State of Washington (other than any conflicts
of laws or rules that might result in the application of laws of any other
jurisdiction).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
WESTOWER CORPORATION
By: /s/ Calvin J. Payne
----------------------------
Name: Calvin J. Payne
Title: Chairman, President and
Chief Executive Officer
BET ASSOCIATES L.P.
By: BRU LLC, its general partner
By: /s/ Bruce E. Toll
----------------------------
Bruce E. Toll
Member
-4-
<PAGE>
EXHIBIT 99.1
Monday, May 17, 1999
SpectraSite Holdings to Combine With Westower
Combined Company Will Be One of North America's Largest Independent Tower
Consolidators with Unmatched Systems Development Capability
VANCOUVER, Wash., and CARY, N.C., May 17 /PRNewswire/ -- SpectraSite
Holdings, Inc. and Westower Corp. (Amex: WTW) today announced the signing of a
definitive agreement under which closely held SpectraSite Holdings will combine
with Westower in a stock for stock merger transaction, creating one of North
America's largest owners, builders and operators of wireless communications
towers. Westower will operate as a wholly owned subsidiary of SpectraSite.
Under the terms of the agreement, Westower shareholders will receive in a
tax-free exchange 1.81 shares of SpectraSite common stock for each Westower
share. Westower shareholders will own approximately 20 percent of the equity
interest in SpectraSite. SpectraSite will register the SpectraSite shares to
be issued in the merger. Those shares are expected to be traded on Nasdaq. The
transaction will be accounted for as a purchase.
The merger is subject to approval of Westower's shareholders and the
appropriate regulatory agencies as well as other customary closing conditions.
Certain officers, directors and major shareholders of Westower, holding
approximately 49 percent of the outstanding shares of Westower, have agreed to
vote in favor of the merger. The transaction is expected to close in the third
quarter. Upon completion, Calvin Payne, CEO of Westower, will join
SpectraSite's Board of Directors.
Through acquisitions and internal growth, Westower has emerged as one of the
largest turnkey site development and wireless communications tower construction
firms in North America with significant build-to-suit relationships with
various carriers. The company currently owns approximately 190 towers.
The combined company, which will retain the SpectraSite name, will be a
leader in the tower industry, with a nationwide portfolio of approximately
2,400 towers, 800 employees, and annual revenues of about $150 million.
"In today's competitive market, it is vital for tower companies to have
nationwide construction capability," said Stephen Clark, CEO, SpectraSite.
"With that in mind, we sought a strategic partner to meet that need. We
recognize the tremendous value in Westower's established North American
infrastructure, long-term carrier relationships and vast construction
management experience. Combining the capabilities of SpectraSite and Westower
will maximize our ability to complete systems development on behalf of carriers
with increased speed and quality."
"This merger represents the continuation of our strategy to expand our tower
inventory, operational capabilities and geographic reach. Westower has offices
in 28 cities throughout the U.S., Canada and Brazil, with a construction
capacity of more than 2,000 sites a year. In addition, Westower's management
has a great deal of industry experience, which will enhance the strength and
depth of our own team, and creates a company with unmatched systems development
capability. We are extremely enthusiastic about this merger and look forward to
working with Cal Payne and his team," said Clark.
"This is an excellent opportunity for Westower to join with the industry's
third largest tower consolidator and the transaction provides tremendous
<PAGE>
opportunity for our shareholders," said Calvin Payne, CEO, Westower. "Combining
our strengths creates a larger, full-service company that is poised for
powerful growth. We look forward to working together to achieve our common goal
of becoming the premier wireless systems development provider in the industry."
Goldman Sachs acted as financial advisor to SpectraSite in this transaction,
and BancBoston Robertson Stephens acted as financial advisor to Westower.
About SpectraSite Communications, Inc.
SpectraSite Communications, Inc. (www.spectrasite.com), based in Cary, NC, is
a leading owner and operator of communications towers for the wireless
telecommunications industry. Upon closing of the transaction, SpectraSite will
own nearly 2,400 towers in 45 of the top 50 population centers in the United
States, with clusters of towers in major markets including Los Angeles,
Chicago, San Francisco, Detroit, Atlanta, Dallas, Boston, Cleveland, St. Louis,
Seattle, Tampa, Charlotte, Norfolk and Nashville. SpectraSite has regional
offices in the New York, Atlanta, Chicago and San Francisco areas, from which
it offers comprehensive turnkey services including project management, site
acquisition services, construction and design, build-to-suit,
purchase/leaseback, tower leasing, and tower management and maintenance
services to facilitate wireless systems development.
About Westower Corp.
Westower Corp. (www.westower.com), based in Vancouver, WA, is a leading
integrated tower company that provides complete tower services. The company
designs, builds, engineers and maintains, as well as owns and operates, towers
for sending and receiving microwave, cellular, PCS, paging and specialized
mobile radio technologies for broadcast, telephone and utility companies in the
United States, Canada and Brazil.
"Safe Harbor" statement under the Private Securities Litigation Reform Act of
1995: Except for historical information, the matters discussed in this news
release that may be considered forward-looking statements and are subject to
certain risks and uncertainties that could cause the actual results to differ
materially from those projected, including uncertainties and other risks
detailed from time to time in Westower's Securities and Exchange Commission
filings.
/CONTACT: Dave Tomick, Investor Relations, 919-468-0112, or tomickd
@spectrasite.com, or Noreen Allen, Media Relations, 610-992-0889, or
[email protected], both for SpectraSite Holdings, Inc.; or Peter
Lucas, Investor Relations, 604-576-4755, or [email protected], or Richard
Stern, Media Relations, 212-888-0044, or [email protected], both for Westower
Corp./ 07:30 EDT
