Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
November 20, 2000
To the several persons listed in Schedule I attached hereto:
Ladies and Gentlemen:
This will confirm that in consideration of the purchase by
certain purchasers named on Schedule I hereto (the "Purchasers") on the date
hereof of an aggregate 4,000,000 shares of Common Stock, par value $0.001 per
share, of SpectraSite Holdings, Inc., a Delaware corporation (the "Company"),
pursuant to the Purchase Agreement dated as of November 20, 2000 among the
Company and the Purchasers, and as an inducement to them to consummate the
transactions contemplated by the Purchase Agreement, the Company hereby
covenants and agrees with each of you, and with each subsequent holder of
Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, par value $.001 per
share, of the Company, as constituted as of the date of this Agreement, subject
to adjustment pursuant to the provisions of Section 10 hereof.
"Effectiveness Period" shall have the meaning provided in
Section 4 hereof.
"Eligible Stock" shall have the meaning provided in Section
7(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Initial Registration Statement" shall have the meaning
provided in Section 4 hereof.
"Registration Black Out" shall have the meaning provided in
Section 13(a) hereof.
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"Registration Expenses" means the expenses so described in
Section 8 hereof.
"Restricted Stock" means the shares of (i) Common Stock issued
to the Purchasers pursuant to the Purchase Agreement and (ii) Common Stock for
which at any time the Warrants are exercisable or which have been issued upon
exercise of the Warrants, in each case, the certificates for which are required
to bear the legend set forth in Section 2 hereof.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means the expenses so described in Section
8 hereof.
"Warrant Agreement" shall mean the Warrant Agreement dated as
of the date hereof between the Company and First Union National Bank, as warrant
agent, as it may be amended from time to time.
"Warrants" shall mean the warrants to purchase 1,500,000
shares of Common Stock, subject to adjustment, issued to the Purchasers pursuant
to the Purchase Agreement and the Warrant Agreement.
2. Restrictive Legend. Each certificate representing the Common Stock, including
shares issued upon exercise of the Warrants, and each certificate issued upon
exchange, adjustment or transfer thereof, other than in a public sale or as
otherwise permitted by the last paragraph of Section 3 hereof, shall be stamped
or otherwise imprinted with a legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 NOR UNDER APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE BEEN REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any Restricted
Stock (other than (i) in the case of a transfer by any Purchaser, to (a) any
affiliate of such Purchaser, (b) any other Purchaser or affiliate of any other
Purchaser, (c) Caravelle Investment Fund, L.L.C., (d) Caravelle Investment Fund
II, L.L.C., (e) any investment fund controlled by at least two of Messrs. Jay
Bloom, Andrew Heyer or Dean Kehler, (f) any person (I) managed by CIBC World
Markets Corp. ("CIBC") or Trimaran Fund II, L.L.C. ("Trimaran") (including any
affiliates thereof) or at least two of Messrs. Bloom, Heyer or Kehler
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and (II)substantially all the equity interests which are owned, directly or
indirectly, by (w) members of Trimaran, (x) employees of CIBC or any affiliate
thereof, (y) any investor in the Trimaran investment program that has
co-investment rights or (z) any combination of the persons named in the
immediately preceding clauses (w), (x) or (y) or to any of their respective
successors or (ii) in a registered offering as contemplated by Sections 4, 5 or
6 hereof), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be accompanied by
an opinion of counsel reasonably satisfactory to the Company to the effect that
the proposed transfer may be effected without registration under the Securities
Act, whereupon such holder shall be entitled to transfer such securities in
accordance with the terms of its notice; provided, however, that no such opinion
shall be required if such notice shall cover a distribution by a holder of
Restricted Stock that is a partnership or limited liability company to a partner
or member of such holder if such distribution is made after the expiration of
the holding period specified with respect thereto in Rule 144(d)(1) under the
Securities Act, pro rata in accordance with the respective partnership or
limited liability company agreement of such Purchaser without payment of
additional consideration therefor by such partners or members. Each certificate
for Restricted Stock transferred as above provided shall bear the legend set
forth in Section 2, unless (i) such transfer is in accordance with the
provisions of Rule 144 (or any other rule permitting public sale without
registration under the Securities Act) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee (other than an Affiliate of the Company) would be entitled to
transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of Restricted
Stock shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed of in accordance with the intended method of disposition
by the seller or sellers thereof set forth in the registration statement
concerning such shares. Whenever a holder of Restricted Stock is able to provide
a written opinion of counsel to the Company (and its counsel) to the effect that
the provisions of Rule 144(k) of the Securities Act are available to such holder
without limitation, such holder of Restricted Stock shall be entitled to receive
from the Company, without expense, a new certificate not bearing the restrictive
legend set forth in Section 2.
4. Required Shelf Registration.
Promptly following the date of this Agreement, the Company
shall prepare and file with the Commission a registration statement or add the
Restricted Stock to an existing registration statement (in either case, the
"Initial Registration Statement"), which shall cover the resale from time to
time of all Restricted Stock (and, to the extent allowable under the Securities
Act and the Rules promulgated thereunder shall state that such Initial
Registration
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Statement also covers such indeterminate number of additionalshares of
Common Stock as may become issuable upon the exercise of the Warrants pursuant
to the anti-dilution provisions contained in the Warrant Agreement) in an
offering to be made on a continuous basis pursuant to a "shelf" registration
statement under Rule 415. The Initial Registration Statement shall be on Form
S-3 or other similar form (or any successor form), if the Company is eligible to
use such form. The Company shall (i) use its best efforts to cause the Initial
Registration Statement to be declared effective under the Securities Act on or
prior to the 91st day after the date of this Agreement and (ii) keep the Initial
Registration Statement continuously effective under the Securities Act (subject
to Section 13(a) hereof) until the date which is two (2) years after the date on
which the shares can be sold pursuant to the Initial Registration Statement or
such earlier date when all shares of the Restricted Stock have been sold or may
be sold without volume limitations pursuant to Rule 144 (the "Effectiveness
Period"). If any of the shares of Restricted Stock are to be sold in an
underwritten offering initiated by the Purchasers and effected through a
supplement or amendment to the Initial Registration Statement, the holders of a
majority of such stock may designate the managing underwriter of such offering
which will be a firm of recognized national standing, subject to the approval of
the Company, which approval shall not be unreasonably withheld.
5. Demand Registration.
(a) At any time following the Effectiveness Period, the holders of Restricted
Stock constituting at least 25% of the Restricted Stock outstanding at such time
may request the Company to register under the Securities Act all or any portion
of the Restricted Stock held by such requesting holder or holders for sale in
the manner specified in such notice. The Company shall have no obligation to
effect a registration under this Section 5 unless the aggregate offering price
of the securities requested to be sold pursuant to such registration is, in the
good faith judgment of the Company, expected to be equal to or greater than $7.5
million.
(b) Promptly following receipt of any notice under this Section 5, the Company
shall immediately give written notice to any holders of Restricted Stock from
whom notice has not been received, and shall file and use its reasonable efforts
to have declared effective a registration statement under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from such requesting holders the number of shares of Restricted Stock
specified in such notice (and in any notices received from other such holders of
Restricted Stock within 20 days after their receipt of such notice from the
Company). If such method of disposition shall be an underwritten public
offering, the Company may designate the managing underwriter of such offering
which shall be a firm of recognized national standing, subject to the approval
of the selling holders of a majority of the Restricted Stock included in the
offering, which approval shall not be unreasonably withheld. The number of
shares of Restricted Stock to be included in such an underwriting may be reduced
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(pro rata among all of the requesting holders based on the number of shares
requested by each holder to be included) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold therein. Notwithstanding anything to
the contrary contained herein, the obligation of the Company under this Section
5 shall be deemed satisfied only when a registration statement covering all
shares of Restricted Stock specified in notices received as aforesaid, for sale
in accordance with the method of disposition specified by the requesting holder,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(c) Each of the Company and holders of Common Stock other than the Restricted
Stock, shall be entitled to include in any registration statement referred to in
this Section 5 for which the method of distribution is an underwritten public
offering, for sale in accordance with the method of disposition specified by the
requesting holders, shares of Common Stock to be sold by the Company for its own
account, or such other stockholders, as the case may be, except to the extent
that, in the opinion of the managing underwriter, such inclusion would adversely
affect the marketing of the Restricted Stock to be sold. Except as provided in
this paragraph (c) or pursuant to the Company's Second and Amended Restated
Registration Rights Agreement dated April 20, 1999, as amended through the date
hereof and as it may be amended to reflect the registration rights contemplated
by the Agreement to Sublease (the "Second Amended and Restated Agreement") or as
it may be amended solely to add additional parties, the Company will not effect
any other registration of its Common Stock, whether for its own account or that
of other holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 5 until the completion of the period of distribution of
the registration contemplated thereby.
(d) Notwithstanding anything to the contrary contained herein, the Company shall
be obligated to register Restricted Stock pursuant to this Section 5 on one
occasion only.
6. Incidental Registration. If the Company at any time (other than pursuant to
Section 4 or 5 hereof) after the Effectiveness Period proposes to register any
of its Common Stock under the Securities Act for sale to the public, whether for
its own account or for the account of other security holders or both (except
with respect to registration statements on Form S-4 or S-8 (or any successor
form) or another form not available for registering the Restricted Stock for
sale to the public), it will give written notice at such time to all holders of
outstanding Restricted Stock of its intention to do so. Upon the written request
of any such holder, given within 20 days after receipt of any such notice by the
Company, to register any of its Restricted Stock (which request shall state the
intended method of disposition thereof), the Company will use its reasonable
best efforts to cause the Restricted Stock as to which registration shall have
been so requested to be included in the securities to be covered by the
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registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder (in accordance
with its written request) of such Restricted Stock; provided that nothing herein
shall prevent the Company from abandoning or delaying such registration at any
time. In the event that any registration pursuant to this Section 6 shall be, in
whole or in part, an underwritten public offering of Common Stock, any request
by a holder pursuant to this Section 6 to register Restricted Stock shall
specify that either (i) such Restricted Stock is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration or (ii) such
Restricted Stock is to be sold in the open market without any underwriting, on
terms and conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwriting may be reduced if and to
the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold by
the Company therein or by holders of Restricted Stock. In such event, the
Company shall include in such registration (i) first, the securities the Company
proposes to sell or the securities proposed to be sold pursuant to Section 4 of
the Second Amended and Restated Agreement, (ii) second, the Restricted Stock
requested to be included in such registration hereunder and the "Restricted
Stock" requested to be included in such registration under the Second Amended
and Restated Agreement (other than Section 4 thereof), pro rata among the
holders thereof participating in such registration based upon the number of
shares owned by each such holder and (iii) third, other securities requested to
be included in such registration by persons other than holders of Restricted
Stock hereunder or under the Second Amended and Restated Agreement.
7. Registration Procedures. If and whenever the Company is required by the
provisions of Section 4, 5 or 6 hereof to effect the registration of any of the
Restricted Stock under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission
a registration statement with respect to such securities and use its
best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable opportunity
to review and comment thereon) and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement in
accordance with the sellers' intended method of disposition set forth in
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such registration statement for such period; other than (i) as a result of
the underwriters cutback provisions set forth in Sections 4, 5 and 6, as
applicable, (ii) in the event that holders of Restricted Stock make a
demand pursuant to Section 5 and do not include all shares of Common Stock
issued pursuant to the Purchase Agreement then held by such holders and
100% of the shares of Common Stock issued or issuable upon the exercise of
the Warrants then held by such holders (collectively, the "Eligible
Stock"), and (iii) if the holders of Restricted Stock choose not to include
some or all of the Eligible Stock in an incidental registration pursuant to
Section 6, in the event that at any time a registration statement is
required to be effective the number of shares registered under such
registration statement filed pursuant to this Agreement is insufficient to
cover the Eligible Stock, the Company shall amend such registration
statement, or file a new registration statement (on the short form
available therefor, if applicable), or both, so as to cover 100% of such
shares of Eligible Stock, in each case as soon as practicable, but in any
event within ten (10) days after the insufficiency occurs; the Company
shall use its reasonable best efforts to cause such amendment and/or new
registration statement to become effective as soon as practicable following
the filing thereof;
(c) furnish to each seller and to each underwriter such number of copies of
the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of
the securities covered by such registration statement;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under the securities or blue sky laws of
such jurisdictions as the sellers of such securities or, in the case of
an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to so qualify but for this paragraph (d),
(ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and
each underwriter, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
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(f) use its reasonable best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock is
delivered to the underwriters for sale pursuant to such registration: (i)
an opinion of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller and dated
such date, stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement. the
related prospectus, and each amendment or supplement thereof, comply as to
form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder
(except that such counsel need express no opinion as to financial
statements, the notes thereto, and the financial schedules and other
financial and statistical data contained therein) and (C) to such other
effects as may reasonably be requested by counsel for the underwriters or
by such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters or seller may reasonably
request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement and
permit such seller, attorney, accountant or agent to participate in the
preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Sections
4(c) and 10(a) hereof, the period of distribution of Restricted Stock in a firm
commitment underwritten public offering shall be deemed to extend until each
underwriter has completed the distribution of all securities purchased by it,
which period shall in no circumstances exceed six months after the effective
date of the related registration statement, and the period of distribution of
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securities in any other registration shall be deemed to extend until the earlier
of the sale of all securities covered thereby or six months after the effective
date thereof; provided, that the period of distribution under an Initial
Registration Statement shall be the Effectiveness Period.
In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws. The Company shall be under no obligation to
register for any registration pursuant to this Agreement the shares of
Restricted Stock of any holder unless such holder provides the information
requested in accordance with the preceding sentence within 20 days following
receipt of the Company's request for such information.
In connection with each registration pursuant to Sections 4, 5
and 6 hereof covering an underwritten public offering, the Company and all
holders of Restricted Stock participating in such registration agree to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, provided, however, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and provided, further, however,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling holders
of Restricted Stock.
8. Expenses. All expenses incurred by the Company in complying with Sections 4,
5 and 6 hereof, including without limitation all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars and the
reasonable fees and expenses of one counsel for the sellers of Restricted Stock,
but excluding any Selling Expenses, are herein called "Registration Expenses".
All underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 4, 5 or 6 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Section 4, 5 or 6 hereof shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
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9. Indemnification. In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Section 4, 5 or 6 hereof, the Company
will indemnify and hold harmless each seller of such securities thereunder and
each underwriter of such securities thereunder and each other person, if any,
who controls such seller or underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such seller or underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, in each case, as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case if and to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by such seller, such underwriter or such controlling
person in writing specifically for use in such registration statement or
prospectus.
In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
securities was registered under the Securities Act pursuant to Section 4, 5 or
6, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such seller will be liable
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hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; provided, further, however, that the
liability of each seller hereunder shall be limited to the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 9. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 9 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
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liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 9 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 9. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company, on the one hand,
or the underwriters and the sellers of such securities on the other, and to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each of you agree
that it would not be just and equitable if contributions pursuant to this
paragraph were determined by pro rata allocation (even if all of the sellers of
such Restricted Stock were treated as one entity for such purpose) or by any
other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of such
Restricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of any damages which they
would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the Securities Act), shall be entitled
to contribution from any person who is not guilty of such fraudulent
misrepresentation.
The indemnification of underwriters provided for in this
Section 9 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters.
<PAGE>
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10. Changes in Common Stock. If, and as often as, there are any changes in the
Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization (including a merger or consolidation in which the holders of
Common Stock receive securities of an acquiror or its parent), or by any other
means, appropriate adjustment shall be made in the provisions hereof, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Common Stock as so changed.
11. Representations and Warranties of the Company. The Company represents and
warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or By-laws of
the Company, or any provision of any indenture, agreement or other
instrument to which it or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or
other installment, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to considerations of
public policy in the case of the indemnification provisions hereof.
12. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act,
at all times from and after the date it is first required to do so (and
without regard to whether or not it is required to do so at any time
from and after such date, the Company will file with the Commission
such periodic and other reports as an issuer of securities that is a
reporting company, as those terms are understood and defined in the
Exchange Act, would be required to file with the Commission in
compliance with such Exchange Act, unless the Commission refuses to
accept such materials for filing).
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under
Section 13(a) or 15(d) of the Exchange Act for so long as the Company
is subject to such reporting requirements of the Exchange Act.
<PAGE>
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(c) The Company shall furnish to such holder of Restricted Stock forthwith
upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act (whether or not at such time it is
subject to such reporting requirements), (ii) a copy of the most recent
annual or quarterly report of the Company, and (iii) such other reports
and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
13. Miscellaneous.
(a) Notwithstanding anything herein to the contrary, in the event that, at the
time the Company would otherwise be required to file a registration statement
pursuant to Section 4 or 5 or during the time that a registration statement
filed pursuant to Section 4 or 5 is effective, the Company reasonably
determines, based upon advice of counsel, that due to the existence of material
non-public information, disclosure of such material non-public information would
be required to make the statements contained in the applicable registration
statement not misleading (including, without limitation and for the avoidance of
doubt, the pendency of a public or private offering by the Company or pursuant
to the Second Amended and Restated Agreement), and the Company has a bona fide
business purpose for preserving as confidential such material non-public
information, the Company shall have the right to defer the filing or suspend the
use of such registration statement (a "Registration Black Out"), and no holder
of Common Stock shall be permitted to sell any Common Stock pursuant thereto,
until such time as such suspension is no longer required hereunder; provided,
however, that such time shall not exceed a period of twenty (20) consecutive
days; provided that any such 20-day period may be extended for twenty-five (25)
additional consecutive days if the Company reasonably determines, based upon the
advice of its counsel and after conversations with counsel for holders of the
Restricted Stock, that such extension would be required and counsel for holders
of the Restricted Stock determine that the Company's position is reasonable. As
soon as such suspension is no longer required hereunder or upon expiration of a
45-day black-out period, the Company shall take all such actions as are required
to permit sales by holders of Restricted Stock under an effective registration
statement, including, if required, promptly, but in no event later than the date
the Company files any documents with the Commission referencing such material
information, file with the Commission either such registration statement or, if
necessary, an amendment to such registration statement disclosing such
information and use its best efforts to have such registration statement or
amendment declared effective as soon as possible, unless, in the case of a
deferral of filing or a suspension of use of a registration statement pursuant
to Section 5, on or prior to the expiration of the Registration Black-Out
period, the stockholders requesting registration holding a majority of the
shares requested to be included in such registration, by written notice to the
Company, withdraw the request made, in which case, such request made shall not
<PAGE>
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count as a requested registration under Section 5. In the event that the use of
a registration statement filed pursuant to Section 4 or 5 is suspended, the
period of distribution shall be extended by a period of time equal to the length
of time of the Registration Black-Out.
In the event that filing a registration statement is deferred
or use of a registration statement is suspended by the Company, the Company
shall promptly notify all holders whose securities are covered the registration
statement of such deferral or suspension, and shall promptly notify each such
holder as soon as the registration statement is filed or the use of the
registration statement may be resumed. Notwithstanding anything to the contrary,
the Company shall cause the transfer agent to deliver unlegended shares of
Common Stock to a transferee of a holder in connection with any lawful sale of
Restricted Stock with respect to which such holder has entered into a contract
for sale which requires settlement within four (4) business days of execution
prior to receipt of notice of such Registration Black Out and for which such
holder has not yet settled. The Company shall be entitled to effect no more than
two Registration Black Outs during any twelve-(12) month period.
(b) All covenants and agreements contained in this Agreement by or on behalf of
any of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
Without limiting the generality of the foregoing, the registration rights
conferred herein on the holders of Restricted Stock shall inure to the benefit
of any and all subsequent holders from time to time of the Restricted Stock for
so long as the certificates representing the Restricted Stock shall be required
to bear the legend specified in Section 2 hereof.
(c) All notices, requests, consents and other communications hereunder shall be
in writing and shall be mailed by first class registered mail, postage prepaid,
or by overnight courier addressed as follows:
if to the Company, to it at:
SpectraSite Holdings, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: David P. Tomick
<PAGE>
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with a copy to:
Dow, Lohnes & Albertson, PLLC 1200 New Hampshire
Avenue, N.W.
Suite 800
Washington, D.C. 20036
Attention: Timothy J. Kelley
if to any holder of Restricted Stock, at the address as set
forth under such holder's name in Schedule I hereto;
if to any subsequent holder of Restricted Stock, to such
holder at such address as may have been furnished to the Company in
writing by such holder;
with a copy (if to a holder of Restricted Stock affiliated
with the Purchasers) to:
Trimaran Fund Management, L.L.C.
c/o CIBC World Markets Corp.
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
and a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Roger Meltzer, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock) or to
the holders of Restricted Stock (in the case of the Company).
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of law
of such state.
(e) This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof. This Agreement may not be modified or amended
except in writing signed by the Company and the holders of not less than 60% of
<PAGE>
-17-
the voting power of the Restricted Stock then outstanding (assuming for this
purpose that all Warrants have been exercised for shares of Common Stock and
excluding for this purpose any limitations on voting power affecting entities
regulated by the Bank Holding Company Act of 1956, as amended); provided,
however, that any modification or amendment that adversely affects the rights or
privileges of any holder of Restricted Stock and does not affect the other
holders of Restricted Stock in a substantially similar manner shall require the
prior consent of such adversely affected holder.
(f) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(g) Headings of articles, sections and paragraphs of this Agreement are inserted
for convenience of reference only and shall not affect the interpretation or be
deemed to constitute a part hereof.
<PAGE>
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Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you.
Very truly yours,
SPECTRASITE HOLDINGS, INC.
By:/s/ David P. Tomick
------------------------
Name: David P. Tomick
Title:Executive Vice
President and
Chief Financial
Officer
AGREED TO AND ACCEPTED
as of the date first above written
TRIMARAN FUND II, L.L.C.
By: /s/ Steven A. Flyer
--------------------------------
Name: Steven A. Flyer
Title:Attorney-in-Fact
TRIMARAN CAPITAL, L.L.C.
By: /s/ Steven A. Flyer
--------------------------------
Name: Steven A. Flyer
Title:Attorney-in-Fact
TRIMARAN PARALLEL FUND II, L.P.
By: /s/ Steven A. Flyer
--------------------------------
Name: Steven A. Flyer
Title:Attorney-in-Fact
<PAGE>
-19-
CIBC EMPLOYEE PRIVATE EQUITY
FUND (TRIMARAN) PARTNERS
By: /s/ Steven A. Flyer
-------------------------------
Name: Steven A. Flyer
Title:Attorney-in-Fact
CIBC WORLD MARKETS IRELAND
LIMITED
By: /s/ Steven A. Flyer
-------------------------------
Name: Steven A. Flyer
Title:Attorney-in-Fact
<PAGE>
SCHEDULE I
Name and Address of Purchaser
Trimaran Fund II, L.L.C.
Trimaran Capital, L.L.C.
Trimaran Parallel Fund II, L.P.
CIBC Employee Private Equity Fund (Trimaran) Partners
CIBC World Markets Ireland Limited
c/o CIBC World Markets Corp
425 Lexington Avenue
3rd Floor
New York, New York 10017
Attention: Steven A. Flyer
