UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CommNet Cellular Inc.
(Name of Issuer)
Common Stock, par value $.001 per share
(Title of Class of Securities)
202604 20 3
(CUSIP Number)
Mark T. Gallogly
Blackstone Management Associates II L.L.C.
345 Park Avenue
New York, New York 10154
(212) 836-9805
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
February 10, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Blackstone CCI Capital Partners L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 3,097,488
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 2,833,961
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,097,488
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
68.4%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Blackstone CCI Offshore Capital Partners L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
7 SOLE VOTING POWER
NUMBER OF
SHARES 835,743
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 835,743
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
835,743
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.5%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Blackstone Family Investment Partnership II L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 5,936
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 5,936
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,936
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Blackstone Management Associates II L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 3,939,167
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 3,675,640
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,939,167
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
87.0%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Peter G. Peterson
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF
SHARES 3,939,167
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 3,675,640
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,939,167
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
87.0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stephen A. Schwarzman
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF
SHARES 3,939,167
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 3,675,640
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,939,167
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
87.0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Chase Equity Associates, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED
BY 0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 277,778
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
277,778
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sunapee Securities, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED 8 SHARED VOTING POWER
BY
EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
20,833 WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,833
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 202604 20 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Squam Lake Investors, II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED 8 SHARED VOTING POWER
BY
EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 20,833
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,833
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
STATEMENT PURSUANT TO RULE 13d-1
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to the Common Stock, par value $.001
per share ("Common Stock"), of CommNet Cellular Inc., a Colorado corporation
(the "Company"). The principal executive offices of the Company are located
at 8350 East Crescent Parkway, Suite 400, Englewood, Colorado 80111.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly by Blackstone CCI Capital Partners
L.P., a Delaware limited partnership ("BCP CCI"), Blackstone CCI Offshore
Capital Partners L.P., a Cayman Islands exempted limited partnership ("BCP
CCI Offshore"), Blackstone Family Investment Partnership II L.P., a Delaware
limited partnership ("BFIP II"), Blackstone Management Associates II L.L.C.,
a Delaware limited liability company ("BMA II"), Mr. Peter G. Peterson, Mr.
Stephen A. Schwarzman, Chase Equity Associates, L.P., a California limited
partnership ("Chase"), Sunapee Securities, Inc., a Massachusetts corporation
("Sunapee"), and Squam Lake Investors, II, L.P., a Delaware limited
partnership ("Squam") (the foregoing, collectively, the "Reporting Persons").
BMA II is the sole general partner of BCP CCI and BFIP II and the sole
investment general partner of BCP CCI Offshore. Blackstone Services (Cayman)
LDC, a Cayman Islands limited duration company, is the administrative general
partner of BCP CCI Offshore. Pursuant to the partnership agreement of BCP
CCI Offshore, BMA II has the sole power to vote securities held by BCP CCI
Offshore and the sole power to dispose of securities held by BCP CCI
Offshore. BCP CCI, BCP CCI Offshore and BFIP II will hereinafter be referred
to collectively as the "Blackstone Partnerships."
BCP CCI and BCP CCI Offshore were formed to effect the transactions described
in Item 4 below and have not engaged in any activities other than those
incident to their formation and such transactions. The principal business of
BFIP II consists of committing capital to facilitate corporate
restructurings, leveraged buyouts, bridge financings and other investments.
The principal business of BMA II consists of performing the functions of, and
serving as, the general partner of BCP CCI and of certain affiliates and the
investment general partner of BCP CCI Offshore and of certain affiliates.
The principal business and office address of BCP CCI, BFIP II and BMA II is
345 Park Avenue, New York, New York 10154. The principal business and office
address of BCP CCI Offshore is c/o Blackstone Services (Cayman) LDC c/o
Hemisphere Management (Cayman) Ltd., Zephyr House, Mary Street, 5th Floor,
Georgetown, Grand Cayman, Cayman Islands.
Messrs. Peter G. Peterson and Stephen A. Schwarzman are the founding members
(the "Founding Members") of BMA II. The other members of BMA II are David A.
<PAGE>
Stockman, Michael B. Hoffman, James J. Mossman, Arthur B. Newman, Anthony
Grillo, J. Tomilson Hill, Mark T. Gallogly, Glenn H. Hutchins, Howard A.
Lipson, Thomas J. Saylak, John Z. Kukral, Kenneth C. Whitney, Michael Puglisi
and Timothy R. Coleman (collectively and together with the Founding Members,
the "Members"). Each of the Members is a United States citizen. The
principal occupations of each of the Members is serving as an executive of
one or more of the Blackstone Partnerships, BMA II, and their affiliates.
The Founding Members are the managing members of BMA II. The business
address of each of the Members is 345 Park Avenue, New York, New York 10154.
Chase is a California limited partnership whose principal office is
located at c/o Chase Capital Partners, 380 Madison Avenue, 12th Floor, New
York, New York 10017. Chase is engaged in the venture capital and leveraged
buyout business. The general partner of Chase is Chase Capital Partners, a
New York general partnership ("CCP"), which is also engaged in the venture
capital and leveraged buyout business and whose principal office is located
at the same address as Chase.
Set forth below are the names of each general partner of CCP who is a
natural person. Each such general partner is a U.S. citizen whose principal
occupation is serving as a general partner of CCP and whose business address
(except for Mr. Soghikian) is c/o Chase Capital Partners, 380 Madison Avenue,
12th Floor, New York, New York 10017.
John R. Baron
Mitchell J. Blutt, M.D.
Arnold L. Chavkin
Michael R. Hannon
Donald J. Hofmann
Stephen P. Murray
John M.B. O'Connor
Brian J. Richmand
Shahan D. Soghikian
Jeffrey C. Walker
Damion E. Wicker, M.D.
Mr. Soghikian's principal business office address is c/o Chase Capital
Partners, 125 London Wall, London EC2Y5AJ, England.
Jeffrey C. Walker is the managing general partner of CCP. The remaining
general partners of CCP are Chase Capital Corporation, a New York corporation
formerly known as Chemical Capital Corporation ("Chase Capital"), CCP
Principals, L.P., a Delaware limited partnership ("Principals"), and CCP
European Principals, L.P., a Delaware limited partnership ("European
Principals"), each of whose principal office is located at 380 Madison
Avenue, 12th Floor, New York, New York 10017. Chase Capital is a wholly
owned subsidiary of The Chase Manhattan Corporation, a Delaware corporation
("CMC"). The general partner of each of Principals and European Principals
is Chase Capital. Chase Capital, Principals and European Principals are each
engaged in the venture capital and leveraged buyout business. Set forth in
Schedule A hereto and incorporated herein by reference are the names,
business addresses and principal occupations or employments of each executive
officer and director of Chase Capital, each of whom is a U.S. citizen.
CMC is a Delaware corporation engaged (primarily through subsidiaries)
in the commercial banking business with its principal office located at 270
Park Avenue, New York, New York 10017. Set forth in Schedule B hereto and
<PAGE>
incorporated herein by reference are the names, business addresses, principal
occupations or employments and citizenship of each executive officer and
director of CMC.
Insofar as the requirements of Items 3-6 inclusive of this Schedule 13D
Statement require that in addition to Chase, the information called for
therein should be given with respect to each of the other persons listed in
this Item 2 with respect to Chase, including CCP, CCP's individual general
partners, Chase Capital, Chase Capital's executive officers and directors,
Principals, Principals' controlling partners, European Principals, European
Principals' controlling partners, CMC and CMC's executive officers and
directors, the information provided in Items 3-6 with respect to Chase should
also be considered fully responsive with respect to the aforementioned
persons who have no separate interests in the Company's Common Stock which is
required to be reported thereunder. Although the definition of "beneficial
ownership" in Rule 13d-3 under the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), might also be deemed to constitute these other
persons beneficial owners of the Company's Common Stock acquired by Chase,
neither the filing of this statement nor any of its contents shall be deemed
an admission that any of such persons is a beneficial owner of the Company's
Common Stock acquired by Chase or a member of a group together with Chase,
either for the purpose of Schedule 13D of the Exchange Act or for any other
purpose with respect to the Company's Common Stock.
Sunapee is a Massachusetts corporation and a wholly owned subsidiary of
Bain & Company, Inc., a Massachusetts corporation ("BC"). Squam is a
Delaware limited partnership whose managing general partner is GPI, Inc., a
Massachusetts corporation ("GPI"). CIGP, Inc., a Delaware corporation
("CIGP"), is also a general partner of Squam. GPI is a wholly owned
subsidiary of BC and CIGP is wholly owned by Colin F. Anderson.
The principal office of each of Sunapee, Squam, GPI, CIGP and BC is Two
Copley Place, Boston, Massachusetts 02116. The names, citizenship, principal
occupations and principal business addresses of Mr. Anderson and the
directors and executive officers of Sunapee, GPI, CIGP and BC are set forth
on Schedule C.
The principal business of Sunapee is to hold investments. The principal
business of each of GPI and CIGP is that of general partner of Squam and
certain other investment funds. The principal business of Bain & Company is
management consulting.
During the last five years, neither the Reporting Persons nor, to the best
knowledge of the Reporting Persons, any of the other persons named in this
Item 2 has been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result
of such proceeding has been or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or state securities laws or finding any violations of
such laws.
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
The amount and sources of funds used in connection with the Merger (as
defined in Item 4) and related transactions consisted of (i) borrowings of
$680.0 million under a Credit Agreement, dated as of September 18, 1997,
among the Company, the several lenders from time to time parties thereto and
The Chase Manhattan Bank as Administrative Agent (filed as Exhibit 10.10 to
the Form 10-K of the Company for the fiscal year ended September 30, 1997),
and (ii) the contribution of $141.8 million in equity by the Blackstone
Partnerships, Chase, Sunapee and Squam (collectively, the "Stockholders").
Item 4. Purpose of Transaction.
AV Acquisition Corp., a Delaware corporation ("AV"), and the Company entered
into an Agreement and Plan of Merger, dated as of May 27, 1997 (the "Merger
Agreement"), which provided for the merger of AV with and into the Company
(the "Merger"), with the Company being the surviving corporation of the
Merger. The Merger and the transactions contemplated thereby were
consummated on February 10, 1998, at which time (i) AV merged with and into
the Company, (ii) pursuant to the cash-election procedures of the Merger
Agreement, each share of Common Stock outstanding immediately prior to the
Merger was converted into the right to receive $36.00 per share in cash,
except for 588,611 shares which were retained by stockholders of the Company
and (iii) BCP CCI, BCP CCI Offshore, BFIP II, Chase, Sunapee and Squam, the
stockholders of AV immediately prior to the consummation of the Merger,
acquired 2,833,961; 835,743; 5,936; 221,861; 20,833 and 20,833 shares,
respectively, of Common Stock.
Immediately following the consummation of the Merger, the board of directors
of the Company consisted of Arnold C. Pohs, Daniel P. Dwyer, Mark T.
Gallogly, Lawrence H. Guffey and Simon P. Lonergan. Mr. Gallogly is a member
of BMA II and Messrs. Guffey and Lonergan are employees of an affiliate of
the Blackstone Partnerships. The composition of the Board of Directors of
the Company is subject to change from time to time.
Pursuant to the Merger Agreement, the Company agreed not to take any action
for at least 90 days after the Merger to cause the Common Stock to be
delisted from the Nasdaq National Market ("Nasdaq") or to cause the Company
to cease to be subject to the reporting requirements of Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). After such
90-day period, the Company intends to delist the Common Stock from Nasdaq.
The Reporting Persons intend to review on a continuing bases their investment
in the Company, and the Reporting Persons may decide to increase or decrease
their investment in the Company depending upon the price and availability of
the Company's securities, subsequent developments affecting the Company, the
Company's business and prospects, other investment and business opportunities
available to the Reporting Persons, general stock market and economic
conditions, tax considerations and other factors.
Other than as described above, none of the Reporting Persons have any plans
or proposals that relate to or would result in any of the actions described
in subparagraphs (a) through (j) of Item 4 of Schedule 13D (although they
reserve the right to develop such plans).
<PAGE>
Item 5. Interest in Securities of the Issuer.
(a) and (b). Pursuant to the Merger, BCP CCI, BCP CCI Offshore, BFIP II,
Chase, Sunapee and Squam acquired 2,833,961; 835,743; 5,936; 221,861; 20,833
and 20,833 shares, respectively, of Common Stock.
Pursuant the Stockholders Agreement (as defined in Item 6 below), each of
Chase, Sunapee and Squam has agreed to permit BCP CCI to vote all the Common
Stock owned by such entity from time to time, and has executed an irrevocable
proxy in favor of BCP CCI in connection with the foregoing. Accordingly, BCP
CCI has voting power over all the Common Stock held by Chase, Sunapee and
Squam and none of such entities has any voting power over any of the Common
Stock held by it.
In addition, pursuant to Rule 13d-3 under the Exchange Act, Chase may be
deemed to beneficially own 55,917 shares of Common Stock which are subject to
a Warrant dated February 10, 1998 issued by BCP CCI, BCP CCI Offshore and
BFIP II to Chase (the "Warrant"). The Warrant provides Chase with the right
to purchase an aggregate of 55,917 shares from the Blackstone Partnerships,
comprised of 43,113 shares from BCP CCI, 12,714 shares from BCP CCI Offshore
and 90 shares from BFIP II for $.001 per share. Chase paid the Blackstone
Partnerships an aggregate of $2,013,012 in cash for the Warrant. The Warrant
is exercisable at any time or from time to time by Chase, but it shall be
deemed to be automatically exercised upon the exchange by all the
Stockholders (other than Chase) of their Common Stock for Class A partnership
interests of the Partnership (as defined in Item 6) pursuant to the
Stockholders Agreement and in certain circumstances if the Blackstone
Partnerships exercise their drag-along rights under the Stockholders
Agreement. Any shares delivered to Chase upon exercise of the Warrant would
be subject to the voting agreement and irrevocable proxy described above.
Accordingly, upon exercise of the Warrant, BCP CCI would have voting power
over any of the shares of Common Stock delivered upon exercise, and Chase
would not have any voting power over any of such shares. A copy of the
Warrant is attached as Exhibit 3 hereto.
BCP CCI, BCP CCI Offshore and BFIP II, acting through their sole general
partner BMA II, have the sole power to vote or to direct the vote, and to
dispose or to direct the disposition of, the Common Stock respectively owned
by them. As a result, BMA II may be deemed to beneficially own the shares of
Common Stock directly owned by the respective Blackstone Partnerships of
which it is the general partner. The Founding Members of BMA II have shared
power to vote or to direct the vote of, and to dispose or to direct the
disposition of, the shares of Common Stock that may be deemed to be
beneficially owned by BMA II. As a result, each of such Founding Members may
be deemed to beneficially own the shares of Common Stock that BMA II may be
deemed to beneficially own.
Squam and Sunapee each has the sole power to dispose of the Common Stock
owned by it. Sunapee is a wholly owned subsidiary of BC. Squam acts by and
through its managing general partner, GPI, which is a wholly owned subsidiary
of BC. CIGP is also a general partner of Squam and is wholly owned by Colin
F. Anderson.
The Stockholders have acted in concert in agreeing to acquire the Common
Stock referred to in this Item 5, and pursuant to the Stockholders Agreement
described below have agreed to contribute their shares to the Partnership,
subject to receipt of regulatory approvals. Consequently, the Reporting
<PAGE>
Persons may be deemed to constitute a "group" for purposes of Section 13(d)
of the Exchange Act.
(c) To the best knowledge of each of the Reporting Persons, none of the
Reporting Persons and no other person described in Item 2 hereof has
beneficial ownership of, or has engaged in any transaction during the past 60
days in, any shares of the Common Stock, except as disclosed in this Schedule
13D.
(d) No person, other than the Reporting Persons, has the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the
sale of, the Common Stock referred to in this Item 5.
(e) Not applicable.
Item 6. Contracts, Arrangement or Understandings with Respect to Securities
of the Issuer.
Concurrently with the consummation of the Merger, the Stockholders and the
Company entered into a Stockholders Agreement (the "Stockholders Agreement").
The Stockholders Agreement provides for the voting agreement of Chase,
Sunapee and Squam (collectively, the "Other Stockholders") described in Item
5 above. The Other Stockholders also have agreed not to transfer any Common
Stock, except (i) to affiliates who agree to be bound by the provisions of
the Stockholders Agreement, (ii) to another stockholder party to the
Stockholders Agreement, (iii) pursuant to a merger or consolidation in which
the Company is a constituent corporation, (iv) pursuant to a public offering,
(v) pursuant to Rule 144 under the Securities Act of 1933, as amended, (vi)
upon exercise of the tag-along rights of the Other Stockholders in connection
with certain transfers of Common Stock by the Blackstone Partnerships, (vii)
upon exercise of drag-along rights by the Blackstone Partnerships in
connection with the transfer of Common Stock by the Blackstone Partnerships
to a third party, which exercise would require the Other Stockholders to
transfer a proportionate amount of Common Stock to such third party on the
same terms, and (viii) in connection the Partnership Contribution (as defined
below).
The Company has agreed not to issue additional shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
to the Blackstone Partnerships unless the Other Stockholders have the right
to purchase such additional shares of Common Stock or convertible,
exercisable or exchangeable securities, as the case may be, so issued upon
the same terms such that, immediately after giving effect to the issuance and
assuming the exercise of the right, the shares of Common Stock beneficially
owned on a fully diluted basis by each Other Stockholder and its affiliates
shall represent the same percentage of the aggregate number of shares of
Common Stock outstanding on a fully diluted basis as was beneficially owned
on a fully diluted basis by such Other Stockholder and its affiliates
immediately prior to the issuance. The forgoing right shall not apply to any
issuance to stockholders on a pro rata basis or any issuance pursuant to a
public offering.
The Company also has agreed to provide the Blackstone Partnerships with
demand and piggyback registration rights and the Other Stockholders with
piggyback registration rights.
<PAGE>
Subject to certain exceptions, the provisions of the Stockholders Agreement
terminate upon the earlier of (i) the consummation of the Partnership
Contribution or (ii) the earliest date on which the Stockholders own
collectively less than 25% of the outstanding Common Stock, provided, that
unless the Stockholders Agreement is terminated pursuant to clause (i) above,
the voting agreements and the registration rights provisions shall survive
until the Stockholders own collectively less than 3% of the outstanding
Common Stock.
Each Stockholder has agreed, subject to receipt of any necessary regulatory
approvals (including any approval of the Federal Communications Commission),
to enter into a partnership agreement to form a partnership (the
"Partnership") and to contribute all shares of Common Stock then owned by
such Stockholder in exchange for a percentage of Class A partnership
interests in the Partnership equal to the proportionate number of shares of
Common Stock such Stockholder shall contribute to the Partnership relative to
the aggregate number of shares contributed to the Partnership by all of the
Stockholders (the "Partnership Contribution"). BCP CCI will be the general
partner of the Partnership. A newly formed partnership, in which members of
the Company's management will be the limited partners and in which an
affiliate of the Blackstone Partnerships will be the general partner, will
receive all the Class B partnership interests in the Partnership.
Distributions will be made from the Partnership in respect of the Class B
partnership interests based on the internal rate of return of the holders of
Class A partnership interests.
In connection with the Partnership Contribution and as a condition thereto,
the Company and the Partnership shall enter into a Registration Rights
Agreement, in form and substance reasonably satisfactory to the Blackstone
Partnerships, providing the Partnership with the same registration rights and
obligations with respect to any Common Stock owned by the Partnership from
time to time as the registration rights and obligations of the Blackstone
Partnerships under the Stockholders Agreement.
The description of the Stockholders Agreement set forth herein is a summary
thereof, and is qualified in its entirety by reference to the complete text
thereof filed as Exhibit 4 hereto, which is incorporated herein by reference.
Except as set forth in this Statement, none of the Reporting Persons, nor to
the best knowledge of the Reporting Persons, any of the persons identified in
Item 2, has any contracts, arrangements, understandings or relationships
(legal or otherwise) with any person with respect to any securities of the
Company, including but not limited to, transfer or voting of any of the
securities of the Company, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies, or a pledge or contingency the occurrence of which
would give another person voting power over the securities of the Company.
Item 7. Material to be Filed as Exhibits.
1. Joint Filing Agreement
2. Powers of Attorney
3. Warrant
4. Stockholders Agreement
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
BLACKSTONE CCI CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
----------------------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE OFFSHORE CAPITAL
PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
----------------------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
----------------------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
----------------------------------------------
Name: Mark T. Gallogly
Title: Member
<PAGE>
/s/ Mark T. Gallogly
-------------------------------------------------
PETER G. PETERSON
By: Mark T. Gallogly, Attorney-in-Fact
/s/ Mark T. Gallogly
-------------------------------------------------
STEPHEN A. SCHWARZMAN
By: Mark T. Gallogly, Attorney-in-Fact
CHASE EQUITY ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
as General Partner
By: /s/ John M.B. O'Connor
-----------------------------------------------
Name: John M.B. O'Connor
Title: General Partner
SUNAPEE SECURITIES, INC.
By: /s/ Leonard C. Banos
----------------------------------------------
Name: Leonard C. Banos
Title: Vice President
SQUAM LAKE INVESTORS, II, L.P.
By: GPI, INC., as General Partner,
By: /s/ Leonard C. Banos
----------------------------------------------
Name: Leonard C. Banos
Title: Vice President of General Partner
Dated: February 19, 1998
<PAGE>
SCHEDULE A
CHASE CAPITAL CORPORATION
(formerly Chemical Capital Corporation)
Executive Officers
Chief Executive Officer William B. Harrison, Jr.<F1>
President Jeffrey C. Walker<F2>
Executive Vice President Mitchell J. Blutt, M.D.<F2>
Vice President & Secretary Gregory S. Meredith<F1>
Vice President George E. Kelts, III<F2>
Assistant Secretary Robert C. Carroll<F1>
Directors
William B. Harrison, Jr.<F1>
Jeffrey C. Walker<F2>
___________________________
[FN]
<F1> Principal occupation is employee and/or officer of Chase. Business
address is c/o The Chase Manhattan Corporation, 270 Park Avenue, New
York, New York 10017.
<F2> Principal occupation is employee of Chase and/or general partner of CCP.
Business address is c/o Chase Capital Partners, 380 Madison Avenue, New
York, New York 10017.
<PAGE>
SCHEDULE B
THE CHASE MANHATTAN CORPORATION
Executive Officers<F1>
Walter V. Shipley, Chairman
Thomas G. Labrecque, President
William B. Harrison, Jr., Vice Chairman
Donald L. Boudreau, Senior Executive Vice President
Marc Shapiro, Senior Executive Vice President
Joseph G. Sponholz, Senior Executive Vice President
Directors<F2>
Principal Occupation or Employment;
Name Business and Residence Address
Hans W. Becherer Chairman of the Board, Chief Executive Officer
Deere & Company
8601 John Deere Road
Moline, IL 61265
Frank A. Bennack, Jr. President and Chief Executive Officer
The Hearst Corporation
959 Eighth Avenue
New York, NY 10019
Susan V. Berresford President
The Ford Foundation
320 East 43rd Street
New York, NY 10017
M. Anthony Burns Chairman, President and CEO
Ryder System, Inc.
3600 N.W., 52nd Avenue
Miami, FL 33166
H. Laurance Fuller Chairman of the Board and Chief Executive Officer
Amoco Corporation
200 East Randolph Drive
Chicago, IL 60601
_____________________________
[FN]
<F1> Principal occupation is executive officer and/or employee of The Chase
Manhattan Bank. Business address is c/o The Chase Manhattan Bank,
270 Park Avenue, New York, New York 10017.
<F2> Each of the persons named below is a citizen of the United States.
<PAGE>
Principal Occupation or Employment;
Name Business and Residence Address
Melvin R. Goodes Chairman of the Board and Chief Executive Officer
Warner-Lambert Company
201 Tabor Road
Morris Plains, NJ 07950
William H. Gray, III President and Chief Executive Officer
United Negro College Fund/UNCF
8260 Willow Oaks Corporate Drive
P.O. Box 10444
Fairfax, VA 22031
George V. Grune Retired Chairman and Chief Executive Officer
The Reader's Digest Association, Inc.
Chairman of the Board
The DeWitt Wallace-Reader's Digest Fund
Lila Wallace-Reader's Digest Fund
Reader's Digest Road
Pleasantville, NY 10570
William B. Harrison, Vice Chairman of the Board
Jr. The Chase Manhattan Corporation
270 Park Avenue, 8th Floor
New York, NY 10017-2070
Harold S. Hook Retired Chairman of the Board
American General Corporation
2929 Allen Parkway
Houston, TX 77019
Helene L. Kaplan Of Counsel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue - Room 29-72
New York, NY 10022
Thomas G. Labrecque President
The Chase Manhattan Corporation
270 Park Avenue, 8th Floor
New York, NY 10017-2070
Henry B. Schacht Retired Chairman of the Board and Chief
Executive Officer
Lucent Technologies, Inc.
600 Mountain Avenue - Room 6A511
Murray Hill, NJ 07974
Walter V. Shipley Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue, 8th Floor
New York, NY 10017-2070
<PAGE>
Andrew C. Sigler Retired Chairman of the Board
and Chief Executive Officer
Champion International Corporation
1 Champion Plaza
Stamford, CT 06921
John R. Stafford Chairman, President and Chief Executive Officer
American Home Products Corporation
Five Giralda Farms
Madison, NJ 07940
Marina V.N. Whitman Professor of Business Administration and Public Policy
The University of Michigan
School of Public Policy
411 Lorch Hall, 611 Tappan Street
Ann Arbor, MI 48109-1220
<PAGE>
SCHEDULE C
COLIN F. ANDERSON
Name Citizenship Principal Occupation Business Address
- ---- ----------- -------------------- ----------------
Colin F. Anderson Canada Director of Finance, **
Bain & Company, Inc.
SUNAPEE SECURITIES, INC.
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Thomas J. Tierney, * President. Bain **
President & Company, Inc.
Colin F. Anderson, * Director of Finance, **
Director Bain & Company, Inc.
Leonard Banos, * Vice President and **
Vice President and Controller, Bain &
Director Company, Inc.
Gary Wilkinson, * Treasurer, Bain and **
Treasurer Company, Inc.
GPI, INC.
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Colin F. Anderson, Canada Director of Finance, **
President Bain & Company, Inc.
Gary Wilkinson, * Treasurer, **
Vice President, Bain & Company, Inc.
Treasurer and
Director
Leonard Banos, * Vice President and **
Vice President and Controller, Bain &
Director Company
Mary Welch, * Director of Tax, Bain **
Vice President and Company, Inc.
David Ulliani, * Assistant Controller, **
Vice President Bain & Company , Inc.
Stan Muranda, U.K. Vice President, Bain & L
Director Company, Inc.
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Christopher Zook, * Vice President, Bain & **
Director Company, Inc.
Jonathan I. Mark, * Vice President, Bain & **
Director Company, Inc.
Steven Schaubert, * Vice President, Bain & **
Director Company, Inc.
Fritz Seikowsky, Germany Vice President, Bain & MU
Director Company, Inc.
Jesse Rogers, * Vice President, Bain & SF
Director Company, Inc.
Geoff Cullinan, U.K. Vice President, Bain & L
Director Company, Inc.
CIGP, INC.
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Colin F. Anderson, Canada Director of Finance, **
President and Bain & Company, Inc.
Director
Gary Wilkinson, * Treasurer, Bain & **
Vice President and Company, Inc.
Treasurer
Leonard Banos, * Vice President and **
Vice President Controller, Bain &
Company
BAIN & COMPANY, INC.
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Thomas J. Tierney, * President, Bain & **
President Company, Inc.
Leonard C. Banos, * Vice President & **
Vice President & Controller, Bain &
Controller Company, Inc.
Gary Wilkinson, * Treasurer, Bain & **
Treasurer Company, Inc.
Vernon E. Altman * VP&D SF
Colin F. Anderson Canada VP&D **
Keith W. Aspinall UK VP&D **
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Robert I. Bechek * VP&D **
David J. Bechhofer * VP&D **
Ted W. Beneski * VP&D D
Stefano Bridelli Italy VP&D BRA
Robin W.T. Buchanan U.K. VP&D L
Giovanni Cagnoli Italy VP&D MI
Gianfilippo Cuneo Italy VP&D MI
Mark H. Daniell * VP&D SI
Philippe DeBacker Belgium VP&D BRU
John J. Donahoe * VP&D SF
Frederick E. Ehrsam * VP&D **
Charles M. Farkas * VP&D **
Jean-Pierre France VP&D P
Felenbok
Orit B. Gadiesh * VP&D **
Rickard Gardell Australia VP&D SY
James L. Gilbert * VP&D **
Crawford S. Gillies U.K. VP&D L
Mark A. Gottfredson * VP&D D
Russell A. Hagey * VP&D SF
David R. Harding * VP&D **
Barry Harrington * VP&D **
Jim Hildebrandt Canada VP&D HK
Shintaro Hori Japan VP&D TK
Gregory P. Australia VP&D SY
Hutchinson
David E. Johnson * VP&D **
Kelt Kindick * VP&D **
Earl T. Kivett * VP&D **
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Luc J. Luyten Belgium VP&D BRU
Robert A. Maginn Jr * VP&D **
Olivier Marchal France VP&D P
Jonathan I. Mark * VP&D **
Stan B. Miranda * VP&D L
Jean-Marie Pean France VP&D P
Frederick F. * VP&D **
Reichheld
Darrell K. Rigby * VP&D **
Jesse T. Rogers * VP&D SF
Paul J. Rogers U.K. VP&D L
Edward B. Rouse * VP&D C
Stephen J. * VP&D **
Schaubert
Fritz R. Seikowsky Germany VP&D MU
Joseph C. Canada VP&D TR
Shlesinger
Tim Sims Australia VP&D SY
John A. Smith * VP&D L
Paul J. Smith Australia VP&D **
Thomas J. Tierney * VP&D **
Vincent H. Tobkin * VP&D SF
Bernd Venohr Germany VP&D MU
Marco Villa Italy VP&D MI
Elisabeth C. Walsh * VP&D SF
Phyllis R. Yale * VP&D **
Christopher J. Zook * VP&D **
Eric Aboaf * VP **
James Allen * VP L
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Leonard C. Banos * VP **
Scott Bender * VP C
Richard Bergsund * VP LA
Luca Bettale Italy VP MI
Christopher Bierly * VP **
Marcia (Walley) * VP L
Blenko
Christopher Brahm * VP SF
Antonello Buondonno Italy VP MI
Maurizio Caio Italy VP MI
Fabio C. Cane Italy VP MI
John Carey * VP C
Luca Caruso Italy VP ST
Andre Castellini Brazil VP BRA
Denis Chabaneix France VP P
George W. Cogan * VP SF
Alan B. Colberg * VP A
Marco Colombo Italy VP MI
Miles Cook * VP A
Alistair J. Corbett U.K. VP TR
Marco Costaguta Spain VP MI
Kim Crawford * VP S.F.
Geoffrey Cullinan U.K. VP L
Eric Dahl Norway VP ST
Michael L. Dart U.K. VP C
Miguel De Oca Spain VP MA
Luca Digiacomo Italy VP MI
Paul DiPaola * VP **
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
William D. Donovan * VP D
Jochen Duelli Germany VP MU
Anthony Ecock * VP **
Stephen A. Ellis * VP S.F.
Joanna D. Engelke * VP **
Giovanni Fiorentino Italy VP BRA
Daniel Friedberg Canada VP TR
Jorge Galera Spain VP MA
Bernard Gautier France VP P
Simon Griffiths U.K. VP ST
Per Hallius Sweden VP ST
William J. Hayes * VP A
Adrian Heryford * VP **
Toshihiko Hiura Japan VP TK
Thomas J. Holland * VP SF
Christopher Hopton U.K. VP L
Mark Horwitch * VP C
Timothy D. Hough U.K. VP SA (J)
Ryoji Itoh Japan VP TK
Mark E. Jones Canada VP D
Martin Kay U.K. VP **
Andrew D. Klein * VP SF
Phillip S. Kleweno * VP LA
Bernard C. Kummerli Sweden VP G
Bruno Lannes France VP P
Pierre M. Lavallee Canada VP TR
Dianne Ledingham * VP **
Jorge R. Leis * VP D
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Carlos N. Lukac * VP MC
Michele Luzi Italy VP L
Emmanuel P. Maceda * VP SF
Robert Markey * VP **
James McCurry * VP A
Michael H. McKay * VP **
Matthew Meacham U.K. VP MC
Paul Meehan Ireland VP SY
Kristine Miller * VP SF
Josef R. Ming Sweden VP MU
Antonio Moya Spain VP MA
Keiji Nagano Japan VP TK
Guido R. Nicola Italy VP MI
Lucien-Charles France VP P
Nicolet
Douglas Nyhoff Canada VP D
Michael O'Sullivan U.K. VP **
Kim J. Ogden * VP **
David S. Olivet * VP SF
Charles M. Ormiston * VP SI
Ranjan Pant * VP **
Chul Joon Park South Korea VP SE
Paolo Personeni Italy VP MI
Marco Petruzzi Italy VP BRA
Giuseppe Piccinotti Italy VP MI
Simon Pillar U.K. VP SY
Bertrand Pointeau France VP P
Geert Postma Netherlands VP BRU
<PAGE>
Name/Title Citizenship Principal Occupation Business Address
- ---------- ----------- -------------------- ----------------
Elizabeth C. Ramos * VP **
Mark A. Richardson U.K. VP SY
James H. Root U.K. VP HK
Sam B. Rovit * VP C
David G. Sanderson * VP LA
Stefano Santini Italy VP MI
Robert Schaus Luxenberg VP MU
Philip E. Schefter * VP **
Eric K. Schwalm * VP **
Franz-Josef Germany VP MU
Seidensticker
Thomas M. Shannon * VP MO
Roger W. Siddle U.K. VP L
Joseph T. Spinelli * VP **
Claudio Stabon Italy VP MI
Paul A. Stone U.K. VP L
Oliver Stratton U.K. VP HK
Frederick Studier * VP LA
Scott Tanner Australia VP SY
Sandrine Teze France VP P
Till Vestring Germany VP SI
Vijay Vishwanath India VP **
Janet Voute * VP G
Dr. Theodor Weimer Germany VP MU
Wulf Weller Germany VP MU
Paul Wilson U.K. VP L
Alexander Wouterse Netherlands VP MU
Rick W. Yan China VP HK
Roman Zeller Germany VP MU
<PAGE>
LEGEND:
* U.S. Citizen
VP Vice President
D Director
** Two Copley Place, Boston, MA 02116
A The Monarch Tower, Suite 1200, 3424 Peachtree Road, NE, Atlanta, GA
30326
BE Bain & Company China, Inc., Suite 2501 China World Tower, No. 1 Jian
Guo Men Wai Avenue, Beijing 100004, CHINA
BRA Bain & Company, Brazil, Inc., Rua Iguatemi, 192-21 andar, 01451-010 -
San Paulo - SP, BRAZIL
BRU Bain & Company, Belgium, Inc., Blue Tower - 24th Floor, 326 Avuenue
Louise, 1050 Brussels, BELGIUM
C 333 West Wacker Drive, Suite 3000, Chicago, IL 60606-1226
D 5215 North O'Connor Road, Suite 500, Irving, TX 75039-3731
G Bain & Company Switzerland, Inc., 30 rue du Rhone, 1204 Geneva,
SWITZERLAND
HK Bain & Company (Hong Kong) 10th Floor, One Pacific Place, 88
Queensway, HONG KONG
L Bain & Company, Inc. United Kingdom, 40 Strand, London WC2N 5HZ,
ENGLAND
LA 1999 Avenue of the Stars, Los Angeles, CA 90067
MA Bain & Company Spain, Pawo de Castellana 100, 9a, Planta, 28046,
Madrid, SPAIN
MC Bain & Company Mexico, Inc., Corporativo Reforma Laureles, Paseo d
los Laureles 458 P.H., Bosques de las Lomas, MEXICO, D.F. 05120
MI Bain Cuneo e Associati, Via Crocefisso n. 10/12, 20122 Milan, ITALY
MO Bain Consultants, Inc. Scherbakovskaya, Str. 40-42, 105187, Moscow,
RUSSIA
MU Bain & Company Germany, Inc., Thomas-Wimmer-Ring 3, 80539 Munich,
GERMANY
P Bain & Compagnie, Snc., 21, boulevard de la Madeleine, 75001 Paris,
FRANCE
R Bain, Cuneo e Associati, Piazza Ungheria, 6, 00198 Rome, ITALY
SF One Embarcardero Center, San Francisco, CA 94111-3722
<PAGE>
SE Bain & Company Korea, Inc., Suite 2114, kyobo Building, 1 Chongro 1-
ka, Chongro-gu, Seoul 110-714, KOREA
SI Bain & Company (Asia), Inc., 15th Floor Cosco Building, 8 Robinson
Road, Singapore 048544, REPUBLIC OF SINGAPORE
SA(J) Dunkeld Gardens, 17 Kent Road, Dunkeld West 2196, Johannesburg, SOUTH
AFRICA
SA(C) Oakdale House, Norwich Oval, 1 Oakdale Road, Newlands 7700, Capetown,
SOUTH AFRICA
ST Bain & Company Nordic, Inc. Standvagen 5B, 3rd Floor, S-144 51
Stockholm, SWEDEN
SY Bain International Inc., Level 34, The Chifley Tower, 2 Chifley
Square, Sydney, NSW 2000, AUSTRALIA
TK Bain & Company Japan, Inc., Hibiya Kokusai Building, 14th Floor, 2-2-
3, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100, JAPAN
TR Bain & Company Canada Inc., 162 Cumberland Street, Suite 300,
Toronto, Ontario M5R 3N5
<PAGE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) of the Securities Exchange Act of 1934, as
amended, the undersigned hereby agree to the joint filing on behalf of each
of us of a statement on Schedule 13D relating to the Common Stock, par value
$.01 per share, of CommNet Cellular Inc., a Colorado corporation, and that
any amendments thereto filed by any of us will be filed on behalf of each of
us. This Agreement may be included as an exhibit to such joint filing.
BLACKSTONE CCI CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
---------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE OFFSHORE CAPITAL
PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
---------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
---------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.
By: /s/ Mark T. Gallogly
---------------------------------
Name: Mark T. Gallogly
Title: Member
<PAGE>
/s/ Mark T. Gallogly
-----------------------------------
PETER G. PETERSON
By: Mark T. Gallogly, Attorney-in-Fact
/s/ Mark T. Gallogly
-----------------------------------
STEPHEN A. SCHWARZMAN
By: Mark T. Gallogly, Attorney-in-Fact
CHASE EQUITY ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
as General Partner
By: /s/ John M.B. O'Connor
---------------------------------
Name: John M.B. O'Connor
Title: General Partner
SUNAPEE SECURITIES, INC.
By: /s/ Leonard C. Banos
---------------------------------
Name: Leonard C. Banos
Title: Vice President
SQUAM LAKE INVESTORS, II, L.P.
By: GPI, INC., as General Partner,
By: /s/ Leonard C. Banos
-----------------------------------
Name: Leonard C. Banos
Title: Vice President of General Partner
Dated: February 19, 1998
<PAGE>
EXHIBIT 2
POWER OF ATTORNEY
Know all men by these presents that Peter G. Peterson does hereby
make, constitute and appoint Mark T. Gallogly and Lawrence H. Guffey as true
and lawful attorneys-in-fact of the undersigned with full powers of
substitution and revocation, for and in the name, place and stead of the
undersigned (both in the undersigned's individual capacity and as a member of
any limited liability company or partner of any limited partnership for which
the undersigned is otherwise authorized to sign), to execute and deliver such
forms as may be required to be filed from time to time with the Securities
and Exchange Commission with respect to any investments of Blackstone CCI
Capital Partners L.P., Blackstone CCI Offshore Capital Partners L.P.,
Blackstone Family Investment Partnership II L.P. or their affiliates in the
common stock of CommNet Cellular Inc. (including any amendments or
supplements to any reports or schedules previously filed by such persons or
entities) pursuant to Sections 13(d) and 16(a) of the Securities Exchange Act
of 1934, as amended, including without limitation Schedules 13D and
statements on Form 3, Form 4 and Form 5.
/s/ Peter G. Peterson
- --------------------------
Name: Peter G. Peterson
February 18, 1998
<PAGE>
POWER OF ATTORNEY
Know all men by these presents that Stephen A. Schwarzman does
hereby make, constitute and appoint Mark T. Gallogly and Lawrence H. Guffey
as true and lawful attorneys-in-fact of the undersigned with full powers of
substitution and revocation, for and in the name, place and stead of the
undersigned (both in the undersigned's individual capacity and as a member of
any limited liability company or partner of any limited partnership for which
the undersigned is otherwise authorized to sign), to execute and deliver such
forms as may be required to be filed from time to time with the Securities
and Exchange Commission with respect to any investments of Blackstone CCI
Capital Partners L.P., Blackstone CCI Offshore Capital Partners L.P.,
Blackstone Family Investment Partnership II L.P. or their affiliates in the
common stock of CommNet Cellular Inc. (including any amendments or
supplements to any reports or schedules previously filed by such persons or
entities) pursuant to Sections 13(d) and 16(a) of the Securities Exchange Act
of 1934, as amended, including without limitation Schedules 13D and
statements on Form 3, Form 4 and Form 5.
/s/ Stephan A. Schwartzman
- -----------------------------
Name: Stephen A. Schwarzman
February 18, 1998
EXHIBIT 3
[CONFORMED COPY]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF
AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
UNDER SUCH ACT OR LAWS AND THE RULES AND REGULATIONS THEREUNDER. IN
ADDITION, THIS WARRANT, AND THE WARRANT SHARES TRANSFERABLE UPON THE EXERCISE
HEREOF, ARE SUBJECT TO THE TERMS OF THE STOCKHOLDERS AGREEMENT DATED AS OF
FEBRUARY 10, 1998, BY AND AMONG COMMNET CELLULAR INC. AND THE STOCKHOLDERS
PARTY THERETO.
February 10, 1998
Warrant to Purchase 55,917 Shares
of Common Stock, $.01 par value,
of AV Acquisition Corp., a Delaware corporation
This certifies that, in exchange for an aggregate of $2,013,012 in
cash received, Chase Equity Associates, L.P., a California limited
partnership ("CEA"; and together with its successors and assigns (the
"Holder")), is entitled to purchase from BLACKSTONE CCI CAPITAL PARTNERS,
L.P., a Delaware limited partnership ("BCP CCI"), BLACKSTONE CCI OFFSHORE
CAPITAL PARTNERS, L.P., a Cayman Islands exempted limited partnership ("BCP
CCI Offshore"), and BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II, L.P., a
Delaware limited partnership ("BFIP II," and together with BCP CCI and BCP
CCI Offshore, "Blackstone," and each individually, an "Issuer"), an aggregate
of 55,917 shares of Common Stock, $.01 par value (the "Corporation Common
Stock"), of AV ACQUISITION CORP., a Delaware corporation (the "Corporation"),
at a per share price equal to U.S. $0.001 (as adjusted from time to time as
provided in Section 3 hereof, the "Exercise Price"), at any time or from time
to time after the date hereof when such exercise is permitted by Section 1
hereof. Of such $2,013,012, (i) $1,552,068 has been paid to BCP CCI, (ii)
$457,704 has been paid to BCP CCI Offshore and (iii) $3,240
has been paid to BFIP II.
This Warrant is one of one or more warrants (the "Warrants") of the
same form and having the same terms as this Warrant (other than differences
in (i) the name of the holder, in the event of transfer in accordance
herewith and the Stockholders Agreement (as defined below) and (ii) the
number of Warrant Shares issuable), entitling the holders of such Warrants
(collectively, the "Holders" and each, individually, a "Holder") initially to
purchase up to an aggregate of 55,917 shares of Corporation Common Stock,
comprised of 43,113 shares to be purchased from BCP CCI, 12,714 shares to be
purchased from BCP CCI Offshore and 90 shares to be purchased from BFIP II.
As used in this Warrant, the term "Stockholders Agreement" means the
Stockholders Agreement dated as of February 10, 1998, among CommNet Cellular
Inc. ("CommNet"), the surviving corporation of the merger on the date hereof
of the Corporation into CommNet, the Blackstone entities issuing this
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Warrant, CEA and the other stockholders party thereto, and the term
"Stockholders" means the stockholders of CommNet party to the Stockholders
Agreement.
Certain terms used in this Warrant are defined in Section 11 herein.
SECTION 1. Exercise of Warrant.
(a) Subject to the provisions of Section 1(b) below, the rights
represented by this Warrant may be exercised by the Holder hereof, in whole
or in part at any time or from time to time, but in no event after the date
on which all the Stockholders (other than CEA) shall have exchanged their
shares of common stock, par value $0.001 per share, of CommNet for Class A
partnership interests of BCP CommNet L.P. pursuant to Section 7.2 of the
Stockholders Agreement (provided that any such exercise shall be deemed to
have been made pro rata with respect to the Warrant Shares subject to
delivery to the Holder hereunder by each of BCP CCI, BCP CCI Offshore and
BFIP II). Such exercise shall be made by delivering to Blackstone at their
office set forth in the Stockholders Agreement (or at such other office of
Blackstone as they may designate by notice in writing to the Holder at the
address of such Holder appearing in the Stockholders Agreement) the following
three items:
(i) a written notice executed by the Holder (or its authorized
representative) electing to exercise all or any portion of this Warrant,
and if the Holder is exercising this Warrant in part, identifying the
number of Warrant Shares to be acquired, such notice to be substantially
in the form of the Notice of Exercise attached hereto,
(ii) this Warrant, and
(iii) payment to each of BCP CCI, BCP CCI Offshore and BFIP II of
the Exercise Price for each share being purchased from it by delivery of
any combination of one or more of the following:
(A) cash, wire transfer or check, and/or
(B) delivery of securities of the Corporation valued for such
purposes at their Market Price (as defined below) on the date of
exercise.
Upon any exercise of this Warrant, if the Warrant Shares are to be
transferred to a Person other than the Holder (which transfer shall be
subject in all respects to the Stockholders Agreement), the Notice of
Exercise shall also state the name of the Person to whom the certificates for
the Warrant Shares are to be transferred, and if the number of Warrant Shares
to be transferred does not include all the Warrant Shares purchasable
hereunder, it shall also state the name of the Person (which Person must be
CEA or an Affiliate thereof unless Blackstone otherwise consents) to whom a
new Warrant for the unexercised portion of the rights hereunder is to be
delivered. In the event of any exercise of the rights represented by this
Warrant, Blackstone shall submit to the Corporation (or its transfer agent)
within a reasonable period of time, not exceeding ten Business Days, after
such exercise a certificate or certificates representing the Warrant Shares,
and any other documentation reasonably requested by the Corporation (or its
transfer agent), for transfer to the Person (which Person must be CEA or an
Affiliate thereof unless Blackstone otherwise consents) entitled to receive
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the same, such number of Warrant Shares to be transferred upon such exercise,
and shall deliver to the Person entitled to receive the same, within a
reasonable time, not exceeding ten days, after the rights represented by this
Warrant shall have been so exercised, a new Warrant representing the number
of Warrant Shares, if any, with respect to which this Warrant shall not then
have been exercised. The Person in whose name any certificate for Warrant
Shares is transferred upon exercise of this Warrant shall for all purposes be
deemed to have become the Holder of record of such shares on the date on
which this Warrant was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such certificate. The Holder
shall pay all expenses, transfer taxes and other charges payable in
connection with the preparation and delivery of certificates for the Warrant
Shares and new Warrants for any unexercised portion.
(b) Anything contained in this Warrant (other than Section 1(c)
below) to the contrary notwithstanding, (i) if the Holder is a Regulated
Holder, then in no event may such Regulated Holder exercise or assign or
transfer this Warrant or any portion hereof to the extent that such exercise
or assignment or transfer would result in such Regulated Holder having a
Regulatory Problem, as reasonably determined by such Regulated Holder in its
sole discretion, and (ii) without limiting the generality and effect of
clause (i), Warrants which constitute Restricted Warrants with respect to a
particular Regulated Holder may not be exercised for Warrant Shares to the
extent that immediately prior thereto, or as a result of such exercise, the
number of Restricted Shares held by all holders thereof would exceed the
number of shares of capital stock of the issuer which such Regulated Holder
reasonably determines that it and its Affiliates may own, control or have the
power to vote under any law, regulation, rule or other requirement of any
governmental authority at the time applicable to such Regulated Holder or its
Affiliates; provided, however, that a Holder may exercise Restricted Warrants
if such Holder believes that the Warrant Shares transferred to such Holder
upon such exercise will be transferred by such Holder within fifteen (15)
days thereafter pursuant to a Conversion Event and such Holder agrees not to
vote any such Warrant Shares prior to such Conversion Event and undertakes to
promptly convert or exchange such Warrant Shares into equivalent non-voting
securities if such Warrant Shares are not transferred pursuant to a
Conversion Event. A Regulated Holder may provide for further restrictions
upon the exercise of any Restricted Warrants by providing Blackstone with
signed, written instructions specifying such additional restrictions and
legending such Warrants as to the existence of such restrictions. Blackstone
and the Corporation shall be entitled to rely on the Holder's determination
of its status as a Regulated Holder and its determination as to whether or
not it may have a Regulatory Problem, and neither Blackstone nor the
Corporation shall have any liability or obligation whatsoever to the Holder
with respect to such determinations made by the Holder.
(c) Anything contained in this Warrant to the contrary
notwithstanding, this Warrant shall be deemed to be automatically exercised
in full, without further action on the part of the holder hereof, upon and
simultaneously with either (i) the exchange by all the Stockholders (other
than CEA) of their shares of common stock, par value $.001 per share, of
CommNet for Class A partnership interests of BCP CommNet L.P. pursuant to
Section 7.2 of the Stockholders Agreement or (ii) the consummation of a
transaction contemplated by Section 2.6 of the Stockholders Agreement with
respect to which Blackstone has exercised its drag-along rights under such
Section 2.6, provided that (A) such transaction constitutes a Conversion
Event and (B) after giving effect to such transaction, the Holder hereof does
<PAGE>
not have a Regulatory Problem with respect to Securities received or retained
by such Holder. Upon such automatic exercise, the holder shall be obligated
to deliver to Blackstone the items enumerated in Section 1(a).
SECTION 2. Covenants of Blackstone. Blackstone covenants and
agrees that:
(a) Notwithstanding any other provision hereof, if the exercise of
any portion of this Warrant is to be made in connection with a public
offering of the Securities of the Corporation or sale of effective voting
control of the Corporation, the exercise of any portion of this Warrant may,
at the election of the Holder, be conditioned upon the consummation of the
public offering or sale in which case such exercise shall not be deemed to be
effective until the consummation of such transaction.
(b) Blackstone shall not avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all such action as may be reasonably necessary or appropriate to protect the
rights of the Holder hereof against impairment of the Holder's rights
hereunder.
(c) Blackstone or its Affiliates shall hold at all times a
sufficient number of shares of Corporation Common Stock so that Blackstone or
its Affiliates will be able to deliver to the Holder the number of Warrant
Shares obtainable upon exercise of this Warrant (provided, however, that
Blackstone may transfer such shares of Corporation Common Stock to a third
party, reasonably acceptable to the Holder, in connection with or upon the
consummation of the sale or other transfer of Blackstone's investment in the
Corporation Common Stock, and upon such transfer and the execution and
delivery to the Holder of a similar Warrant of like tenor by such transferee,
Blackstone and its Affiliates and agents shall be released from their
obligations under this Warrant).
SECTION 3. Adjustment of Number of Shares and Exercise Price. In
order to prevent dilution or avoidance of the rights granted under this
Warrant, the Exercise Price shall be subject to adjustment from time to time
as provided in this Section 3, and the number of Warrant Shares obtainable
upon exercise of this Warrant shall be subject to adjustment from time to
time as provided in this Section 3.
(a) Subdivision or Combination of Corporation Common Stock. If
the Corporation at any time subdivides (by any stock split, stock dividend or
other distribution payable in shares of Corporation Common Stock,
recapitalization or otherwise) the outstanding shares of Corporation Common
Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately reduced and
the number of Warrant Shares obtainable upon exercise of this Warrant shall
be proportionately increased. If the Corporation at any time combines (by
reverse stock split or otherwise) the outstanding shares of Corporation
Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased and
the number of Warrant Shares obtainable upon exercise of this Warrant shall
be proportionately decreased.
(b) Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization (other than a subdivision or combination of
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Corporation Common Stock described in Section 3(a) hereof), reorganization,
reclassification, consolidation, merger, sale of all or substantially all of
the Corporation's assets (determined on a consolidated basis) to another
Person or other transaction which is effected in such a way that holders of
Corporation Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, cash, securities or assets with respect to or
in exchange for Corporation Common Stock is referred to herein as an "Organic
Change." In the event of any Organic Change, the Holder shall thereafter
have the right to acquire and receive in lieu of or addition to (as the case
may be) the Warrant Shares immediately theretofore acquirable and receivable
upon the exercise of this Warrant, such shares of stock, cash, securities or
assets as such Holder would have received in connection with such Organic
Change if such Holder had exercised such Warrant immediately prior to such
Organic Change.
(c) Notices. To the extent it receives written notice from the
Corporation, Blackstone shall:
(i) promptly upon any adjustment of the Exercise Price, give
written notice thereof to the Holder, setting forth in reasonable detail
and certifying the calculation of such adjustment;
(ii) give written notice to the Holder promptly after becoming
aware that the Corporation proposes to take any action or of the date on
which the Corporation closes its books or takes a record (A) with
respect to any dividend or distribution upon the Corporation Common
Stock, (B) with respect to any pro rata subscription offer to holders of
Corporation Common Stock or (C) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation; and
(iii) also give written notice to the Holder of the date on which
any Organic Change, dissolution or liquidation shall take place.
SECTION 4. Dividends; Purchase Rights.
(a) If the Corporation declares or pays a dividend upon the
Corporation Common Stock payable (i) in cash out of earnings or earned
surplus (determined in accordance with generally accepted accounting
principles, consistently applied) (a "Cash Dividend") or (ii) otherwise than
in cash out of earnings or earned surplus (determined in accordance with
generally accepted accounting principles, consistently applied) except for a
stock dividend payable in shares of Corporation Common Stock (a "Liquidating
Dividend"), then Blackstone shall pay to the Holder of this Warrant at the
time of payment thereof the Liquidating Dividend or Cash Dividend, as the
case may be, which would have been paid to such Holder on the Warrant Shares
had this Warrant been fully exercised immediately prior to the date on which
a record is taken for such Liquidating Dividend or Cash Dividend, as the case
may be, or, if no record is taken, the date as of which the record holders of
Corporation Common Stock entitled to such dividends are to be determined.
(b) If at any time the Corporation grants, issues or sells any
Options, Convertible Securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of
Corporation Common Stock (the "Purchase Rights"), then the Holder of this
Warrant shall be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate number or amount of such stock, warrants,
securities or other property which such Holder could have acquired if such
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Holder had held the Warrant Shares acquirable upon complete exercise of this
Warrant immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of Corporation Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
SECTION 5. No Voting Rights. The Holder shall not be entitled to
any voting rights as a stockholder of the Corporation by reason of the rights
granted under this Warrant until the Holder shall purchase shares of
Corporation Common Stock hereunder.
SECTION 6. Exchange and Transfer of Warrant.
(a) Exchange of Warrant. The Holder may exchange this Warrant for
another Warrant or Warrants of like kind and tenor representing in the
aggregate the right to purchase the same number of Warrant Shares which could
be purchased pursuant to this Warrant. In order to effect such exchange, the
Holder shall deliver this Warrant to Blackstone accompanied by a written
request signed by the Holder specifying the number and denominations of
Warrants to be issued in such exchange and the names in which such Warrants
are to be issued. As soon as reasonably practicable after receipt of such a
request, Blackstone shall execute and deliver to the Holder the Warrant or
Warrants to be issued in such exchange.
(b) Transfer of Warrant. This Warrant may be transferred by the
Holder hereof (but only with the prior written consent of Blackstone if the
transferee is not an Affiliate of CEA) by delivering this Warrant to
Blackstone accompanied by a properly completed Assignment Form and an
executed copy of the Stockholders Agreement dated as of February 10, 1998,
among the CommNet and its stockholders party thereto, duly executed by such
transferee, and any other documents reasonably requested by Blackstone. As
soon as reasonably practicable after receipt of such Assignment Form,
Blackstone shall execute and deliver to the Holder a new Warrant or Warrants
of like kind and tenor representing in the aggregate the right to purchase
the same number of Warrant Shares which could be purchased pursuant to the
Warrant being transferred. In all cases of transfer by an attorney, the
original power of attorney, duly approved, or a copy thereof, duly certified,
shall be delivered to and shall remain with Blackstone. In case of transfer
by executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced and may be
required to be deposited and remain with Blackstone in its discretion.
SECTION 7. Loss, Theft, Destruction of Warrant Certificates. Upon
receipt of evidence satisfactory to Blackstone of the ownership of and the
loss, theft, destruction or mutilation of any Warrant and, in the case of any
such loss, theft or destruction, upon receipt of indemnity or security
satisfactory to Blackstone (it being understood and agreed that if the Holder
of such Warrant is CEA or one of its Affiliates, then a written agreement of
indemnity given by such Person alone shall be satisfactory to Blackstone and
no further security shall be required) or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, Blackstone will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated
Warrant, a new Warrant of like tenor and representing the right to purchase
the same aggregate number of Warrant Shares.
<PAGE>
SECTION 8. Successors. All the provisions of this Warrant by or
for the benefit of the Issuer or the Holder shall bind and inure to the
benefit of their respective successors and assigns.
SECTION 9. Headings. The headings of sections of this Warrant
have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 10. Remedies; Amendment and Waiver.
(a) No failure or delay of any party in exercising any power or
right hereunder shall operate as a waiver thereof (except where a specific
time period for the exercise of such power or right is expressly set forth
herein), nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. No notice or demand on any party in any case shall
entitle such party to any other or future notice or demand in similar or
other circumstances. The rights and remedies of the Holder or the Issuers
are cumulative and not exclusive of any rights or remedies which it would
otherwise have.
(b) This Warrant may only be amended or modified by a written
instrument signed by the Holder and the Issuers. The provisions of this
Warrant may be waived only by a writing signed by the party to be charged
with such waiver.
SECTION 11. Severability. Whenever possible, each provision of
this Warrant will be interpreted in such manner as to be effective and valid
under Applicable Law, but if any provision of this Warrant is held to be
invalid, illegal or unenforceable in any respect under any Applicable Law or
rule in any jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision or any other jurisdiction, and such
invalid, void or otherwise unenforceable provisions shall be null and void.
It is the intent of the parties, however, that any invalid, void or otherwise
unenforceable provisions be automatically replaced by other provisions which
are as similar as possible in terms to such invalid, void or otherwise
unenforceable provisions but are valid and enforceable to the fullest extent
permitted by law.
SECTION 12. Definitions; Interpretation.
(a) Definitions. The following terms have meanings set forth
below:
(i) "Affiliate" means, with respect to any Person, (i) a director,
officer or stockholder of such Person, (ii) a spouse, parent, sibling or
descendant of such Person (or spouse, parent, sibling or descendant of
any director or executive officer of such Person), and (iii) any other
Person that, directly or indirectly through one or more intermediaries,
Controls, or is Controlled by, or is under common Control with, such
Person.
(ii) "Applicable Law" means, with respect to any Person, property,
transaction or event, all present or future applicable laws, statutes,
regulations, treaties, judgments and decrees and all applicable official
<PAGE>
directives, rules, consents, approvals, authorizations, orders,
guidelines and policies of any Governmental Authority or Persons having
authority over or applicable to such Person or any of its assets or
properties.
(iii) "Business Day" means any day other than a Saturday, Sunday or
a day on which banks are authorized or required to be closed in New
York, New York.
(iv) "Control" means, with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
(v) "Conversion Event" shall mean (a) any public offering or
public sale of Securities of the Corporation (including a public
offering registered under the Securities Act of 1933, as amended, and a
public sale pursuant to Rule 144 of the Securities and Exchange
Commission or any similar rule then in force), (b) any sale of
Securities of the Corporation to a Person or group of Persons (within
the meaning of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) if, after such sale, such Person or group of Persons in the
aggregate would own or control Securities which possess in the aggregate
the ordinary voting power to elect a majority of the Corporation's
directors (provided, however, that such sale has been approved by the
Corporation's Board of Directors or a committee thereof), (c) any sale
of Securities of the Corporation to a Person or group of Persons (within
the meaning of the 1934 Act) if, after such sale, such Person or group
of Persons in the aggregate would own or control Securities of the
Corporation (excluding any Warrant Shares being transferred upon
exercise of this Warrant and disposed of in connection with such
Conversion Event) which possess in the aggregate the ordinary voting
power to elect a majority of the Corporation's directors, (d) any sale
of Securities of the Corporation to a Person or group of Persons (within
the meaning of the 1934 Act) if, after such sale, such Person or group
of Persons would not, in the aggregate, own, control or have the right
to acquire more than two percent (2%) of the outstanding Securities of
any class of voting Securities of the Corporation, (e) a merger,
consolidation or similar transaction involving the Corporation if, after
such transaction, a Person or group of Persons (within the meaning of
the 1934 Act) in the aggregate would own or control Securities which
possess in the aggregate the ordinary voting power to elect a majority
of the surviving corporation's directors (provided, however, that the
transaction has been approved by the Corporation's Board of Directors or
a committee thereof), or (f) the exchange by all the Stockholders (other
than CEA) of all of their shares of common stock, par value 0.001 per
share, of CommNet for Class A partnership interests in BCP CommNet L.P.,
a Delaware limited partnership, pursuant to Section 7.2 of the
Stockholders Agreement.
(vi) "Convertible Securities" means any stock or other securities
convertible into or exchangeable for Corporation Common Stock.
(vii) "Governmental Authority" means any federal, state, provincial,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case whether of the
<PAGE>
United States of America or any political subdivision thereof, or of any
other country.
(viii) "Options" means any rights or options to subscribe for or to
purchase Corporation Common Stock.
(ix) "Person" shall be construed broadly and shall include an
individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department,
agency or political subdivision thereof).
(x) "Regulated Holder" means CEA and any other holder of the
Corporation's Securities (i) that is (or that is a subsidiary of a bank
holding company that is) subject to the various provisions of Regulation
Y of the Board of Governors of the Federal Reserve Systems, 12 C.F.R.,
Part 225 (or any successor to Regulation Y), (ii) that holds any
Securities of the Corporation and (iii) that has provided Blackstone
with written notice of its status as a "Regulated Holder."
(xi) "Regulatory Problem" means (i) any set of facts or
circumstances wherein it has been asserted by any governmental
regulatory agency (or CEA reasonably believes that there is a
significant risk of such assertion) that such Person (or any bank
holding company that controls such Person) is not entitled to hold, or
exercise any material right with respect to, all or any portion of the
Securities of the Corporation which such Person holds or (ii) when such
Person and its Affiliates would own, control or have power (including
voting rights) over a greater quantity of Securities of the Corporation
than is permitted under any law or regulation or any requirement of any
Governmental Authority applicable to such Person or to which such Person
is subject.
(xii) "Restricted Warrants" and "Restricted Shares" means,
respectively, with respect to any Regulated Holder, any Warrants or
Warrant Shares ever held of record by such Regulated Holder or its
Affiliates; provided, however, that any such Warrants or Warrant Shares
shall cease to be Restricted Warrants or Restricted Shares with respect
to such Regulated Holder when such Warrants or Warrant Shares are
transferred in a transaction which is a Conversion Event or are acquired
by the Corporation or any subsidiary of the Corporation; and provided
further, however, that the Corporation and Blackstone shall have no
responsibility for determining whether any Warrants or Warrant Shares
constitute Restricted Warrants or Restricted Shares with respect to any
particular Regulated Holder, but shall instead be entitled to receive,
and rely exclusively upon, a written notice provided by such Regulated
Holder designating such Warrants or Warrant Shares as Restricted
Warrants or Restricted Shares.
(xiii) "Securities" means, with respect to any Person, such Person's
capital stock or any options, warrants or other Securities which are
directly or indirectly convertible into, or exercisable or exchangeable
for, such Person's capital stock (whether or not such derivative
Securities are issued by the Corporation). Whenever a reference herein
to Securities refers to any derivative Securities, the rights of CEA
shall apply to such derivative Securities and all underlying Securities
<PAGE>
directly or indirectly issuable upon conversion, exchange or exercise of
such derivative Securities.
(xiv) "Subsidiary" means, with respect to the Corporation, (i) any
Person of which either (x) 50% or more of the shares of stock or other
interests entitled to vote in the election of directors or comparable
Persons performing similar functions (excluding shares or other
interests entitled to vote only upon the failure to pay dividends
thereon or other contingencies) or (y) a 50% or greater interest in the
profits or capital of such Person, are at the time owned directly or
indirectly through one or more Subsidiaries by the Corporation, or (ii)
whose net earnings, or portions thereof, are consolidated with the net
earnings of the Corporation and are recorded on the books of the
Corporation for financial reporting purposes in accordance with
generally accepted accounting principles.
(xv) "US$" and "United States Dollars" shall each mean lawful
currency of the United States.
(xvi) "Warrant Shares" means the shares of Corporation Common Stock
issued or issuable upon exercise of this Warrant; provided, however,
that if there is a change such that the securities issuable upon
exercise of this Warrant are issued by an entity other than the
Corporation or there is a change in the class of securities so issuable,
then the term "Warrant Shares" shall mean the securities issuable upon
exercise of this Warrant.
(b) Terms Generally. The definitions contained in this Warrant
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation."
(c) Currency. Unless otherwise specified herein, all statements
or references to dollar amounts or $ set forth herein shall refer to United
States Dollars.
SECTION 13. Governing Law. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, INTERPRETATION AND VALIDITY OF THIS WARRANT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER IN THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
SECTION 14. Notices. All notices, demands and requests of any
kind to be delivered to any party hereto in connection with this Warrant
shall be in writing, (a) delivered personally, (b) sent by
internationally-recognized overnight courier, (c) sent by first class,
registered or certified mail, return receipt requested or (d) by telecopy
with confirmed receipt (with hard copy to follow). Any notice, demand or
request so delivered shall constitute valid notice under this Warrant and
shall be deemed to have been received (i) on the day of actual delivery in
the case of personal delivery, (ii) on the next Business Day after the date
when sent, in the case of delivery by internationally-recognized overnight
courier, (iii) on the fifth Business Day after the date of deposit in the
<PAGE>
U.S. mail in the case of mailing or (iv) one business day after being sent by
telecopy with confirmed receipt (with hard copy to follow). The mailing
addresses of Blackstone and CEA are set forth in the Stockholders Agreement.
Any party hereto may, from time to time by notice in writing served upon the
other as aforesaid, designate a different mailing address or a different
Person to which all such notices, demands or requests thereafter are to be
addressed.
SECTION 15. Conflicting Agreements. Blackstone shall not enter
into any agreements or arrangements of any kind with any Person with respect
to the Warrant Shares containing terms inconsistent with the provisions of
this Warrant, including agreements or arrangements with respect to the
acquisition or disposition of securities of the Corporation in a manner which
is inconsistent with this Warrant.
IN WITNESS WHEREOF, Blackstone has caused this Warrant to be
executed by its duly authorized officers and this Warrant to be dated as of
the date first set forth above.
BLACKSTONE CCI CAPITAL
PARTNERS L.P.
By: Blackstone Management
Association II L.L.P.,
as General Partner
By: /s/ Mark T. Gallogly
-----------------------------------
Name: Mark T. Gallogly
Title: Member
BLACKSTONE CCI OFFSHORE CAPITAL
PARTNERS L.P.
By: Blackstone Management
Association II L.L.P.,
as General Partner
By: /s/ Mark T. Gallogly
-----------------------------------
Name: Mark T. Gallogly
Title: Member
<PAGE>
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management
Association II L.L.P.,
as General Partner
By: /s/ Mark T. Gallogly
-----------------------------------
Name: Mark T. Gallogly
Title: Member
ACCEPTED:
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its General Partner
By: /s/ Michael Hannon
------------------------
Name: Michael Hannon
Title: Partner
<PAGE>
FORM OF EXERCISE
[To be signed upon exercise of Warrant]
To BLACKSTONE CCI CAPITAL PARTNERS L.P., a Delaware limited
partnership ("BCP CCI"), BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P., a
Delaware limited partnership ("BCP CCI Offshore"), and BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP II L.P., a Delaware limited partnership ("BFIP II"):
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _________ shares of Corporation Common
Stock, pro rata from each of BCP CCI, BCP CCI Offshore and BFIP II that
number of Warrant Shares subject to delivery to the undersigned under the
Warrant by each such person, AND herewith tenders payment of [identify amount
and form of payment] in full payment of the purchase price for such shares,
and requests that such shares be transferred to, and the certificates for
such shares be issued in the name of, and be delivered to, _________________,
whose address is ___________________________.
Dated: ____________________ __________________________________
(Signature)
(Address)
<PAGE>
FORM OF ASSIGNMENT
[To be signed only upon transfer of Warrant]
For value received, the undersigned hereby sells, assigns and
transfers unto _________________, all of the rights represented by the within
Warrant to purchase shares of the Corporation Common Stock to which the
within Warrant relates.
Dated: ____________________
____________________________________
(Signature)
(Address of Assignor)
Signed in the presence of:
Address of Assignee:
EXHIBIT 4
[CONFORMED COPY]
STOCKHOLDERS AGREEMENT
dated as of February 10, 1998
among
BLACKSTONE CCI CAPITAL PARTNERS L.P.,
BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P.,
CHASE EQUITY ASSOCIATES, L.P.,
SUNAPEE SECURITIES, INC.,
SQUAM LAKE INVESTORS, II, L.P.,
and
COMMNET CELLULAR INC.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . 1
SECTION 1.1 Defined Terms . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions;
Interpretation . . . . . . . . . . . . . . . 3
ARTICLE II
TRANSFERS . . . . . . . . . . . . . . 3
SECTION 2.1 Limitations on Transfer . . . . . . . . . . . . . 3
SECTION 2.2 Transfers to Affiliates . . . . . . . . . . . . . 4
SECTION 2.3 Effect of Void Transfers . . . . . . . . . . . . 4
SECTION 2.4 Legend on Securities . . . . . . . . . . . . . . 4
SECTION 2.5 Tag-Along Rights . . . . . . . . . . . . . . . . 5
SECTION 2.6 Drag-Along Rights . . . . . . . . . . . . . . . . 6
ARTICLE III
REGISTRATION RIGHTS . . . . . . . . . . . . . 8
SECTION 3.1 Piggyback Rights . . . . . . . . . . . . . . . . 8
SECTION 3.2 Demand Registrations . . . . . . . . . . . . . . 9
SECTION 3.3 Registration Procedures . . . . . . . . . . . . . 10
SECTION 3.4 Other Registration-Related Matters . . . . . . 13
ARTICLE IV
INDEMNIFICATION . . . . . . . . . . . . . 15
SECTION 4.1 Indemnification by the Company . . . . . . . . 15
SECTION 4.2 Indemnification by the Seller . . . . . . . . . 16
SECTION 4.3 Notices of Claims, Etc. . . . . . . . . . . . . 17
SECTION 4.4 Contribution . . . . . . . . . . . . . . . . . 17
SECTION 4.5 Other Indemnification . . . . . . . . . . . . . 18
SECTION 4.6 Non-Exclusivity . . . . . . . . . . . . . . . . 18
ARTICLE V
PARTICIPATION RIGHTS . . . . . . . . . . . 18
SECTION 5.1 Participation Rights . . . . . . . . . . . . . 18
ARTICLE VI
VOTING AGREEMENT . . . . . . . . . . . . 19
SECTION 6.1 Voting Agreement . . . . . . . . . . . . . . . 19
<PAGE>
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . 19
SECTION 7.1 Additional Securities Subject to Agreement . . 19
SECTION 7.2 BCP CommNet L.P. . . . . . . . . . . . . . . . 20
SECTION 7.3 Termination . . . . . . . . . . . . . . . . . . 20
SECTION 7.4 Injunctive Relief . . . . . . . . . . . . . . . 20
SECTION 7.5 Other Stockholders' Agreements . . . . . . . . 21
SECTION 7.6 Amendments; Waivers . . . . . . . . . . . . . . 21
SECTION 7.7 Successors and Assigns . . . . . . . . . . . . 21
SECTION 7.8 Notices . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.9 Integration; No Third Party Beneficiaries . . . 23
SECTION 7.10 Severability . . . . . . . . . . . . . . . . . 23
SECTION 7.11 Counterparts . . . . . . . . . . . . . . . . . 23
SECTION 7.12 Governing Law; Submission to Jurisdiction . . . 23
SECTION 7.13 No Recourse . . . . . . . . . . . . . . . . . . 24
<PAGE>
STOCKHOLDERS AGREEMENT dated as of February 10, 1998 among
Blackstone CCI Capital Partners L.P., a Delaware limited partnership
("BCP CCI"), Blackstone CCI Offshore Capital Partners L.P., a Cayman Islands
exempted limited partnership ("BCP CCI Offshore"), Blackstone Family
Investment Partnership II L.P., a Delaware limited partnership ("BFIP" and,
together with BCP CCI and BCP CCI Offshore, the "Blackstone Partnerships"),
Chase Equity Associates, L.P., a California limited partnership ("Chase"),
Sunapee Securities, Inc., a Massachusetts corporation ("Sunapee"), Squam Lake
Investors, II, L.P., a Delaware limited partnership ("Squam
Lake", and, together with Sunapee, "Bain"; and, Bain, together with
Blackstone and Chase, the "Stockholders") and CommNet Cellular Inc., a
Colorado corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Agreement and Plan of Merger dated as of May 27, 1997
(the "Merger Agreement"), between the Company and AV Acquisition Corp., a
Delaware corporation ("AV"), provides for the merger (the "Merger") of AV
with and into the Company;
WHEREAS, immediately prior to the consummation of the Merger, the
Stockholders shall own, collectively, 100% of the issued and outstanding
capital stock of AV;
WHEREAS, immediately following the consummation of the Merger, the
Stockholders shall own, collectively, approximately 87% of the issued and
outstanding common stock, par value $0.001 per share, of the Company ("Common
Stock");
WHEREAS, each Blackstone Partnership is entering into this
Agreement on its own account and not as a partner, agent, trustee or
Affiliate of any other Blackstone Partnership; and
WHEREAS, the parties hereto wish to enter into certain agreements
with respect to the Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, terms
defined in the heading and the recitals shall have their respective assigned
meanings, and the following capitalized terms shall have the meanings
ascribed to them below:
"Affiliate" shall mean, with respect to any Person, (i) any other
Person that directly or indirectly controls, is controlled by or is
under common control with, such Person or (ii) any director, officer,
partner or employee of such Person or any Person specified in clause
(i); provided, that (x) current or former officers, directors or
employees of the Company shall be deemed not to be Affiliates of
Blackstone for purposes hereof solely by reason of being officers,
<PAGE>
directors or employees of the Company and (y) none of the Other
Stockholders shall be deemed to be an Affiliate of Blackstone.
"Blackstone" shall mean, collectively, the Blackstone Partnerships
and their respective Permitted Transferees.
"Business Day" shall mean a day other than a Saturday, Sunday,
United States or New York State holiday or other day on which commercial
banks in New York City are authorized or required by law to close.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the
same may be amended from time to time.
"Holders' Counsel" shall mean one firm of attorneys selected by
Stockholders which own a majority of the shares of Common Stock to be
included in any registration pursuant to Article III of this Agreement
which are owned by Stockholders.
"Other Stockholders" shall mean, collectively, Chase and Bain and
their respective Permitted Transferees.
"Person" shall mean any individual, corporation, partnership,
limited liability company, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or
other entity of any nature whatsoever.
"Public Offering" shall mean the sale of shares of Common Stock to
the public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor
form) filed under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
the performance by the Company of or compliance by the Company with
Article III hereof, including, without limitation, (i) all SEC, stock
exchange, National Association of Securities Dealers, Inc. registration
and filing fees, (ii) all fees and expenses of complying with securities
or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications), (iii) all
printing, messenger and delivery expenses, (iv) the fees and
disbursements of counsel for the Company and of its independent public
accountants, (v) the reasonable fees and disbursements of Holders'
Counsel, (vi) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions applicable to shares owned by Stockholders,
(vii) liability insurance if the Company so desires or if the
underwriters so require and (viii) the reasonable fees and expenses of
any special experts retained by the Company in connection with the
requested registration, but excluding transfer taxes, if any.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same may be
amended from time to time.
<PAGE>
"Transfer" shall mean any transfer, sale, assignment, exchange,
mortgage, pledge, hypothecation or other disposition of any Common Stock
or any interest therein.
"Warrant" shall mean the warrant dated February 10, 1998 pursuant
to which Chase shall have the right to acquire 43,113 shares of Common
Stock from BCP CCI, 12,714 shares of Common Stock from BCP CCI Offshore
and 90 shares of Common Stock from BFIP.
SECTION 1.2 Other Definitional Provisions; Interpretation. (a)
The words "hereof", "herein", and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement, and Article, Section and
Exhibit references are to this Agreement unless otherwise specified.
(b) The headings in this Agreement are included for convenience of
reference only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
ARTICLE II
TRANSFERS
SECTION 2.1 Limitations on Transfer. Each of the Other
Stockholders agrees not to Transfer any Common Stock, provided, that the
foregoing shall not be applicable to Transfers (i) described in Section 2.2,
(ii) described in Section 7.2, (iii) to another Stockholder, (iv) pursuant to
a merger or consolidation in which the Company is a constituent corporation,
(v) pursuant to a Public Offering, (vi) pursuant to Rule 144 under the
Securities Act or (vii) pursuant to Sections 2.5 or 2.6.
SECTION 2.2 Transfers to Affiliates. Notwithstanding anything
contained herein to the contrary, each Stockholder shall be entitled, from
time to time, to Transfer any or all of the shares of Common Stock owned by
it to any of its Affiliates who agree in a writing reasonably satisfactory in
form and substance to the Company to become a party to, and be bound to the
same extent as its transferor by the terms of, this Agreement, and any such
transferee shall be deemed to be a "Stockholder" hereunder (any such
transferee, a "Permitted Transferee"). Any Transfer by a Blackstone
Partnership or any of its Permitted Transferees to any of its stockholders
(or partners, members or other equity owners) of any or all of the shares of
Common Stock owned by them (including a distribution of such shares upon a
liquidation of a Blackstone Partnership or any of its Permitted Transferees
or any other distribution, a dividend or otherwise) shall be deemed to be a
Transfer to an Affiliate of a Blackstone Partnership for purposes of this
Section 2.2.
SECTION 2.3 Effect of Void Transfers. In the event of any
purported Transfer of any shares of Common Stock in violation of the
provisions of this Agreement, such purported Transfer shall be void and of no
<PAGE>
effect and the Company shall not give effect to such Transfer. The Company
shall not be required to enter in its stock or other records, or reflect,
recognize or give effect to for any purpose, any transfer of Common Stock in
violation of this Agreement.
SECTION 2.4 Legend on Securities. Each certificate representing
shares of Common Stock issued to any Stockholder shall bear the following
legend on the face thereof (which legend may be removed upon the termination
of Article II of this Agreement):
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDERS AGREEMENT AMONG BLACKSTONE CCI CAPITAL
PARTNERS L.P., BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II L.P., CHASE EQUITY
ASSOCIATES, L.P., SUNAPEE SECURITIES, INC., SQUAM LAKE INVESTORS,
II, L.P. AND COMMNET CELLULAR INC. (THE "COMPANY"), A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE,
ASSIGNMENT, EXCHANGE, MORTGAGE, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
AGREEMENT."
SECTION 2.5 Tag-Along Rights. (a) Subject to the last sentence
of Section 2.6(b), with respect to any proposed Transfer by Blackstone (in
such capacity, a "Transferring Stockholder") of Common Stock permitted
hereunder (other than a Transfer: (i) described in Section 2.2, (ii)
described in Section 7.2, (iii) to another Stockholder, (iv) pursuant to a
merger or consolidation in which the Company is a constituent corporation,
(v) pursuant to a Public Offering, (vi) pursuant to Rule 144 under the
Securities Act or (vii) pursuant to Section 2.6.), the Transferring
Stockholder shall have the obligation, and Chase and its Permitted
Transferees (in such capacity, the "Chase Tagging Stockholder Group") and
Bain and its Permitted Transferees (in such capacity, the "Bain Tagging
Stockholder Group", and together with the Chase Tagging Stockholder Group,
the "Tagging Stockholder Groups") shall have the right to require the
proposed transferee to purchase from each of such Tagging Stockholder Groups
a number of shares of Common Stock up to the product (rounded up to the
nearest whole number) of (i) the quotient determined by dividing (A) the
aggregate number of shares of Common Stock owned by such Tagging Stockholder
Group and sought by such Tagging Stockholder Group to be included in the
contemplated Transfer by (B) the aggregate number of shares of Common Stock
owned by the Transferring Stockholder, such Tagging Stockholder Group and any
other Persons who have the right to include shares of Common Stock in such
sale pursuant hereto or any other agreement (including any employment or
option agreement between the Company and an employee thereof) (provided that
for purposes of this clause (i) a Stockholder shall be deemed to have sought
to include an amount equal to all of such Stockholder's shares of Common
Stock if such amount exceeds the entire amount to be sold to the transferee
in the contemplated Transfer), and (ii) the total number of shares of Common
Stock proposed to be directly or indirectly Transferred to the transferee in
the contemplated Transfer, and at the same price per share of Common Stock
and upon the same terms and conditions (including, without limitation, time
of payment and form of consideration) as to be paid and given to the
Transferring Stockholder; provided, that in order to be entitled to exercise
its right to sell shares of Common Stock to the proposed transferee pursuant
to this Section 2.5, each participating member of each Tagging Stockholder
Group must agree to make to the transferee the same representations,
<PAGE>
warranties, covenants, indemnities and agreements as the Transferring
Stockholder agrees to make in connection with the proposed Transfer of the
shares of Common Stock of the Transferring Stockholder; provided, further,
that all representations and warranties shall be made by the participating
members of each Tagging Stockholder Group and the Transferring Stockholder
severally and not jointly.
(b) The Transferring Stockholder shall give notice to each Tagging
Stockholder Group of each proposed Transfer giving rise to the rights of such
Tagging Stockholder Group set forth in the first sentence of Section 2.5(a)
at least 20 days prior to the proposed consummation of such Transfer, setting
forth the number of shares of Common Stock proposed to be so transferred, the
name and address of the proposed transferee, the proposed amount and form of
consideration and other material terms and conditions of payment offered by
the proposed transferee. The tag-along rights provided by this Section 2.5
must be exercised by members of each Tagging Stockholder Group within 10
Business Days following receipt of the notice required by the preceding
sentence, by delivery of a written notice to the Transferring Stockholder
indicating the desire of members of such Tagging Stockholder Group to
exercise their rights and specifying the number of shares of Common Stock
they desire to sell.
(c) The Transferring Stockholder shall be entitled under this
Section 2.5 to Transfer to the proposed transferee the number of shares of
Common Stock equal to the difference between (1) the number referred to in
clause (ii) of paragraph (a) above and (2)(A) the aggregate number of shares
of Common Stock set forth in the written notice, if any, delivered by all
Tagging Stockholder Groups pursuant to Section 2.5(b) (in each case, up to
the maximum number of shares of Common Stock owned by such Tagging
Stockholder Group required to be purchased by the proposed transferee
pursuant to the first sentence of Section 2.5(a)) plus (B) the aggregate
number of shares of Common Stock to be sold by any other Persons who have the
right to include shares of Common Stock in such sale.
(d) If the proposed transferee fails to purchase shares of Common
Stock from any member of the Tagging Stockholder Groups that has properly
exercised its tag-along rights under Section 2.5(a), then the Transferring
Stockholder shall not be permitted to make the proposed Transfer, and any
such attempted Transfer shall be void and of no effect, as provided in
Section 2.3 hereof.
(e) If any Stockholder exercises its rights under Section 2.5(a),
such Stockholder shall (i) prior to the closing of any such Transfer, execute
and deliver any purchase agreement or other documentation required by the
proposed transferee to consummate the sale (including all legal opinions,
cross-receipts and certificates), which purchase agreement and other
documentation shall contain terms described in the provisos to Section 2.5(a)
and (ii) at the closing of any such Transfer, deliver to the proposed
transferee the certificate or certificates representing the shares of Common
Stock to be sold pursuant to such sale by such Stockholder, duly endorsed for
transfer, against receipt of the purchase price thereof. The closing of the
purchase of the Common Stock with respect to which such rights have been
exercised shall take place concurrently with the closing of the sale of the
Transferring Stockholder's Common Stock.
SECTION 2.6 Drag-Along Rights. (a) If Blackstone receives an
offer from a Person other than an Affiliate thereof (a "Third Party") to
<PAGE>
purchase any shares of Common Stock then owned by Blackstone and such offer
is accepted by Blackstone, then, at the election of Blackstone, each of the
Other Stockholders hereby agrees that it will Transfer all (or if less than
100% of the aggregate shares owned by Blackstone are subject to such
Transfer, the percentage subject to such Transfer) of the shares of Common
Stock owned by it to such Third Party on the terms of the offer so accepted
by Blackstone, including the same per share consideration. In connection
with any such election, each of the Other Stockholders must agree to make to
the transferee the same representations, warranties, covenants, indemnities
and agreements as Blackstone agrees to make in connection with the proposed
Transfer of the shares of Common Stock of Blackstone; provided, further, that
all representations and warranties shall be made by Blackstone, Chase and its
Permitted Transferees and Bain and its Permitted Transferees severally and
not jointly. In the event that both Sections 2.5 and 2.6 apply to a single
transaction, the "drag-along" rights set forth in this Section 2.6 shall have
priority over the "tag-along" rights set forth in Section 2.5 above, and the
"tag-along" rights set forth in Section 2.5 shall not become exercisable by
any Stockholder unless Blackstone shall have determined not to exercise its
rights under this Section 2.6.
(b) If it elects to exercise its rights under Section 2.6(a),
Blackstone shall give notice (the "Drag-Along Notice") to Chase and its
Permitted Transferees and to Bain and its Permitted Transferees of any
proposed Transfer giving rise to the rights of such Transferring Stockholder
set forth in Section 2.6(a) as soon as practicable following the acceptance
of the offer referred to in Section 2.6(a). The Drag-Along Notice shall set
forth the number of shares of Common Stock proposed to be so Transferred, the
name of the proposed transferee, the proposed amount and form of
consideration and the other terms and conditions of the offer. If the
Transfer referred to in the Drag-Along Notice is not consummated within 180
days from the date of the Drag-Along Notice, the Transferring Stockholder
must deliver another Drag-Along Notice in order to exercise its rights under
this Section 2.6 with respect to such Transfer or any other Transfer.
(c) If Blackstone exercises its rights under Section 2.6(a), each
Other Stockholder shall (i) prior to the closing of any such Transfer,
execute and deliver any purchase agreement or other documentation required by
the proposed transferee to consummate the sale (including all legal opinions,
cross-receipts and certificates), which purchase agreement and other
documentation shall contain terms described in the second sentence of Section
2.6(b) and (ii) at the closing of any such Transfer, deliver to the proposed
transferee the certificate or certificates representing the shares of Common
Stock to be sold pursuant to such sale by such Stockholder, duly endorsed for
transfer, against receipt of the purchase price thereof. The closing of the
purchase of the Common Stock with respect to which such rights have been
exercised shall take place concurrently with the closing of the sale of
Blackstone's Common Stock.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1 Piggyback Rights. (a) If at any time the Company
intends to file a registration statement under the Securities Act (other than
a registration statement on Form S-4 or S-8 or any similar or successor form)
in connection with the proposed offer and sale of Common Stock by the Company
or by Blackstone (the "Initiating Party"), the Company shall give prompt
<PAGE>
written notice to any Stockholder which is not an Initiating Party and has
rights to registration under this Section in respect of such registration
statement (collectively, the "Non-Initiating Parties") regarding the rights
of such parties under this Section, at least 20 Business Days prior to the
anticipated filing date of such registration statement; provided, that the
Other Stockholders shall not have any rights pursuant to this Section with
respect to any offer or sale of Common Stock if the Company is the Initiating
Party and if no shares of Common Stock owned by Blackstone are to be included
in such registration statement.
(b) Upon the written request of any Non-Initiating Party, made
within 10 Business Days after the receipt of any such notice from the
Company, which request shall specify the shares of Common Stock (the "Piggy-
Back Shares") intended to be disposed of by such Non-Initiating Party in such
offering, the Company will use its reasonable best efforts to include in the
registration statement all Piggy-Back Shares which the Company has been so
requested to register by such Non-Initiating Parties to the extent required
to permit the disposition of such Piggy-Back Shares; provided, that (i) if,
at any time after giving written notice of its intention to register any
Common Stock and prior to the effective date of the registration statement
filed in connection with such registration, the Initiating Party shall
determine for any reason not to proceed with the proposed registration, the
Company may at its election give written notice of such determination to each
holder of Piggy-Back Shares and thereupon shall be relieved of its obligation
to register any Piggy-Back Shares in connection with such registration, and
(ii) if such registration involves an underwritten offering, each holder of
Piggy-Back Shares requesting to be included in the Company's registration
must sell its Piggy-Back Shares to the underwriters on the same terms and
conditions as apply to Blackstone.
(c) If a registration pursuant to this Section 3.1 involves an
underwritten offering and the managing underwriter or underwriters in good
faith advise Blackstone or the Company in writing that, in their opinion, the
number of shares of Common Stock which the Company, the holders of Piggy-Back
Shares and any other Persons who have the right to include shares of Common
Stock in such registration pursuant hereto or any other agreement (including
any employment or option agreement between the Company and any employee
thereof) intend to include in such registration exceeds the largest number of
shares of Common Stock which can be sold in such offering without having an
adverse effect on such offering (including, but not limited to, the price at
which the shares of Common Stock can be sold), then the Company will include
in such registration (i) first, 100% of the shares of Common Stock the
Company proposes to sell for its own account, if any, (ii) second, to the
extent that the number of shares of Common Stock which the Company proposes
to sell is less than the number of shares of Common Stock which Blackstone or
the Company has been advised can be sold in such offering without having an
adverse effect referred to above, the number of shares of Common Stock to be
included in such offering will be determined on the basis of the relative
percentage relationships, on the date the Company delivers the notice
referred to in Section 3.1(a), of (w) the number of outstanding shares of
Common Stock owned by Blackstone, (x) the number of outstanding shares of
Common Stock owned by Chase and its Permitted Transferees, (y) the number of
outstanding shares of Common Stock owned by Bain and its Permitted
Transferees and (z) with respect to any employee of the Company who is a
party to a stock option agreement with the Company which provides for piggy-
back rights in connection with such registration, the number of shares of
Common Stock issuable or issued upon exercise of stock options covered by
<PAGE>
such agreement, and (iii) third, to the extent that the number of shares of
Common Stock which the Company and the Stockholders propose to sell is less
than the number of shares of Common Stock which Blackstone or the Company has
been advised can be sold in such offering without having an adverse effect
referred to above, shares of Common Stock of any other Persons who have the
right to include shares in such registration pursuant hereto or any other
agreement.
(d) Each requesting Other Stockholder agrees that such Other
Stockholder shall execute and deliver such other agreements and other
documents (such as legal opinions, cross-receipts and certificates) as
Blackstone is delivering or as Blackstone or the Company may otherwise
reasonably request to implement the provision of this Section.
SECTION 3.2 Demand Registrations. (a) Upon the written request
from time to time (a "Request") of Blackstone that the Company effect the
registration under the Securities Act of all or part of the shares of Common
Stock owned by the Blackstone Partnerships and such Permitted Transferees,
the Company will as expeditiously as possible use its best efforts to effect
the registration under the Securities Act of such shares.
(b) The Company shall select the registration statement form for
any registration pursuant to this Section 3.2; provided, that if any
registration requested pursuant to this Section 3.2 which is proposed by the
Company to be effected by the filing of a registration statement on Form S-3
(or any successor or similar short-form registration statement) shall be in
connection with an underwritten public offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, the use
of another form of registration statement is of material importance to the
success of such proposed offering, then such registration shall be effected
on such other form.
(c) If a requested registration pursuant to this Section 3.2
involves an underwritten offering, the investment banker(s), underwriter(s)
and manager(s) for such registration shall be selected by Blackstone,
provided, however, that such investment banker(s), underwriter(s) and
manager(s) shall be reasonably acceptable to the Company.
(d) If the Company at any time grants to any other holders of
Common Stock (or securities that are convertible into or exchangeable or
exercisable for Common Stock) any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock (or
any such securities) on terms more favorable to such holders than the terms
set forth in this Section 3.2, the terms of this Section 3.2 shall be deemed
amended or supplemented to the extent necessary to provide Blackstone such
more favorable rights and benefits.
SECTION 3.3 Registration Procedures. If and whenever the Company
is required to use its best efforts to effect or cause the registration of
any shares of Common Stock under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible:
(a) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the Company,
file with the SEC a registration statement with respect to such Common Stock
and use its best efforts to cause such registration statement to become
effective; provided, however, that the Company may discontinue any
<PAGE>
registration of its securities which is being effected pursuant to Section
3.1 at any time prior to the effective date of the registration statement
relating thereto;
(b) prepare and file with the SEC 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 a period not less than 180 days nor in excess of 270 days and to comply
with the provisions of the Securities Act and the Exchange Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such registration statement;
provided, that before filing a registration statement or prospectus, or any
amendments or supplements thereto, the Company will furnish to Holders'
Counsel copies of all documents proposed to be filed, which documents will be
subject to the review of such counsel;
(c) furnish to each seller of Common Stock such number of copies
of such registration statement and of each amendment and supplement thereto
(in each case including all exhibits filed therewith, including any documents
incorporated by reference), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
summary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in order
to facilitate the disposition of the Registrable Securities by such seller;
(d) use its best efforts to register or qualify the Common Stock
covered by such registration in such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Common Stock owned by such seller,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction where,
but for the requirements of this subsection (d), it would not be obligated to
be so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause such Common Stock covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition thereof;
(f) notify each seller of any Common Stock covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of an amended or supplemental prospectus
as may be necessary so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
<PAGE>
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders,
as soon as reasonably practicable (but not more than 18 months) after the
effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its best efforts to list such shares on any securities
exchange or market on which the Common Stock is then listed if such shares
are not already so listed and if such listing is then permitted under the
rules of such exchange and (ii) use its best efforts to provide a transfer
agent and registrar for such shares covered by such registration statement
not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an
underwriting agreement in customary form), which may include indemnification
provisions in favor of underwriters and other Persons in addition to, or in
substitution for the provisions of Article IV hereof, and take such other
actions as sellers of a majority of such shares or the underwriters, if any,
reasonably requested in order to expedite or facilitate the disposition of
such shares;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers
of a majority of such shares shall reasonably request;
(k) make available for inspection by any seller of such shares
covered by such registration statement, by any underwriter participating in
any disposition to be effected pursuant to such registration statement and by
any attorney, accountant or other agent retained by any such seller or any
such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of 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;
(l) notify Holders' Counsel and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement,
shall have become effective, or any supplement to the prospectus or any
amendment prospectus shall have been filed, (ii) of the receipt of any
comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for
additional information, and (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration statement for offering or
sale in any jurisdiction, or of the institution or threatening of any actions
or proceedings for any of such purposes;
(m) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the use of any preliminary prospectus and,
if any such order is issued, to obtain the withdrawal of any such order at
the earliest possible moment;
<PAGE>
(n) if requested by the managing underwriter or agent or any
holder of shares covered by the registration statement, promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the managing underwriter or agent or such holder reasonably requests to be
included therein, including, with respect to the number of shares being sold
by such holder to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent and with respect to any other terms of
the underwritten offering of the shares to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after being notified of the matters
incorporated in such prospectus supplement or post-effective amendment;
(o) obtain for delivery to the holders of shares being registered
and to the underwriter or agent an opinion or opinions from counsel for the
Company in customary form and in form, substance and scope reasonably
satisfactory to such holders, underwriters or agents and their counsel; and
(p) use its best efforts to make available the executive officers
of the Company to participate with the holders of such shares and any
underwriters in any "road shows" or other selling efforts that may be
reasonably requested by such holders in connection with the methods of
distribution for the Registrable Securities.
SECTION 3.4 Other Registration-Related Matters. (a) Each
Stockholder agrees that it shall not effect any public sales of Common Stock
or securities convertible into or exercisable or exchangeable for Common
Stock during the 14 days prior to and up to a 180 day period beginning on the
effective date of a registration statement relating to an underwritten public
offering of Common Stock (whether pursuant to Section 3.1 or 3.2 or
otherwise, except as part of such registration) if and to the extent
reasonably requested in writing (with reasonable prior written notice) by
the managing underwriter of the underwritten public offering.
(b) The Company agrees not to (and to cause each other holder of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock purchased from the Company after the date hereof at any time
other than in a Public Offering not to (except shares of Common Stock
purchased pursuant to an existing agreement and plan of reorganization among
Two Buttes Cellular Inc., the Company and Cellular Inc. Network Corporation))
effect any sales of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock (other than an offering on Form
S-8) during the 14 days prior to and the 180 day period beginning on the
effective date of any registration statement in which any Stockholder is
participating in connection with an underwritten public offering of Common
Stock, if and to the extent reasonably requested in writing (with reasonable
prior written notice) by the managing underwriter of the underwritten public
offering.
(c) The Company may require any Person that is selling shares of
Common Stock in a Public Offering pursuant to Section 3.1 or 3.2 to furnish
to the Company in writing such information regarding such Person and the
distribution of the shares of Common Stock which are included in a Public
Offering as may from time to time reasonably be requested in writing in order
to comply with the Securities Act.
(d) The Company will pay all Registration Expenses in connection
with (i) each registration or proposed registration of Common Stock pursuant
<PAGE>
to Section 3.1 and (ii) the first eight registrations of Common Stock
pursuant to Section 3.2. All expenses for any subsequent registrations of
Common Stock pursuant to Section 3.2 shall be paid pro rata by the Company
and all other Persons (including the Stockholders) participating in such
registration on the basis of the relative number of shares of Common Stock of
each such Person included in such registration.
(e) Each Stockholder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.3(f) such Stockholder will forthwith discontinue disposition of Common
Stock pursuant to the registration statement covering such Common Stock until
such Stockholder's receipt of the copies of the amended or supplemented
prospectus contemplated by Section 3.3(f) and, if so directed by the Company,
such Stockholder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Stockholder's
possession, of the prospectus covering such Common Stock current at the time
of receipt of such notice. In the event the Company shall give any such
notice, the period for which the Company shall be required to keep the
registration statement effective shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 3.3(f) and including the date when each seller of Common
Stock covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by Section 3.3(f).
(f) The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act (or, if the
Company is not required to file such reports, it will, upon the request of
Blackstone, make publicly available such information), and it will take such
further action as Blackstone may reasonably request, all to the extent
required from time to time to enable a Stockholder to sell shares of Common
Stock without registration under the Securities Act within the limitations of
the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Stockholder, the
Company will deliver to such Stockholder a written statement as to whether it
has complied with such requirements. Notwithstanding anything contained in
this Section 3.4(f) to the contrary, the Company may deregister under
Section 12 of the Exchange Act if it then is permitted to do so pursuant to
the Exchange Act.
ARTICLE IV
INDEMNIFICATION
SECTION 4.1 Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act
pursuant to Article III, the Company shall, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Common Stock
covered by such registration statement, each Affiliate of such seller and
their respective directors and officers or general and limited partners (and
any director, officer, Affiliate, employee, agent and controlling Person of
any of the foregoing), each Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
lawsuits, claims, actions or proceedings (collectively, "Actions") (whether
or not an Indemnified Party is a party thereto), losses, damages or
<PAGE>
liabilities, joint or several, and expenses (including reasonable attorney's
fees and reasonable expenses of investigation) to which such Indemnified
Party may become subject under the Securities Act, common law or otherwise,
insofar as such Actions, losses, damages, liabilities or expenses arise out
of, relate to or are based upon (a) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, or (b) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading; provided, that the
Company shall not be liable to any Indemnified Party in any such case to the
extent that any such Action, loss, damage, liability or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
or amendment or supplement thereto or in any such preliminary, final or
summary prospectus in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such seller specifically stating that it is for use in the preparation
thereof; and, provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of Common
Stock or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, under the indemnity agreement in this Section
with respect to any preliminary, final or summary prospectus, or any
amendment or supplement thereto, to the extent that any such Action, loss,
damage, liability or expense of such underwriter or controlling Person
results from the fact that such underwriter sold Common Stock to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus (including any documents
incorporated by reference therein) or of the final prospectus, as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if the Company has previously furnished
copies thereof to such underwriter. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Indemnified Party and shall survive the transfer of securities by any seller.
SECTION 4.2 Indemnification by the Seller. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Article III hereof, that the
Company shall have received an undertaking reasonably satisfactory to it from
the prospective seller of such Registrable Securities or any underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 4.1) the Company and all other prospective sellers or any
underwriter, as the case may be, with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by such seller or underwriter
specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment
or supplement, or a document incorporated by reference into any of the
foregoing. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or any of the
prospective sellers, or any of their respective Affiliates, directors,
<PAGE>
officers or controlling Persons and shall survive the transfer of securities
by any seller. In no event shall the liability of any selling Stockholder
hereunder be greater in amount than the dollar amount of the proceeds
received by such Stockholder upon the sale of the Common Stock giving rise to
such indemnification obligation.
SECTION 4.3 Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any
Action with respect to which a claim for indemnification may be made pursuant
to this Article IV, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of such Action; provided, that the failure of
the indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Article IV, except to the extent
that the indemnifying party is materially prejudiced by such failure to give
notice. In case any such Action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such Action, the indemnifying party will be entitled to participate in and to
assume the defense thereof (at its expense), jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party will settle any Action or consent to
the entry of any judgment without the prior written consent of the
indemnified party, unless such settlement or judgment (i) includes as an
unconditional term thereof the giving by the claimant or plaintiff of a
release to such Indemnified Party from all liability in respect of such
Action and (ii) does not involve the imposition of equitable remedies or the
imposition of any obligations on such indemnified party and does not
otherwise adversely affect such indemnified party, other than as a result of
the imposition of financial obligations for which such indemnified party will
be indemnified hereunder.
SECTION 4.4 Contribution. (a) If the indemnification provided for
in this Article IV from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any Actions, losses, damages,
liabilities or expenses referred to herein, then the 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 Actions,
losses, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and indemnified party
in connection with the actions which resulted in such Actions, losses,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party under this Section 4.4 as a
result of the Actions, losses, damages, liabilities and expenses referred to
<PAGE>
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any Action.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in Section 4.4(a). 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.
SECTION 4.5 Other Indemnification. Indemnification similar to
that specified in this Article IV (with appropriate modifications) shall be
given by the Company and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any
law or regulation or with any Governmental authority other than as required
by the Securities Act.
SECTION 4.6 Non-Exclusivity. The obligations of the parties under
this Article IV shall be in addition to any liability which any party may
otherwise have to any other party.
ARTICLE V
PARTICIPATION RIGHTS
SECTION 5.1 Participation Rights. (a) So long as this
Agreement shall remain in effect, the Company shall not issue (an "Issuance")
additional shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock to Blackstone unless, prior to
such Issuance, the Company notifies the Other Stockholders in writing of the
proposed Issuance and grants to the Other Stockholders the right (the
"Participation Right"), but not the obligation, to subscribe for and purchase
such additional shares of Common Stock or convertible, exercisable or
exchangeable securities, as the case may be, so issued at the same price and
upon the same terms and conditions as issued in the Issuance such that
immediately after giving effect to the Issuance and assuming the exercise of
the Participation Right, the shares of Common Stock beneficially owned on a
fully diluted basis by each of the Other Stockholders (rounded to the nearest
whole share) shall represent the same percentage of the aggregate number of
shares of Common Stock outstanding on a fully diluted basis as was
beneficially owned on a fully diluted basis by such Other Stockholder and its
Affiliates immediately prior to the Issuance.
(b) The Participation Right may be exercised by each of the Other
Stockholders at any time by written notice to the Company within 10 Business
Days after the date on which such Other Stockholder receives notice from the
Company of the proposed Issuance, and the closing of any purchase and sale
pursuant to the exercise of the Participation Right shall occur at least 10
Business Days after the Company receives notice of the exercise of the
Participation Right and prior to or concurrently with the closing of the
Issuance. Notwithstanding the foregoing, the Participation Right shall not
apply to (i) any Issuance to all holders of Common Stock on a pro rata basis
or (ii) any Issuance pursuant to a Public Offering.
<PAGE>
ARTICLE VI
VOTING AGREEMENT
SECTION 6.1 Voting Agreement. (a) Each of the Other Stockholders
agrees to permit BCP CCI to vote all the Common Stock owned by such parties
from time to time. In that connection, each of Chase and Bain (i) have
executed and delivered to BCP CCI an irrevocable proxy substantially in the
form attached as Exhibit A hereto and (ii) shall require any Permitted
Transferee thereof, as a condition to the acquisition by any such Permitted
Transferee of any shares of Common Stock, to execute and deliver to BCP CCI
an irrevocable proxy substantially in the form attached as Exhibit A hereto.
To the extent that any such irrevocable proxy shall not be in full force and
effect, each of Chase and Bain agrees to (and to cause its respective
Permitted Transferees to) vote all of its Common Stock in the manner that BCP
CCI votes its shares of Common Stock from time to time on all matters
presented to stockholders of the Company for vote; provided BCP CCI notifies
such party regarding how BCP CCI will vote its shares of Common Stock.
(b) Each of the Other Stockholders hereby agrees that, except
pursuant to this Agreement or as otherwise consented to by BCP CCI, such
Shareholder shall not deposit any Common Stock into a voting trust, enter
into any voting agreement with respect to any Common Stock or grant any
proxies with respect to any Common Stock.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Additional Securities Subject to Agreement. Each
Stockholder agrees that any other shares of Common Stock which it shall
hereafter acquire (including, in the case of Chase, pursuant to the Warrant)
(but, in each case, other than pursuant to a Public Offering) and any
securities issued in respect of any shares of Common Stock, or in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization shall be subject to
the provisions of this Agreement. If any of the Stockholders is issued any
warrants, rights, calls, options or other securities exchangeable or
exercisable for or convertible into Common Stock, the parties agree to amend
this Agreement to the extent necessary to reflect such issuance in a manner
consistent with the terms and conditions hereof.
SECTION 7.2 BCP CommNet L.P. Each of the Stockholders agrees
that, subject to receipt of any necessary regulatory approvals (including any
approval of the Federal Communications Commission), each Stockholder shall
enter into an Agreement of Limited Partnership of BCP CommNet L.P. (the
"Partnership"), substantially in the form attached as Exhibit B hereto, and
shall contribute all shares of Common Stock then owned by such Stockholder in
exchange for a percentage of Class A partnership interests in the Partnership
equal to the proportionate number of shares of Common Stock such Stockholder
shall contribute to the Partnership relative to the aggregate number of
shares contributed to the Partnership by all of the Stockholders (the
"Contribution"). In connection with the Contribution and as a condition
thereto, the Company and the Partnership shall enter into a Registration
Rights Agreement, in form and substance reasonably satisfactory to
Blackstone, providing the Partnership with the same registration rights and
<PAGE>
obligations with respect to any Common Stock owned by the Partnership from
time to time as the registration rights and obligations of Blackstone
hereunder.
SECTION 7.3 Termination. This Agreement shall terminate, and
thereby become null and void, upon the earlier of (i) the consummation of the
Contribution or (ii) the earliest date on which the Stockholders own
collectively less than 25% of the Common Stock then outstanding; provided,
that unless this Agreement is terminated pursuant to clause (i) above, the
provisions of Articles I, III, IV, VI and VII (other than Section 7.2) shall
survive until the Stockholders own collectively less than 3% of the Common
Stock then outstanding; and provided, further, that the provisions of
Sections 7.8 through 7.13, inclusive, shall survive the termination of this
Agreement.
SECTION 7.4 Injunctive Relief. The parties acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which adequate remedy at law is not
available. Accordingly, it is agreed that each Stockholder shall be entitled
to an injunction, restraining order or other equitable relief to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction, in
addition to any other remedy to which they may be entitled at law or equity.
SECTION 7.5 Other Stockholders' Agreements. None of the parties
hereto shall enter into, or has entered into, any stockholder agreement or
other arrangement of any kind with any Person with respect to shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock which is inconsistent with the provisions of this Agreement
or which may impair its ability to comply with this Agreement.
SECTION 7.6 Amendments; Waivers. (a) This Agreement may be
amended only by a written instrument signed by each Blackstone Partnership
and Permitted Transferee thereof, in each case that then owns Common Stock;
provided, that any amendment which adversely affects any Other Stockholder or
the Company or imposes an additional obligation on any Other Stockholder or
the Company must be approved in writing by such party.
(b) At any time, any party may (i) extend the time for the
performance of any of the obligations or other acts of the other parties or
(ii) waive compliance with any of the agreements contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of
such rights.
SECTION 7.7 Successors and Assigns. Except as provided in Section
2.2, neither this Agreement, nor any of the rights or obligations hereunder,
shall be assigned, in whole or in part, by any party hereto without the prior
written consent of the other parties hereto, except that Blackstone may
assign, in whole or in part, any of its rights and obligations hereunder to
any Person who acquires from Blackstone in one transaction or a series of
related transactions more than 10% of the then outstanding Common Stock.
Subject to the preceding sentence, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
<PAGE>
SECTION 7.8 Notices. Any notices or other communications required
or permitted hereunder shall be sufficiently given if delivered personally or
sent by telecopier, or overnight courier, addressed as follows or to such
other address of which the parties may have given notice:
To any of the Blackstone Partnerships:
Blackstone CCI Capital Partners L.P.
Blackstone CCI Offshore Capital Partners L.P.
Blackstone Family Investment Partnership II L.P.
c/o Blackstone Management Associates II L.L.C.
345 Park Avenue
New York, New York 10154
Attention: Mark T. Gallogly
Telecopy: (212) 754-8710
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Philip T. Ruegger III, Esq.
Telecopy: (212) 455-2502
To Chase:
Chase Equity Associates, L.P.
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, New York 10017
Attention: Charles Goldman
Telecopy: (212) 622-3101
To Bain:
Sunapee Securities, Inc.
Squam Lake Investors, II, L.P.
c/o Bain & Company, Inc.
Two Copley Place
Boston, Massachusetts
Attention: Gary B. Wilkinson
Telecopy: 617-572-3266
To the Company:
CommNet Cellular Inc.
8350 East Crescent Parkway, Suite 400
Englewood, Colorado 80111
Attention: President
Telecopy: 303-694-5590
With copies to:
Blackstone CCI Capital Partners L.P., Blackstone CCI Offshore Capital
Partners L.P., Blackstone Family Investment Partnership II L.P. and
Simpson Thacher & Bartlett, at their respective addresses set forth
above.
<PAGE>
Unless otherwise specified herein, such notices or other communications shall
be deemed received (i) on the date delivered, if delivered personally or sent
by telecopier, and (ii) one business day after being sent by overnight
courier.
SECTION 7.9 Integration; No Third Party Beneficiaries. (a) This
Agreement (including the Exhibits hereto) and the documents referred to
herein, or delivered pursuant hereto, contain the entire understanding of the
parties with respect to the subject matter hereof and thereof. There are no
agreements, representations, warranties, covenants or undertakings with
respect to the subject matter hereof and thereof other than those expressly
set forth herein and therein. This Agreement supersedes all other prior
agreements and understandings between the parties with respect to such
subject matter.
(b) This Agreement, other than as provided in Section 7.13 or the
indemnification provisions of Article IV, is not intended to confer, and
shall not confer, upon any Person other than the parties any rights or
remedies.
SECTION 7.10 Severability. If one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
SECTION 7.11 Counterparts. This Agreement may be executed in two
or more counterparts, and by different parties on separate counterparts each
of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
SECTION 7.12 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York without regard to the conflicts of law
principles thereof. Each of the parties by its execution hereof hereby (i)
irrevocably submits to the jurisdiction of the federal and state courts
located in the Southern District of New York for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement or any
other agreement contemplated hereby or relating to the subject matter hereof
or thereof and (ii) waives to the extent not prohibited by applicable law,
and agrees not to assert by way of motion, as a defense or otherwise, that
its property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that any
right or remedy relating to this Agreement or any other agreement
contemplated hereby, or the subject matter hereof or thereof, may not be
enforced in or by such court. Each of the parties hereby consents to service
of process in any such proceeding in any manner permitted by the laws of the
State of New York, and agrees that service of process by registered or
certified mail, return receipt requested, at its address specified pursuant
to Section 7.8 hereof is reasonably calculated to give actual notice.
SECTION 7.13 No Recourse. (a) Notwithstanding anything that may
be expressed or implied in this Agreement, the Company and each Stockholder
<PAGE>
covenant, agree and acknowledge that no recourse under this Agreement or any
documents or instruments delivered in connection with this Agreement, the
Merger Agreement or the Merger shall be had against any current or future
director, officer, employee, general or limited partner, member, Affiliate,
agent or assignee of Blackstone or of any of the foregoing (except, in the
case of an assignee of a Stockholder hereunder, to the extent provided in
Section 7.7), whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred
by any current or future director, officer, employee, general or limited
partner, member, Affiliate or assignee of Blackstone or of any of the
foregoing (except, in the case of an assignee of a Stockholder hereunder, to
the extent provided in Section 7.7) as such for any obligation of Blackstone
under this Agreement or any documents or instruments delivered in connection
with this Agreement, the Merger Agreement or the Merger for any claim based
on, in respect of or by reason of such obligations or their creation.
(b) Notwithstanding anything that may be expressed or implied in
this Agreement, the Company and each Stockholder covenant, agree and
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement, the Merger Agreement
or the Merger shall be had against any current or future director, officer,
employee, general or limited partner, member, Affiliate, agent or assignee of
Chase or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7), whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to, be imposed on or otherwise be incurred by any current or future director,
officer, employee, general or limited partner, member, Affiliate or assignee
of Chase or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7) as such for any
obligation of Chase under this Agreement or any documents or instruments
delivered in connection with this Agreement, the Merger Agreement or the
Merger for any claim based on, in respect of or by reason of such obligations
or their creation.
(c) Notwithstanding anything that may be expressed or implied in
this Agreement, the Company and each Stockholder covenant, agree and
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement, the Merger Agreement
or the Merger shall be had against any current or future director, officer,
employee, general or limited partner, member, Affiliate, agent or assignee of
Bain or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7), whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to, be imposed on or otherwise be incurred by any current or future director,
officer, employee, general or limited partner, member, Affiliate or assignee
of Bain or of any of the foregoing (except, in the case of an assignee of a
Stockholder hereunder, to the extent provided in Section 7.7) as such for any
obligation of Bain under this Agreement or any documents or instruments
delivered in connection with this Agreement, the Merger Agreement or the
Merger for any claim based on, in respect of or by reason of such obligations
or their creation.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
BLACKSTONE CCI CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.,
as General Partner
By: /s/ Mark T. Gallogly
__________________________________
Name: Mark T. Gallogly
Title: Member
BLACKSTONE CCI OFFSHORE CAPITAL PARTNERS L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.,
as General Partner
By: /s/ Mark T. Gallogly
__________________________________
Name: Mark T. Gallogly
Title: Member
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP II
L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II
L.L.C., as General Partner
By: /s/ Mark T. Gallogly
__________________________________
Name: Mark T. Gallogly
Title: Member
CHASE EQUITY ASSOCIATES, L.P.
By: CHASE CAPITAL PARTNERS,
as General Partner
By: /s/ Arnold L. Chavkin
__________________________________
Name: Arnold L. Chavkin
Title: General Partner
SUNAPEE SECURITIES, INC.
By: /s/ Gary B. Wilkinson
______________________________
Name: Gary B. Wilkinson
Title: Treasurer
<PAGE>
SQUAM LAKE INVESTORS, II, L.P.
By: GPI, INC., as General Partner,
By: /s/ Gary B. Wilkinson
__________________________________
Name: Gary B. Wilkinson
Title: Treasurer
COMMNET CELLULAR INC.
By: /s/ Arnold C. Pohs
______________________________
Name: Arnold C. Pohs
Title: Chief Executive Officer
<PAGE>
Exhibit A
IRREVOCABLE PROXY
By its execution hereof and in accordance with Section 6.1 of the
Stockholders Agreement dated as of February 10, 1998, among Blackstone CCI
Capital Partners L.P. ("BCP CCI"), CommNet Cellular Inc. (the "Company"), the
undersigned and the other parties thereto (the "Agreement"), the undersigned
hereby irrevocably constitutes and appoints BCP CCI and any designee of BCP
CCI and any successors and assigns of BCP CCI as its true and lawful
attorney-in-fact and proxy, to: (i) vote all shares of Common Stock (as
defined in the Stockholders Agreement) which the undersigned may be entitled
to vote from time to time upon the election of directors or any other matter
at any annual or special meeting of stockholders of the Company; (ii) to
execute written consents in lieu of voting with respect to the election of
directors or any other matter at any annual or special meeting of
stockholders of the Company; and (iii) to execute, acknowledge, swear to and
file in the undersigned's name, place and stead any consent, approval or
other document to be executed by stockholders in connection with any item in
clause (i) or (ii). The proxy granted hereby shall terminate upon the
termination of Article VI of the Agreement. The proxy hereby granted is
irrevocable and shall be deemed coupled with an interest and it shall survive
the undersigned's insolvency. The undersigned shall take such further action
and shall execute such other instruments as may be necessary to effectuate
the intent of this proxy and hereby revokes any proxy previously granted by
the undersigned with respect to all share of Common Stock owned by the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable
Proxy this __ day of February, 1998.
[STOCKHOLDER]
By: ________________________
Name:
Title:
