Amendment No. 1 to Amended and Restated Stockholders Agreement by and among IWO Holdings, Inc. and Stockholders

Contract Categories: Business Finance › Shareholders Agreements
Summary

This amendment updates the Stockholders Agreement between IWO Holdings, Inc. and its stockholders to allow the sale of shares to TCW/Crescent Mezzanine, adds TCW as a party to the agreement, and clarifies certain definitions and procedures for adding new stockholders. It also changes the lock-up period end date to December 20, 2002. The amendment requires approval by a majority of stockholders and includes provisions for third-party beneficiaries and joining parties.

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EX-10.7.2 13 dex1072.txt AMENDMENT NO. 1, DATED AS OF APRIL 2, 2000 Exhibit 10.7.2 -------------- AMENDMENT NO. 1 TO ------------------- AMENDED AND RESTATED STOCKHOLDERS AGREEMENT ------------------------------------------- This Amendment No. 1 (this "Amendment") to the Amended and Restated --------- Stockholders Agreement (the "Stockholders Agreement"), dated as of December 4, ---------------------- 2000, by and among IWO Holdings, Inc., a Delaware corporation ("Holdings"), and -------- the stockholders of Holdings parties thereto (the "Stockholders"), is entered ------------ into as of April 2, 2001. RECITALS -------- WHEREAS, certain Stockholders (the "Selling Stockholders") desire to sell -------------------- to TCW/Crescent Mezzanine and/or its affiliates (collectively, "TCW"), and TCW --- desires to purchase from the Selling Stockholders, an aggregate of 814,287 shares of Class B Common Stock, par value $0.01 per share, of Holdings (the transactions contemplated by such sale and purchase individually and collectively, the "TCW Purchase"). ------------ WHEREAS, the Selling Stockholders have requested that the other Stockholders and Holdings approve the amendment to the Stockholders Agreement set forth in this Amendment on the terms and conditions set forth below. WHEREAS, the undersigned Stockholders and Holdings are willing, on the terms and subject to the conditions set forth herein, to approve the amendment to the Stockholders Agreement set forth in this Amendment on the terms and conditions set forth below. AGREEMENT --------- NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the parties hereto agree as follows: Section 1. Majority in Interest. -------------------- The words "majority in interest" as used in the Stockholders Agreement and this Amendment with respect to the referenced securities shall mean a majority of the total outstanding voting power of such referenced securities. Section 2. Waiver of Section 4 of Stockholders Agreement. --------------------------------------------- Pursuant to Section 11(d) of the Stockholders Agreement, the undersigned Stockholders, holding a majority in interest of the Shares, and Holdings, hereby waive, irrevocably and unconditionally, the application of the provisions of Section 4 of the Stockholders Agreement to the transactions contemplated by the TCW Purchase. Section 3. New Stockholder. --------------- Effective as of the date hereof, TCW shall become a party to the Stockholders Agreement upon TCW's execution of this Amendment, and Exhibit A to the Stockholders Agreement shall be amended by adding thereto the list contained in Appendix A attached hereto. ---------- Section 4. Third-Party Beneficiaries. ------------------------- (a) Section 11(j) of the Stockholders Agreement is hereby amended by deleting such section in its entirety and replacing it with the following paragraph: "(j) Third-Party Beneficiaries. The parties hereto intend that the ------------------------- holders of the Class A Common Stock and the Class E Common Stock, and the holders of the Class C Common Stock (other than Paribas) listed on Exhibit ------- C hereto, shall be third-party beneficiaries of the rights and benefits - granted under Section 5 and Section 8 hereof. Notwithstanding anything to the contrary contained in Section 11(d) hereof, any Person that acquires shares of Class C Common Stock (other than Paribas) (any such person, an "Additional Beneficiary") may be added to the list contained in Exhibit C ----------------------- --------- hereto upon the written consent of Holdings and a majority in interest of the Shares. Upon such consent, the Additional Beneficiary shall be a third-party beneficiary in accordance with this Section 11(j), and the list contained in Exhibit C hereto shall be amended by adding to such list the --------- name of the Additional Beneficiary and the number of shares of Class C Common Stock held by the Additional Beneficiary as of the date of such consent. The Chief Executive Officer or the Chief Financial Officer of Holdings shall certify any amendments to Exhibit C hereto pursuant to this --------- Section 11(j)." (b) Section 1 of the Stockholders Agreement is hereby amended by adding thereto the following definition: ""Additional Beneficiary" is defined in Section 11(j)." ---------------------- (c) The Stockholders Agreement is hereby amended by adding thereto as Exhibit C the list contained in Appendix B attached hereto. ---------- Section 5. Joining Stockholders. -------------------- (a) The Stockholders Agreement is hereby amended by adding thereto as Section 11(k) the following paragraph: "(k) Joinder Agreement. Notwithstanding anything to the contrary ----------------- contained in Section 11(d) hereof, any Person that acquires Class B Shares or Class D Shares and is not already a party to this Agreement may become a party to this Agreement (any such Person, a "Joining Party") upon (i) such ------------- Joining Party executing a joinder agreement in the form attached hereto as Exhibit D (each such agreement, a "Joinder Agreement") and (ii) Holdings --------- ----------------- and a majority in interest of the Shares consenting to such joinder in writing. Upon such consent and the execution of a Joinder Agreement by the Joining Party and the acceptance thereof by Holdings, the Joining Party shall become a party to and a Stockholder under this Agreement, and the list entitled "Joining Stockholder's 2 Name" contained in Exhibit A hereto shall be amended by adding to such list --------- the name of the Joining Party, the class of common stock of Holdings acquired and the number of shares of each such class held by the Joining Party as of the date of such Joinder Agreement. The Chief Executive Officer or the Chief Financial Officer of Holdings shall certify any amendments to Exhibit A hereto pursuant to this Section 11(k)." --------- (b) Section 1 of the Stockholders Agreement is hereby amended by adding thereto the following definitions: ""Joinder Agreement" is defined in Section 11(k)." ----------------- ""Joining Party" is defined in Section 11(k)." ------------- (c) The Stockholders Agreement is hereby amended by adding thereto as Exhibit D the form of joinder agreement attached as Appendix C hereto. ---------- Section 6. Lock-Up. ------- Section 6 of the Stockholders Agreement is hereby amended by replacing the words "the third anniversary date of this Agreement" with the words "December 20, 2002." Section 7. Miscellaneous. ------------- (a) Counterparts. This Amendment may be executed in two or more ------------ counterparts, each of which will be deemed an original but which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Amendment. (b) Headings; Sections. All headings and captions in this Amendment are ------------------ for purposes of reference only and will not be construed to limit or affect the substance of this Amendment. All references to Section in this Amendment refer to Sections of this Amendment, unless otherwise expressly provided for. 3 IN WITNESS WHEREOF, the undersigned "existing" Stockholders and Holdings have executed this Amendment as of the day and year first above written. EXISTING STOCKHOLDERS:
BALLET LIMITED OUTRIGGER LIMITED - -------------- ------------------ CLASS D STOCKHOLDER CLASS D STOCKHOLDER By: /s/ Salman A. Abbasi By: /s/ Meredith I. Brody -------------------------- --------------------- Name: Salman A. Abbasi Name: Meredith I. Brody Title: Authorized Representative Title: Authorized Representative DENARY LIMITED QUILL LIMITED - --------------- ------------- CLASS D STOCKHOLDER CLASS D STOCKHOLDER By: /s/ Craig Bottger By: /s/ Deepak Gurnani -------------------------- ----------------------- Name: Craig Bottger Name: Deepak Gurnani Title: Authorized Representative Title: Authorized Representative GLEAM LIMITED RADIAL LIMITED - ------------- -------------- CLASS D STOCKHOLDER CLASS D STOCKHOLDER By: /s/ Thomas Kennedy By: /s/ H. Richard Lukens III ------------------------- --------------------------- Name: Thomas Kennedy Name: H. Richard Lukens III Title: Authorized Representative Title: Authorized Representative HIGHLANDS LIMITED SHORELINE LIMITED - ----------------- ----------------- CLASS D STOCKHOLDER CLASS D STOCKHOLDER By: /s/ Kevin H. Murphy By: /s/ Kevin O'Shea ------------------------- ---------------------------- Name: Kevin H. Murphy Name: Kevin O'Shea Title: Authorized Representative Title: Authorized Representative NOBLE LIMITED ZINNIA LIMITED - ------------- --------------- CLASS D STOCKHOLDER CLASS D STOCKHOLDER By: /s/ Gary S. Long By: /s/ Steve Ritchie ----------------------- ---------------------------- Name: Gary S. Long Name: Steve Ritchie Title: Authorized Representative Title: Authorized Representative
EXISTING STOCKHOLDERS: INVESTCORP INVESTMENT EQUITY - ---------------------------- LIMITED - ------- CLASS D STOCKHOLDER By: /s/ Sydney J. Coleman --------------------- Name: The Director Ltd. Title: Director EXISTING STOCKHOLDERS: INVESTCORP IWO LIMITED PARTNERSHIP - ---------------------------------- CLASS B STOCKHOLDER By: /s/ Mahmood Al Aradi -------------------- Name: Mahmood Al Aradi Title: Director
EXISTING STOCKHOLDERS: ODYSSEY COINVESTORS, LLC ODYSSEY INVESTMENT PARTNERS FUND, LP - ------------------------ ------------------------------------ CLASS B STOCKHOLDER CLASS B STOCKHOLDER By: Odyssey Capital Partners, By: Odyssey Investment Partners, LLC, as LLC, as Managing Member General Partner By: /s/ Muzzi Mirza By: /s/ Muzzi Mirza --------------- --------------- Name: Muzzi Mirza Name: Muzzi Mirza Title: Managing Principal Title: Managing Principal
EXISTING STOCKHOLDERS: CHAMPLAIN PCS INC. - ----------------- CLASS B STOCKHOLDER By: /s/ Trent L. Trahan ------------------- Name: Trent L. Trahan Title: President /s/ Trent L. Trahan - ------------------- Trent L. Trahan Class B Stockholder EXISTING STOCKHOLDERS: FINGER LAKES TECHNOLOGIES - ------------------------- GROUP INC. - --------- CLASS B STOCKHOLDER By: /s/ Paul H. Griswold -------------------- Name: Paul H. Griswold Title: President /s/ William Griswold /s/ Paul H. Griswold - -------------------- -------------------- William Griswold Paul Griswold Class B Stockholder Class B Stockholder /s/ John H. Griswold -------------------- - -------------------- Robert H. Griswold John H. Griswold Class B Stockholder Class B Stockholder EXISTING STOCKHOLDERS: DRY BROOK HOLDINGS LLC MTC NORTH, INC. - ---------------------- --------------- CLASS B STOCKHOLDER CLASS B STOCKHOLDER By: By: /s/ Larry S. Roadman By: /s/ Larry S. Roadman -------------------- -------------------- Name: Larry S. Roadman Name: Larry S. Roadman Title: Manager Title: Treasurer /s/ Larry S. Roadman - -------------------- _________________________ Larry S. Roadman Karen Harris Class B Stockholder Class B Stockholder _________________________ Douglas Hinkley Class B Stockholder EXISTING STOCKHOLDERS: CERBERUS INVESTMENTS L.P. ARDINGER INVESTMENTS OF TEXAS L.P. - ------------------------- --------------------------------- CLASS B STOCKHOLDER CLASS B STOCKHOLDER By: Charles Lane By: Charles Lane By: /s/ Charles Lane By: /s/ Charles Lane ---------------- ----------------- Name: Charles Lane Name: Charles Lane Title: General Partner Title: /s/ Charles Lane - ---------------- Charles Lane Class B Stockholder EXISTING STOCKHOLDERS: CEDAR FAMILIA LLC - ----------------- CLASS B STOCKHOLDER By: By: /s/ J.K. Hage III ----------------- Name: J.K. Hage III Title: Manager /s/ J.K. Hage III - ----------------- J.K. Hage III Class B Stockholder HOLDINGS: IWO HOLDINGS, INC. By: /s/ Steven M. Nielsen --------------------- Name: Steven M. Nielsen Title: Chief Executive Officer IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this Amendment as of the day and year first above written. NEW STOCKHOLDER: TCW/CRESCENT MEZZANINE PARTNERS II, L.P. TCW/CRESCENT MEZZANINE TRUST II By: TCW/Crescent Mezzanine II, L.P. its general partner or managing owner By: TCW/Crescent Mezzanine, L.L.C. its general partner By: /s/ John C. Rocchio ------------------- Name: John C. Rocchio Title: Managing Director Address for Notices: IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this Amendment as of the day and year first above written. NEW STOCKHOLDER: TCW LEVERAGED INCOME TRUST, L.P. By: TCW Advisers (Bermuda), Ltd. as its General Partner By: /s/ Melissa V. Weiler --------------------- Name: Melissa V. Weiler Title: Managing Director By: TCW Investment Management Company as Investment Adviser By: /s/ John C. Rocchio ------------------- Name: John C. Rocchio Title: Managing Director Address for Notices: IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this Amendment as of the day and year first above written. NEW STOCKHOLDER: TCW LEVERAGED INCOME TRUST II, L.P. By: TCW (LINC II), L.P. as its General Partner By: TCW Advisers (Bermuda), Ltd. its General Partner By: /s/ Melissa V. Weiler --------------------- Name: Melissa V. Weiler Title: Managing Director By: TCW Investment Management Company as Investment Adviser By: /s/ John C. Rocchio ------------------- Name: John C. Rocchio Title: Managing Director Address for Notices: IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this Amendment as of the day and year first above written. NEW STOCKHOLDER: TCW LEVERAGED INCOME TRUST IV, L.P. By: TCW Asset Management Company As its Investment Adviser By: /s/ Melissa V. Weiler --------------------- Name: Melissa V. Weiler Title: Managing Director By: /s/ John C. Rocchio ------------------- Name: John C. Rocchio Title: Managing Director By: TCW (LINC IV), L.L.C. as General Partner By: TCW Asset Management Company As its Managing Member By: /s/ Melissa V. Weiler --------------------- Name: Melissa V. Weiler Title: Managing Director By: /s/ John C. Rocchio ------------------- Name: John C. Rocchio Title: Managing Director Address for Notices: Appendix A ---------- Exhibit A
Class of Common Joining Stockholder's Name Stock Acquired Shares Owned - ------------------------------------------------------ ------------------- ------------------- TCW/Crescent Mezzanine Partners II, L.P............... Class B 524,335 TCW/Crescent Mezzanine Trust II....................... Class B 127,094 TCW Leveraged Income Trust, L.P....................... Class B 53,743 TCW Leveraged Income Trust II, L.P.................... Class B 53,743 TCW Leveraged Income Trust IV, L.P.................... Class B 55,372
Appendix B ---------- EXHIBIT C
Class C Stockholder's Name Shares Owned - --------------------------------------------------------- --------------------- Investcorp IWO Limited Partnership....................... 2,910,143.0370
Appendix C ---------- EXHIBIT D [form of joinder agreement] JOINDER AGREEMENT, dated as of _______________ (this "Joinder Agreement"), ----------------- to the Amended and Restated Stockholders Agreement, dated as of December 4, 2000, as amended by Amendment No. 1, dated as of April 2, 2001, and as further amended or supplemented from time to time (the "Stockholders Agreement"), by and ---------------------- among IWO Holdings, Inc., a Delaware corporation ("Holdings"), and the -------- stockholders of Holdings parties thereto (the "Stockholders"). ------------ The undersigned (the "Joining Party") hereby agrees to become a party to ------------- and to succeed to all of the rights and obligations of a "Stockholder" under the Stockholders Agreement as contemplated by Section 11(k) of the Stockholders Agreement, and the Joining Party shall be deemed a "Stockholder" as such term is defined in the Stockholders Agreement. This Joinder Agreement will be construed both as to validity and performance in accordance with, and governed by, the laws of the State of New York applicable to agreements to be performed in New York, without regard to principles of conflict of laws. This Joinder Agreement may be executed in any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures transmitted by facsimile shall be binding as evidence of the Joining Party's agreement to be bound by the terms of the Stockholders Agreement and Holdings' acceptance thereof. IN WITNESS WHEREOF, the Joining Party has executed this Joinder Agreement to become a party to the Stockholders Agreement as of the date first written above. JOINING PARTY: [COMPANY NAME IF APPLICABLE] [By:] _________________________ Name: [Title:] Accepted: IWO HOLDINGS, INC. By: _________________________ Name: Title: