Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
SPECTRASITE HOLDINGS, INC.
AS ISSUER,
AND
MORGAN STANLEY & CO. INCORPORATED
AS PLACEMENT AGENT
DATED AS OF NOVEMBER 20, 2000
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of November 20, 2000, by and between SpectraSite Holdings,
Inc., a Delaware corporation (the "Company"), and Morgan Stanley & Co.
Incorporated (the "Placement Agent") pursuant to that certain Placement
Agreement, dated November 14, 2000 (the "Placement Agreement"), among the
Company, on the one hand, and the Placement Agent, on the other hand.
In order to induce the Placement Agent to enter into the
Placement Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Placement Agreement.
The Company agrees with the Placement Agent, (i) for its
benefit as Placement Agent and (ii) for the benefit of the beneficial owners
(including the Placement Agent) from time to time of the Notes (as defined
herein) and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of the Notes (each of the
foregoing a "Holder" and together the "Holders"), as follows:
Section 1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Placement Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set
forth in Section 2(d) hereof.
"Applicable Conversion Price" as of any date of determination
means the Conversion Price in effect as of such date of determination or, if no
Notes are then outstanding, the Conversion Price that would be in effect were
Notes then outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, par value
$.001 per share, of the Company and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
"Conversion Price" has the meaning assigned to such term in
the Indenture.
"Damages Accrual Period" has the meaning set forth in Section
2(e) hereof.
"Damages Payment Date" means each interest payment date under
the Indenture in the case of Notes, and each May 15 and November 15 in the case
of the Underlying Common Stock.
"Deferral Notice" has the meaning set forth in Section 3(i)
hereof.
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"Deferral Period" has the meaning set forth in Section 3(i)
hereof.
"Effectiveness Deadline Date" has the meaning set forth in
Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the date
the Initial Shelf Registration Statement is declared effective by the SEC and
ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Event Termination Date" has the meaning set forth in Section
2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Holder" has the meaning set forth in the third paragraph of
this Agreement.
"Indenture" means the Indenture, dated as of November 20,
2000, between the Company and United States Trust Company of New York, as
trustee, pursuant to which the Notes are being issued.
"Initial Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
"Issue Date" means November 20, 2000.
"Liquidated Damages Amount" has the meaning set forth in
Section 2(e) hereof.
"Losses" has the meaning set forth in Section 6 hereof.
"Material Event" has the meaning set forth in Section 3(i)
hereof.
"Notes" means the 6 3/4% Senior Convertible Notes due 2010 of
the Company to be purchased pursuant to the Placement Agreement.
"Notice And Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated November 15, 2000 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date, so
long as all of their Registrable Securities that have been registered for resale
pursuant to a Notice and Questionnaire have not been sold in accordance with a
Registration Statement.
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"Placement Agent" means Morgan Stanley & Co. Incorporated.
"Placement Agreement" has the meaning set forth in the
preamble hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Record Holder" means (i) with respect to any Damages Payment
Date relating to any Notes as to which any such Liquidated Damages Amount has
accrued, the holder of record of such Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to the
Underlying Common Stock as to which any such Liquidated Damages Amount has
accrued, the registered holder of such Underlying Common Stock fifteen (15) days
prior to such Damages Payment Date.
"Registrable Securities" means the Notes until such Notes have
been converted into or exchanged for the Underlying Common Stock and, at all
times subsequent to any such conversion or exchange the Underlying Common Stock
and any securities into or for which such Underlying Common Stock has been
converted or exchanged, and any security issued with respect thereto upon any
stock dividend, split or similar event until, in the case of any such security,
(A) the earliest of (i) its effective registration under the Securities Act and
resale in accordance with the Registration Statement covering it, (ii)
expiration of the holding period that would be applicable thereto under Rule
144(k), or any successor provision, or (iii) its sale to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the
Securities Act, and (B) as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legend with respect to
transfer restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture or such legend, as the case may be.
"Registration Expenses" has the meaning set forth in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restricted Securities" means "restricted securities" as
defined in Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
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"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Special Counsel" means Shearman & Sterling or such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, but which may, with the written consent of the Placement
Agent (which shall not be unreasonably withheld), be another nationally
recognized law firm experienced in securities law matters designated by the
Company, the reasonable fees and expenses of which will be paid by the Company
pursuant to Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set
forth in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means United States Trust Company of New York, the
Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which
the Notes are convertible or issued upon any such conversion.
Section 2. SHELF REGISTRATION. (a). The Company shall prepare and file or cause
to be prepared and filed with the SEC, as soon as practicable but in any event
by the date (the "Filing Deadline Date") ninety (90) days after the Issue Date,
a Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders thereof of all
of the Registrable Securities (the "Initial Shelf Registration Statement"). The
Initial Shelf Registration Statement shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
Holders in accordance with the reasonable methods of distribution elected by the
Holders, approved by the Company, and set forth in the Initial Shelf
Registration Statement. The Company shall use its reasonable efforts to cause
the Initial Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable but in any event by the date (the
"Effectiveness Deadline Date") that is one hundred eighty (180) days after the
Issue Date, and to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period, the Company shall use its reasonable efforts to obtain
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the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within thirty (30) days of such cessation of effectiveness amend
the Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Company shall use its reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep such Registration Statement (or subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement, if
required by the Securities Act or as reasonably requested by the Placement Agent
or by the Trustee on behalf of the Holders of the Registrable Securities covered
by such Shelf Registration Statement.
(d) Each Holder of Registrable Securities agrees that if such Holder wishes to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section 2(d) and
Section 3(i). Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire to the Company prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as practicable after the date
a Notice and Questionnaire is delivered, and in any event upon the later of (x)
five (5) Business Days after such date or (y) five (5) Business Days after the
expiration of any Deferral Period in effect when the Notice and Questionnaire is
delivered or put into effect within five (5) Business Days of such delivery
date, (i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use its reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed; (ii) provide
such Holder copies of any documents filed pursuant to Section 2(d)(i); and (iii)
notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section
2(d)(i); provided, that if such Notice and Questionnaire is delivered during a
Deferral Period, or a Deferral Period is put into effect within five (5)
Business Days after such delivery date, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above within five (5) Business Days after expiration
of the Deferral Period in accordance with Section 3(i). Notwithstanding anything
contained herein to the contrary, (i) the Company shall be under no obligation
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to name any Holder that is not a Notice Holder as a selling securityholder in
any Registration Statement or related Prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) Business Days
from the expiration of a Deferral Period (and the Company shall incur no
obligation to pay Liquidated Damages Amounts during such extension) if such
Deferral Period shall be in effect on the Amendment Effectiveness Deadline Date.
(e) The parties hereto agree that the Holders of Registrable Securities will
suffer damages, and that it would not be feasible to ascertain the extent of
such damages with precision, if (i) the Initial Shelf Registration Statement has
not been filed on or prior to the Filing Deadline Date, (ii) the Initial Shelf
Registration Statement has not been declared effective under the Securities Act
on or prior to the Effectiveness Deadline Date, (iii) the Company has failed to
perform its obligations set forth in Section 2(d) within the time periods
required therein, (iv) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 3(i) hereof or (v) the number of Deferral Periods in any period exceeds
the number permitted in respect of such period pursuant to Section 3(i) hereof
(each of the events of a type described in any of the foregoing clauses (i)
through (v) are individually referred to herein as an "Event," and the Filing
Deadline Date in the case of clause (i), the Effectiveness Deadline Date in the
case of clause (ii), the date by which the Company is required to perform its
obligations set forth in Section 2(d) in the case of clause (iii) (including the
filing of any post-effective amendment prior to the Amendment Effectiveness
Deadline Date), the date on which the aggregate duration of Deferral Periods in
any period exceeds the number of days permitted by Section 3(i) hereof in the
case of clause (iv), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods in any period under Section
3(i) hereof to be exceeded in the case of clause (v), each being referred to
herein as an "Event Date"). Events shall be deemed to continue until the "Event
Termination Date," which shall be the following dates with respect to the
respective types of Events: the date the Initial Shelf Registration Statement is
filed in the case of an Event of the type described in clause (i), the date the
Initial Shelf Registration Statement is declared effective under the Securities
Act in the case of an Event of the type described in clause (ii), the date the
Company performs its obligations set forth in Section 2(d) in the case of an
Event of the type described in clause (iii) (including, without limitation, the
date the relevant post-effective amendment to the Shelf Registration Statement
is declared effective under the Securities Act), termination of the Deferral
Period that caused the limit on the aggregate duration of Deferral Periods in a
period set forth in Section 3(i) to be exceeded in the case of the commencement
of an Event of the type described in clause (iv), and termination of the
Deferral Period the commencement of which caused the number of Deferral Periods
in a period permitted by Section 3(i) to be exceeded in the case of an Event of
the type described in clause (v).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company agrees to
pay, as liquidated damages and not as a penalty, an amount (the "Liquidated
Damages Amount"), payable on the Damages Payment Dates to Record Holders of
Registrable Securities accruing, as the case may be, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, if
the first date of any Damages Accrual Period for which the Liquidated Damages
Amount is to be paid to Holders as a result of the occurrence of any particular
Event is other than a Damages Payment Date, then the Event Date) and ending on
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but excluding the first to occur of (A) the date of the end of the Damages
Accrual Period or (B) the next Damages Payment Date, at a rate per annum equal
to one-half of one percent (0.5%) of (i) the aggregate principal amount of such
Notes or, without duplication, (ii) in the case of Notes that have been
converted into or exchanged for Underlying Common Stock, the Applicable
Conversion Price of such shares of Underlying Common Stock, as the case may be,
in each case determined as of the Business Day immediately preceding the next
Damages Payment Date; provided, that in the case of a Damages Accrual Period
that is in effect solely as a result of an Event of the type described in clause
(iii) of the immediately preceding paragraph, such Liquidated Damages Amount
shall be paid only to the Holders that have delivered Notice and Questionnaires
that caused the Company to incur the obligations set forth in Section 2(d) the
non-performance of which is the basis of such Event, provided further, that any
Liquidated Damages Amount accrued with respect to any Note or portion thereof
called for redemption on a redemption date or converted into Underlying Common
Stock on a conversion date prior to the Damages Payment Date, shall, in any such
event, be paid instead to the Holder who submitted such Note or portion thereof
for redemption or conversion on the applicable redemption date or conversion
date, as the case may be. Notwithstanding the foregoing, no Liquidated Damages
Amounts shall accrue as to any Registrable Security from and after the earlier
of (x) the date such security is no longer a Registrable Security and (y)
expiration of the Effectiveness Period. The rate of accrual of the Liquidated
Damages Amount with respect to any period shall not exceed the rate provided for
in this paragraph notwithstanding the occurrence of multiple concurrent Events.
Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to
this Section, the accrual of Liquidated Damages Amounts will cease (without in
any way limiting the effect of any subsequent Event requiring the payment of
Liquidated Damages Amounts by the Company).
The Trustee shall be entitled, on behalf of Holders of Notes
or Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages.
A11 of the Company's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
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Section 3. REGISTRATION PROCEDURES. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with the
intended method or methods of distribution thereof, and use its reasonable
efforts to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, that before filing any Registration
Statement or Prospectus or any amendments or supplements thereto with the SEC,
furnish to the Placement Agent and the Special Counsel copies of all such
documents proposed to be filed and use its reasonable best efforts to reflect in
each such document when so filed with the SEC such comments as the Special
Counsel reasonably shall propose within five (5) Business Days of the delivery
of such copies to the Placement Agent and the Special Counsel.
(b) Prepare and file with the SEC such amendments and post-effective amendments
to each Registration Statement as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and use its reasonable best efforts to comply
with the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the Placement
Agent and the Special Counsel (i) when any Prospectus, Prospectus supplement,
Registration Statement or post-effective amendment to a Registration Statement
(other than the Initial Registration Statement) has been filed with the SEC and,
with respect to a Registration Statement (other than the Initial Registration
Statement) or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal
or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) after the effective date of
any Registration Statement filed pursuant to this Agreement of the occurrence of
(but not the nature of or details concerning) a Material Event and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(i)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment, and provide prompt notice
to each Notice Holder and the Placement Agent of the withdrawal of any such
order.
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(e) If reasonably requested by the Placement Agent or any Notice Holder, as
promptly as practicable incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement such information as the Placement Agent,
the Special Counsel or such Notice Holder shall, on the basis of a written
opinion of nationally-recognized counsel experienced in such matters, determine
to be required to be included therein by applicable law and make any required
filings of such Prospectus supplement or such post-effective amendment.
(f) As promptly as practicable furnish to the Special Counsel and the Placement
Agent, without charge, at least one (1) conformed copy of the Registration
Statement and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing to the
Company by the Special Counsel, counsel or Placement Agent).
(g) During the Effectiveness Period, deliver to each Notice Holder, the Special
Counsel and the Placement Agent, in connection with any sale of Registrable
Securities pursuant to a Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to the
Shelf Registration Statement, register or qualify or cooperate with the Notice
Holders in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Notice Holder reasonably requests in writing (which request
may be included in the Notice and Questionnaire); prior to any public offering
of the Registrable Securities pursuant to the Shelf Registration Statement, keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period in connection with such Notice Holder's offer
and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the
relevant Registration Statement and the related Prospectus; provided, that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
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(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact as a result of which any Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending corporate
development (a "Material Event") that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and such Prospectus
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its reasonable
efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders and the Special Counsel that the
availability of the Shelf Registration Statement is suspended (a "Deferral
Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the Registration Statement until
such Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use all reasonable efforts to
ensure that the use of the Prospectus may be resumed (x) in the case of clause
(A) above, as promptly as is practicable, (y) in the case of clause (B) above,
as soon as, in the reasonable judgment of the Company, neither the Registration
Statement nor the Prospectus contains any 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, in the light of the circumstances under which they
were made, not misleading, and (z) in the case of clause (C) above, as soon as,
in the discretion of the Company, such suspension is no longer appropriate. The
Company shall be entitled to exercise its right under this Section 3(i) to
suspend the availability of the Shelf Registration Statement or any Prospectus,
without incurring or accruing any obligation to pay liquidated damages pursuant
to Section 2(e), no more than one (1) time in any three month period or four (4)
times in any twelve month period, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without incurring any obligation to pay liquidated
damages pursuant to Section 2(e), not exceed 30 days; provided, that in the case
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of a Material Event relating to an acquisition or a probable acquisition or
financing, recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay liquidated damages
pursuant to Section 2(e), deliver to Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the Deferral
Period by up to an additional 30 days, or such shorter period of time as is
specified in such second notice, provided, that the aggregate duration of any
Deferral Periods shall not, without incurring any obligation to pay liquidated
damages pursuant to Section 2(e), exceed 30 days in any three month period (or
60 days in any three month period in the event of a Material Event pursuant to
which the Company has delivered a second notice as required above) or 90 days in
any twelve (12) month period.
(j) If reasonably requested in writing in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for
the Notice Holders of such Registrable Securities, and any broker-dealers,
attorneys and accountants retained by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants (collectively, the
"Inspectors") in connection with such disposition, in each case as is customary
for similar "Due Diligence" examinations; provided, however, that such persons
shall first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Inspectors and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such Inspectors or (iv)
such information becomes available to any such Inspectors from a source other
than the Company and such source is not bound by a confidentiality agreement,
and provided, that the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of all the Notice Holders
and the other parties entitled thereto by the counsel referred to in Section 5
and provided further, that the Company shall not be required to disclose any
information subject to the attorney-client or attorney work product privilege if
and to the extent such disclosure would constitute a waiver of such privilege.
Each selling Notice Holder of such Registrable Securities will be required to
further agree that it will, upon learning that disclosure of any records of the
Company are sought by a court of competent jurisdiction, give prompt notice to
the Company and allow the Company to undertake appropriate action to prevent
disclosure of the records deemed confidential at the Company's expense.
(k) Use all reasonable efforts to comply with all applicable rules and
regulations of the SEC and, as soon as practicable will make generally available
to its securityholders earning statements (which need not be audited) satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act).
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(l) If the Registrable Securities are in certificated form, cooperate with each
Notice Holder to facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold pursuant to a Registration Statement,
which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the
Indenture and registered in such names as such Notice Holder may request in
writing at least three (3) Business Days prior to any sale of such Registrable
Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such Registration
Statement and provide the Trustee and the transfer agent for the Common Stock
with printed certificates for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the National
Association of Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Registration Statement and (ii) the
effectiveness of the Initial Registration Statement, announce the same, in each
case by release to Reuters Economic Services and Bloomberg Business News.
Section 4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating to
or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.
Section 5. REGISTRATION EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Sections 2 and 3 of this Agreement whether or not any of the Registration
Statements are declared effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (x) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (y) of compliance with
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federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the Special Counsel in connection with Blue
Sky qualifications of the Registrable Securities under the laws of such
jurisdictions as the Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company, (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) reasonable fees
and disbursements of counsel for the Company and the Special Counsel in
connection with the Shelf Registration Statement (provided that the Company
shall not be liable for the fees and expenses of more than one separate firm for
all parties participating in any transaction hereunder), (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Common Stock and (vi) Securities Act liability insurance obtained
by the Company in its sole discretion. In addition, the Company shall pay the
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing by the Company of the Registrable Securities on any securities
exchange on which similar securities of the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay selling expenses (including any brokerage fees and expenses
or underwriting discounts and commissions, if any) and all registration expenses
to the extent required by applicable law, and the Notice Holders shall pay the
expenses of all broker-dealers, attorneys and accountants retained by them and
referred to in Section 3(j).
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless each Notice Holder and each person, if any, who controls any Notice
Holder (within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act) from and against any losses, liabilities, claims,
damages and expenses (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (collectively, "Losses"), arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided, however,
that the Company shall not be liable in any such case to the extent that any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement contained in or omission or alleged omission from any of such
documents in reliance upon and conformity with any of the information relating
to the Holders furnished to the Company in writing by a Holder expressly for use
therein; provided further, that the indemnification contained in this paragraph
shall not inure to the benefit of any Holder of Registrable Securities (or to
the benefit of any person controlling such Holder) on account of any such Losses
arising out of or based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus or Prospectus
provided in each case the Company has performed its obligations under Sections
3(a) and 3(b) hereof if either (A) (i) such Holder failed to send or deliver a
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<PAGE>
copy of the Prospectus or post-effective amendments thereto, as the case may be
with or prior to the delivery of written confirmation of the sale by such Holder
to the person asserting the claim from which such Losses arise and (ii) the
Prospectus or post-effective amendments thereto, as the case may be would have
corrected such untrue statement or alleged untrue statement or such omission or
alleged omission, or (B) (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented, with
or prior to the delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each Holder agrees
severally and not jointly to indemnify and hold harmless the Company and its
respective directors and officers, and each person, if any, who controls the
Company (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) or any other Holder, from and against all Losses
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information furnished to the Company in
writing by such Holder expressly for use in such Registration Statement or
Prospectus or amendment or supplement thereto. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding (including
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Party") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any other parties entitled to indemnification hereunder
which the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such separate firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
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<PAGE>
6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders,
for purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible or exchangeable
as of the date on which such designation is made) of the Registrable Securities
covered by the Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a) and, in the case of parties indemnified
pursuant to Section 6(b), the Company. The indemnifying party shall not be
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.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement pursuant to the Placement Agreement (before
deducting expenses) of the Registrable Securities to which such Losses relate.
Benefits received by any Holder shall be deemed to be equal to the value of
Registrable Securities that are registered under the Securities Act. The
relative fault of the Holders on the one hand and the Company on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Holders or by
the Company, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this paragraph are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
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Losses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages that such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity, contribution and expense reimbursement obligations of the
parties hereunder shall be in addition to any liability any indemnified party
may otherwise have hereunder, under the Placement Agreement or otherwise-
(f) The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any person controlling any Holder, or the Company, or the Company's officers or
directors or any person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
Section 7. INFORMATION REQUIREMENTS. (a) The Company covenants that, if at any
time before the end of the Effectiveness Period the Company is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as any
Holder of Registrable Securities may reasonably request in writing (including,
without limitation, making such reasonable representations as any such Holder
may reasonably request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 and
Rule 144A under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the written request of any Holder of
Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such reporting requirements, unless
such a statement has been included in the Company's most recent report filed
pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities (other than the Common Stock) under any section
of the Exchange Act.
(b) The Company shall file the reports required to be filed by it under the
Exchange Act and shall use reasonable efforts to comply with all other
requirements set forth in the instructions to Form S-3 in order to allow the
Company to be eligible to file registration statements on Form S-3.
Section 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
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<PAGE>
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements. Notwithstanding
the foregoing, the Placement Agent acknowledges that the Company is obligated,
and may obligate itself from time to time in the future, to register its
securities for other holders.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Notes deemed to be the Holders, for purposes of this Section,
of the number of outstanding shares of Underlying Common Stock into which such
Notes are or would be convertible or exchangeable as of the date on which such
consent is requested). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of Registrable Securities may
be given by Holders of at least a majority of the Registrable Securities being
sold by such Holders pursuant to such Registration Statement; PROVIDED, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(w) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in a Notice and
Questionnaire or any amendment thereto;
(x) if to the Company, to: SpectraSite Holdings, Inc.
100 Regency Forest Drive
Suite 400
Cary, North Carolina 27511
Attention: Chief Financial
Officer Telecopy No.:
(919) 468-8522
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and
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, NW
Suite 800
Washington, DC 20036-6802
Attention: Thomas D. Twedt,
Esq.
Telecopy No.: (202) 776-2222
(y) if to the Placement Agent, to: Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York
Attention: Equity Capital
Markets
Telecopy No.: (212) 761-0538
and
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Attention: Joel S. Klaperman,
Esq.
Telecopy No.: (212) 848-7179
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) APPROVAL OF HOLDERS. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than the
Placement Agent or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) SUCCESSORS AND ASSIGNS. Any person who purchases any Registrable Securities
from the Placement Agent shall be deemed, for purposes of this Agreement, to be
an assignee of the Placement Agent. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be original and all of which taken together shall
constitute one and the same agreement.
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(g) HEADINGS. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
(i) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Registrable Securities. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
(k) TERMINATION. This Agreement and the obligations of the parties hereunder
shall terminate upon the end of the Effectiveness Period, except for any
liabilities or obligations under Section 4, 5 or 6 hereof and the obligations to
make payments of and provide for liquidated damages under Section 2(e) hereof to
the extent such damages accrue prior to the end of the Effectiveness Period,
each of which shall remain in effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
SPECTRASITE HOLDINGS, INC.
By:/s/ David P. Tomick
----------------------------
Name: David P. Tomick
Title:Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Samir Hussein
------------------------------
Name:Samir Hussein
Title:Vice President
20
